more the conceit of Fame than there was cause These concurring with unnatural troubles from most unthankful Sons made that spirit of his to fail that formerly knew no peer as it is often seen that the most generous spirits are sooner quelled with shame and grief than with fear of any danger whatsoever Towards his Lay-Subjects he was more regardant for the setling of Laws and executing of Justice so as some have thought him the first source of our English Laws others more truly the first Mecaenas since the Conquest that brought on the spring-time of a setled Common-wealth and therefore left this fair testimony by his putting forth that Primrose of English Laws under the name of Glanvil letting all men know that thenceforth England would no more veil itself in an unknown Law but explain itself unto the World to be a regular Government Such was the King's Idea yet was he touched with so much of the common infirmity of Kings as shewed him to be a man especially in his old age being loaden with Military Affairs wherein he had been long exercised he had contracted some shifting courses of a Souldier in gathering Money and Souldiers somewhat out of the road-way of an English King and led an ill example to future Ages nor had he other salve for this wound but that it was for the honour of Christian faith and for the sake of Jerusalem Next comes in Richard the first Henry the Second's Son both in birth and courage yet was his behaviour to his Father such that his meritorious Holy War could never wipe it out of the Calendar of story His entrance was upon an Election made in his Fathers life-time and the same confirmed by receiving of Homage from the Peers The sad troubles that this Election amongst other things occasioned to his Father in his old age shew plainly that Richard trusted not to the Title of Inheritance nor the French King that took his part unto the English custom for the possession of the Crown but all must be done in the Life of the Father that must secure the Government to the Son when the Father is dead And thus is he entred upon the Throne not as Heir but as Successor to his Father yea rather as Survivor taking possession of what was by special compact conveyed to him by the means of his Father in his life-time though sore against his will if Writers speak true As his entrance was it promised a better Government than followed for though it was for the most part hidden in the Womb as himself did subsist in another World yet by a secret providence he was given over to the election of ill Deputies and therefore he was not well beloved however dear he was to this Nation A third part of his Government was spent in a calm with Pope Clergy Commons and all Nations that were not Infidels upon conscience it seems that he ought not to be troubled who adventured his person so bravely in the Holy War. But above all he was the Clergies darling not only for his adventure in the Holy Land but now much more in his return by his imprisonment in Germany and therefore they sluck close to him in his absence not only in maintenance of his right to the Câ—own whereto some made claim and his own Brother John did more but emptied themselves to the utmost for his delivery which they effected to the envy of the French and such as longed for his downfal here in England The King comes like the Sun-rising scattering his Brothers designs by his very view then returns his thoughts for France where he spent the rest of a restless life and as his entry upon the Throne was unnatural for he made his way upon his Fathers Herse so was his Reign full of troubles and his end not unlike for it was violent and by the hand of his own subject and so ended his Reign that scarce had any begining Next comes in King John to act his part according to his entry hand over head whether called by a people scared with the noise of Succession by inheritance or such as thought it not convenient nor safe in a stirring time to have a Child to be their King or lastly led by an interest that John the youngest Son of Henry the second had by woful experience obtained amongst the Lords or some or all concurring it is clear they crossed the way of inheritance waved Arthur's Title who was Heir to Richard the first and by him also appointed to succeed being then but a Child and they chose John a man of War trained up in the Government of Ireland which made way for his active spirit and well seen in the Government of England which might have made him wise and under these conceits they were willing to forget his oppression in Ireland his Treachery against his Lord and King in England set the Crown upon his head and in conclusion acted the Tragedy of Abimelech in English wherein the Cedar was rooted up and the Bramble trodden down The general temper of his Government sheweth that though the King must be thought sober yet the man was mad for he hawked at all manner of game France Scotland England Laity Clergy spared not the Pope himself scorned to stoop to occasion all which he did by the strength of the name of a King till at length being well cuft and plumed he was fain to yoke his lawless will under the grand Charter depose his Crown at the Popes foot and instead of a King became little better than a chief Lord in England Thus although Richard the First forgot this mans disloyalty yet God remembred it for the King having gotten the Pope upon the hip and put him to his last shift to stir up the French to set his curse on work was by a hidden providence conquered in the middest of a Royal Army without view of Enemy or other weapon than a meer noise his Nobility either suspecting all would be gone to Rome or expecting that the King would not deny them their own seeing he had been so profuse in giving away that which was not his demand that their Liberties might be confirmed but he being loath to be mated by his Nobles though he was overmatched by the Pope arms himself with the Popes curse and the Lords themselves with the Frenchmens power thus the Tables are turned and the French playing an after-game to gain to themselves the Crown of England after they saw the death of a Warlike King discovered their design before it was ripe and in the conclusion were beaten out of the Kingdom by a Child It is not worth inquiry what the King allowed or disallowed for it was his course to repent of any thing done contrary to his present sense and made it his chief principle in policy to have no principle but desire wherein he triumphed too long by reason of the contentions between the Clergie and the Laity which
damage Nor did the former principle oversway the latter although it might seem more considerable but only in the times of civil peace when the Lords were quiet and the people well-conceited of the Kings aims in reference to the publick which happiness it was Henry the Second's lot to enjoy for he being a Prince eminent amongst Princes both for endowments of mind and of outward estate not only gained honour abroad but much more amongst his own people at home who saw plainly that he was for Forraign employment of honour to the Kingdom and not only contented with what he had in England but imbarqued together with the Laity against the growing power of the Clergy for the defence and honour of the priviledges of the Crown wherein also the Liberties of the people were included They therefore were secure in the Kings way and suffered themselves to be engaged unto the Crown further than they or their Ancestors formerly had been out of pretence of sudden extreme occasions of the Kingdom that would not be matched with the ordinary course of defence For the King finding by former experience that the way of Tenures was too lame a supply for his acquests abroad and that it had proved little better than a broken reed to the Crown in case of dispute with the people aimed at a further reach than the Lords or Commons foresaw and having learned a trick in France brought it over although it was neither the first nor last trick that England learned to their cost from France which was a new way of levying of Men and Arms for the War by assessing upon every Knights Fee and upon every Free-man of the value of sixteen Marks yearly their certain Arms and upon every Free man of ten Marks yearly value their certain Arms and upon every Burgess and Free-man of an inferiour value their certain Arms. 2. That these should be ready prepared against a certain day 3. That they should be kept and maintained from time to time in the Kings Service and at his command 4. That they should not be lent pledged sold or given away 5. That in case of death they should descend to the Heir who if under age should find a man to serve in his stead 6. That in case the owner were able he should be ready at a certain day with his Arms for the service of the King ad fidem Domini Regis Regni sui 7. That unto this every man should be Sworn I call this a new way of levying of Arms and Men not but that formerly other Free-men and Burgesses found Arms albeit they held not by Knight service for it was so ordained by the Conquerors Laws formerly used but now the King thrust in two clauses besides the altering of the Arms the one concerning the Oath whereby all men became bound the other concerning the raising and ordering of Men and Arms which here seems to be referred to the King only and in his service and this I grant may imply much in common capacity viz. that all the power of the Militia is in Henry the Second But this trick catched not the people according to the Kings meaning for the words ad fidem Regis Regni still left a muse for the people to escape if they were called out against their duty to the Kingdom and taught the doctrine which is not yet repealed viz. That what is not according to their Faith to the Kingdom is not according to their Faith to the King. And therefore they could find in their hearts sometimes to sit still at home when they were called forth to War as may appear in one passage in the days of King John who had gathered together an Army for the opposing of foraign Power at such time as the Pope had done his worst against him and the whole Kingdom which Army was of such considerable strength as I believe none since the Conquest to this day exceeded or parallell'd it But the King 's mean submission to the Pope's Legat so distasted the Nobles and People as they left him to his own shifts and that in such manner as although afterwards he had advantage of them and liberty enough to have raised an Army to have strengthned himself against the Nobles yet the Lords coming from London brought on the sudden such a party as the King was not able to withstand and so he came off with that conclusion made at Renny mead which though in it self was honourable yet lost the King so much the more because it was rather gained from him than made by him CHAP. LXIV Of the Government of Henry the third Edward the first and Edward the second Kings of England And first a general view of the disposition of their Government ONe hundred and ten years more I have together taken up to add a period to this first part of discourse concerning English Government principally because one spirit of arbitrary rule from King John seemeth to breath throughout the whole and therewith did expire The first that presents himself is Henry the third begotten by King John when he was in the very first enterprize of oppression that occasioned the first Barons bloudy Wars and which this King was so miserable as to continue for the greatest part of his Life and Reign and yet so happy as to see it ended about four years before he died Although the soul be not ingendred from the parent yet the temperature of the body of the Child doth sometimes so attemper the motion of the soul that there is in the Child the very image of the Father's mind and this Henry the third lively expressed being so like unto his Father John in his worst course as if his Father 's own spirit had entred into him and animated him in all his ways He brought in with him the first president of Conscience in point of Succession by inheritance in the English Throne for the stream of probabilities was against him He was a Child and the times required a compleat man and a man for War. He was the Child of King John whose demerits of the State were now fresh in the minds of all men He was also designed to the Throne by his Father's last Will which was a dangerous president for them to admit who had but even now withstood King John's depositing of the Crown in the Pope's hands as not being in the power of a King of England to dispose of his Crown according to his own will. Yet leaping over all these considerations and looking on Henry the third as the Child of a King that by good nouriture might prove a wise and just King they closed about this spark in hope it might bring forth a flame whereby to warm themselves in stormy times Nor did their hopes soon perish for during his minority the King was wise to follow good Counsel and by it purged out all the ill humours that the Kingdom had contracted in the rash distempers of his
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
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
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
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
in the French Wars the Duke of Gloucester obtained the same power and place But Henry the Sixth added a further Title of Protector and Defender of the Kingdom and Church of England this was first given to the Duke of Bedford and afterwards he being made Regent of France it was conferred upon the Duke of Gloucester And towards the latter time of Henry the Sixth it was granted by him to Richard Duke of York This Title carried along with it a power different from that of a King onely in honour and the person so adorned may be said to sway the Scepter but not to wear the Crown And therefore in the minority of Henry the Sixth whenas the Government was ordered by the Parliament and to that end a Protector was made and he well guarded with a Privy Council and they provided with Instructions one of them was That in all matters not to be transacted ordinarily but by the King 's express consent the Privy Council should advise with the Protector But this is not so needful in regard that it concerneth the power of executing of Laws which by right of the liberty of the Subject is the known duty of the Scepter in whose hands soever it is holden And therefore I shall pass to the Legislative Power wherein it is evident that the Protector 's power was no whit inferiour to the King's power For First the Protector Ex Officio by advice of the Council did summon Parliaments by Writs even as the Kings themselves under their own Test and if they did not bear the Royal Assent yet did they direct the same and received Petitions in Parliament to them directed as to Kings and every way supplied the room of a King in order to the perfecting publishing and enforcing of Law to Execution Secondly the Parliaments holden by Protectors and Laws therein made are no whit inferiour to those by the King whether for Honour or Power And therefore if a Parliament be holden by the Lord Warden and sitting the Parliament the King in person shall arrive and be there present neither is the Parliament interrupted thereby nor the power thereof changed at all though the power and place of the Wardenship of the Kingdom doth utterly vanish by the personal access of the King because in all places where the King is subservient to the Kingdom or the Commonwealth the Lord Warden in his absence is conservient unto him being in his stead and not under him for the very place supposeth him as not because not present And this was by a Law declaratively published at such time as Henry the Fifth was Regent of France and therefore by common presumption was likely to have much occasion of residence in that Kingdom aâ—â— it holdeth in equal force with all other Laws of the highest size which is the rather to be noted because it is though under a Protector obligatory to the King and makes his personal presence no more considerable than the presence of his shadow For the King spent three whole years in the French Wars and during that time never saw England where nevertheless in that interim three Parliaments had been holden one by the Duke of Bedford and two by the Duke of Gloucester in the last of which this Law was made And in truth if we look upon this Title of the Kingdoms Guardianship in its bare Lineaments without lights and shadows it will appear little better than a Crown of Feathers worn onely for bravery and in nothing adding to the real ability of the governing part of this Nation Neither were the persons of these Magnificoes so well deserving nor did the Nation expect any such matter from them Edward the First was a wise King and yet in his absence chose Edward the Second to hold that place he being then not above fourteen years of age Afterwards Edward the Second's Queen and the Lords of her party were wise enough in their way and yet they chose Edward the Third to be their Custos Regni then not fourteen years old his Father in the mean time being neither absent from the Kingdom nor deposed but onely dismissed from acting in the administration of the Government Edward the Third follows the same example he first makes his Brother John of Eltham Custos Regni and this he did at two several times once when he was but Eleven years old afterwards when he was about Fourteen Then he made his Son the Black Prince upon several occasions three times Lord-Warden of the Kingdom once he being about Nine years old and again when he was Eleven years old and once when about Fourteen years old Lastly Edward the Third appointed his Son Lionel Duke of Clarence unto this place of Custos Regni when as he was scarce Eight years old all which will appear upon the comparing their Ages with the several Rolls of 25 E. 1. 