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
Richard the First were made by the consent of Archbishops Bishops Abbots Earls Barons and Knights of the whole Kingdom for what the great men gained they gained for themselves and their Tenants And the truth is that in those times although publick damage concerned all yet it was ordinary for Kings to make a shew of summoning Parliaments whenas properly they were but Parliamentary meetings of some such Lords Clergy and others as the King saw most convenient to drive on his own design And therefore we find that Henry the Third about the latter part of his Reign when his Government grew towards the dregs he having in the Kingdom Two hundred and fifty Baronies he summoned unto one of these Parliamentary meetings but Five and twenty Barons and One hundred and fifty of his Clergy Nevertheless the Law of King John was still the same and we cannot rightly read the Law in such Precedents as are rather the birth of will than reason Fourthly that no aids were then granted but such as passed under the title Escuage or according thereunto for the words are No Escuage shall be demanded or granted or taken but for redeeming the King's person Knighting of his Son or Marriage of his Daughter Nor is the way of assessing in these times different saving that instead of all the Knights two onely are now chosen in every County the Tenure as it seemeth first giving the Title of that Order and both Tenure and Order now changed into that Title taken up for the time and occasion Fifthly that it was then the ancient custom and so used in the time of Henry the First that the advice of those then present was the advice of the whole and that their advice passed for a Law without contradiction notwithstanding the King 's Negative voice for the words are The matter at that day shall proceed according to the counsel of those that shall be present although all do not come and therefore that clause in the King's Oath quas vulgus eligerit may well be understood in the future and not in the preter tense Last of all though not gathered from the Text of this Law whereof we treat yet being co-incident with the matter it is observable that though the Clergie were now in their ruffle and felt themselves in their full strength yet there befel a posture of state that discovered to the world that the English held not the interest of the Clergie to be of such publick concernment or necessary concurrence in the Government of the Kingdom as was pretended For the Clergie finding Assessments of the Laity so heavy and that occasions of publick charge were like to multiply daily they therefore to save the main stock procured an Inhibition from Rome against all such impositions from the Laity and against such payments by the Clergie and in the strength of this they absolutely refuse to submit to aid Edward the First by any such way although all the Parliament had thereunto consented And thus having divided themselves from the Parliament they were by them divided from it and not onely outed of all priviledge of Parliament but of all the priviledge of Subjects into the state of praemunire and thus set up for a monument to future times for them also to act without the consent of those men as occasion should offer But Henry the Third not satisfied with this ancient and ordinary way of Assessment upon ordinary occasions took up that extraordinary course of Assessment upon all the Freemen of the Kingdom which was formerly taken up onely in that extraordinary occasion of redeeming of the King 's or Lord's person out of captivity and common defence of the Land from piracy and under the Title of Dane-gelt which was now absolutely dead and hanged up in chains as a monument of oppression Nevertheless it cannot be denied but that in former times the Freemen were as deeply taxed if not oppressed with payments to their Lords at such times as they were charged over to the King in the cases aforesaid as by the latter words of the Law aforesaid of King John doth appear and whereby it is probable that the inferiour Lords were gainers The conclusion of the Charter of Henry the Third the same suiting also with the third observation foregoing doth not a little favour the same for it is expresly set down that in lieu of the King's confirmation of the Charter of Liberties aforesaid not onely the Archbishops Bishops Abbots Priors Earls Barons and Knights but also the Freemen and all the Kingdom gave a fifteenth of all their moveables And thus have I summed up and compared both the Copies of the Grand Charters of Englands Liberties saving two particulars inserted into the Forest-Laws of Henry the Third wherein if any thing had been new and unreasonable King John might have colour to except against them as extorted by force and Henry the Third might as he was advised plead nonage and so they might have been choaked in their birth but being all Consuetudines as in the conclusion they are called and Kings ashamed to depend upon such frivolous exceptions it may be wondred what might move them to adventure so much blood-shed and themselves into so many troubles to avoid their own acts unless the writing of them were an obligation acknowledged before the world and they resolving secretly to be under none were loth to publish the same to all men It is a strange vanity in great men to pretend love to Justice and yet not endure to be bound thereto whenas we see that God himself loves to be bound by his word and to have it pleaded because he delights as much to be acknowledged true in performing as good in promising But neither was King John or Henry the Third of this spirit fain they would undo but could not It is true it was at the first but a King's Charter of Confirmation and had Kings been patient therewith it might have grown no bigger but by opposition it rooted deeper and grew up unto the stature of a Statute and setled so fast as it can never be avoided but by surrender from the whole body Having thus summed up the Liberties of the Subjects and Free-men of England under this Charter I shall make some Appendix hereunto by annexing a few additionals in these times established and although they come not within the letter of the Grand Charter yet are they subservient thereunto And first concerning the King and this either as he is King or as he is Lord. As King he had these Prerogatives above all Lords The King shall have the custody of Fools and Ideots Lands for their maintenance and shall render the same to their Heirs And concerning Mad-men and Lunaticks the King shall provide a Bailiff for their maintenance rendering account to them when they are sober or to their Administrators It is no less liberty or priviledge of the People that Fools and Mad persons
intended to have no other respect than the publick good and which is the Abridgement of the large Volume of the Kingdom A Summary Conclusion ANd thus have I brought the shape of English Government rude as it is from the first off-spring of the Saxons through the rough waves of the Danish Tempests the Rocks of Norman invasion and of the Quick-sands of Arbitrary Government under Popes and Kings to the Haven much defaced it is I confess by the rage of time and yet retained the original likeness in proportion Kings first about the Norman times joyning with the Lords for their joynt interest above the ordinary pitch had mounted each other too high to be Lords over Free men Then by flattering of the Free-men into their designs hovered above them all but not being able to maintain their pitch so long as the Lords held together stooped for a party amongst them and soon obtained their desire For some Lords more ambitious than others and these again more popular than they seek several interests And thus Kings aided by their party to a Supremacy which they were never born to and raised by them into a preheminence above their Peers which neither Law nor Custom ever gave them are of Moderators in the Council of Lords become Moderators of those Councils and so they obtained all that the Lords had but no more For though both they and the Lords abused their power over the Free-men by extortion and oppression as Lords over Tenants yet could they never prevail over them as free-born Subjects to gain their consent to give their Right or the Law up to the King's beck but still the Law remained arbiter both of King and People and the Parliament Supream Expounder and Judge both of it and them For other argument hereof there will be little need besides what hath formerly appeared than what we find in Bracton who wrote in the time of Henry the Third to this effect God is superiour to the King and the Law by which he is made King and his Court viz. the Earls and Barons Earls according to their name Comites are the Kings Associates and he that hath an Associate hath a Master and therefore if the King be unbridled or which is all one without Law they ought to bridle him unless they will be unbridled as the King and then the Commons may cry Lo Jesus c. This was the judgement of that famous Lawyer of the state of an English King in Henry the Third's time I shall add hereto a concurrent testimony of a Lawyer also in Edward the First 's time Although saith he the King ought to have no equal in the Land yet because the King nor his Commissioners in case where the King intrencheth upon the right of any of his Subjects can be both Judge and Party the King by right ought to have Companions to hear and determine in Parliament all Writs and plaints of wrongs done by the King the Queen or their Children and of those wrongs especially whereof otherwise common right cannot be had Nor is this the opinion onely of Lawyers but it is the Law it self unto which the Royal assent was added and the same sealed with an Oath in the solemn stipulation made by Kings at their Coronation with the people then present in the name of the whole body the sum whereof is wont to be propounded to the King in this manner though in a different Language 1. Will you grant and keep and by your Oath confirm to the people of England the Laws and Customs to them granted by the ancient Kings of England your righteous and godly Predecessors and especially to the Clergie and People by the glorious King St. Edward your Predecessor The King's Answer I do them grant and promise 2. Will you keep to God and the Church and the Clergie and the People Peace and Concord sincerely according to your power The King's Answer I will do it 3. Do you grant to hold and keep the Laws and rightful Customs which the Commonalty of your Realm shall have chosen and to maintain and enforce them to the honour of God after your power The King's Answer I this do grant and promise In few words the King promised to keep the Laws already made the peace of his Kingdom and the Laws to be agreed upon by the Commonalty the same in substance with that of Henry the First William the Conquerour the Danish and Saxon Kings formerly had and in the foregoing discourse observed And thus is he led to the Throne in a Chain of Gold a serious memorial of the King's duty as he is a man and a glorious ornament to him as a King. If then the King be under the Law in case of direction as by stipulation he is bound if he be likewise under the Law in case of transgression to be judged by his Comites or Peers Hitherto certainly an English King is but Primas inter omnes and not supra totum and if at any time he skipped higher he afterwards fell lower for it was the lot of these times to have Lords that were bent to work the people to regard their own Liberties in which the Lords had first wrapped up their own Claims Thus come the counsels of such as have been notoriously exorbitant to be scanned and to bring these into frame all run out of frame the Barons Wars arise and thrive according as interests do concenter more or less the issue is like that of a drawn battle wherein he that continueth last in the Field is glad to be gone away and so the Title is left to be tried upon the next advantage that shall arise Yet had Kings gotten one step forwards to their designe which was in that they now had to deal with a divided Baronage It was the birth of Ambition and it was nourished by the same milk for those that side with the King are become Magnificoes next to the King's person and the sole managers of all the great affairs of State concurrent with their own designes under-board But the other Lords are in account rural standing further off and looking on at a distance are laid away as superfluous And as they themselves are out of the game of great men so grow they mindless of their interest in the great affairs yet of these there is diversity for some sport themselves in their condition others observe the irregular motions of those above and watch their own time This was the first advance of that society which was afterwards called the Privy Council being a company of choice men according to the King 's bent unto whom the consideration of all the weighty affairs of the Kingdom is committed but nothing can be concluded without the King 's fiat which regularly should follow upon the premisses according to the major vote but more ordinarily suiteth with that which best suiteth with his pleasure And now are Parliaments looked on as fatal or at the best