3 5 12 14 26. 19 E. 3. If therefore the work of a Custos Regni be such as may be as well done by the Infants of Kings as by the wisest Counsellor or most valiant man it is in my opinion manifest that the place is of little other use to this Commonwealth than to serve as an attire to a comely person to make it seem more fair because it is in fashion nor doth it advance the value of a King one grain above what his Personal endowments do deserve Hitherto of the Title and Power the next consideration will be of the original Fountain from whence it is derived wherein the Precedents are clear and plain that ordinarily they are the next and immediate Off-spring of Kings if they be present within the four Seas to be by them enabled by Letters-Patents or Commission But whether present or absent the Parliament when it sate did ever peruse their Authority and if it saw need changed enlarged or abridged both it and them Thus was the Duke of Gloucester made Lord Warden in the time of Henry the Fifth he being then in France in the room of the Duke of Bedford The like also in Henry the Sixth's time when as the King was young for then the Parliament made the Duke of Bedford Lord Warden and added unto that Title the Title of Protector Afterward at the Duke's going over into France they committed that service to the Duke of Gloucester if I forget not the nature of the Roll during the Duke of Bedford's absence and with a Salvo of his right Not unlike hereunto was the course that was taken by the Parliament in these sullen later times of Henry the Sixth whereof more hereafter in the next Paragraph Lastly The limitation of this high power and Title is different according to the occasion for the Guardianship of the Kingdom by common intendment is to endure no longer than the King is absent from the Helm either by voluntary deserting the work or employment in Foreign parts though united they be under the Government of the same King together
the Summons to the Parliament doth hold for this Quae de communi consilio ordinari contigerint and the words in the Coronation-oath Quas vulgus elegerit do speak no less whether they be taken in the â—â—eter perfect-tense or the Future-tense the conclusion will be the same True it is that in all Kings are supposed as present yet is not that valuable in the point of Council which is the foundation of the positive Law. For as the best things under heaven are subject to infirmity so Kings either short or beyond in Age or Wit or possibly given over to their lusts or sick or absent in all which the name of a King adds little more to the Law than a sound yet all the while the Government is maintained with as much honour and power as under the most wise and well-disposed King that ever blessed Throne This is done in the Convention of States which in the first times consisted of Individuals rather than Specificals The great men doubtless did many things even before they saw the English shore that Tacitus noteth yet in the publick Convention of all did nothing alone till of one House they became two The particular time of the separation is uncertain and the occasion more It may be the great Lords thought the mysteries of State too sacred to be debated before the vulgar lest they should grow into curiosity Possibly also might the Commons in their debates wish the great men absent that themselves might more freely vote without angering their great Lords Nevertheless the Royal assent is ever given in the joynt Convention of all But how a double Negative should rest in the house of Lords one originally in themselves the other in the sole person of the King whenas in no case is any Negative found upon Record but a modest waring the answer of such things as the King likes not is to me a mystery if it be not cleared by Usurpation For it is beyond reach why that which is once by the Representative of the People determined to be Honestum should be dis-determined by one or a few whose Counsels are for the most part but Notionary and grounded upon private inconveniencies and not upon experimentals of most publick concernment or that the veult or Soit fait which formerly held the room onely of a Manifesto of the Regal Will to execute the Law then made as his Coronation-Oath to execute all Laws formerly established should be taken to be a determination of the justness or honesty of the thing When as this Royal Assent is many times given by a King that knows no difference between good and evil and is never competent judge in matters that in his opinion do fall into contradiction between his own private interest and the benefit of the people However unequal it may seem yet both that and other advantages were gained by the House of Lords after the separation was once made as many of the ancient Statutes by them onely made do sufficiently hold forth which although in the general they do concern matters of Judicature wherein the Lords originally had the greatest share yet other things also escaped the Common Vote which in after-ages they recovered into their consideration again And the condition of the people in those times did principally conduce hereunto For until the Norman times were somewhat setled the former Ages had ever been uncertain in the changes between War and Peace which maintained the distance between the Lords and their Tenants and the authority of the one over the other savouring of the more absolute command in Law. And after that the Sword was turned into the Plough-share the distance is established by compact of Tenure by Service under peril of default although in a different degree for the Service of a Knight as more eminent in War so in Peace it raised the mind to regard of publick Peace but the service of the Plough supporting all is underneath all yet still under the common condition of Free-men equally as the Knight Peace now had scarcely exceeded its minority before it brought forth the unhappy birth of Ambition Kings would be more absolute and Lords more Lordly the Commons left far behind seldom come into mention amongst the publick Acts of State and as useless set aside This was the lowest ebb that ever the Commonage of England indured which continued till Ambition brought on Contention amongst the great men and thence the Barons Wars wherein the Commons parting asunder some holding for the King who promised them Liberty from their Lords others siding with the Lords who promised them Liberty from the King they became so minded of their Liberties that in the conclusion they come off upon better advantage for their Liberties than either King or Lords who all were losers before their reckoning was fully made These Wars had by experience made the King sensible of the smart of the Lords great interest with the people and pointed him to the pin upon which the same did hang to take which away a design is contrived to advance the value of the Commoners and to level the Peerage that they both may draw in one equal yoke the Chariot of Prerogative The power of the Commons in publick Councils was of some efficacy but not much honour for their meetings were tumultuary time brought forth a cure hereof the flowers of the people are by election sent to be the Representative and so the Lords are match'd if not over-match'd the people less admiring the Lords and more regarding themselves This was but a dazle an Eclipse ensues for Kings having duly eyed the nature of Tenure between the Lords and Commons look upon it as an Out-work or Block-house in their way of approach Their next endeavour is therefore to gain the Knighthood of England within the compass of their own Fee and so by priority to have their Service as often as need should require by a trick in Law as well for their own safety in time of War as for their benefit in time of Peace This was a work of a continuing nature and commended to Successors to accomplish by degrees that the whole Knighthood of England is become no more the Lords till the Kings be first served And thus the power of the People is wholly devolved into the King's Command and the Lords must now stand alone having no other foundation than the affections of the People gained by beneficence of Neighbourhood and ordinary Society which commonly ingratiates the inferiour rank of men to those of higher degree especially such of them as affect to be popular Henry the Seventh found out this Sore and taught his Successors the way to avoid that occasion of Jealousie by calling up such considerable men to attend the Court without other Wages but fruitless hopes or under colour of honour to be had by Kings from the presence of such great men in their great Trains or of other service of special note to be done onely by
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
Womanhood 138. Coverture 139 Custos Regni a formality of State under the Parliaments Order 79. many times conferred upon Children 80. and upon a Woman 148. D. DElegates though named by the King yet by Authority of the Parliament 133 Defender of the Faith 122 Dispensations Licenses and Faculties never in the Crown but by the Parliament givent to the Archbishop under limitations 137 139 Duels ordered by the Marshal as subservient to the Common Law 63. E. EDward the Third his Reign 2. his Title upon Entry by Election ibid. Edward the Fourth his Reign though had Title of Inheritance yet entred by Election 106 Edward the Fifth approached the Crown by Inheritance but never put it on 108 Edward the Sixth his Reign his Title and Possession did meet though he was a Child and his Sister Mary grown in age 152 Ecclesiastical power vide Prelacy and Prelates Elizabeth Queen her Reign 155. her Title by Election 163 Englishire taken away 56 Episcopacy vide Prelates and Prelacy Errors vide Heresie Exchange ordered by the Statute 38 Excommunication 159. the Writ de excommunicato capiendo ordered 169. vide Parliament exportation 38. F. FAlse News punished 66 Felony by riding in armed Troops 56 66 101 150 174 First-fruits regulated 90. taken away from Rome 130 Forcible entries 101 Forts Fortifications and Castles ordered by Parliament 147 171. G. GOal-delivery by the Judges of the Benches 54 97. vide Judges Goals regulated 67 149 Guard for the Kings Person brought in by Henry the Seventh 113 Gypsies made Felons 174 H. HEnry the Fourth his Reign doubtful in his Title but rested upon Election chosen by Parliament sitting when there was no King 68 c. Henry the Fifth his Reign his Title by an Intail by the Parliament 70 c. Henry the Sixth his Reign his Title by the Intail last mentioned though a Child he is admitted to the Crown 72 c. Henry the Seventh first setled a constant Guard his sixfold Right to the Crown and his gaining Prerogative in the persons and Estates of the people ibid. 113 c. Henry the Eighth his natural endowments 116 c. his power in the matters Ecclesiastical 120 c. in Temporals 125 c. Heresie and Errour in Doctrine under the cognizance of the Civil Magistrate 36 92. not punishable by death by Law till Henry the eighths time 126 138. the Writ De Heretico comburendo hath no legal ground in any of those former Times 67 93 95 126 138 Honours vide Parliament Hospitals visited by the Pelacy 90. I. IMportation 42 Judges of Assizes 97 142 Jurisdiction Ecclesiastical not originally in the Prelacy nor absolutely 137 Justices of the Peace their residency and quality their number various their work also 62 99. one Justice 63. and the setling of their Session ibid. their power to take Bail 149. K. KIngs vide Parliament Allegiance Supremacy Militia L. LAbourers their Work and Wages 42. ordered by the Justices of the Peace 63 Lancaster the Princes of that House friends to the Clergie in policy 86 Laws made by the Successors of Henry the Eighth during their minority annulled 69. Ecclesiastical Laws vide Parliament Lieges by Birth though not born within the Allegiance of England 57 Liveries and Tokens inhibited to the Lords 64 103. and limited in the Kings person ibid. means of jealousie between the King and his people 143 Libels in the Spiritual Court to be delivered in Copies upon demand 90 Licenses vide Dispensations Lords their power and jurisdiction in the Parliament 14. in Council 17 142 Lunacy no impediment in Trial of Treason 151. M. MAry Queen her Reign 153. her Title by Election 164. she prejudiced her Supremacy by Marriage 163 Marque and Reprisal 122 Martials Court 62 Matrimonial Causes after the Reformation by Henry the Eight in the Cognizance of the Clerge by leave 139 Militia 58 102 143 122. vide War. Mint 44 84. vide Parliament Monasteries dissolved 117. maintained by Henry the Fourth 86 Money out of England to Rome stopped 32. N. NAvy Royal as Forts for the publick safety maintained at the publick charge 148 Nisi prius 98 Non-residency 139 Noble Ladies Trial 101. O. OYer Terminer 54 98 Ordinary not to be questioned in the Civil Courts for things under Ecclesiastical jurisdiction 28 29. hath cognizance of Vsury 28. of Avoidances Bigamy and Bastardy 29. grant Administration 30. visit Hospitals and call Executors to account 90. hath power to fine and imprison 91 141. to keep Courts but the Authority doubtful 137. have Cognizance of the Heresie 91 138. Matrimony Non-residence ibid. In Queen Elizabeth's time their jurisdiction left in doubt 168 c. Oath ex Officio first brought in by the Church-men in matters Ecclesiastical 92. afterwards by the Parliament into the Star-chamber in cases criminal 142. P. PArdon of Crimes not absolutely in the King 11 Parliament without the King consisting of three States 69. without the Clergie 34 Parliaments power in ordering of the Crown 75 133 162. In ordering the King's person by Protectors 9. vide Protector In ordering their Children In ordering their Family 10 75. In ordering their Revenues 10 75 68. In ordering their Council 83 In the Militia vide Militia and War. In conferring places of Honour and Trust 11 23 In ordering the Mint vide Mint In making Ecclesiastical Laws Concerning Church-Government 131 c. 121 165. Concerning Doctrine 123 131 138 c. Concerning Worship 131 Concerning Church-censures 140 In granting Licenses and Dispensations 137 In final Appeals 133 In ordering it self 14 76 In Judicature 15 111 Parliament not inconstant though mutable 110 Peace Justices and their Sessions 62 c. 99 c. 148 c. 173 c. penal Laws executed to get money 108 114 Pleadings in English 57 Pope's power in England abated 33 c. vide Ordinary Supremacy Archbishop Prelacy not favoured by the Canon 140. their power since the time of Queen Mary 166. their dignity and power distinguished 28 34 Priests Wages 41 91 Praemunire and Provisors 32 34 c. 89 Proclamations made equal to Laws 125. altered 158 Protectors variety of them makes a doubtful Government 3 5 72 Purveyance regulated 31 39 R. RAvishment consented to forfeits Joynture 56 Request Court established by Cardinal Wolsey 140 Richard the Second his Reign 6. endeavours to over-rule the Parliament but failed in the conclusion 7 Richard the Third's Reign 108. his Title by Vsurpation and Murther ibid. Riots 101. S. SAnctuaries changed into fewer priviledged places 151 Servants imbezelling Felony ibid. 174 Sheriffs Courts regulated 149. Election of Sheriffs 55. Farm of the County 98. continuance in service ibid. Extortion ibid. Souldiers vide War. Staple 42 c. 111 Star-chamber 19 c. 141 Stealers of Men and Women Felony 174 Supremacy Supream Head 120. certainly not Absolute or Arbitrary power nor a Legislative power 166 c. Supream Governour 159. in causes Ecclesiastical ibid. c. in Temporal ibid. T. TEnths and First-fruits
A brief censure of the Saxon Prelatical Church-Government 27 XVI Of the Saxons Commonwealth and the Government thereof and first of the King. 29 XVII Of the Saxon Nobility 33 XVIII Of the Freemen amongst the Saxons 34 XIX Of the Villains amongst the Saxons 35 XX. Of the grand Council amongst the Saxons called the Micklemote 36 XXI Of the Council of Lords 38 XXII Of the manner of the Saxon Government in the time of War. 39 XXIII Of the Government of the Saxon Kingdom in the times of peace and first of the division of the Kingdom into Shires and their Officers 40 XXIV Of the County-court and Sheriffs Torn 41 XXV Of the division of the County into Hundreds and the Officers and Court thereunto belonging 42 XXVI Of the division of the Hundreds into Decennaries 43 XXVII Of Franchises and first of the Church-franchise 44 XXVIII Of the second Franchise called the Marches 45 XXIX Of County Palatines ibid. XXX Of Franchises of the person 46 XXXI Of Mannors ibid. XXXII Of Courts incident and united unto Mannors 48 XXXIII Of Townships and their Markets 49 XXXIV Of the Forests 51 XXXV Concerning Judges in Courts of Justice 52 XXXVI Of the proceedings in Judicature by Indictment Appeal Presentment and Action 53 XXXVII Of the several manners of extraordinary trial by Torture Ordeal Compurgators and Battle 55 XXXVIII Of the ordinary manner of Trial amongst the Saxons by Inquest 56 XXXIX Of passing Judgement and Execution 59 XL. Of the penal Laws amongst the Saxons 60 XLI Of the Laws of property of Lands and Goods and the manner of their Conveyance 64 XLII Of the times of Law and vacancy 68 XLIII An Epilogue to the Saxons Government 69 XLIV OF the Norman entrance 70 XLV Of the Title of the Norman Kings to the English Crown that it was by Election 72 XLVI That the Government of the Normans proceeded upon the Saxon principles and first of Parliaments 75 XLVII Of the Franchise of the Church in the Norman times 77 XLVIII Of the several subservient Jurisdictions by Marches Counties Hundreds Burroughs Lordships and Decennaries 82 XLIX Of the Immunities of the Saxon Freemen under the Norman Government 84 L. Recollection of certain Norman Laws concerning the Crown in relation to those of the Saxons formerly mentioned 86 LI. Of the like Laws that concern common Interest of Goods 89 LII Of Laws that concern common Interest of Lands 90 LIII Of divers Laws made concerning the execution of Justice 94 LIV. Of the Militia during the Normans time 65 LV. That the entry of the Normans into this Government could not be by Conquest 97 LVI A brief Survey of the sense of Writers concerning the point of Conquest 99 LVII OF the Government during the Reigns of Stephen Henry the Second Richard the First and John and first of their Titles to the Crown and disposition in Government 103 LVIII Of the state of the Nobility of England from the Conquest and during the Reign of these several Kings 107 LIX Of the state of the Clergie and their power in this Kingdom from the Norman time 109 LX. Of the English Commonalty since the Norman time 117 LXI Of Judicature the Courts and their Judges 118 LXII Of the certain Laws of Judicature in the time of Henry the 2. 120 LXIII Of the Militia of this Kingdom during the Reign of these Kings 125 LXIV OF the Government of Henry the Third Edward the First and Edward the Second Kings of England And first a general view of the disposition of their Government 129 LXV Of the condition of the Nobility of England till the time of Edward the Third 137 LXVI Of the state of the English Clergie until the time of Edward the Third and herein concerning the Statutes of Circumspecte agatis Articuli Cleri and of General Councils and National Synods 140 LXVII Of the condition of the Freemen of England and the Grand Charter and several Statutes concerning the same during the Reign of these Kings 158 LXVIII Of Courts and their Proceedings 177 LXIX Of Coroners Sheriffs and Crown-Pleas 179 LXX Of the Militia during these Kings Reigns 184 LXXI Of the Peace 188. THE PREFACE THe policy of the English Government so far as is praise-worthy is all one with Divine Providence wrapped up in a Vail of Kings and Wise men and thus implicitely hath been delivered to the World by Historians who for the most part read Men and wear their Pens in decyphering their Persons and Conditions Some of whom having met with ingenious Writers survive themselves possibly more famous after death than before Others after a miserable life wasted are yet more miserable in being little better than Tables to set forth the Painters Workmanship and to let the World know that their Historians are more witty than they of whom they wrote were either wise or good And thus History that should be a witness of Truth and Time becomes little better than a Parable or rather than a Nonsence in a fair Character whose best commendation is that it is well written Doubtless Histories of Persons or Lives of Men have their excellency in Fruit for imitation and continuance of Fame as a reward of Vertue yet will not the coacervation of these together declare the nature of a Commonwealth better than the beauty of a Body dismembered is revived by thrusting together the Members which cannot be without deformity Nor will it be denied but many wise and good Kings and Queens of this Realm may justly challenge the honour of passing many excellent Laws albeit it is the proper work of the Representative Body to form them yet to no one nor all of them can we attribute the honour of that Wisdom and Goodness that constituted this blessed Frame of Government For seldom is it seen that one Prince buildeth upon the foundation of his Predecessor or pursueth his ends or aims because as several men they have several Judgements and Desires and are subject to a Royal kind of self-love that inciteth them either to exceed former Precedents or at least to differ from them that they may not seem to rule by Copy as insufficient of themselves which is a kind of disparagement to such as are above Add hereunto that it is not to be conceited that the wisest of our Ancestors saw the Idea of this Government nor was it any where in precedent but in him that determined the same from Eternity For as no Nation can shew more variety and inconstancy in the Government of Princes than this especially for three hundred years next insuing the Normans So reason cannot move imagination that these Wheels by divers if not contrary motions could ever conspire into this temperature of policy were there not some primum mobile that hath ever kept one constant motion in all My aim therefore shall be to lay aside the consideration of Man as much as may be and to extract a summary view of the cardinal passes of the Government of this Kingdom and
was the Synod under Arch-Bishop Dunstan called The National Synods were diversly called sometimes by the Pope sometimes by the King as the first moving occasion concerned either of them For Pope Agatho in a Synod at Rome ordered that a Synod should be called in Saxony viz. England Sacrosancta authoritate nostra Synodali unitate and many Legatine Synods in succeeding times demonstrate the same That the Saxon Kings also called them upon occasion is obvious through all the Councils and needless to instance amongst so many particulars The Provincial Synods were sometimes convocated by the King and sometimes by the Arch-bishop and sometimes joyntly The Diocesan were called by the Bishop In the National and Provincial sometimes Kings moderated alone sometimes the Arch-bishop alone and sometimes they joyned together The Assistants were others both of the Clergy and Laity of several Ranks or Degrees and it seemeth that Women were not wholly excluded for in a Synod under Withered King of Kent Abbatisses were present and attested the acts of that Synod together with others of the Clergy of greater degree The matters in action were either the making or executing of Laws for Government and because few Laws passed that did not some way reflect upon the King and people as well as the Clergy the King was for the most part present and always the Lords and others Yet if the matters concerned the Church in the first act the King though present the Arch-bishop was nevertheless President as it besel at a Synod at Clevershoe An. 747. and another at Celchith An. 816. And in the Reign of Edward the Elder though the Synod was called by the King yet the Arch-bishop was President Concerning all which it may be in the sum well conceived that in the penning of the Councils aforesaid either the Clergy being Pen-men were partial or negligent in the setting down of the right form and that the Kings called these Assemblies by instance of the Archbishop and sometime presided in his own person and sometimes deputed the Archbishop thereunto The executing of Laws was for the most part left to the Diocesan Synods yet when the cases concerned great men the more general Councils had the cognizance and therein proceeded strictly sparing no persons of what degree soever Examples we find hereof amongst others of one incestuous Lord and two delinquent Kings Edwy and Edgar Nay they spared not the whole Kingdom for in the quarrel between Cenulphus the King and Archbishop Wilfrid the whole Kingdom was under interdict for six years space and no Baptism administred all that time Nor were they very nice in medling with matters beyond their sphere even with matters of Property for at a Provincial Council for so it is called they bore all down before them even the King himself as in the case between Cenulphus the King and the Archbishop of Canterbury concerning the Monastery of Cotham The like also of another Synod concerning the Monastery of Westburgh It 's true the Lords were present and it may be said that what was done was done in their right yet the Clergy had the rule and begat the Child and the Lay-Lords onely might challenge right to the name This concurrence of the Laity with the Clergy contracted much business and by that means a customary power which once rooted the Clergy after they saw their time though not without difficulty turned both King and Lords out and shut the doors after them and so possessed themselves of the whole by Survivorship But of this hereafter The particular Diocesan Synods were as I said called by the Bishops within their several Diocesses The work therein was to preach the Word as a preparative then to visit and enquire of the manners of the Clergy in the worship of God and of all matters of scandal and them to correct These Synods were to be holden twice every year at certain times and if they met with any matter too hard for them to reform they referred it to the Provincial or National Synod CHAP. XIV Of Causes Ecclesiastical AS the power of Synods grew by degrees so did also their work both which did mutually breed and feed each other Their work consisted in the reforming and setling matters of Doctrine and Practice The first was the most ancient and which first occasioned the use of Synods In this Island the Pelagian Heresie brought in the first precedent of Synods that we have extant and herein it will admit of no denial but in the infancy of the Church the Teachers are the principal Judges of the nature of Errour and Heresie as also of the truth as the Church is the best guide to every Christian in his first instruction in the principles but after some growth there is that in every Church and Christian that makes itself party in judging of truth and errour joyntly with the first Teachers And therefore 't is not without reason that in that first Synod although Germanus was called Judex yet the people hath the name of Arbiter and 't is said that they did contestare judicium Blasphemy was questionless under Church-censure but I find no footsteps of any particular Law against it yet in Scotland a Law was made to punish it with cutting out the Tongue of the Delinquent But it may be feared that neither the Saxons nor their Roman Teachers were so zealous for the honour of Gods Name as to regard that odious sin unless we should account them so holy as that they were not tainted therewith and so needed no Law. But Apostacy was an early sin and soon provided against the Church-censure was allowed of in Britain before the Saxons Church had any breath Afterward it was punished by Fine and Imprisonment by a Law made by Alfred as he provided in like manner for other Church Laws The times anciently were not so zealous for due observance of Divine Worship unless by the Church-men who were the Leaders therein a foreign Canon was made to enforce that Duty long before but it would not down with the rude Saxons they or the greater sort of them were content to come to Church onely to pray and hear the Word and so went away This is noted by that ancient Writer in nature of an imputation as if somewhat else was to be done which they neglected this somewhat was the Mass which in those days was wont to be acted after the Sermon ended And it 's probable that if the Nobles were so ill trained up the inferiour sort was worse and yet find we no Law to constrain their diligence or to speak more plainly it 's very likely the Saxons were so resolute in their Worship as there was either little need of Law to retain them or little use of Law to reclaim them For it 's observed in their late Psalter that the Roman Clergy was not more forward to Image or Saint-worship
liberty of the Laws Nor was it to be expected that the Saxons would endure a King above this pitch For those parts of Germany whence they came that had the Regiment of Kings which these had not yet used they their Kings in no other manner than as Servants of State in sending them as Embassadors and Captains as if they claimed more interest in him than he in them And the Historian saith expresly that amongst those people in Germany that had Kings their Kings had a defined power and were not supra libertatem And this Maxim of State became afterwards priviledged by Sanctuary for by the growth of Antichrist not only the Clergy but even their Tenants and Retainers were exempt from the reach of Kings and even by their own concession allowed of a Law that cut the throat of their indefined prerogative viz. That if the King defend not his people and especially Church-men from injury nec nomen Regis in eo constabit verum nomen Regis perdit Which Law however it might pass for currant Divinity in those days yet 't is strange it should get into a publick Act of State. Nor was this a dead word for the people had formerly a trick of deposing their Kings when they saw him peep above the ordinary reach and this was an easie work for them to do where ever Neighbouring Princes of their own Nation watched for the windfals of Crowns This made the Monarchical Crown in this Land to walk circuit into all parts of the Countrey to find heads fit to wear it until the Norman times Thirdly the Saxons had so hampered their Kings in their Elections and made them so properly their own as they claimed an interest not only in the person of their Kings but also in their Estates so as in some respects they were scarcely sui juris For King Baldred had given the Mannor of Malings in Sussex to Christ-church in Canterbury and because the Lords consented not thereto it was revoked and King Egbert afterwards made a new grant by advice of the Lords which shews that the Demesnes of the Crown were holden sacred and not to be disposed of to any other use though pious without the consent of the Lords and herewith concur all the Saxon infeodations attested and confirmed by Bishops Abbots Dukes and others of the Nobility under their several hands Nevertheless Kings were not then like unto plumed Eagles exposed to the charity of the Fowls for food but had a Royal maintenance suitable to their Majesty Their power was double one as a Captain another as a King the first was first and made way for the second As Captain their power was to lead the Army punish according to Demerits and according to Laws and reward according to Discretion As Captain they had by ancient custom the spoil left to their ordering by permission of the Army Exigunt Principis liberalitate illum Bellatorem equum illam cruentam victricem frameam and they were not wont in such cases to be close handed per bella raptus munificentiae materia the spoils in these wasted parts of Germany bring little other than Horses and Arms. But after they came into Britain the change of Soil made them more fat Horses and Arms were turned into Towns Houses Lands and Cattle and these were distributed as spoils amongst the Saxon Souldiers by their Generals and this redounded to the maintenance of the State and port of the great men who were wont to be honoured non stipendiis sed muneribus and the people used ultro viritim conferre principibus vel armentorum vel frugum aliquid But now upon the distribution of conquered Towns Houses Lands and Cattle in Britain a yearly product of Victuals or other service was reserved and allowed to the Saxon Kings by the people as the people allowed to Joshua his Land Jos. 19. 