Issue or Demurrer and then to the Common-Law where upon Trial if the Defendant make default the Plaintiff shall have Judgement and Execution And if the Heir be in Ward to the King the Mother shall sue and recover her Dower in the Chancery And they tell us that it had power to prohibit Spiritual Courts and Courts of Common-Law yea to over-rule or reverse Judgements and yet the Common-Law held it's ground when it was concerned for neither were all suits there by Bill as in cases of Equity nor determined according to such rules nor did the power of Judicature rest in the breast of one Chancellor but in him joyntly with other Council of the King which were also learned Judges of the Law. For the Report informeth that Edward the Second had granted a Rent in Tail to the Earl of Kent who dying his Son under age and Ward to the King Edward the Third seised amongst other Lands the Rent and granted it to Sir John Molins Upon Petition the King refers the matter to the Arch-bishop and others of the Council calling to them the Chancellor A Scire Facias goes forth to Sir John Molins he upon appearance pleaded to the jurisdiction as a case belonging to the Common-law but it would not be allowed because it was to repeal the King's Charter And whereas it was objected that the reference was to the Archbishop and others and therefore the cause ought not to be determined in the Chancery it was resolved that it did properly belong to the Chancery by the Law And in the argument of the case it appears clearly that the King's Council there were learned in the Law. And the same is yet more evident by the Title of Bills in those days exhibited in the Chancery which was directed to the Chancellor and the King's Council and the Rule given Per tout les Justices Which I rather note for the shortness of the form of Bills in those days far different from these times wherein the substance of the complaint however small in it self is oftentimes blown out into so great a bubble that it breaks to nothing And the Statutes formerly mentioned do assert the same thing as touching the King's Council For though they speak of the Council or Chancery in the English Tongue yet in the original the words are Conceil en Chancery Having thus touched upon the matters under the Judicatory of the Chancery and Judges in the same In the next place the manner of proceedings comes to consideration For it seems they had been formerly very irregular and that contrary to the Grand Charter upon a bare suggestion in the Chancery the party complained of was imprisoned and no proceedings made thereupon For remedy whereof it was ordained That upon suggestions so made the Complainant was to find Sureties to pursue the Suggestions and that the Process of Law should issue forth against the party without imprisoning him and that if the Suggestions were not proved true the Complainant should incur the like penalty that the Defendant should have done in case he had been found Guilty But afterwards this later Clause was altered by another Statute because it was full of uncertainty and it was ordained that in such case the Complainant shall be imprisoned until he shall satisfie the Defendant of his Damages and furthermore shall make Fine and Ransom to the King. But because that the Defendant many times held his advantage even to extremity this course lasted not long but a new Law was made which put the power of awarding Damages in such cases into the Chancellour to do according to his discretion And thus the Chancery obtained power to award Damages which they never had formely and the Chancellour a Precedency both in the Chancery and of the Council in the Court of Star-chamber and in many cases in the Exchequer By the first he had a power in matters of Meum and Tuum by the last in matters Mei and Regis and by the other in matters Mei and Regni A considerable man certainly he was in the motions of Government but how much more if he be made Arch-bishop of Canterbury Cardinal and Legate à Latere or Arch-bishop Lord Treasurer and Legate à Latere as these days had divers times seen Extraordinary advancements bestowed upon the Nobility brings Honour to the Throne but if they be not men of noted Worth and Uprightness they make the Scepter stoop by stirring up envy in the Nobility and indignation from the people For seldom is it seen that Advancements are fed from the Crown though they be bred from thence but either maintained by new supplies from the peoples Purses or the ruine or decay of some Officers more ancient than themselves or both And such was the condition of the Chancellour he sucked fat from beneath and Bloud and Spirits from the Grand Chief Justiciar of England and so reduced that Honourable Potentate unto the degree of Chief Justice of the King's Bench leaving scarcely unto him the Name or Title of Lord. One thing more remaineth touching the election or nomination of this Great man. At the first he was no better than a Register or the King's Remembrancer or Secretary having also the Honour to advise the King in such matters as came within the circuit of the Writings in his custody and questionless Eo usque it is suitable to all the reason in the World that he should be of the King 's sole Nomination and Election But when it befals that instead of advising the King his word is taken to be the Rule and a Judicatory power put upon that and unto this is superadded that honourable trust of keeping and governing the Great Seal of the Kingdom with the continual growing power occasionally conferred upon him by the Parliament He is now become no more the King's Remembrancer but the Lord Chancellor of England and Supream Officer of State. And it seems but reasonable that he should hold his place by publick Election as well as the Grand Justiciar whose Plumes he borrowed and other Grand Officers of State did before him For he that will have his Servant to work for another must give the other that Honour of Electing him thereto nor was this laid aside nor forgotten by these times but a claim was put in for the Election or allowance of this principal Officer amongst others the Parliament obtaining a Judgement in the case by the King's Confession and so the thing is left to the judgement of future ages Viz. Whether a King that can do no man wrong can dissemble the Royal Assent in Parliament or declare himself legally in that manner by Proclamation CHAP. V. Of Admirals Courts THis is a third Court that maintained the King's Judicatory power in a different way from that which is commonly called the Common-Law and by many is therefore supposed to advance the King's Prerogative but upon mistaken grounds It is very true that the
him a Pension to maintain that honour he asked the Lords consent thereto To the Clergie he was more than just if not indulgent led thereto by his Father's example as being wrapped up in the same Interest as I conceive rather than out of any liking of their ways now growing more bold upon Usurpation than in former times Or it may be that having prevailed in that work in France which to any rational man must needs appear above the power of the King and all the Realm of England he looked upon it as more than humane and himself as an instrument of Miracles And was stirred up in his Zeal to God according to his understanding in those dark times to give the Clergie scope and to pleasure them with their liberty of the Canon-Law that began now to thunder with Fire and Terrour in such manner that neither greatness nor multitude could withstand the dint as was evidenced in that Penance inflicted upon the Lord Strange and his Lady in case of Bloud-shed in Holy Ground and their hot pursuit of the Lord Cobham unto a death of a new nature for somewhat done which was sometimes called Treason and sometimes Heresie And thus became Henry the Fifth baptized in the Flames of the Lollards as his Father had sadly rendred up his spirit in the same I say in this he is to be looked upon as one misled for want of light rather than in opposition against the light For in his last Will wherein men are wont to be more serious and sincere amongst his private regards he forgets not to reflect upon Religion to this purpose We further bequeath saith he to the redundant Mercy of the Most Excellent Saviour the Faith Hope and Charity the Vertue Prosperity and Peace of the Kings our Successours and of our Kingdom of England that God for his goodness sake would protect visit and defend them from Divisiâ—â—s Dissentions and from all manner of decitfulness of Hereticks And thus the Piety Justice and Moderation of Henry the Fifth adorned and crowned the honour of his Courage and Greatness with that honourable Title of Prince of Priests And had he been blessed with a clearer light he might as well under God have obtained the Title of Prince of Princâ—s wanting nothing that might have rendred him a precedent of Fame But the time is now come that the Tide of England's Glory must turn and the sudden Conquest in France by Henry the Fifth not unlike the Macedonian Monarchy must disgorge it self of what it had hastily devoured but never could digest Three things concurred hereunto one dangerous the other two fatal to the flourishing condition of any Nation First The King is a Minor in the least degree that ever any Prince sate on English Throne He entred thereinto neither knowing what he did nor where he was and some say he sate therein in his Mothers Lap for his Life had been more in the Womb than abroad A sad presage of what followed for many men think that he was in a Lap all his days Nor are the chief men to be blamed herein for it is a certain Truth That it is much better that the Election of a King should be grounded upon a rule that is known though it be by descent of Inheritance than upon none at all For if a Child should succeed or a Lunatick yet where the Principle of Government resteth upon the Representative of the people there is the less cause of Complaint the Government being still the same both for Strength Wisdom and Uniformity though it may be the Nation not so active and brave For a Commonwealth can admit of no Minority though a Monarchy by descent may Secondly This deficiency in Nature might have been supplied but that these times were unhappy in the great power of the Lords to please whom the Government is parcelled out into two shares One is made Protector of the King's person the other Protector of the Kingdom too many by one For let their persons be never so eminent for Abilities if they be not as eminent for Humility and Self-command their hearts will soon over-rule their heads into a Faction And therefore though the Earl of Warwick was a wise man and the Duke of Gloucester a wise man yet the Earl of Warwick with the Duke of Gloucester were not wise On the other side the Protectorship of the King's person being in the Duke of Exeter and that of the Realm in the Duke of Gloucester things succeeded passing well for they both had one publick aim and the Duke of Exeter could comply with the Spirit of the Duke of Gloucester who otherwise was not so pliant But after five years the Duke of Exeter dying and the Government of the King's person devolving to the Earl of Warwick who sided with the proud Cardinal of Winchester against the Duke of Gloucester and so not onely consumed the rest of the Kings Non-age in a restless disturbance of Affairs but also despoiled Henry the Sixth of the spirit of a King for the future and so the Kingdom of a King. For it was not the condition of Henry the Sixth to be endowed with a spirit of such height but might well have been led by Advice and needed not the Earl of Warwick's rugged Brow to over-look him who was not content to have the King onely attendant upon his Advice but must likewise have him under his Rod to be corrected for his Faults and that by a Commission under the King 's own Hand and Seal dated in the Eleventh year of the King's Reign and so under colour of curbing he killed that spirit in the King which otherwise doubtless had both spirit and pride enough to act himself above his due height and could not have been so long a Child and so little a Man as he was It is very true that Henry the Fifth by Will seemed to countenance his Brothers and it cannot be denied but the Duke of Gloucester was of such noble parts that they could hardly dilate in any work inferiour to the Government of a Kingdom Nevertheless to yield much to the Will of a diseased King in such cases is as ill a precedenâ— as the making of a King by Adoption And it had been better for the people to have adhered to the Duke of Gloucester alone than by joyning him with another bring into a precedent such a luxuriant Complement of State as a Protectorship of a Kingdom which is of such little use to a Commonwealth and of so bitter Fruit to the Party as must needs bring Repentance when it is too late For he that can manage the Protectorship of a Realm without anger of good men or envy of bad men is fitting to live onely with Angels and too good for the World. Nor did the Duke of Gloucester meet with better measure how wise soever he was and truly devoted to the good of the Realm For after four and twenty years Government so wisely and