46. So as they needed no longer the former course of Offerings but had enough to maintain their Royal port and great superfluity of Demesnes besides as their charity to the Church-men does sufficiently evidence And by this means all the Lands in England became mediately or immediately holden of the Crown and a setled maintenance annexed to the same besides the casual profits upon emergencies or perquisites of Felons or Fugitives goods mines of Gold and Silver Treasure trove Mulcts for offences and other priviledges which being originally in the Kings were by them granted and made Royalties in the hands of Subjects as at this day To the increase of his Majesty and maintenance there was an access of power not to make dispense with or alter Laws but to execute and act the Laws established and against this power there was no rising up so long as it like an unfeathered Arrow gadded not at random It 's true the Church-men or Prelates checked them often but could never give them the mate For peace sake Kings many times yielded much yet would no King of Saxon principles allow of any Canon that extolled the Clergy's Authority above that of Kings And though the placing and displacing of Bishops seemed to be all Ecclesiastical work yet would not the Kings altogether connive as the examples of Ina in placing a Bishop in Wells Offa in making two Provinces of one Cenulphus in restoring Polydorus Edfrid in deposing Wilfrid and Edward the Confessor in making Robert Norman Archbishop of Canterbury may induce into opinion and for their own safety sake the Prelates thought it wisdom for them sometimes to stoop to that power that at other times they must be beholding to And therefore though in Synodical disputes they would hold with the Canon yet in matters of Action would suit with the occasion and thereby taught Princes to account of Canons but as Notions and politickly to put the honour of Commissioners upon these men Thus the current of both powers passing in one channel made the people drink double Beer at once the turns both of Pope and King were competently served and these men had the honour of the two-handed Sword and all seemed composed into a fair compromise But the Popedom finding its Authority becalmed endured this but as a burthen till Pope Nicholas the second 's time who by the like trick commended all to the Crown as from the Papal Benediction For Edward the Confessour upon his foundation of the Abbey of Westminster sent to the Pope for his allowance and confirmation of what he had done or was to do and to make way for the more favour sent presents and a confirmation of Romescot The Pope was so inflamed with such an abundant measure of blessing as he not onely granted the Kings desire but also discharged that Abbey from ordinary jurisdiction made it a peculiar subject onely to the Kings visitation and concluded his Bull with this Horn Vobis vero posteris vestris regibus committimus advocationem tuitionem ejusdem loci omnium
chiefer of which were called Free lazzi These were such as had been Slaves but had purchased their freedom by desert and though they had escaped the depth of bondage yet attained they not to the full pitch of freemen for the Lord might acquit his own title of bondage but no man could be made free without the act of the whole body And therefore the Historian saith that they are not multum supra servos or scarce not servants They are seldom of account in any Family never in any City but in Kingdoms sometimes advanced above the Freemen yea above Nobles Those are now adays amongst the number and rank of such as are called Copy-holders who have the priviledge of Protection from the Laws but no priviledge of Vote in the making of Laws The most inferiour of all were those which were anciently called Lazzi or Slaves those were the dregs of the people and wholly at the will of their Lord to do any service or undergo any punishment And yet the magnanimity of the Saxons was such as they abhorred Tyranny and it was rarely used amongst them by beating torture imprisonment or other hard usage to compel them to serve they would rather kill them as Enemies And this wrought Reverence in these men towards their Lords and maintained a kind of generosity in their mindes that they did many brave exploits and many times not onely purchased their own freedom but also brought strength and honour to the Kingdom And though the insolency of the Danes much quelled this Saxon Nobleness yet was it revived again by the Confessors Laws which ordained That the Lords should so demean themselves towards their men that they neither incur guilt against God nor offence against the King or which is all one to respect them as Gods people and the Kings Subjects And thus much of the several degrees of men amongst the Saxons being the materials of their Commonwealth a model whereof in the making and executing of the Laws and manner thereof now next ensueth CHAP. XX. Of the grand Council of the Saxons called the Micklemote IT was originally a Council of the Lords and Freemen afterwards when they assumed the title of a Kingdom the King was a Member thereof and generally President therein but always intended to be present though actually and in his own person by emergent occasions he may be absent and sometimes by disability of his person he be unmeet to vote or be President in such an Assembly As it was in the Council at Clano or Cleve in Wiltshire when the great case between the Monks and married Priests was concluded the King was absent as the story saith because of his minority and yet if Writers say true he was then in the Sixteenth year of his age The Lords were also nevertheless in the same condition of priviledge as formerly and though it appeareth that the Kings had gotten the priviledge of summoning the grand meeting in his own name yet it was by advice of the great men and being met their Votes were no other in value than as formerly for all their Laws were ex consilio sapientum and for ought can appear out of antiquity the vote of the meanest continued as good as of the greatest arbitrium est penes plebem And thus the Micklemote or Wittagenmote of the Saxons in England continued in the King Lords and Freemen by the space of One hundred and fifty years and in some parts of England nigh Two hundred years before ever the Roman Bishops foot entred or the Roman-Clergy crept into the Councils of State. Afterwards the Prelates were admitted de bene esse for advice as sapientes and continued by allowance how canonically ipsi viderint for I understand it not especially as the Scripture was then expounded Nemo militans Deo implicet negotiis saecularibus yet if they be allowed what in those days they ordinarily took up a degree of policy above devotion that knot is also soon untied I say they entred as Sapientes not as Prelati or Church-governours for then they had holden the same power in Church-matters agitated in the Wittagenmote that they had usurped in their Synods which they held onely for Church-visitation which they could never have because the Sapientes Regni had their votes therein as freely as they Nor could the Prelates by any Law entitle themselves to such power or priviledge so contrary to the priviledge of the Wittagenmote For though it be true that the German Priests had a liberty to be present in these grand Assemblies and to have some presidency therein as to command silence c. yet it is not title to these unless they will interest themselves as their Successors to possess by a jus Divinum that jus Diabolicum which those Priests formerly had in a way of immediate providence somewhat like the possession of the Mantle of Eliah found by Elishah They might I grant plead the title from Kings but it must be granted also that Kings as yet had no more power over the Church than in the Commonwealth Nor could they have that from the Lords which the Lords never had but was ever accounted amongst the majora and of which the Wittagenmote had the only cognizance as it will appear in some particulars ensuing Unto the King Lords and Clergy must be added as I said the Freemen to make up the Micklemote compleat and though it be true that no monument of story speaks of this grand meeting from their being in Germany until after the coming of Austin yet whenas the Saxon Histories then find them in the same condition that the German story leaves them it is very probable that in the interval they continued their wonted custom although they had no Learning to leave monuments thereof unto the world And hereof the examples are not rare in those remembrances that those ancient times have left us For within six years after Austins arrival Aethelbert calls a Common-Council tam cleri quam populi Ina after him made Laws suasu instituto Episcoporum omnium senatorum natu majorum sapientum populi in magna servorum Dei frequentia Alfred after him reformed the former Laws consulto sapientum After him Aethelstan called a Council in which was the Archbishop and with him the Optimates sapientes frequentissimi besides others whereof I shall treat now that I come to the matters handled in this Court. The matters in agitation in the Wittagenmote generally were all both of publick and private concernment That which concerned the publick were such as regarded removal of inconveniencies such as are Laws for Leagues and Affinity with other Nations for preventing of War. And thus became the Saxons and Britons united and the mortal feud between those two Nations laid aside and they made one And the Saxons and Danes reconciled by a Covenant agreed unto and sworn between both Nations The like also
be a loser by so well-deserving service as in those days that was accounted Nevertheless the English look upon Henry as the fitter man for their turn being now at hand and Robert at Jerusalem and being a native born in England civilized into the English garb by education and of a wiser and fairer demeanour and more inclining to peaceable Government which both Normans and English much inclined to as being weary of thirty years service in the Wars And therefore it is not marvellous if they applied themselves to him in a way of capitulation and less wonderful if he hearkned thereunto and yet neither unadvisedly yielded unto by him nor traiterously propounded by them as some in zeal to Monarchy conclude the point The worst of the whole matter resting in this that the King bound himself to be just that he might be great and the people to submit unto Justice that they might be free like as their Ancestors were and themselves by the Law established ought to be For the capitulation was in substance setled by the ancient Laws of the Saxons mixed with some additions of Laws made by the Kings Father with the joynt advice of the grand Council of the Kingdom all which both the Norman Williams had often confirmed by solemn protestations and promises however their actions upon sudden surprisal were malae consuetudines and exactiones injustae by this Kings own acknowledgment Thus these three Norman Kings made their way to the Throne the first by Arms under colour of Title the second by a kind of Title under colour of Arms and the last by favour but all entred the same by capitulation election and stipulation and for the general had some regard to suit their course in order of retaining the good will of their people although in a different measure according to the differency of occasions CHAP. XLVI That the Government of the Normans proceeded upon the Saxon principles and first of Parliaments THE principles which I mean are these First the Legislative power and influence thereof upon the whole Secondly the Members of that Government with their several motions Thirdly the Laws and Customs or Rules of those Motions And first concerning the Legislative power Although it be true that the first Williams great and most constant labour was to have and to hold and had but little time or liberty to enjoy yet that time of rest which he had did apply it and himself in the setling of the Laws by the advice of Common-council I say not by advice of his own heart or two or three Norman Lords or of the Norman Nobility only as some men take the confidence to aver as if they had been eye-witnesses to the actions of those days but by the joynt advice of the grand-Council of the Lords and wise men of the Kingdom of England I will not insist upon force of argument to shew that common reason must of necessity sway the King into this course but shall reserve that to another place the testimonies of Writers must now serve the turn and herein the testimony of the Chronicle of Lichfield must have the first place which speaks both of a Council of Lords and saith that by their advice he caused to be Summoned a meeting of all the Nobles and wise men through all the Counties of England to set down their Laws and Customs This was in the fourth year of his Reign or rather after his entry and as soon as the Kingdom was brought into any reasonable posture of quiet and which besides the intention of governing the Kingdom according unto Law doth strongly pretend that the Parliament had the Legislative power and right of cognizance and judicature in those Laws that concerned the Kingdom in general and for the particular Laws or Customs of several places or Precincts it was referred to a Committee or Jury in every County to set them forth upon Oath Secondly that this Council had power to change Laws may likewise appear in that Act made concerning the introduction of the Canon-Law which shews not only the power of that Council in Church-matters but also that the Canon was no further in force than the same would allow and this was also done by Common council and the Council of the Archbishops Bishops Abbots and all the Princes of the Kingdom which connexion shews plainly that there was a Council besides that of the Prelates and Princes Thirdly in matters of general charge upon the whole body of the people the King used also the help of this Grand-council as may especially appear in the charge of Arms imposed upon the Subjects which was said to be done by the Common council of the whole Kingdom as is witnessed even by the Kings own Law. It may seem also that the grand Officers of the State were elected by such grand assembly of the wise men for we find that Lanfrank was elected to the See of Canterbury by the assent of the Lords and Prelates and of the whole people that is by the Parliament of England and as probable it is that Bishops were therein also elected for that the Bishop of Lichfield resigned his Bishoprick in such like Assembly if the meaning of Lanfrank be rightly understood who saith in his Letter that it was in conventu Episcoporum atque Laicorum Lastly that one Law of the Kings which may be called the first Magna Charta in the Norman times by which the King reserved to himself from the free-men of this Kingdom nothing but their free service in the conclusion saith that their Lands were thus granted to them in inheritance of the King by the Common-council of the whole Kingdom and so asserts in one the liberty of the free-men and of the representative body of the Kingdom These footsteps of the Parliament find we in the Conquerors time besides other more general intimations scattered amongst the Historians which may induce opinion to its full strength that this King however Conqueror he was yet made use of this additional power of Parliament to perfect his designs and it may be more often than either of his Sons that yet had less pretence of superlative power to countenance their proceedings William Rufus was a man of resolution no whit inferiour if not surpassing his Father and had wit enough for any thing but to govern his desires which led him many times wild and might occasion conceit that he was almost a mad King though he were a witty man and therefore it is the less marvail if he used not the help of the Common-council more than needs must where Kings many times are told of that which they are loth to know Nevertheless William the second could not pass over thirteen years without a parley with his Commons and Clergy unless he meant to adventure a parley between them and his Brother Robert who like an Eagle eyed his posture though he hovered afar off But Henry the first was more wise
instigation of her Father whose Conscience told him that the Title to the Crown by inheritance was weakned by his own precedent himself coming to the same by Election of the People contrary to the Title of his Brother Robert. Nevertheless this was not the first time that the English Crown refused to be worn by practice for Henry the first being dead Steven the younger Son to a younger Sister of Henry the first put up head who being of the Royal Stem a Man and a brave Souldier by the ancient course of the Saxons had Title enough to be thought upon in a doubtful Succession Besides he was a rich man and had enough to raise up his thoughts to high undertakings had a Brother a Bishop and Legate to the Pope here in England one who was of a high spirit and vast power advantages enough to have quickned a much duller spirit than his was who was a Son of a Daughter to William the Conquerour And to make him yet more bold he had the upper ground of the Heir who was a woman disadvantaged by a whispering of wilfulness and customary Government like an Empress which was too high a sail for an English bottom wherein so precious a Treasure as the Subjects Liberties was to be shipped Thus provided Steven stepped up to the English Throne and with protestations of good Government entred and made up the match both for Crown and Scepter the People waving the Title both of Empress and Heir The pretensions of the E. of Bloys elder Brother to Steven gave way to the common Law and Liberties of the Subject to fasten root and gather strength after the violence of the Norman blasts was out of breath thus making way over Hedge and Ditch of all Oaths till the King was quietly setled in the Throne Quietly said I that I must retract for he never had quiet during his life though generally he was victorious and did as much as a King could do that had the passions of a man and Souldier to give the Subjects content The true cause whereof was an errour in the tying of the Knot wherein he neither became theirs nor they his for the Fealty that was sworn to him was but conditional and eousque and yet the King's promises were absolute and better observed than the Peoples were possibly because his Engagements were more For besides his Protestations the King pledged his Brother the Legate to the people and mortgaged himself to his Brother and to boot gave both to the Clergie and Barons liberty to build and hold Castles for their private security The issue whereof may remind that too much countersecurity from the King to the people is like so many Covenants in Marriage that make room for jealousie and are but seeds of an unquiet life And thus it befel this King's Reign His first troubles are brought in by Historians as if they dropped from Heaven yet probably came immediately from without viz. from beyond Sea where the Empress was for as the King's Engagements were in their first heat on the one side so was also the Empress's Choler on the other side and therefore might make the first assault And the King 's first success therein falling out prosperously for him gave him a conceit that he was strong enough to encounter his own Covenant although in truth he invaded but the skirts thereof I mean that collateral security of Castles for by experience he now feels that they are blocks in his way he must therefore have them into his own power But the Clergie loth to forgo their pawn till they had their full Bargain for now they were working hard for investitures of the Mitred Clergie under the patronage of a Legate that had the King in bonds acted their parts so well as they engaged the Nobility for their liberty of Castles in which Atchievement the King was taken prisoner The Empress betakes her self to the Clergie and by the Legate's means procures a kind of Election to be Queen But she sick of the Womans humour and thinking too much of the Empress and too little of the Queen and forgetting that the English Crown would not fit an Empress unless she could fit her head first to it choaked her own Title by Prerogative and so let the Crown slip through her own hands which fell upon the head of Steven again who maintained it by his Sword after by Composition and then died a King. And thus like a Vapour mounted up by the Clergie tossed by Tempests for a time and at length falling he gave way to the Crown to have its free course to the Empress's Son by Geoffery Plantagenet This was Henry the second the most accomplished for Wisdom Courage and Power of all his Predecessors and one that wanted nothing but purpose to have undone what the foregoing Princes had done in the setling of the Liberties of the People for the Subjects were tired with the unquiet former times and the Clergie in distraction through the Schism in the Popedom between Victor the fourth and Alexander the third and very unfitting all were to dispute the point of Prerogative with so mighty a Prince And it was the wisdom of God to order his affairs so as that he was not very fit to dispute with the people in that case for his Title to the Crown was not very excellent being neither Heir to the last King that Reigned nor to the last of that Title I mean to Henry the first but Son only to the Empress who was now alive and by descent was to be preferred before all other His Title therefore is clearly by compact and agreement made between the Lords King Steven and himself all being then ready to try the right by the Sword to that to which none of them had any right at all at that time but by the favour of the people Nor did the King ever after dispute the strength of this Title although before he died his Mothers death conveyed over to him what right of descent soever was consistent with the Law of the Crown nor did occasion favour him thereto for as it is never seen that any man is honoured by God with many advantages without proportionable employment for the same so it befel with this King His great Territories in France brought jealousie in the rear and thence strife and contention with France enough to turn his thoughts from waxing wanton against his own people and therefore his wisdom taught him to prefer peace at home to the chief of his Prerogative to become somewhat popular and yet to lose nothing of a King thereby His way was to keep the Church-men down that had during his predecessors time grown whether more obstinate against the King or insolent over the people is hard to judge and in this he had the people to friend and might have prevailed much more than he did but that the people feared the threats of Rome more than he and he if not guilty of Becket's death
coming nigh unto the push of pike and the King ready for the spoil of both the Barons and Clergy suddenly close their files and like a stone-wall stood firm to each other till the King wearied with succesless labour was glad to give and take breath confirmed the Liberties of the people by his Charter which is now called the Magna Charta for substance and gave such collateral security for performance on his part as did let the World know the thing was as just as himself had been unjust The worst point in the case was that the people got their own by a kind of re disseisin a desperate remedy for a desperate condition wherein the Common-wealth then lay between life and death upon the rack of the will of a King that would be controuled by nothing but his own appetite and was in the end devoured by it CHAP. LVIII Of the state of the Nobility of England from the Conquest and during the Reign of these several Kings UNder the Title of the Nobility of England I shall comprehend all such as are of the greatest eminency for birth or wisdom and learning and advancement into place of Government and Honour These were in the Saxons times the flower of the people flourishing only from the honour that ascended from beneath their deportment then was full of chear and safety to the people after that Royalty sprung up the influence thereof upon them exhaled such a reciprocal interest back again as made them less regardful of their own root whereas we see the more mature flowers are the more propense to turn head and look downward to their own original This distemper was yet much worse by the coming in of the Normans whose Nobility besides their Titles of honour in their own Countrey obtained by custom such command and power amongst the meaner sort being Souldiers under them in time of the service in the field that when the Wars had breathed out their last neither of them could forget or were very careful to lay aside This was observed by Kings and advantage espyed to climb to the top of Monarchy by the help of these great men whom if they could make their own all would be theirs and therein they had prevailed much more than they did if they had been wise enough to have maintained them in unity but in that failing the Kings were necessitated to take parties and serve the Nobility to save the main and thus continued they a considerable party in the Government of this Kingdom from the Normans for the space of two hundred years well-nigh to the prejudice both of the growth of the Prerogative of Kings and Liberties of the Commons and benefit of none but the Lords who in those unquiet times were the chief Commanders in the field This errour of the Kings was soon espied but could not be avoided it is natural to man to be proud and to such to fall into contention another course therefore is taken viz. to raise up some so high as may over-top all and keep them under nor is it altogether without reason for Kings are no ubiquitaries and some must bear their power where they cannot be personally present yet it is dangerous to bestow too much upon one man for there is no man fitting to be a King but himself that is a King and where Kings are immoderate in bestowing power it many times works much woe to the people and not seldom sorrow to the Kings themselves The place of the chief Justice was in shew but one Office yet in these times was in nature of the Kings Lieutenant-general throughout the Kingdom A power and work too great for any one man in the World that can make no Deputies to manage it and yet in those times you shall meet with one man made up of an Arch-bishop a Legat and chief Justice of England or a Bishop a Lord Chancellour a Legat and chief Justice of England and a strange kind of Government must that needs be wherein the Servants Throne is above his Masters and a Subject shall have a plenitudinary power beyond that which his Lord and King had or as the times then were was capable of By these and such like pluralities the great men of England kept the Commons below and themselves above and probably rendred the temper of the Government of this Kingdom more Aristocratical than in after-Ages And if their personal authority was of such value how much rather in their joynt assembly or court of Council concerning which I must agree that as in their original in Germany they did consult and determine of the meaner matters that is to say of matters concerning Property and therefore were in their most ordinary work Meetings of Judges or Courts of Judicature and also matters of defensive War because themselves were the Commanders and lastly in matters of sudden concerment to the State not only to serve as eyes to foresee but to provide also if they can or otherwise to call in the ayd of the peoples advice so also they continued this course and it may be now and then as all Councils have done strained their endeavours beyond their reach especially since the Normans entrance and therefore I shall not deny but that they alone with the King and without the Commons have made many Laws and Constitutions some of which now are called Statutes although many of them in truth are no other than Rules for Judicature which ordinary Courts may frame or Judgments in particular cases such as are the constitutions at Clarindon in Henry the Second's time and many other Laws which are reported to be made between the King and his Lords Nor can I look upon such Laws otherwise than as upon Judgments in Courts of Justice in new points of controversie grounded upon ancient grounds which properly are not new Laws but the ancient Rule applied to new particulars and being so published to the World may bear the name of Laws Ordinances Constitutions or Judgments the word Statute being of latter times taken up and used in a more restrictive sence of which more in their due place Now that this Court was a setled Court of Judicature and so used may appear in that Fines were levied therein and Writs of Right determined as in the great Case between the two Kings of Navar and Castilè referred to the Judgment of Henry the second and tried in this Court it is said that the Tryal was by Plea and if need were by Battel The Judges in this Court were the Baronage of England for the entry of Judgment in that great Case is thus Comites Barones Regalis Curiae Angliae adjudicaverunt c. So as though doubtless many were absent some being enemies others discontented others upon other occasions yet all might claim their Votes as Barons The President over all the rest was the Chief Justice as if the King were present then himself and by him was the Sentence or Judgment
declared according to the entry in that Case aforesaid Habito Concilio cum Episcopis Comitibus Baronibus adjudicavimus c. The honour of this Court was great so long as the Lords had liberty or care to attend thereon but when Kings began to have private interests they would have these to be more private Councils which weakned the esteem of Conclusions that there passed and reduced the honour thereof scarce to the degree of a Conventicle And by this means the necessity of calling together the whole Body-Representative was made more frequent the power of the Nobility of England decayed and this Court forfeited all its Juridical power to the three Courts at Westminster viz. the Kings-bench Common-pleas and Exchequer saving still the supreme Judicature unto the grand Convention of Estates in Parliament where all the Lords had liberty of meeting and free voting without impeachment CHAP. LIX Of the state of the Clergie and their power in this Kingdom from the Normans time IF the Prerogative of Kings prevailed not to its utmost pitch during the Normans time it did much less in these times succeeding wherein the Clergie took up the Bùcklers and beat both King and Commons to a Retreat themselves in the interim remaining sole Triumphers in the Field In their first Adventure they paced the Stage no man appearing to oppose Steven then was King by their leave and their Bond-servant and they might have any thing sobeit they would suffer him to enjoy his Crown His Brother the Bishop was the Pope's servant the Church-mens patron and the King's surety in whom the Clergies favour to the King and his good behaviour toward them and all men concentred Besides all this the King was but so upon condition and there being no better Title than Election Conscience in those times was well enough satisfied in the breach of Covenant on their part when on the King's part it was first broken All this the King saw full well and therefore what can he deny to such Benefactors Vacancies of Churches he readily parts with and his right of investiture of the Mitred Clergie he dispensed so as he open'd the way to his Successours of an utter dereliction of that Priviledge He sees his Brother the Legate deflower the Crown of England by maintaining Appeals from the Courts in England unto the Court of Rome and he says nothing he is contented with the stump of the Crown and with Saul if he be but honoured above or before all others of the people it is enough But the Clergie like the barren Womb hath not yet enough The King hath allowed them Castles and too late he sees that instead of being Defences against the Imperial power of the Empress they are now made Bulwarks against the lawful power of a King he had therefore endeavoured to get them down and gotten some of them into his power The King himself is now summoned to answer this before a Legatine Council wherein his Brother is President That was a bold adventure in them but it was extreme rashness in him to appear and plead the Cause of the Crown of England before a Conventicle of his own Subjects And thus to secure Rome of Supremacy in