controul for when displeasure was like to ensue he could speak fair and feast and if need was kiss away all discontent Towards his end as stale drink he grew sowr For as in the first part of his Reign he had been supplied by good-will against Law so in his latter times he had gotten a trick of supply by Law against good-will This was by penal Laws which are a remedy if they be used Ad terrorem but if strained beyond that the Remedy proveth worse than the Disease In their first institution they are forms of courtesie from the people to the King but in the rigorous execution of them are trials of mastery of the King over the people and are usually laid up against days of reckoning between the Prince and them Those penal Laws are best contrived that with the greatest terrour to the Delinquent bring the least profit to the King's Coffers Once for all this King's Acts were many his Enterprizes more but seldom attaining that end which they faced He was a man of War and did more by his Fame than his Sword was no sooner resolved in good earnest but he died left a Kingdom unassured his Children young and many friends in shew but in truth very few Now if ever was the Kingdom in a Trance Edward the Fourth left a Son the Prima materia of a King and who lived long enough to be enrolled amongst English Kings yet served the place no further than to be an occasion to fill up the measure of the wickedness of the Duke of Gloucester and a monument of Gods displeasure against the House of Edward the Fourth whether for that breach of Oath or treachery against Henry the Sixth or for what other cause I cannot tell But at the best this Prince was in relation to his Uncle the Duke of Gloucester little other than as an Overseer to an Executor that might see and complain but cannot amend For the Duke ruled over-ruled and mis-ruled all under the name of Edward the Fifth and left no monument of good Government upon record till he changed both the Name and Person of Edward the Fifth to Richard the Third his Fame had lifted him up and might have supported him had he regarded it But as no man had more honour before he ascended the Throne so no man ever entred and sate thereon with less His proceedings were from a Protector to an Vsurper and thence to a Tyrant a Scourge to the whole Nation especially the Nobility and lastly an instrument of Gods Revenge upon himself a man made up of Clay and Blood living not loved and dying unlamented The manner of his Government was strained having once won the Saddle he is loth to be cast knowing himself guilty all over and that nothing could absolve his Fame but a Parliament he calls it courts it and where his Wit could not reach to apologize he makes whole by recompence takes away Benevolences he is ready to let them have their present desires what can they have more He promiseth good behaviour for the future which he might the better do because he had already attained his ends Thus in one Parliament for he could hold no more he gave such content as even to wonderment he could assoon find an Army in the field to fight for him as the most meritorious of his Predecessors Hiâ— ill Title made him very jealous and thereby taught his best Friends to keep at a distance after which time few escaped that came within his reach and so he served God's Judgement against his adjutants though he understood it not Amongst the rest against the Duke of Buckingham his great Associate both in the Butchery of the two young Princes and usurpation of the Royal Scepter He lived till he had laid the Foundation of better times in the person of Henry the Seventh and then received his reward But an ill Conscience must be continually fed or it will eat up its own womb The Kings mind being delivered from fear of the Sons of Edward the Fourth now dead torments himself with thoughts of his Daughter alive ashamed he is of Butchery of a Girl he chuseth a conceit of Bastardizing the Children of Elizabeth Gray that calleth her self Queen of England but this proved too hard to concoct Soon after that he goes a contrary way The Lady Elizabeth Gray is now undoubted Wife of Edward the Fourth and her eldest Daughter as undoubted Heir to the Crown And so the King will now be contented to adventure himself into an incestuous Marriage with her if his own Queen were not in the way onely to secure the Peace of the Kingdom which he good King was bound in Conscience to maintain though with the peril of his own Soul and in this zeal of Conscience his Queen soon went out of the way and so Love is made to the young Lady But Henry Earl of Richmond was there before and the Lady warily declined the choice till the golden Apple was won which was not long after accomplished the King losing both the Lady his Crown and own Life together put an end to much wickedness and had the end thereof in Bosworth-Field CHAP. XXIV Of the Government in relation to the Parliament THe seasons now in Tract were of short continuance lives passed away more speedily than years and it may seem useless to enquire what is the nature of the Government in such a time whenas the greatest work was to maintain Life and Soul together and when all is done little else is done For though the Title of the House of York was never so clear against that of Lancaster yet it had been so long darkned with a continual â—uccession of Kings of the Red Rose that either by their Merit had gained a Throne in the peoples Hearts or by their Facility had yielded their Throne up to the peoples will as it proved not easie to convince them that liked well their present Lot and were doubtful of change or to make them tender of the right of Edward the Fourth above their own quiet Above Threescore years now had England made trial of the Government of the Lancastrian Princes and thereof about Thirty years experience had they of Henry the Sixth they saw he was a gentle Price On the other side Edward the Fourth newly sprung up out of a Root watered with blood himself also a man for the Field This might well put the minds of the people to a stand what to think of this Man whose Nature and ends are so doubtful and brought nothing to commend him to the good wills of the people but his bare Title which the common sort usually judge of according as they see it prosper more or less Add hereunto that Divine Providence did not so clearly nor suddenly determine his secret purpose concerning this change by any constant success to either part by means whereof the one half of Edward the Fourth's Reign was spent while as yet Henry the
Bishop of London and the Embassadors from the West-Saxons could sit amongst them and attest the Conclusions therein made as well as the proper Members of that Nation He cometh in the next place to a Council holden in the year 855 which is more likely to be a Parliament than most of them formerly mentioned if the Tithes of all England were therein given to the Church but hereof I have set down my opinion in the former part of the Discourse And though it be true that no Knights and Burgesses are therein mentioned as the Opponent observeth out of the Title yet if the body of the Laws be duly considered towards the Conclusion thereof it will appear that there was present Fidelium infinita multitudo qui omnes regium Chirographum laudaverunt Dignitates verò sua nomina subscripserunt And yet the Wittagenmotes in these times began to be rare being continually interrupted by the invasions of the Danes The three next Councils alleadged to be in the years 930 944 948. were doubtless of inferiour value as the matters therein concluded were of inferiour regard being such as concern the passing of the Kings Grants Infeodations and Confirmations The Council mentioned to be in the year 965 is supposed to be one and the same with the next foregoing by Sir Henry Spelman which calls it self a General Council not by reason of the general confluence of the Lords and Laity but because all the Bishops of England did then meet The Primi and Primates were there who these were is not mentioned but it is evident that the King of Scots was there and that both he and divers that are called Ministri Regis attested the Conclusions It will be difficult to make out how these should be Members of the House of Lords and more difficult to shew a reason why in the attesting of the Acts of these Councils which the Opponent calls Parliaments we find so few of the Laity that scarce Twelve are mentioned in any one of them and those to descend so low as the Ministri Regis to make up the number Five more of these instances remain before the coming of the Normans The first of which was in the year 975 and in a time when no Parliament according to the Opponents principles could sit for it was an Inter-Regnum The two next were onely Synods to determine the difference between the Regulars and the Seculars in the King's absence by reason that he was under age and they are said to be in the year 977 and 1009. But it is not within the compass of my matter to debate their dates The last two were Meetings or Courts for Judicature to determine the Crime of Treason which every one knows is determinable by inferiour Courts before the high Steward of Judges and therefore not so peculiar to a Parliament as to be made an Argument of its existence And thus are we at an end of all the instances brought by the Opponent to prove that Parliaments before the Norman times consisted of those whom we now call the House of Lords All which I shall shut up with two other Notes taken out of the Book of Councils published by Sir Henry Spelman The first of which concerneth a Grant made by Canutus of an exemption to the Abbey of Bury Saint Edmunds in a Council wherein were present Archbishops Bishops Abbots Dukes Earls Cum quamplurimis gregariis militibus cum populi multitudine copiosa votis regiâ—s unanimiter consentientes The other taken out of the Confessor's Laws which tell us that Tythes were granted to the Church A Rege Baronibus Populo And thus I shall leave these Testimonies to debate with one another whilst the Reader may judge as seemeth most equal to himself Being thus come to the Norman times and those ensuing I shall more summarily proceed with the particulars concerning them because they were times of Force and can give little or no evidence against the Customs rightly setled in the Saxon times which I have more particularly insisted upon that the Original Constitution of this Government may the better appear Now for the more speedy manifesting of the truth in the particulars following I shall pre-advise the Reader in three particulars First that the Church-motes grew more in Power and Honour by the aid of the Normans Law refusing the concurrence and personal presence of Kings whom at length they excluded from their Councils with all his Nobles and therefore it is the less wonder if we hear but little of the Commons joyning with them Secondly That the Norman way of Government grew more Aristocratical than the Saxon making the Lords the chief Instruments of keeping Kings above and People underneath and thus we meet with much noise of meetings between the King and Lords and little concerning the grand meetings of the Kings and the Representative of the People although some foot-steps we find even of them also For the Kings were mistaken in the Lords who meaned nothing less than to serve them with the Peoples Liberties together with their own which they saw wrapped up in the gross Thirdly By this means the Councils of the King and Lords grew potent not onely for advice in particular occasions but in matters of Judicature and declaring of Law ordering of Process in Courts of Pleas which in the first framing were the works of the Wise and Learned men but being once setled become part of the Liberties of every Freeman And it is not to be doubted but these Councils of Lords did outreach into things too great for them to manage and kept the Commons out of possession of their right during the present heat of their ruffling condition yet all this while could not take absolute possession of their Legislative power I now come to the remainder of the particular instances produced by the Opponent which I shall reduce into several Categories for the more clear satisfaction to the Reader with less tediousness First It cannot be denied but the Council of Lords gave advice to Kings in cases of particular emergency nor is it incongruous to the course of Government even to this day nor is it meet that the Parliament should be troubled with every such occasion and therefore the giving of advice to William the Conquerour what course he should take to settle the Laws of England according to the instances in Councils holden An. 1060 and 1007. and to gain favour of the great men according to that in Anno 1106. and in the manner of endowment of the Abbey of Battel as in pag. 25 of the Opponents Discourse and what to do upon the reading of the Pope's Letter according to that in Anno 1114. And whether the Pope's Legate should be admitted as in pag. 18. And how King Stephen and Henry shall come to an Agreement as Anno 1153. And how to execute Laws by Judges and Justices Itinerant as Anno 1176. And touching the manner of ingaging for a Voyage
directed and restrained the swelling of that censure and made it keep measure whose Tenants and Officers and Servants must not be meddled with by this censure but by the King 's lieve nor must they be called to answer but in the King's Court. That Right still remained to them after the spoil made by the Hierarchy upon the Rights of all the rest of the Free-men and therefore could not of right be called nova in the Historians sence seeing that it was no other than the ancient custom used amongst the Saxons before that the Clergie had either purpose or power to reach at such a height as afterwards by degrees they attained unto Furthermore the Hierarchy as they neither could possess the Legislative nor Juridical power in Church-matters so neither could they possess themselves for as yet they were the King's men and the more the King's men because they now think a Bishoprick but a naked commodity if not robed with a Barony Nevertheless before that ever they knew that honour whatever the Canon was for their election yet both their Title and Power de facto was derived to them from the Kings who also invested them with Staff and Ring nor had the Pope as yet though he had conquered the Hierarchy possessed himself of their colours but during all the Norman times the Kings maintained that trophy of the right they had from their Predecessours notwithstanding the many assaults from Rome and treacheries of the Cathedrals within the Realm And albeit sometimes Kings were too weak to hold the shadow yet the convention of the States did maintain the substance viz. the right of Election without intermission as the examples of Lanfrank unto the See of Canterbury and Anselm and Ralph his successours and of Thomas into the See of York and Ralph Coadjutor to Thurstan Archbishop of the same See and of Gilbert into the See of London besides others do sufficiently set forth Whether it was because the convention of States was more stout or that the Bishops now wedded to Temporal Baronies were so unquestionably interessed in the publick affairs of the Commonwealth that it was against common sense to deny the States their vote and cognizance of their Election I cannot determine yet it is a certain truth the more Baron the less Bishop and more unmeet for the service of Rome Politickly therefore it was done by Kings to hold these men by a Golden hook that otherwise had prostituted themselves to a forreign power and proved absolute deserters of their Countries Cause which now they must maintain under peril of the loss of their own honour In the next place as they were the King's men so their Bishopricks and Diocesses were under the King's power to order as by the advice of the Bishops and Baronage should be thought most convenient either to endow another Bishop with part thereof and so to make two Diocesses of one as befel in the case of the Diocess of Lincoln out of which the Diocess of Ely budded in the time of Henry the first or to endow a Monastery or other Religious foundation with part and exempt the same from all Episcopal or ordinary jurisdiction as in the example of the foundation of the Abbey of Battel in Sussex in the time of William the Conquerour may appear Lastly whatever the first intention of this recited Statute were it may probably be judged that it was but a noise to still the Clergie and that it never had more than a liveless shape not onely in regard of the before-mentioned particulars but especially in regard of that subservient Law of Henry the first concerning the County-Court which reciteth it as a custom in his time used that the Bishop and Earls with other the chief men of that County were there present as Assistants in directory of judgment And that in order are handled first matters of the Church Secondly Crown-pleas Thirdly and lastly Common-pleas However therefore the Kings spake fair they either acted not at all or so coolly as the current of the custom was too strong but most probable it is that the Kings spake fair till they were setled in their Thrones and afterwards pleased themselves for by the general thred of story it may appear that the Clergie in those times were more feared than loved and therefore ridden with a strait Rein. The Prelacy on the contrary grew unruly yet too weak for the rugged spirits of the Norman Kings they are glad to be quiet and the Pope himself to drive fair and softly as judging it expedient potestatem Regalem mitius tractandam and continued that course and posture till the calmer times of Henry the first wherein they mended their pace and got that without noise which they had long striven for viz. the preheminence and presidency in the Synods though the King himself be present and if the Historian writeth advisedly the whole ordaining or Legislative power for so runs the stile or phrase of the Author Archiepiscopi Episcopi statuerunt in praesentia Regis as if the presence of the King and his Barons and People were but as a great Amen at the Common-prayer after the old stamp to set a good colour upon a doubtful matter to make it go down the better How the Kings brooked this draught I cannot say but it hath made the Kingdom stagger ever since and it may be feared will hardly recover its perfect wits so long as the brains of the Clergie and the Laity thus lie divided in several Cells CHAP. XLVIII Of the several subservient Jurisdictions by Provinces Marches Counties Hundreds Burroughs Lordships and Decennaries HAD the Normans owned no other Title than that of Conquest doubtless their mother-wit must needs have taught them the expediency of preserving the particular subservient Jurisdictions of the Kingdom entire and unquashed if they regarded either the benefit of their Conquest or reward of their Partners and Allies unless it should be allowed unto Conquerours to be more honourable for them to do what they will rather than what is meet But hereof there is no cause of question in this present subject for nothing is more clear than that Wales enjoyed in the Conquerour's time and for ages after him its ancient Liberties Tribute excepted nor did Conquest ever come so nigh to their Borders as to trench upon the Liberties of the Marches For as it had been a piece of State-nonsence to have holden two sort of people under conquest and their Marches in freedom or to preserve them in good Neighbourhood by Marches which by the Law of Conquest were made one so was it no less vain if all had been once subdued by Conquest to have raised up the Liberties of the Marches any more And as they had less cause to have invaded the bounds and ancient limits and partitions of the Counties so questionless had they so done they would have taken the old course of the Micklemote as they did divide
the Diocess of Lincoln into two Diocesses by advice of the Bishops Princes and other wise and holy men and turned the Abbey of Ely into a Bishop's See. But it was their wisdom to preserve the ancient Land-marks and no less both wisdom and care to continue their due Priviledges and Interests to each Every County had its Court and every Court its wonted Jurisdiction No complaint must be to the King's Court if right may be done in the County no distress must be taken but by Warrant from the County and that must be after complaint thrice made The County-court must be called as our Ancestors have appointed Such as will not come as they ought shall be first summoned and in case of default distrained at the fourth default the Complainant shall be satisfied out of the distresses so taken and the King also for his Fine These are the express Laws of the Conquerour's own establishment the last of which also Hen. 1. confirmed by another express Law saving that he would allow but of two Summons and two Distresses before execution And as it was one principal work that he undertook to reduce the Laws into course which had been intermitted during the violent times of his Father and Brother the first of whom never had liberty for reformation and the latter never had will so amongst other Laws he setled those concerning the County-court namely 1. That the Bishops Earls and chief men should be present for direction 2. That it should be holden once each month 3. That the Church-matters should precede and then the Crown-pleas And lastly the Common-Pleas besides some other particulars concerning pleading and proceedings in the handling of Causes Neither were these Causes of a petty regard onely but of greatest concernment One example I shall remind the Reader of and not recite in terminis but refer to Mr. Selden's own Pen. The occasion was this Odo the Conquerour's half Brother was by him made Earl of Kent and therewith had the gift of a large Territory in Kent and taking advantage of the King's displeasure at the Archbishop of Canterbury possessed himself by disseism of divers Lands and Tenements belonging to that See. Lanfrank the succeeding Archbishop being informed hereof petitioned to the King that Justice might be done him secundum legem terrae and the King sends forth his Writ to summon a County-court The Debate lasted three days before the Free men of the County of Kent in the presence of many chief men Bishops and Lords and others skilful in the Laws and the Judgment passed for the Archbishop Lanfrank upon the Votes of the Free men This County-court was holden by special summons and not by adjournment as was allowable by the Saxon Law upon special occasions And this Suit was originally begun and had its final determination in the County-court and not brought by a Tolt out of the Hundred-court as is supposed by an honourable Reporter nor by the ancient Laws could the Suit commence in the Hundred because the Lands and Tenements did lie in several Hundreds and Counties The upshot of all is that the County-courts in those days were of so great esteem that two of the greatest Peers of the Realm one a Norman the other an Italian did cast a Title in fifteen Mannors two Townships with many Liberties upon the Votes of the Free-holders in a County-court and that the Sentence was allowed and commended by the King and submitted to by all In the next place we are to come to the Hundred-courts of which there are by the Normans allowed two sorts the first whereof was holden twice a year This was formerly called the Torn and was the Sheriff's Court hereof little notice is taken saving that by the Laws of Henry the first its work seems to be much designed to the view of free pledges But the more ordinary Court is that which belongs to the Lord of the Hundred unto whom also belong the Fines in cases there concerned This Court is to be holden once in each month and no Suit to be begun in the King's Court that regularly ought to begin in the Hundred No Distringas shall issue forth till three demands made in the Hundred And three Distresses shall then issue forth and if upon the fourth the party appear not Execution shall be by sale of the Distress and the Complainant shall receive satisfaction But by the latter Laws of the same King there are but two Summons allowed and then two Distresses and in case no appearance be Execution shall be for the Complainant and for the King 's Fine Lastly as the case concerned either persons or places sometimes they used to joyn several Hundreds together into one Court but this was by special Commission or Writ As touching inferiour Courts of Towns and Mannors there 's little observation to be had being of too private a regard to come into fame in those rough times yet in Hen. the first 's Laws it is ordered that Town-courts should meet every month and that Lords should hold Pleas either in their own persons or by their Stewards and that the chief man in the Parish with four other of the chiefer sort and the Minister or Parish-Priest should joyn their assistance in that work But in nothing more did the Norman Kings shew their paternal love to the Commonwealth than in the Law of Pledges or Decenners for as of all other Beauties this suffered most blemish from the storm of the Norman Invasion so was it their especial care to renew the life thereof not now amongst the Natives onely but joyning the Normans to the Saxons in the same bond of Brotherhood utterly drowned thereby all memory of Lordly power and so of divers peoples making one conquered even Conquest it self if any were and made all joynt-partners in one common Liberty Every Free-man must be under Pledges to satisfie Justice in case of delinquency Over every nine persons under Pledges there must be one man in Authority View of free Pledges must be to see that the Decennaries be full and if any be departed to enquire the cause and if any be come in whether he be under Pledges or not And thus the Norman Kings had their people under treble guard one of Fealty the other of Association and the third that of Pledges and all little enough to secure that which they in their own Consciences might have some cause to question whether it belonged to them or not CHAP. XLIX Of the Immunities of the Saxon Free-men under the Norman Government THE freedom of an English-man consisteth in three particulars First in ownership of what he hath Secondly in voting any Law whereby that ownership is to be maintained And thirdly in having an influence upon that Judicatory power that must apply that Law. Now that the English under the Normans enjoyed all this freedom unto each Man 's own particular besides what
demise he died a death meet to be for ever blotted out of the thoughts of all Subjects but to be had in everlasting remembrance of all Kings For if a Kingdom or Parliament misleads the King at the worst he is but misled by his Council but if he be drawn aside by favorites he must thank his own lust in the one he hath but the least share in the burthen in the other he must bear the whole CHAP. LXV Of the condition of the Nobility of England till the time of Edward the Third NOw was Prerogative mounted up to the highest pitch or endeavoured so to be either through the weakness or power of these Kings of whom the first and last had little to ground upon but their own will and the other I mean Edward the first had more wisdom and power but was otherwise distracted by foraign and more urgent employments so as the work fainted before it came to its full period The contest was between the King and Barons who till those days were rather the great and richer sort of men than Peers although they also were of the number I am not so sharp-sighted as to reach the utmost intentions of the Lords but their pretences are to such publick nature as it is plain that if their private interest was wrapped up therein they were inseparable And I shall never quarrel the Lords aim at private respects whenas it is plain the publick was so importantly concerned and yet I will not justiâ—ie all that I find written concerning their Words and Actions The Speech of the E. of Cornwal to his his elder Brother and King Henry the Third I will neither render up my Castle nor depart the Kingdom but by the judgment of the Peers and of Simon the E. of Leicester to the same King that he lyed and were he not a King the Earl would make him repent his word and of the Lords that they would drive the King out of his Kingdom and elect another and of the E. Marshal to Edward the first that he would neither go into Gascoine nor hang and such other do savour of passion especially that of the E. of Leicester and the Lords and may seem harsh and unmannerly and yet may admit of some allay if the general rudeness of the time the King 's injurious provocations and the passions of cholerick men be weighed together Yet will not all these trench upon the cause nor render the state of the Lords too high or disproportionable to their place in the policy of the Kingdom of England as things then stood I say it was not disproportionable for where the degree of a King was mounting up to such a pitch as to be above Law the Lords exceeded not their places in pressing him with their Counsels to conform to the Laws and in maintaining that trust that was reposed in them in keeping off such sinister Counsels and invasions as might violate the Laws and Liberties or hinder the current of Justice concerning which I shall shortly state the case and leave it to the censure of others The Government of the people of this Nation in their original was Democratical mixt with an Aristocracie if any credit be to be given to that little light of History that is left unto us from those ancient times Afterwards when they swarmed from their hive in Forreign parts and came over hither they came in a warlike manner under one conducter whom they called a King whose power whatever in the War yet in time of peace was not of that height as to rule alone I mean that whereas the Lords