Appeals he suffers a recovery thereof against his own person in a Court of Record and so loses himself to save the Crown Thus are Synods mounted up on Eagles wings they have the King under them they will next have the Crown Within a while Steven is taken prisoner The Empress perceiving the power of the Clergie betakes her case to them now assembled in Synod they now proud of the occasion and conceiting that both Law and Gospel were now under their decree publish That the Election of the King belongeth unto them and by them the Empress is elected Queen in open Synod Steven's Brother leading the game and had she been as willing to have admitted of the Laws as Steven was she had so continued and had left a strange President in the English Government for Posterity But the Citizens of London who had made the way to the Throne for Steven reduced the Synod to sober consideration and helped the King's return unto his Throne again wherein he continued a friend to the Clergie during the rest of his time Henry the second succeeded him as brave a man as he but beyond him in Title and Power and one that came to the Crown without pre-engagement by Promise or Covenant saving that which was proper for a King. A man he was that knew full well the Interests in the Government the growing power of the Clergie and the advantages lost from the Crown by his Predecessor And to regain these he smooths his way towards these braving men speaks fair profers fair he would act to increase the bounds of the Church He would have the Pope's leave to do him a kindness and sobeit he might gain an interest in Ireland he would take it from the Pope who pretended as Heir of Jesus Christ to have the Islands and utmost parts of the Earth for his possession and as if he meaned to be as good to the Church as Steven was and much better he desires the Pope's kindness for the confirmation of the Liberties and Customs of his Crown and Kingdom and no sooner desired than obtained This was a second Example of a King of England but the first of an English King that sought to Rome for Right in the Crown and thereby taught the Pope to demand it as a priviledge belonging to the Tripple Crown Nor was Henry the second less benign to the Church-men till he found by his dear-bought experience that he had nourished Scorpions and would have suppressed them but was rather suppressed himself as in that shameful success of the death of Becket may appear wherein he yielded the day up to the Clergie who formerly scorned to stoop to the greatest Potentate on Earth The State of Kings is to be pitied who must maintain a politick affection above and sometimes against Nature it self if they will escape the note of Tyranny in their Undertakings and of a feeble Spirit in their Sufferings For the King having made Becket Chancellor of England and then Archbishop of Canterbury he became so great that his Feathers brushed against the King's Crown who begins to rouse up himself to maintain his Honour and Prerogative Royal. The Bishops side with Becket the King intending the Person and not the Calling singles out the Archbishop and hunts him to soil at Rome yet before he went the King puts the points of his Quarrel in Writing and made both Archbishop and Bishops signe them as the Rights of his Crown and as the Consuetudines Avitae But Becket repenting went to Rome and obtained the Pope's pardon and blessing the rest of the Bishops yielding the Cause The particulars in debate were set down in the nature of Laws or Constitutions commonly called the Constitutions at Clarindon which shew the prevailing humour that then
cases and of the Writ de cautione admittenda Persons cited and making default may be interdicted and the King's Officer shall compel him to obey If the King's Officer make default he shall be amerced and then the party interdicted may be excommunicated So as the Process in the Spiritual Courts was to be regulated according to Law. Nor did it lie in the power of such Courts to order their own way or scatter the censure of Excommunication according to their own liking This together with all those that forego the Arch-bishop upon his repentance absolutely withstood although he had twice consented and once subscribed to them having also received some kind of allowance thereof even from Rome it self Clergy-men holding per Baroniam shall do such services as to their Tenure belong and shall assist in the King's Court till judgement of Life or Member Two things are hereby manifest First that notwithstanding the Conquerour's Law formerly mentioned Bishops still sate as Judges in the King's Courts as they had done in the Saxon times but it was upon causes that merely concerned the Laity so as the Law of the Conquerour extended onely to separate the Laity out of the Spiritual-Courts and not the Clergie out of the Lay-Courts Secondly that the Clergie especially those of the greater sort questioned their services due by Tenure as if they intended neither Lord nor King but the Pope onely Doubtless the use of Tenures in those times was of infinite consequence to the peace of the Kingdom and government of these Kings whenas by these principally not onely all degrees were united and made dependant from the Lord paramount to the Tenant peravale but especially the Clergie with the Laity upon the Crown without which a strange metamorphosis in Government must needs have ensued beyond the shape of any reasonable conceit the one half almost of the people in England being absolutely put under the Dominion of a foreign power Sanctuary shall not protect forfeited Goods nor Clerks convicted or confessed This was Law but violence did both now and afterwards much obliterate it Churches holden of the King shall not be aliened without License It was an ancient Law of the Saxons that no Tenements holden by service could be aliened without License or consent of the Lord because of the Allegiance between Lord and Tenant Now there was no question but that Churches might lie in Tenure as well as other Tenements but the strife was by the Church-men to hold their Tenements free from all humane service which the King withstood Sons of the Laity shall not be admitted into a Monastery without the Lord's consent Upon the same ground with the former for the Lord had not onely right in his Tenant which could not be aliened without his consent but also a right in his Tenant's Children in regard they in time might by descent become his Tenants and so lie under the same ground of Law For although this be no alienation by legal purchase yet it is in nature of the same relation for he that is in a Monastery is dead to all worldly affairs These then are the rights that the King claimed and the Clergy disclaimed at the first although upon more sober consideration they generally consented unto the five last But their Captain-Archbishop Becket withstood the rest which cost him his life in the conclusion with this honourable testimony that his death Sampson-like effected more than his life For the main thing of all the rest the Pope gained to be friends for the loss of so great a stickler in the Church-affairs as Becket was In this Tragedy the Pope observing how the English Bishops had forsaken their Archbishops espied a muse through which all the game of the Popedom might soon escape and the Pope be left to sit upon Thorns in regard of his Authority here in England For let the Metropolitan of all England be a sworn servant to the Metropolitan of the Christian World and the rest of the English Bishops not concur it will make the Tripple Crown at the best but double Alexander the Pope therefore meaned not to trust their fair natures any longer but puts an Oath upon every English Bishop to take before their consecration whereby he became bound 1. To absolute allegiance to the Pope and Romish Church 2. Not to further by deed or consent any prejudice to them 3. To conceal their Counsels 4. To aid the Roman Papacy against all persons 5. To assist the Roman Legat. 6. To come to Synods upon Summons 7. To visit Rome once every three years 8. Not to sell any part of their Bishoprick without consent of the Pope And thus the English Bishops that formerly did but regard Rome now give their Estates Bodies and Souls unto her service that which remains the King of England may keep And well it was that it was not worse considering that the King had vowed perpetual enmity against the Pope But he wisely perceiving that the King's spirit would up again having thus gotten the main battle durst not adventure upon the King's rear lest he might turn head and so he let the King come off with the loss of Appeals and an order to annul the customs that by him were brought in against the Church which in truth were none This was too much for so brave a King as Henry the second to lose the scare-crow-power of Rome yet it befel him as many great spirits that favour prevails more with them than fear or power For being towards his last times worn with grief at his unnatural Sons a shadow of the kindness of the Pope's Legat unto him won that which the Clergy could never formerly wrest from him in these particulars granted by him that No Clerk shall answer in the Lay-courts but onely for the Forest and their Lay-fee This savoured more of courtesie than Justice and therefore we find not that the same did thrive nor did continue long in force as a Law although the claim thereof lasted Vacancies shall not be holden in the King's hand above one year unless upon case of necessity This seemeth to pass somewhat from the Crown but lost it nothing for if the Clergy accepted of this grant they thereby allow the Crown a right to make it and a liberty to determine its own right or continuing the same by being sole Judge of the necessity Killers of Clerks convicted shall be punished in the Bishops presence by the King's Justice In the licentious times of King Steven wherein the Clergy played Rex they grew so unruly that in a short time they had committed above a Hundred murthers To prevent this evil the King loth to enter the List with the Clergy about too many matters let loose the Law of feud for the friends of the party slain to take revenge and this cost the bloud of many Clerks The Laity haply being more industrious therein than otherwise they would have been
which shew him to be a brave King if he was not a very rich man. Henry the second was more heavy because he had more to do yet find we but one assessment which was Escuage unless for the holy War which was more the Clergy-mens than his Richard was yet a greater burthen his Reign was troublesome to him and he deserved it for from the beginning thereof to the ending could never the guilt of his disobedience to his Father be blotted out but it was more troublesome to the people because it cost so much treasure was managed by such ill Governours except the Archbishop of Canterbury and was unsuccessful in most of his undertakings yet never invaded the liberties of the Commons by any face of Prerogative But what wanted in him was made compleat and running over in his Successor John who to speak in the most moderate sence of his Government being given over to himself when he was not himself robbed the Lords of their authority bereaved the Church of its Rights trod under foot the Liberties of the people wasted his own Prerogative and having brought all things into despair comes a desperate cure the head is cut off to save the body and a president left for them that list to take it up in future ages And thus that which Steven gave Henry the second lost Richard the first would not regain and John could not and so all were gainers but the Crown CHAP. LXI Of Judicature the Courts and their Judges IT is no silent argument that the Commons gain where Laws grow into course and it was the lot of these troublesome times to lay a foundation of a constant Government such as all men might learn which formerly was laid up onely in the breasts of wise experienced men The two most considerable points in Government is the Law and the Execution the latter being the life of the former and that of the Common-wealth I say not that the Law was augmented in the body of it or that the Execution had a freer course than in the best of the former times but both were more and more cleared to the world in many particulars as well touching matters concerning practice of the Law as touching rules of righteousness For the first whereof we are beholding to Glanvil in Henry the second 's time and for the latter to King John or rather the Barons in his time in the publishing of the Grand Charter or an enumeration of the Liberties or Customes of the people derived from the Saxons revived continued and confirmed by the Normans and their Successors which for the present I shall leave in lance dubio to stand or fall till occasion shall be of clearing the point in regard that King John soon repented of his Oath the Bond of his consent and to heal the Wound got the Pope's pardon and blessing thereupon so easie a thing it was for a Son of the Roman Church to pass for a good Catholick in an unrighteous way The execution of the Law was done in several Courts according to the several kinds of affairs whereof some concerned matters of Crime and Penalty and this touched the King's honour and safety of the persons of himself and his Subjects and therefore are said to be contra coronam dignitatem c. The second sort concern the profits of the Crown or treasure of the Kingdom The third concern the safety of the Estates of the people These three works were appointed unto three several Courts who had their several Judges especially appointed to that work Originally they were in one viz. in the supream Court of Judicature the Court of Lords whereof formerly was spoken but after through increase of affairs by them deputed or committed to the care of several men that were men of skill in such affairs and yet retained the Supremacy in all such cases still And because that which concerned the publick Treasure was of more publick regard than the other the deputation thereof was committed probably to some of their own members who in those days were Barons of the Realm and afterwards retained the Title but not the Degree and therefore were called for distinction-sake Barons of the Exchequer The particular times of these deputations appear not clearly out of any monument of antiquity nevertheless it is clear to me that it was before Henry the second 's time as well because Henry the first had his Judex fiscalis as Glanvil so frequently toucheth upon the King's Court of Pleas which cannot be intended at the Court of Lords for that in those days was never summoned but in time of Parliament or some other special occasion But more principally because the Historian speaking of the Judges itinerant reciteth some to be of the Common-pleas which sheweth that there was in those days a distinction of Jurisdiction in Judicatures And it may very well be conceived that this distinction of Judicature was by advice of the Parliament after that the Grand Council of Lords was laid aside by Kings and a Privy-Council taken up unto whom could not regularly belong any juridical power because that remained originally in the grand assembly of the Lords Over these Courts or two of them one man had the prime Title of Chief Justice who then was called Lord Chief Justice of England and whose office was much of the nature of the King's Lieutenant in all causes and places as well in War as Peace and sometimes was appointed to one part of the Kingdom and by reason thereof had the name onely of that part and some other of the other parts The greatness of this Office was such as the man for necessity of state was continually resident at the Court and by this means the King's Court was much attended by all sorts of persons which proved in after-times as grievous the King as it was burthensome to the people Other Judges there were which were chosen for their learning and experience most of them being of the Clergie as were also the under-Officers of those Courts for those times were Romes hour and the power of darkness Other Courts also were in the Country and were Vicontiel or Courts of Sheriffs and Lords of Hundreds and Corporations and Lordships as formerly and these were setled in some place But others there were which were itinerant over which certain Judges presided which were elected by the Grand-Council of Lords and sent by Commission from King Henry the second throughout the Kingdom then divided into Six Circuits unto each of which was assigned Three Justices so as the whole number of Justices then was Eighteen The office was before the coming of the Saxons over hither but the assignation was new as also was their Oath for they were sworn But the number continued not long for within four years the King re-divided the Land into four Circuits and unto each Circuit assigned five Justices making in the whole the number of Twenty and one Justices for the Northern