formerly had the principal executory power of Laws setled in them they never were absolutely devested of that power by the access of a King nor was the King ever possessed of all that power nor was it ever given to him but the Lords did ever hold that power the King concurring with them and in case the King would not concur the people generally sided with the Lords and so in conclusion the King suffered in the quarrel From this ground did arise from time to time the wandrings of the people in electing and deposing their Kings during the Saxon times Nor did nor could the Norman Williams shake off this co-partnership but were many times as well as other ensuing Princes perswaded against their own minds and plotted desires Nor can it otherways be supposed where Councils are setled for whereto serve they if notwithstanding them the King may go the way of his inordinate desire If the Lords then did appear against these Kings whereof we treat in cases where they appeared against the Laws and Liberties of the people it was neither new nor so heinous as it is noised for them who are equally if not more entrusted with the Common-wealth than the King by how much the Counsellors are trusted more than the Counselled to be true for the maintenance of their trust in case the King shall desert his But the greater question is concerning the manner by Threats and War. It is as probable I grant that the Lords used the one as the other for it was the common vice of the times to be rugged yet if we shall add to what hath been already said first that Knight-service was for the defence of the Kingdom principally Secondly that the greatest power of Knight-service rested with the Lords not only in propriety and ownership but in point of direction for the benefit of the Commonwealth and lastly that the state of the times now was such as the Kingdom was oppressed by strangers Counsels and the Counsels of the Kingdom rejected that instead of Law Garrisons of strangers ruled that no man could own his own that the Subjects were looked upon as enemies and of all this the King made the principal instrument who had ruled and over-ruled in this manner and so was resolved to continue I shall leave it to the better judgement of others what other healing plaister was to be had for such a sore Albeit it cannot be denied that more due respects might have been tendred to Kingly dignity than was in those times practised And yet there was a difference also in the occasions of War for certainly that last War with Edward the second was more fatal and yet less warrantable and in the issue declared that there was more of the Queen therein than of the Lords who knew a way of removing Favourites from the King without removing the King from the Kingdom or driving him out of the World. In all which nevertheless it cannot be concluded that the Lords party was encreased more than in the former Kings times for the loss of the field in Henry the Thirds time against the Prince kept them in awe all the succeeding Reign although they were not then tongue-tyed and their second loss against Edward the Second which was yet more sharp questionless quelled their spirits although they lost no right thereby and encreased the Kings party much
to take Arms from the King with their pay or otherwise they must fight without Weapons I am now come to the last general point which concerneth the executive power of matters concerning the peace within this Law touching which the Statute enforceth this That Constables in every Hundred and Franchise shall have the view of Arms and shall present defaults against the Statute of Justices assigned who shall certifie the same to the King in every Parliament and the King shall provide remedy Whereby it seemeth manifest that hitherto no Law or Custom was made against any for default of Arms but onely such as held by that Tenure and therefore they had a shift to cause them to swear to maintain Arms and so might proceed upon defaults as in case of perjury and that the Parliament was still loth to set any certain rule for penalty and absolutely declined it and left it under a general periculo incumbente which it is likely men would rather eschew by obedience than adventure upon out of a daring spirit unless their case was very clear within the mercy of common reason And therefore such cases were left to special order of the Parliament rather than they would deliver such a rod as determining power was over into any uncertain hand whatever It is very true that by the opinion of some this also hath been controverted as if all the executive power had been turned out of the Parliaments Order into the directory of Edward the First which thing reacheth far for then in order thereunto the whole Militia of the Kingdom must have been under his safe command And whether it ever entred into the conceit of that King I know not but somewhat like thereunto is not obscurely urged to nourish and suggest such a kind of notion and so derive it unto his Successors upon the words of a Statute de defensione portandi armorum the English whereof I shall render out of the French as followeth It belongeth to Vs viz. Edw. 1. and from Vs by Our Royal Seigniory to defend force of Arms and all other force against Our peace at all times that We shall please and to punish according to the Laws and Vsages of this Realm such as shall oppose and to this they viz. Lords and Commons are bound Vs to aid as their good Lord always when need shall be Two things are concurrant with this which is the body of the Statute if such it be The one is the Preface or the occasion And the second is the conclusion upon the whole body of the same The preface first sets down the inscription or direction of the Law not to the people but to the Justices of his Bench and so it is in nature of a Writ or Declaration sent unto his Judges Then it sets down the occasion which was a debate between Edw. 1. and his Lords with a Treaty which was had before certain persons deputed thereto and it was accorded that at the next Parliament Order shall be taken by common consent of the King the Prelates Earls and Barons that in all Parliaments Treaties and other Assemblies which shall be had in the Kingdom of England for ever after all men shall come thereto without force and without arms well and peaceably and thence it recites that the said meeting at Parliament was had and that there the Prelates Earls Barons and Commonalty being assembled to advise upon this matter nous eiont dit saith one Copy and noâ—â— eions dit saith another Copy so as whether this was the Declaration of the King unto the Parliament or of the Parliament to the King is one doubt and a principal one it is in such a case as this Then the conclusion of all is that the King commandeth these things shall be read before the Justices in the Bench and there enrolled and this is dated the 30th of October in the Seventh year of his Reign which was Ann. 1279. So as if it were the Declaration of the King then it implieth as if it were not very well accepted of the Parliament and therefore the King would have it rest upon Record in nature of a Claim or Protestando for saving the Prerogative of the Crown But if it were the Declaration of the Parliament the King held it so precious a flower that fearing it should fade set it in a private Garden of his own that it might be more carefully nursed against the blast of Time as if the Parliament had not assented thereto or if they did meaned not to hold it forth to the world for future times to be a constant rule but onely by way of concession to ease themselves of the present difficulty in making a Law against wearing of Armour in ordinary civil affairs and so referred it to the King's care to provide against emergent breach of the peace as an expedient for the present inconveniences in affairs And it will well suit with the posture of affairs then in course for the Welsh-Wars were now intermitted and a quiet of three years ensued in the midst of which Souldiers having liberty to do nothing and that is next to naught but recreate themselves used their wonted guise as if they were not dressed that day that they were not armed nor fit for counsel unless as their Ancestors with Weapons in their hands nor worthy of the presence of a King under other notion than as a General in the field and themselves as Commanders that are never A-la-mode but when all in Iron and Steel I say to make a Law that must suddenly bind men from riding or being armed when no man thought himself safe otherwise was in effect to expose their bare necks to the next turn of the Sword of a King that they did not over-much trust and the less in regard he trusted not them I do not wonder therefore if the Parliament liked not the work but left it to the King to provide for the keeping off breaches of the Peace and promised their assistance therein Lastly supposing all that is or can be supposed viz. that the Parliament had given up the power of the Militia unto Edward the First yet it was not to all intents nor did it continue for besides the Statute of Tornaments which sheweth plainly that the ordering of Armour was in the power of the Parliament and which in all probability was made after that Law last before-mentioned the Statute at Winton made after this Law nigh six years space ordereth the use of the Trained bands in maintaining the peace and reserveth the penalties to themselves for any default committed against the said Act. And therefore notwithstanding any thing that yet appeareth to me out of any Law or History the chief Moderatorship of War and Peace within the Realm of England resteth hitherto upon the Parliament next unto God and in the King no otherwise than in order to the Publick the rule whereof can be determined by no other Judge than that which can be
and Masters under Cade and Straw that might have brought the Commonwealth into a hideous Chaos had not the Lords and Great men betimes bestirred themselves and the King shewed an extraordinary spirit or rather a kind of rage that put it self forth beyond the ordinary temper of his mind Much of this mischief was imputed to Wickliff's Doctrine for it is an ordinary thing to proclaim all evils concurring with the very joynt of Reformation to be the proper fruits thereof But I look upon it as a fruit of corruption that endeavours to stop the breath of Reformation in the birth And there is somewhat of a hidden influence from above in the thing for it was not onely the Cup of England to be thus troubled but France and other places had their portion suitable The King's minority rendred him unequal unto these contrary motions he was in his Eleventh year when he entred the Throne and which was worse his years came on faster than his parts but his work posted before them all The common help of Protectors left him yet more unhappy for they were prepossessed with strong engagements of particular Interests and so were either not wise enough or not good enough for all This brought forth a third inconvenience the change of Protectorship and that change of Affairs and Interests an uncertain good that brings forth a certain evil for variety of Instruments and Interests move several ways and though the end be one the difference concerning the way many times doth as much hinder the Journey as so many blocks in the way The Protectorship was thrice changed the King's Uncles had the first essay any one of them was big enough for one Kingdom but all of them together were too great to make one Protector The Duke of Lancaster would have done well alone if he had been alone and minded that work alone but he being somewhat engaged with the Wickliffists and so entangled with the Clergy and other restless spirits and drawn off by his private aim at the Crown of Castile saw this work too much and so he warily withdrew himself leaving the Directory to a Committee of Lords a soveraign Plaister questionless where the times are whole but not for these distractions wherein even the Committee it self suffered its share Thus the breach is made the wider and for a cure of all the Government is committed into one hand wherein the Earl of Warwick acquitted himself well for he was wise enough to observe such as the people most honoured And thus passed over the two first years of the King's Reign The remainder of the King's minority was rather in common repute than in true account For the King however young took little more from the Protector than he saw meet to colour his own commands with opinion of Regularity and so his Will came to full strength before his Wisdom budded Thus lifted up he sets himself above all interests of Parliaments Protectors Counsellors Uncles Wise men and Law leaving them all to be rules for those below And so long as the King's desire is thus served he is content to be reputed a Minor and be as it were under protection of others though not under their direction and is content to continue thus until his Two and twentieth year Some might think him very moderate had he been moderate but he forbears suing out his Livery so long as he may live without care and spend without controul For by this time the humour of his great Grandfather budded in him he pawned his Heart to young men of vast desires and some say so inordinately as he prostituted his Chastity unto them And it is no wonder if the Revenues of the Crown are insufficient for such Masters This the people soon felt and feared their own Free-holds for they are bound saith he not to see the Crown deflowred for want of maintenance it is very true nor to see the Crown deflowred of its maintenance A Parliament therefore is called in which divers Lords associate and prepare Physick for the King 's lavish humour which being administred wrought for Ten years after till it had purged him of his Life and the Kingdom of their King. It was an Act of Parliament that gave power to Fourteen Lords and others to regulate the profits and Revenues of the Crown and to do Justice to the people this was to continue for one whole year The Parasites no sooner found the effect hereof to their cost but the King grows sick of it and finds an Antidote to over-rule Acts of Parliament by Acts of Privy-Council declares this ill-favoured Commission void and the Contrivers Advisers and Enforcers Traytors To make it more Majestical he causeth the Judges to subscribe this Order and so it becomes Law in repute This foundation thus laid he buildeth in haste an Impeachment of these Commissioners of High Treason and supposing that they would not readily stoop himself stoops lower for he would put his Right to trial by Battle which was already his own by the judgement of the Masters of the Law For so they may be well called seeing they had thus mastered it In this the King had the worst for he lost his Honour and himself God hath a care of common Right even amongst Idolaters Then comes the Parliament of wonders wherein the Kings Party are declared Traytors and the chief Judges with their Law judged by another Law. The King not meddled with thinks it high time to come out of his Minority and assumes the Government of the Kingdom and himself to himself being now Three and twenty years of Age old enough to have done well if he had cared for it But resolving to follow the way of his own will at length it led him to his own ruine Onely for the present two things delayed it viz. the Authority Wisdom and Moderation of his Unkles especially of the Duke of Lancaster now come out of Spain and the great affection which the King pretended to the Queen who had also gained a good opinion amongst the people The benevolent aspect of the people not for their own advantage but for the publick quiet procured many Parlies and Interviews between the King and people and many Laws for the upholding of the Court and Government although both War Laws Justice and Councils all are faint as all is faint in that man that hath once dismann'd himself This he perceives well enough and therefore Peace he must have by any means The Queen dies himself being nigh Eight and twenty years old takes a Creature like a Wife but in truth a Childe of Eight years old and this is to get peace with France It is no wonder if now he hunts after unlawful game and that being ill taken brings all things out of order For abused Marrige never wants wo. Civil men are now looked upon as severe Cato's and his Unkles especially the Duke of Gloucester with a jealous eye which accomplished his death in
the conclusion The Dukes of Lancaster and York forsake the Court Favourites step into their rooms The old way of the eleventh year is re-assumed Belknap and others are pardoned and made of the Cabinet The pardon of the Earl of Arundel is adnulled contrary to the advice of the major part and the Archbishop the Earl's Brother is banished The Lords forsake the wilful King still the King's Jealousie swells The Duke of Hertford is banished or rather by a hidden Providence sent out of the way for a further work The Duke of Lancaster dies and with him all hope of moderation is gone for he was a wise Prince and the onely Cement that held the Joynts of the Kingdom in correspondency And he was ill requited for all his Estate is seized upon The Duke of Hertford and his party are looked upon by the people as Martyrs in the Common Cause and others as Royalists Extremities hasten on and Prerogative now upon the wing is towering above reach In full Parliament down goes all the work of the tenth and eleventh years Parliament which had never been if that Parliament had continued by adjournment The King raiseth a power which he calleth his Guard of Cheshire-men under the terrour of this displaying Rod the Parliament and Kingdom are brought to Confession Cheshire for this service is made a Principality and thus goes Counties up and Kingdoms down The King's Conscience whispers a sad message of dethroning and well it might be for he knew he had deserved it Against this danger he entrenches himself in an Act of Parliament that made it Treason To purpose and endeavour to depose the King or levy War against him or to withdraw his Homage hereof being attainted in Parliament And now he thought he was well guarded by engagement from the Parliament but he missed the right conclusion for want of Logick For if the Parliament it self shall depose him it cannot be made a Traytor or attaint it self and then hath the King gained no more than a false birth But the King was not thus quiet the sting of guilt still sticks within and for remedy he will unlaw the Law and gets it enacted That all procurers of the Statute of 10 Richard the Second and the Commission and procurers of the King's assent thereto and hinderers of the King's proceedings are adjudged Traytors All these reach onely the Branches the Root remains yet and may spring again and therefore in the last place have at the Parliament it self For by the same it is further declared That the King is the sole Master of the Propositions for matters to be treated in Parliament and all gainsayers are Traitors Secondly That the King may dissolve the Parliament at his pleasure and all gainsayers are Traitors Thirdly That the Parliament may not proceed against the King's Justices for offences by them committed in Parliament without the King's consent and all gainsayers are Traitors These and the like Aphorisms once voted by the Cheshire-men assented unto by the Parliament with the Kings Fiat must pass for currant to the Judges and if by them confirmed or allowed will in the King's opinion make it a Law for ever That the King in all Parliaments is Dominus fac primum and Dominus fac totum But the Judges remembred the Tenth year and Belknap's entertainment and so dealt warily their opinion is thus set down It belongeth to the Parliament to declare Treason yet if I were a Peer and were commanded I should agree So did Thorning under-write and thereunto also consented Rickill and Sir Walter Clopton the last being Chief-Justice of the King's Bench the first Chief-Justice of the Common-pleas and the second another Judge of the same Bench. The sum in plainer sence is that if they were Peers they would agree but as Judges they would be silent And thus the Parliament of England by the first of these four last-mentioned conclusions attainted themselves by the second yielded up their Liberties by the third their Lives and by the last would have done more or been less And to fill up the measure of all they assigned over a right of Legislative power unto six Lords and three Commons and yet the King not content superadded that it should be Treason for any man to endeavour to repeal any of their determinations The Commonwealth thus underneath the King tramples upon all at once for having espied the shadow of a Crown fleeting from him in Ireland he pursues it leaves the noble Crown of England in the base condition of a Farm subject to strip and waste by mean men and crosses the Irish Seas with an Army This was one of England's Climacterical years under a Disease so desperate that no hope was left but by a desperate Cure by sudden bleeding in the Head and cutting off that Member that is a principle of motion in the Body For it was not many Moneths e're the wind of affairs changed the King now in Ireland another steps into the Throne The noise hereof makes him return afar off enraged but the nigher he comes the cooler he grows his Conscience revives his Courage decays and leaving his Army his Lordship Kingdom and Liberty behind as a naked man submits himself to release all Homage and Fealty to resign his Crown and Dignity his Titles and Authority to acknowledge himself unworthy and insufficient to reign to swear never to repent of his resignation And thus if he will have any quiet this wilful man must be content for the future neither to will nor desire And poor England must for a time be contented with a doleful condition in which the King cannot rule and the Parliament will not and the whole body like a Chaos capable of any form that the next daring spirit shall brood upon it CHAP. II. Of the State of the King and Parliament in relation of it to him and him to it A King in Parliament is like the first-born of Jacob The excellency of Dignity and the excellency of Power but alone unstable as water Examples of both these we have in these two Kings Whereof the first was Crowned by the Parliament and Crowned it the latter also Crowned it but with Thorns and yet the Parliament in all held on that wise way that it neither exceeded its own bounds nor lost its own right I shall enter into the consideration of particulars under these heads First In relation more immediately to the interest of the King Secondly To the interest of the Kingdom in general The King though higher than all the people by the head and so hath the Prerogative of Honour as the most worthy yet his strength and abilities originally do rise from beneath otherwise he is but like a General without an Army the Title big but airy and many times his person subject to so much danger that instead of drawing the Eyes of all the people to look upon him with admiration they are drawn to look to him with observation and in this
faithfully carried on by him that Justice it self could not touch his person unjustice did and he received this reward from his Nephew Henry the Sixth that he died in the dark because the Cause durst not endure the light Now is Henry the Sixth perswaded that he is of full Age he had laid aside his Guardian the Duke of Gloucester but forgetting to sue out his Livery he betakes himself from the Grace of God into the warm Sun as the Proverb is changing the Advice of a faithful experienced wise Counsellour for the Government of an Imperious Woman his Queen who allowed him no more of a King than the very Name and that also she abused to out-face the World. And after she had removed the Duke of Gloucester out of the way undertook the sway of the Kingdom in her own person being a Foreigner neither knowing nor caring for other Law than the Will of a Woman Thus the Glory of the House of Lancaster goes down and now a Star of the House of York appears in the rising and the people look to it The Queen hereat becomes a Souldier and begins the Civil Wars between the two Houses wherein her English party growing wise and weary she prays Aid of Ireland a Nation that like unto Crows ever wants to prey upon the Infirmities of England The Wars continue about sixteen years by â—its wherein the first loss fell to the English party the pretensions being yet onely for good Government Then the Field is quiet for about four years after which the clamour of ill Government revives and together therewith a claim to the Crown by the House of York is avouched Thereupon the Wars grew hot for about four years more and then an ebb of as long Quiet ensues The Tide at last returns and in two years War ends the Quarrel with the death of Fourscore Princes of the Bloud-Royal and of this good man but unhappy King. Unhappy King I say that to purchase his Kingdoms Freedom from a Foreign War sold himself to a Woman and yet lost his Bargain and left it to Observation That a Conscientious man that marries for by-regards never thrives For France espied their advantage they had maintained War with England from the death of Henry the Fifth with various success The Duke of Bedford being Regent for the English for the space of fourteen years mightily sustained the fainting condition of the English Affairs in those parts and having crowned his Master Henry the Sixth in Paris in the ninth year died leaving behind him an honourable Witness even from his Enemies That he was a brave Commander a true Patriot and a faithful Servant to his Lord and Brother Henry the Fifth and to his Son Henry the Sixth But now the Duke of Bedford is dead and though France had concluded a Peace with the English yet they could not forget the smart of their Rod but concluded their Peace upon a Marriage to be had with a Woman of their own bloud and interest And what they could not effect by Arms in thâ—â—r own Field they did upon English ground by a Feminine Spirit which they sent over into England to be their Queen and in one Civil War shedding more English bloud by the English Sword than they could formerly do by all the men of France were revenged upon England to the full at the English-mens own charge For what the English gain by the Sword is commonly lost by Discourse A Kingdom is never more befooled than in the Marriage of their King if the Lady be great she is good enough though as Jezabel she will neither reverence her Husband obey her Lord and King nor regard his people And thus was this Kingdom scourged by a Marriage for the sin of the wise men that building upon a false Foundation advised the King in the breach of Contract with the Earl of Arminiack's Daughter And thus the King also for that hearkning to such Counsel murthered the Duke of Gloucester that had been to him a Father yielded up his Power to his Queen a masterless and proud woman that made him like a broken Idol without use suffered a Recovery of his Crown and Scepter in the Parliament from his own Issue to the Line of York then renewing the War at his Queens beck lost what he had left of his Kingdom Country and Liberty and like the King that forgot the kindness of Jehojada lost his Life by the hand of his Servant CHAP. XIV Of the Parliament during the Reigns of these Kings THe Interest of the Parliament of England is never more predominant than when Kings want Title or Age. The first of these was the Case of Henry the Fourth immediately but of them all in relation to the pretended Law of the Crown but Henry the Sixth had the disadvantage of both whereof in its due place The pretended Law of the Crown of England is to hold by Inheritance with power to dispose of the same in such manner by such means and unto such persons as the King shall please To this it cannot be denied divers Kings had put in their claims by devising their Crown in their last Will but the success must be attributed to some power under God that must be the Executor when all is done and which must in cases of Debate concerning Succession determine the matter by a Law best known to the Judge himself Not much unlike hereunto is the Case of Henry the Fourth who like a Bud putting up in the place of a fading Leaf dismounts his Predecessor First from the peoples regard and after from his Throne which being empty sometimes he pretended the resignation of his Predecessor to him other whiles an obscure Title by descent his Conscience telling him all the while that it was the Sword that wrought the work But when he comes to plead his Title to Foreign Princes by protestation laying aside the mention of them all he justifies upon the unanimous consent of the Parliament and the people in his own onely person And so before all the World confessed the Authority and Power of the Parliament of England in disposing of the Crown in special Cases as a sufficient Bar unto any pretended Right that might arise from the House of Mortimar And yet because he never walks safely that hath an Enemy pursuing him still within reach he bethinks himself not sure enough unless his next Successours follow the dance upon the same foot To this end an Act of Parliament leads the Tune whereby the Crown is granted or confirmed to Henry the Fourth for life and entailed upon his Sons Thomas John and Humphrey by a Petition presented 5 Hen. 4. Thus Henry the Fourth to save his own stake brought his Posterity into the like capacity with himself that they must be Kings or not subsist in the World if the House of York prevails And so he becomes secured against the House of York treading on his heels unless the Parliament of England shall