It seemeth also that the loss not onely of Chattels and Goods but also of Lands c. extended to Outlawries I conceive in case of Felony and the King's Pardon in such case could not bind the Lord's right of Escheat although it might discharge the Goods and the year and day whereunto the King was entitled which case alone sufficiently declareth what power Kings had in the Estates of their Subjects Manslaughter made not bailable This was Law in Henry the second 's time although it crossed the Norman Law and questionless it was upon good ground for the times now were not as those in the Conquerour's times when shedding of Bloud was accounted Valour and in most cases in order to the publick service And now it seems it was a growing evil and that cried so loud as though in case of Treason bail might be allowed yet not in this case ubi ad terrorem aliter statutum est saith the Author Robbers shall be committed to the Sheriff or in his absence to the next Castelane who shall deliver him to the Sheriff And the Justices shall do right to them and unto Trespassers upon Land. By the Conquerour's Law these Offenders were bailable and I conceive this was no Repeal thereof and the rather because Glanvil alloweth of Pledges in all cases except Manslaughter yea in those Crimes that did wound Majesty it self although they concern the destruction of the King's person or Sedition in the Kingdom or Army thereof The Justices herein mentioned were intended to be the Justices itinerant and the Trespasses upon Land are meant such as are contra pacem Domini Regis as riotous and forcible Entries for some Trespasses were against the peace of the Sheriff as formerly hath been observed Fauxonry is of several degrees or kinds some against the King others against other men and of those against the King some are punished as Wounds of Majesty as falsifying the King's Charter and whether falsifying of Money were in that condition or not I leave or falsifying of Measures yet more inferiour I cannot determine but it is clear by Glanvil that falsifying of the Deed of a private person was of smaller consideration and at the utmost deserved but loss of Member Inheritances may not be aliened Inheritances were in those times of Lands or Goods for it was the custom then that the personal Estate the Debts deducted was divisible into three parts one whereof belonged in right to the Wife as her reasonable part the other to the Heir and a third to the Testator to make his Will of them and of the other two parts he could not dispose by Will. Concerning Lands it was regularly true that no man could alien his whole Inheritance to the disherisin of his Heir either by Act in his life-time or any part thereof by his last Will without the concurrence of the Heir But of purchased Lands he may give part by Act executed in his life-time though he have no Lands by inheritance and if he hath no Issue then he may alien all And where a man hath Lands by inheritance and also by purchase he may alien all his purchased Lands as he pleaseth If the Lands be holden in Gavel-kind no more of the Inheritance can be conveyed to any of the Children than their proportionable parts will amount unto This Law of Inheritance was divers according to the Tenure for the Lands in Knights-service always descended to the Heir but such as were holden in Socage passed according to the custom either to the eldest or to the youngest or to all equally And thus stood the general state of Inheritance from the Normans time hitherto seeming somewhat too strait for the Free men that by Law of Property might challenge a power to do with their own as they pleased But the Normans saw a double prejudice herein the first was the danger of ruine of many of their Families who now ingrafted into the English stock and yet not fully one might expect a late check to their preferments from the Saxon Parents after a long and fair semblance made of their good Will. The second prejudice was the decay of their Militia which was maintained by Riches more than by multitude of men partly because that rich men are most fearful of offending and therefore ordinarily are most serviceable both with their Bodies and Estates against publick dangers and partly because by their Friends and Allies they bring more aid unto the publick by engaging them in the common Cause that otherwise might prove unsensible of the condition of their Country The Heir of a Free-man shall by descent be in such seisin as his Ancestor had at the time of his death doing service and paying relief and shall have his Chattels If the Heir be under age the Lord shall have the Wardship for the due time and the Wife her Dower and part of the Goods If the Lord with-hold seisin the King's Justice shall try the matter by twelve men The first of these branches is declaratory of a ground of common Law but being applied to the last is an introduction of a new Law of tryal of the Heir 's Right by Assize of Mortdancester where formerly no remedy was left to the Heir but a Writ of Right If these three branches be particularly observed they speak of three sorts of Heirs of Tenants by Knight-service viz. such as are Majors or of full age and such as are Minors or under age and such as are of a doubtful age Those that are of full age at the death of their Ancestors may possess the Lands descended and the Lord may not disseize him thereof but may be resisted by the Heir in the maintenance of his possession so as he be ready to pay Relief and do service that is due and if the Lord expel him he shall have remedy by Assize Those Heirs that are Minors shall be under the Lord's guardianship till they come to one and twenty years The Heirs of such as hold by Socage are said to be at full age at fifteen years because at that age they were thought able to do that service but the Sons of Burgesses are then said to be of full age when they have ability to manage their Father's Calling such as telling of Money measuring of Cloath and the like yet doth not Glanvil or any other say that these were their full age to all purposes albeit that some Burroughs at this day hold the last in custom to all intents whatsoever The last branch provideth the remedy to recover to the Heir his possession in case it be detained either through doubtfulness of age of the Heir or his Title and it directs the Issue to be tryed by twelve men This tryal some have thought to be of Glanvil's invention and it may well be that this tryal of this matter as thus set down was directed by him yet he useth often in his book the word solet and in his Preface
Fathers government Nor did he onely follow the counsels of others herein but even at such times as their counsels crossed he chose those Counsels that suited with the most popular way as is to be seen in the different counsels of the Archbishop of Canterbury and William Briware And yet two things troubled much those times one that they were times of parties the other that the Protector was somewhat too excellent to be a meer servant and it is hard for the English Nobility to endure him to be greater although it may seem reasonable that they that are thought worthy to govern a King should be much more worthy to govern themselves But the Pope put an end to all occasion of question hereabout for by his Brief he declares the King to be sixteen years old and of age to govern himself and therefore all Castles are forthwith to be rendred up into the King's hands This proved the rock of offence whilst some obeyed the Pope and were impugners of those that put more confidence in the Castles than in the Kings good nature Hence first sprang a civil broil thence want of money then a Parliament wherein the Grand Charter of Englands Liberties once more was exchanged for a sum of Money Thus God wheeled about successes But the King having passed over his tame age under the Government of wise Counsellors and by this time beginning to feel liberty it was his hard condition to meet with want of Money and worse to meet with ill Counsellors which served him with ill advice that the Grand Charter would keep him down make him continually poor and in state of pupillage To this giving credit it shaped an Idea in his mind that would never out for forty years after and thus advised he neglects his own engagement defies the Government that by his Royal word and the Kings his predecessors in cool bloud had been setled and that he might do this without check of Conscience he forbad the study of the Law that so it might die without heir and he have all by Escheat This sadded the English and made them drive heavily the King to add more strengh brought in Foraigners and foraign Councils and then all was at stand The Councils were for new ways The great designe was to get money to supply the King's wants and as great a designe was to keep the King in want otherwise it had been easie for those at the helm to have stopped the concourse of Foraigners other than themselves from abroad the confluence of the Queens poorer Allies lavish entertainment profuse rewards cheats from Rome and all in necessitous times But strangers to maintain their own interests must maintain strangeness between the King and his Subjects To supply therefore these necessities all shifts are used as revoking of Charters displacing of Officers and fining them Afforestations with a train of oppressions depending thereon Fines and Amercements corrupt Advancements Loans and many tricks to make rich men offenders especially projects upon the City of London Nevertheless all proved infinitely short of his disbursements so as at times he is necessitated to call Parliaments and let them know his wants At the first the people are sensible and allow supply but after by experience finding themselves hurt by their supplies to the King they grant upon conditions of renewing the power of the Great Charter and many promises pass from the King to that end and after that Oaths and yet no performance This makes the people absolutely deny supplies Then the King pretends Wars in France Wars in Scotland and Wars against the Infidels in the Holy-land whither he is going the people upon such grounds give him aids but finding all but pretences or ill success of such enterprizes they are hardned against supplies of him for the Holy War. Then he seems penitent and pours out new promises sealed with the most solemn execration that is to be found in the Womb of Story and so punctually recorded as if God would have all generations to remember it as the seal of the Covenant between the King of England and his people and therefore I cannot omit it It was done in full Parliament where the Lords Temporal and Spiritual Knights and others of the Clergy all standing with their Tapers burning The King himself also standing with a chearly contenance holding his open hand upon his brest the Archbishop pronounced this Curse ensuing By the authority of God omnipotent of the Son and of the Holy Ghost and of the glorious Mother of God the Virgin Mary and of the blessed Apostles Peter and Paul and of all the other Apostles and of the Holy Martyr and Archbishop Thomas and of all the Martyrs and of the blessed Edward King of England and of all Confessors and Virgins and of all the Saints of God. We Excommunicate and Anathematize and sequester from our holy Mother the Church all those which henceforth knowingly and maliciously shall deprive or spoil Churches of their right And all those that shall by any art or wit rashly violate diminish or change secretly or openly in deed word or counsel by crossing in part or whole those Ecclesiastical liberties or ancient approved customs of the Kingdom especially the Liberties and free Customs which are contained in the Charters of the common Liberties of England and the Forests granted by our Lord the King to the Archbishops Bishops Prelates Earls Barons Knights and Freeholders And all those who have published or being published have observed any thing against them or their Statutes or which have brought in any customs or being brought in have observed and all Writers of Ordinances or Councils or Executioners or such as shall judge by such things All such as are knowingly guilty of any such matters shall ipso facto incur this Sentence such as are ignorantly guilty shall incur the same censure if being admonished he amend not within fifteen days after admonition In the same censure are comprehended all perturbers of the peace of the King and Kingdom for everlasting memory whereof we have hereunto put our Seals And then all throwing down their Tapers extinguished and smoaking they said So let all that shall go against this curse be extinct and stink in Hell. The King all the while continuing in the posture above-mentioned said So God me help I will observe all these things sincerely and faithfully as I am a Man as I am a Christian as I am a Knight as I am a King crowned and anointed If we shall pare away the superstitious ceremonies and consider divine providence we may search into all Histories of all ages and we shall not find a parallel hereunto so seriously composed solemnly pronounced with an Amen from the representative body of the whole Kingdom put in writing under seal preserved to posterity vindicated by God himself in the ruine of so many opposers And yet the dust of time hath almost buried this out of the thoughts of men so as few
even of such as know it do seriously consider how far it may yet and even now be charged upon the account of this Nation Serious as it was it was soon forgotten nor would the King be long holden with promises some unhappy Star struck him in his birth he had been too hard for his promises and now having the Pope at his Elbow he can dispence with his Oath and bid defiance to an Execration and in flat defiance of the Grand-Charter professeth oppression accumulates forreign Counsellors and forreign Guards contemns his own people ushers in the Pope's Extortions upon them to fill up the measure thrives in nothing but in the match of his Son and Successor with a Sister of Spain and yet that also helps to hasten on the publick poverty and that a Parliament that brought forth a bloudy issue although not by any natural power but occasionally For the Barons mean now no longer to trust to promises strangers are banished the Realm and others of the English bloud stepped into their places and Revenues But this was not all the King must confirm the Grand-Charter and thereto he addeth not onely his own Oath but causeth the Prince his Son to confirm the same in like manner It is likewise propounded to him that the chief Officers of the Kingdom may be chosen such as the Parliament shall like of And that other Laws meet for the government of the Kingdom might be established of all these the King made no bones And to make men believe that he was in good earnest he was contented to disrobe and disarm himself and invest the Barons both with Sword and Scepter retaining nothing but the Crown for himself This had been safety enough for the Kingdom but that it was a conclusion without an agreement for as it was on the King's part made from a principle of shame and fear so it was determined in anger for after that the King had been thus drest and girt for the space of Four or Five years whatsoever he thought all the while it is no matter he began first to stretch his Conscience and having the Pope's Dispensation to help soon makes his Oath to fly assunder although his Son had for the present more Conscience But the other girt held more stoutly for the Lords had the Sword chained to their Arm by the King 's own grant Liceat omnibus in regno nostro contra nos insurgere ad gravamen nostrum opem operam dare ac si nobis in nullo fenerentur and the Lords maintained their hold though not without some jealousies amongst themselves And it is very probable had the King been a little longer breathed with patience he might have had his will upon easier terms for the Lords were not so jealous of one another as the Commons were jealous of the Lords that they meaned to rule onely for themselves But the King now being in a wood and bemired so as he must now resolve to get all or lose all and so either satisfie his natural desires or the remainder of his politick power entred the field with