Duke of Gloucester but that the Heir apparent of the House of York steps in to rescue And new troubles arise in Gascoign to put an end to which the Queens party gains and takes the Duke of York's word for his good behaviour gets this Law to pass expecting hereby if not a full settlement at home yet at least a respit to prevent dangers from abroad during the present exigency And thus upon the whole matter the Lords and Privy Council are mounted up by the Commons to their own mischief CHAP. XVII Of the Clergie and Church-Government during these times IT was no new thing in the World for Princes of a wounded Title to go to the Church-men for a Plaister and they are ready enough to sing a Requiem so as they may be the gainers The Princes therefore of the House of Lancaster had offended against common sence if they had not done the like themselves being not onely guilty in their Title but also by a secret Providence drawn into one interest together with the Church-men to support each other For Henry the Fourth and Archbishop Arundel meeting together under one condition of Banishment become Consorts in sufferings and Consorts in honour for Society begotten in trouble is nourished in prosperity by remembrance of mutual kindnesses in a necessitous estate which commonly are the more hearty and more sensible by how much other contentments are more scant But the Archbishop had yet a further advantage upon the Heart of Henry the Fourth though he was no man of power yet he was of great interest exceedingly beloved of the English Clergie and the more for his Banishment-sake Now whatsoever he is or hath is the Kings and the King is his the sweet influence of the Archbishop and the Clergie enters into his very Soul they are his dearly beloved for the great natural love as he says to the World they bear to him what he could he got what he got he gave to the Church Thus the Family of Lancaster becoming a mighty support unto the Clergie Roman as it was they also became as stout maintainers of the crackt Title of that younger House So was fulfilled the old Prophecie of the Oyl given to Henry the First Duke of Lancaster wherewith Henry the Fourth was anointed That Kings anointed with that Oyl should be the Champions of the Church Now for the more particular clearing of this we are to consider the Church absolutely or in relation to the Political Government of the people Concerning the latter many things did befal that were of a different piece to the rest in regard that the Lords for the most part were for the Clergie and they for themselves but the Commons began to be so well savoured with Wickliff's way that they begin to bid defiance at the Clergies self-ends and aims and because they could not reach their Heads they drive home blows at their Legs A Parliament is called and because the King had heard somewhat feared that the people were more learned than was meet for his purpose and that the Parliament should be too wise he therefore will have a Parliament wherein the people should have no more Religion than to believe nor Learning than to understand his Sence nor Wisdom than to take heed of a Negative Vote But it befel otherwise for though it was called the Lack-learning Parliament yet had it skill enough to discern the Clergies inside and Resolution enough to enter a second claim against the Clergies Temporalties and taught the King a Lesson That the least understanding Parliaments are not the best for his purpose For though the wisest Parliaments have the strongest sight and can see further than the King would have them yet they have also so much wisdom as to look to their own skins and commonly are not so venturous as to tell all the world what they know or to act too much of that which they do understand But this Parliament whether wise or unwise spake loud of the Clergies superfluous Riches and the Kings wants are parallel'd therewith and that the Church-men may well spare enough to maintain Fifteen Earls Fifteen hundred Knights Six thousand two hundred Esquires and one hundred Hospitals more than were in his Kingdom This was a strong temptation to a needy and couragious Prince but the Archbishop was at his Elbow The King tells the Commons that the Norman and French Cells were in his Predecessor's time seized under this colour yet the Crown was not the richer thereby he therefore resolves rather to add to than diminish any thing from the maintenance of the Clergie Thus as the King said he did though he made bold with the Keys of St. Peter for he could distinguish between his own Clergie and the Roman The people are herewith put to silence yet harbour sad conceits of the Clergie against a future time which like a hidden fire are not onely preserved but encreased by continual occasions and more principally from the zeal of the Clergie now growing fiery hot against the Lollards For that not onely the people but the Nobles yea some of the Royal Bloud were not altogether estranged from this new old way whether it was sucked from their Grandfather Duke John or from a popular strain of which that House of Lancaster had much experience I determine not These were the Dukes of Bedford and Gloucester Bedford was first at the helm of affairs at home whilst the King acted the Souldiers part in France as ill conceited of by the Clergie as they slighted by him At a Convocation once assembled against the Lollards the Duke sent unto their Assembly his Dwarf as a great Lollard though he was a little man and he returned as he went even as Catholick as any of them all Non tam despectus à Clero quam ipse Clerum despiciens atque eludens This and some other sleights the Clergie liked not they therefore find a way to send him into France to be a reserve to his Brother And in his room steps forth Humphrey Duke of Gloucester that was no less cool for the Roman way than he Henry the Fifth was not more hearty in Romes behalf for although he was loth to interrupt his Conquest abroad with contests at home yet he liked not of advancements from Rome insomuch as perceiving the Bishop of Winchester to aspire to a Cardinals Hat he said That he would as well lay aside his own Crown as allow the Bishop to take the Hat. Nor was he much trusted by the Clergie who were willing he should rather engage in the Wars with France than mind the Proposals of the Commons concerning the Clergies Temporalties which also was renewed in the Parliament in his days Above all as the Lancastrian House loved to look to its own so especially in relation to Rome they were the more jealous by how much it pretended upon them for its favour done to their House And therefore Henry the Fourth the most obliged of all the
this Kingdom and yet the Law for all this suffered no change nor did the House of Commons however the name is thrust into the English Ordinary Print ever yield unto the passing of the same but in the Parliament next ensuing complained thereof and protested they would not be bound by such Laws whereto the House of Commons had not given their consent And this dashed the Law quite out of countenance although it holds the place still amongst the number for within four years after the Clergie bring in another Bill of the same nature in general though varying in some particulars but the same was again rejected All the strength therefore of this Law resteth upon the King and House of Lords engaged by the Clergie whom they trusted for their Religion for Book-learning was with them of small account and no less by the King who knew no better way to give the Clergie content that gave him so much as to set the Crown upon his Head nor to discharge his Royal Word passed by the Earls of Northumberland and Westmorland in his behalf unto the Convocation viz. That they were sent to declare the Kings good will to the Clergie and Church-Liberties and that he was resolved to defend all the Liberties of the Church by his Kingly power and to punish Hereticks and the Churches Enemies in such manner as the Clergie should think meet and therefore desired their daily prayers for his own and the Kingdoms safety And yet for all this the people were not of this mind no small part of the Kingdom being overspread with these opinions After Henry the Fourth comes Henry the Fifth and he also makes another essay the former opinions then known onely by the general names of Heresie are now baptized by the new name of Lollardry and grown so overspreading that all the troubles of these times are still imputed to them It was indeed the Devils old and common trick thus to inrage earthly powers against these men although he be hereby but an instrument in the hand of the chief Builder that in laying a sure Foundation doth as well ram down as raise up for the malice of these men made the people of God to multiply Henry the Fifth also published a Law to this same purpose That all persons in place of Government shall swear to use their diligence to destroy all Heresies and Errors called Lollardries That all Lollards convict by the Clergie left to the secular power according to the Laws of Holy Church shall forfeit their Lands and Tenements to their Lords And the King to have the Year and Day and Waste and all his Goods and Chattels If the Lord be the Ordinary the King shall have all No forfeiture to be till the Delinquent be dead They shall be found by Indictment before the Justices of the Peace This Indictment being found shall be sent to the Ordinary with the Prisoner The Indictment shall not be for Evidence but onely for Information These are the principal things contained in this Law which by the manner of the composure seemeth to be of an uncertain colour neither made by the Clergie nor Laity but spoiled between them both The intent thereof seemeth to be principally to draw on the House of Commons to pass the Law under hope of gain by the forfeitures for the penalty is like that of Felony though the crime be not expresly declared to be Felony But the intent fell short in event For first The nature of the Crime is not defined nor declared by any Law and therefore can no man by Indictment be found to be such Secondly No penalty of death hath been by any former or by this Law determined upon such as are guilty for it is not enacted by any Law that such persons shall be delivered to the Secular power c. Thirdly This Statute determining the forfeiture to be not till death and neither that nor any other Law of this Kingdom determining death then is no forfeiture determined Fourthly Though this Law taketh it for granted that Heresie and Errours belong to Ecclesiastical Cognizance yet the same allows of no further proceedings than Ecclesiastical censures Lastly By this Law there can be no proceeding but in case of Indictment for otherwise without Record no forfeiture can be therefore where no Indictment is there is no forfeiture In all which regards it is evident that the Clergie could by this Law neither get fat nor bloud And therefore at their Convocation in the next year following they took another course and ordered that three in every Parish should make presentment upon Oath of such persons as are defamed for Hereticks and the truth so far as they can learn. Which puts me in mind of a Presentment that I have seen by some of St. Mary Overies in these times Item We saine that John Stevens is a man we cannot tell what to make of him and that he hath Books we know not what they are This new course shews plainly that the former held not force as they intended it So God blasted the practices of the Clergie at this time also rendring this Law immaterial that had the form as the other missed in the form and had the matter CHAP. XVIII Of the Court of Chancery IT often befals in State-affairs that extraordinary exigencies require extraordinary remedies which having once gotten footing are not easily laid aside especially if they be expedient for Prerogative The Privy Council in the Star-chamber pretends default of the Common-Law both in speed and severity in Cases whereby the State is endangered The Chancery pretends default by the Common-Law in point of equity and moderation The people taken with these pretences make that Rod more heavy which themselves had already complained of What the Chancery was in times past hath been already shewed still it is in the growing and gaining hand First In the Judicatory power it prevailed in relation to the Exchequer exercising a kind of power to survey the proceedings thereof in cases of Commissioners distrained to account for Commissions executed or not executed For it was no easie matter to execute Commissions from the Exchequer in those times of parties nor were men willing with such unwelcome occasions between Friends and Neighbours and it may be they grew weary of embroiling themselves one against another and of being Instruments of the violent countermotions of Princes and great men Secondly It gained also upon the Admiralty which by former Laws had Jurisdiction in all cases incident upon the great Sea. But now either through neglect of the Admiral or the evil of the Times occasioning Piracies to grow epidemical the ill government upon the Sea became dangerous to the State trenching upon the Truce made between this and other Nations For a remedy whereof first Conservators of the Truce were setled in every Port who had power committed to them to punish Delinquents against the publick Truce both by Indictment at the Kings
Peace for whilst Henry the Sixth was in France which was in his Tenth year from St. George's day till February following the Scots propound terms of Peace to the Duke of Gloucester he being then Custos Regni which he referred to the Order of the Parliament by whom it was determined and the Peace concluded in the absence of the King and was holden as good and effectual by both Kingdoms as if the King had been personally present in his full capacity CHAP. XXIII A Survey of the Reigns of Edward the Fourth Edward the Fifth and Richard the Third THe Reign of Henry the Sixth was for the most part in the former parts of it like Fire buried up in the Ashes and in the latter parts breaking out into a Flame In the heat whereof the Duke of York after Fealty given by him to Henry the Sixth and Dispensation gotten from the Pope to break his Faith lost his life and left his Son the Markgrave to pursue his Title to the Crown which he claimed by Inheritance but more especially by Act of Parliament made upon the agreement between Henry the Sixth and his Father This was Edward the Fourth who nevertheless reserved himself to the Election of the Lords and was by them received and commended to the Commons in the Field By which means he gaining the possession had also encouragement to maintain the same yet never held himself a King of full Age so long as Henry the Sixth lived which was the one half of his Reign Nor did he though he held many Parliaments scarce reach higher than at reforming of Trade which was a Theam well pleasing to the people next unto their Peace which also the King carefully regarded For although he had been a Souldier of good experience and therewith successful yet as one loath to trust too far either the constancy of the people of his own Opinion or the fortune of War with his neighbouring Princes he did much by brave countenance and discourse and yet gained repute to the English for valour after the dishonourable times of Henry the Sixth He had much to do with a wise King of France that knew how to lay out three or four calm words at any time to save the adventure of his peoples bloud and make a shew of money to purchase the peaceable holding of that which was his onely by force until the wind proved more fair to bring all that continent under one head In his Government at home he met with many cross Gales occasioned principally by his own rashness and neglect of the Earl of Warwick's approved friendship which he had turned into professed enmity and so weakned his own cause thereby that he was once under water his Kingdom disposed of by new intail upon the Heirs of Duke Clarence and so the Earl of Warwick remained constant to the House of York though this particular King was set aside Nor did he in all this gain any thing but a Wife who though his Subject and none of the greatest Family neither brought any interest unto her Lord and Husband amongst Foreign Princes brought nevertheless a Pearl which was beyond all which was the purchase of the Union between the two Houses of York and Lancaster and a peaceable succession in the Throne for a long while to come It must be granted that there fell therewith an unhappy inconvenience in the raising of a new Nobility of the Queens Kindred of whom the ancient Stock of Nobility thought scorn and yet they were so considerable as to be envied A Wound hard to be cured and yet easily avoided by such as know how to deny themselves And therefore can be no prejudice unto that conclusion That for an English King to marry his own Subject is more safe for the King and beneficial for the Kingdom than to marry a Stranger But Edward the Fourth did not long lie underneath upon the next fair Gale he comes from beyond the Sea and like his first Predecessor of the House of Lancaster claims onely his Dutchy which no man could in reason deny to be his right and therefore were the sooner engaged with him in that accoust This was an act that in the first undertaking seemed modest but when it was done appeared too bold to adventure it upon the Censure of Henry the Sixth and therefore they were not more ready to engage than slack to dis-engage till they were secure in the Kings Interest which not long after ensued by the death of Henry the Sixth Thus Edward the Fourth recovered the Crown to save his Dutchy His Government was not suitable for he came in by the People but endeavoured to uphold himself by Foreign Dependencies as if he desired to spread his Roots rather wide than deep How ill this Choice was the event shewed for Plants that root wide may be strong enough against an outward Storm but they soon grow old barren and rot irrecoverably from beneath Such was the end of this mans Government himself lived and died a King and left Issue both Male and Female the one tasted the Government the other kissed it but neither of them ever enjoyed further than a bare Title Nor was the Government of Edward the Fourth so secured by the Engagements of Foreigners for as he sought to delude so he was deluded both by Burgundy and Scotland to the prejudice of all three Towards his own people his carriage was not so much by Law as by Leave for he could fetch a course out of the old way of rule satisfie himself dissatisfie others and yet never was called to account What was done by Entreaty no man could blame and where Entreaties are countenanced by Power no man durst contradict Thanks to his Fate that had brought him upon a People tired by Wars scared by his success and loth to adventure much for the House of Lancaster in which no courage was left to adventure for it self The greatest errour of his way was in the matter of Revenue the former times had been unhappy in respect of good Husbandry and Edward the Fourth was no man to gather heaps His occasions conduced rather to diffuse and his mind generally led the way thereto so as it is the less wonder if he called more for accommodations than the ordinary Treasury of the Crown could supply Hereto therefore he used expedients which in his former times were more moderate for whilst Henry the Sixth lived he did but borrow by Privy Seal and take Tunnage and Poundage by way of hire Afterwards when no Star appeared but what was enlightned from his own Sun he was more plain and tried a new trick called Benevolence Unwelcome it was not onely in regard of its own nature but much more in the end for it was to serve the Duke of Burgundy in raising a War against France in the first view but in the conclusion to serve his own Purse both from Friends and Foes And yet this also passed without much
by Croisado to Jerusalem Anno 1189. And to give answer to Embassadors of a Foreign Prince pag. 25. And how King John shall conclude Peace with the Pope Anno 1213. Where nevertheless Matth. Paris saith was Turba multa nimis I say all these might well be done by a Council of Lords and not in any posture of a Parliament albeit that in none of all these doth any thing appear but that the Commons might be present in every one or many of them all Secondly As touching Judicature the Lords had much power therein even in the Saxon times having better opportunities for Knowledge and Learning especially joyned with the Clergie than the Commons in those times of deep darkness wherein even the Clergie wanted not their share as in the first part of the Discourse I have already observed Whatsoever then might be done by Judges in ordinary Courts of Judicature is inferiour to the regard of the Parliament and therefore the Plea between the Archbishop and Ethelstan concerning Land instanced Anno 1070. And between Lanfrank and Odo Anno 1071. And between the King and Anselme pag. 15 16. And the determining of the Treason of John afterwards King against his Lord King Richard pag. 23. And the difference concerning the title of a Barony between Mowbray and Scotvile pag. 25. And giving of security of good behaviour by William Brawse to King John pag. 26. All these might well be determined onely before the Lords and yet the Parliament might be then sitting or not sitting as the contrary to either doth not appear and therefore can these form no demonstrative ground to prove that the Parliament consisted in those times onely of such as we now call the House of Lords A Third work whereby the Opponent would prove the Parliament to consist onely of the House of Lords is because he findeth many things by them concluded touching the solemnization and the setling of the Succession of Kings both which he saith were done by the Lords in Parliament or those of that House and I shall crave leave to conclude the contrary For neither is the Election or Solemnization of such Election a proper work of the Parliament according to the Opponents principles nor can they prove such Conventions wherein they were to be Parliaments Not the Election of Kings for then may a Parliament be without a King and therefore that instance concerning William Rufus pag. 16 will fail or the Opponents Principles who will have no Parliament without a King. The like may also be said of the instance concerning King Steven pag. 18. Much less can the Solemnization of the Election by Coronation be a proper work for the Parliament Nevertheless the Opponent doth well know that both the Election of a King and the Solemnization of such Election by Coronation are Spiritless motions without the presence of the people and therefore though his instance pag. 17 concerning the Election of Henry the First by the Bishops and Princes may seem to be restrictive as to them yet it is not such in fact if Matthew Paris may be believed who telleth us that in the Conventus omnium was Clerus and Populus universus and might have been noted by the Opponent out of that Learned Antiquary so often by him cited if he had pleased to take notice of such matters A Fourth sort of Instances concerneth matters Ecclesiastical and making of Canons and hereof enough hath been already said that such Work was absolutely challenged by the Church-motes as their proper Work and therefore the Instance pag. 16 17. of the Council in Henry the First 's time and the Canons made by the Bishops there and that other called by Theobald Archbishop of Canterbury and instanced by the Opponent pag. 19. I say both these do fail in the Conclusion propounded Fifthly as touching the most proper Work of Parliament which is the making of Laws concerning the Liberties and Benefit of the people the Opponent produceth not one instance concerning the same which doth not conclude contrary to the Proposal for as touching those two instances in his Thirteenth page Anno 1060 they concern not the making of Laws but the reviving of such as had been disused formerly which might well enough be done by a private Council But as to that in his Fifteenth page of the Law made by the Conquerour concerning Remigius Bishop of Lincoln although it be true that we find not the particular Titles of Knights Citizens and Burgesses â—yet besides the Council of Archbishops Bishops and Princes we find the Common Council for so the words are Communi Concilio Concilio Archiepiscoporum Episcoporum Abatum omnium Principum although the Opponent would seem to wave these words Et Concilio by putting them in a small Character and the rest in Great Letters that the Readers eyes might be silled with them and overlook the other Secondly As to the instance of the Council at Clarindon in his Nineteenth page which he citeth out of Matthew Paris Matthew Westminster and Hoveden although he pleaseth to mention the several ranks of Great Men and those in black Letters of a greater size and saith That not one Commoner appears yet Mr. Selden's Hoveden in that very place so often by the Opponent cited tells him that both Clerus and Populus were there Thirdly The Opponent citeth an instance of Laws made by Richard the First in his Twenty fourth page and he setteth down the several Ranks of Great Men and amongst the rest ingeniously mentioneth Milites but it is with a Gloss of his own that they were Barons that were made Knights whenas formerly Barons were mentioned in the general and therefore how proper this Gloss is let others judge especially seeing that not onely Milites and Milites Gregarii but even Ministri were present in such Conventions even in the Saxon times And Mr. Selden in the former known place mentioneth an Observation that Vniversi personae qui de Rege tenent in Capite sicut caeteri Barones debent interesse judiciis curiae Domini Regis cum Baronibus Fourthly He citeth in his Twenty fifth page another instance in King John's time in which after the assent of Earls and Barons the words Et omnium fidelium nostrorum are also annexed but with this conceit of the Oponents that these Fideles were those that adhered to the King against his Enemies be it so for then the Commons were present and did assent or they may be saith he some specially summoned as Assistants take that also and then all the true-hearted in the Kingdom were specially summoned and were there so as the conclusion will be the same In the fifth place he cited a strange Precedent as he calls it of a Writ of Summons in King John's time in his Twenty seventh page wherein Omnes Milites were summoned Cum armis suis and he concludes therefore the same was a Council of War. First Because they were to come armed It is very