the aid of those Commons that chose rather to be oppressed by one King than many Lords And thus the Lords received the first blow and gave the first foil Afterwards being worsted by their own divisions and jealousies they left a victory to the King that might have made him absolute if he had been moderate but pursuing revenge too far he was distasted of his own party that looked on him as a Polyphemus that intended to devour the Enemy first that he might more freely feast upon themselves in the issue This made victory follow the King afar off and taught the King that the end of Civil War must be attended with moderation in the Conquerour so far as may stand with publick safety or otherwise he that is Conquerour to day by Sword may be conquered to morrow by Jealousie Thus many humours consumed and all parts tired after four years continual War the State cometh to its right Wits The King's gains in all this bloudy sweat may be summed up in two heads First that he had liberty to chuse his principal Officers of State by advice of the Lords and them also to displace by like Counsel Secondly in that he gained though at a dear rate wisdom to observe the state of affairs and to apply himself according to occasion so lived Henry the third for three or four years after these troubles long enough to let the World know that he was able to govern like an English King and to teach his Son by his own late experience to be a wise governour betimes For Edward the first being trained up in the Tragedy of a Civil War wherein he was one of the chief actors and having expiated the bloudy way of his riotous youth by his Holy War as they called it now he betakes himself to amends making by Justice in Government having found by his Father's experience that a Kingdom well governed like good husbandry preserves the owner but being neglected destroys both He came over in his third year in August was crowned in September summoned a Parliament in February following but adjourned it till after Easter and then it is found that the Church of late had been ill governed the Clergy-men grieved by many ways the people otherwise handled than they ought to be the Peace ill kept the Laws less used and Delinquents less punished than was meet and in the sence of these inconveniencies were the Laws of Westminster the first made wherein the world may see the great difference between the Prince and the King in one and the same man. The most part of those Laws were little other than plaisters applied to particular botches of those times wherein the King dealt with a tender hand as if he feared to ulcerate any part and especially the Clergie and therefore delivered the last Law in a petitionary way to the Clergie because it concerned the execution of Justice in prohibited times and yet bound up all with a salvo to himself and his prerogative like a wise King that would neither lose right nor do rong nor yet stickle to debate with his Subjects now whenas his eye was upon a further mark For Leolin the Prince of Wales had affronted him and though he could not endure affronts yet could he dissemble them for advantage and so he suffered the Parliament to run its course that he might have done the sooner Otherwise he had a seed of his Father's conceit that Laws are not made for Kings as appeared afterward for after he had gotten his Army into the field he took a fifteenth which was granted to his Father and this was inaudito more but there was no disputing with power and therefore the Subject must be contented rather to score it up against the future than require present pay so dangerous a thing it is for England that Kings should have occasion to
gather Armies though for never so honourable employment The Welsh chase is hotly pursued yet it did not rid much way for it cost the English a voyage of nine years travel before they could attain the shore although it had been often within their view It may be the King found it advantageous for his Government to maintain an Army in the field under the colour of the Welsh War that he might more bow his Subjects to his own bent for during these Wars the King made many breathings and took time to look to the husbanding of his own Revenue as those Ordinances called Extenta manerii and Officium Coronatoris do witness and the Statute of Bigami But the people were not altogether yet tamed for the times being still in Wars and they occasioning much waste of Treasure put the King to the utmost pitch of good Husbandry and one degree beyond the same so as under colour of seizing his own he swept up also the Priviledges and Liberties of his Subjects some Authors reciting the complaints of the Church-men others of the Laity so as it seemeth the King was no respecter of persons but his own This and others not unlike had almost occasioned another Combustion had not the meeting at Gloucester setled things for the present by referring the right of Franchises to debate in the Eyer and ordering reseizure of such Liberties into the Subjects hands whereof they had been dispossessed by Quo warranto and Quo jure under colour of the fourth Chapter of the Statute of Bigami Nevertheless however debonair the King seemed to be the sore between him and his Subjects was not fully cured nor did the Lords trust him further than needs must for whether they served in the Field or met at Council still they were armed and during this daring of each other were many profitable Laws made whilst neither party durst venture bloodshed in touching too nigh upon the Priviledges of each other principally because the affairs in Wales were but laid asleep and upon reviving might turn the ballance to either side The Wars awake again and therein are consumed nigh five years more of the King's Reign so as whatever his intent was he could have hitherto little opportunity to effect any thing for the advancement of the Prerogative of the Crown at home Nor had he scarcely breathed himself and Army from the Welsh Wars but he found both France and Scotland his Enemies at once The King faced onely the first and fought the second which held him work the remainder of his days and at the same time also he arrayed both the Clergy and Laity at his own home as if Providence had given him security for the good behaviour and yet it failed him in the issue and left him to the censure of the World whether his Justice was spontaneous or by necessity for as yet he held the Grand Charter at parley and therefore was rather eyed than much trusted Albeit he was put upon confidence in the Subjects discretion for aid of him in his continual undertakings nor did they disclaim him herein however chargeable it was for all seem willing he should be employed any where so as not within the four Seas It is probable the King knew it and therefore having made a Voyage into France he changed the Scene of War but to the other side as it were of a River in hope his Lords would follow but it would not be This angred him and he them nor would his Clergy allow him any aid Papa inconsulto and therefore he outs them from his protection These and his irregular preparations by War by summons not onely of his Knights but all other that held Land worth 20 l. per annum and Taxes imposed by an arbitrary way increased Rancor into a kind of State-scoul little better than a Quarrel For appeasing whereof the King granted a consultation upon a prohibition and unto both Clergy and Laity a confirmation of the Grand Charter at the long run and allowed it as the common Law of the Kingdom and seconded the same with many succeeding confirmations in the twenty seven and twenty eighth years of his Reign as if he had utterly renounced all thought of a contrary way But the Statute in his 28th year had a sting in the tail that was as ill as his saving of ancient aids and prisals which was in the Statute of confirmation of the Charters though it were omitted in this Statute for the saving was of such a sence as time and occasion would move the King's heart to make it and thus this Statute became like a Hocus Pocus a thing to still the people for the present and serve the King's turn that he might more freely intend the conquest of the Scots which once done he might if he would try masteries with England But God would not have it so the King in Scotland had power to take but could not overtake and the Scots like birds of the prey had wit enough to fly away and courage enough to return upon advantages and so the King was left to hunt the wind which made him to return He might now expect the applause of his people for his good success and the terrour of those that had stopped the broad way of his extravagant Prerogative and therefore looks big rubs up old sores and having his Army yet in the field sends for those Lords that would not follow him in his Wars in Flanders All come and submit and as it were in so many words let the King know that all England is now tame and like to be ridden at his discretion And now there 's nothing in his way but the fatal execration which he feared not in relation to God's anger but rather to the exasperated Clergie and the dread of the Pope's direful Thunder-bolt To avoid this storm he procures a Dispensation from Rome to perjure and oppress without sin a trick that he learned of his Father and hid it within his breast till now about two years before his end he brings it forth to tell all the world that hitherto he had been just against his will. But having obtained his purpose he nevertheless misseth of his end for a new King of Scots our old good enemies by divine providence suddenly crossed his way before him and now it boots not to contend for arbitrary rule in England and lose the Crown of Scotland which he once thought he had sure he faces about therefore and having spoken fair to his people for Scotland he goes Thus if all were not in a Parenthesis the King intended a good period but God onely knows what his furthest reach would have been if he had returned for he was taken out of this world in Scotland and so left this his government somewhat like an imperfect sentence His Son Edward should have compleated it but that he wanted his Father's sence and had too much of his Grandfather's superbient humour that meeting
and nothing shall hinder it but the special reservation of the donor and yet he saith that such gift or grant taketh not away the right of the Lord Paramount in his Tenure albeit the gift be in free Alms. Nevertheless it seemeth to be such restraint that the Templars and Hospitallers were fain to find out a new way which was to protect mens Tenements from execution of Law by levying crosses thereon albeit the right of the Lords was not barred and therefore Edw. 1. provided a Law to make this also in nature of a Mortmain within the Statute made in the seventh year of his Reign called the Statute de Religiosis by which it was enacted that in case of such alienations in Mortmain the Lord should have liberty to enter if he failed then the Lord Paramount or if he failed the King should enter and dispose of the same and that no license of Mortmain should be sued out but by the mean Lord's assent and where part of the premises remain still in the Donor and the original Writ mentioneth all the particulars And thus at length was this issue for the present stayed which hitherto wasted the strength of the Kingdom and by continual current emptying it into the mare mortuum of the Clergie consumed the maintenance of Knight service by converting the same to Clerk-service No Judge shall compel a Free-man to make Oath without the Kings command So is the sence of the Law rendred by an ancient Authour and I hope I shall not wrong the Text if I affirm that the Ecclesiastical Judge was included within the equity though properly he be not Balivus for the Law intends to shew that it is a liberty that the Subject hath not to be compelled to take Oath without the Kings especial command and by consequence it sheweth also that the King at that time and until then had the directory of Oaths for it was an ancient Liberty given in the Kings Charters unto such as they pleased viz. to impose Oaths and to punish for breach of Oath and this passed under the word Athae or Athas and so Edmund the Saxon King gave to the Abbey of Glastenbury amongst other Athas Ordulas and the Church-men that first procured vacations from Suits of Law during holy times procured a Law also to be setled by Edward the Saxon King and Gunthurne the Dane that Ordeal and Oaths should be forbidden upon the holy Feasts and lawful Fasts And a wonder it is how it escaped the gripe of the Clergie so long who catched at any thing that had but a glance of Gods worship in it And if this were the Subjects Liberty not to be compelled to Swear surely much more not to be compelled to accuse himself unless by the Law he be especially bound for it is Glanvil's rule Ob infamiam non solet juxta legem terrae aliquis per legem apparentem se purgare nisi prius convictus fuerit vel confessus in curia But the power of the Clergie now was grown strong and they begin to remember themselves and that Oaths are of a holy regard and they men for holiness best able to judge when and to whom they shall be ministred and therefore now they begin to enter their claim and to make a sure Title they get a grant from Pope Innocent to Steven Langton Arch-Bishop of Canterbury of a faculty of licensing administration of Oaths during the time of Lent and he accordingly enjoyed it during the mad time of Henry the Third But Edward the first quarrelled it and left it questionable to Edward the Second who being in his condition as a lost man had less care of such smaller matters and therefore allowed that his Judges of Assizes should be licensed by the Arch-bishop to administer Oaths in their Circuits in the sacred times of Advent and Septuagessima and this course continued till Henry the Eighth's time The Clergie having thus gotten the bridle gallop amain they now call whom they will and put them to their Oaths to accuse other men or themselves or else they are Excommunicated Henry the Third withstood this course if the Clergie-mens complaints in the times of that King Artic. 9. be true and notwithstanding the same the Law holds its course and in pursuance thereof we find an attachment upon a prohibition in this form ensuing Put the Bishop of N. to his pledges that he be before our Justices to shew cause why he made to be summoned and by Ecclesiastical censures constrained Lay-persons men or women to appear before him to swear unwillingly at the Bishops pleasure to the great prejudice of our Crown and Dignity and contrary to the custom of the Kingdom of England And thus both King and Clergie were at contest for this power over the peoples Consciences to which neither had the right otherwise than by rules of Law. Bigamists shall not be allowed their Clergie whether they become such before the Council of Lyons or since and that Constitution there made shall be so construed Whatsoever therefore their Synods in those times pretended against the married Clergie it seemeth by this Law that they had Clergie that were married once and again and yet before and after the Council were admitted as Clerks in the judgment of the Law. But the general Council interposes their authority and deprives them that are the second time married of all their priviledges of Clergie It was it seemeth twenty years and more after that Council before the Church-men in England were throughly reformed for either some were still Bigami at the making of this Law or as touching that point it was vain nor is it easie to conceive what occasion should after so long a time move such exposition the words of the Constitution being Bigamos omni privilegio clericali declaramus esse nudatos Now whether this slow Reformation arose from the defect in Law or in obedience thereto may be gathered from some particulars ensuing First it is apparent that the Canons of general Councils eo nomine had formerly of ancient times gotten a kind of preheminence in this Nation but by what means is not so clear In the Saxon times they were of no further force than the great Council of this Kingdom allowed by express act For the Nicene Faith and the first five general Councils were received by Synodical confirmations of this Kingdom made in the joynt meeting both of the Laity and Clergie and during such joynt consulting the summons to the general Councils was sent to the King to send Bishops Abbots c. but after that the Laity were excluded by the Clergie from their meetings and the King himself also served in the same manner the Summons to the general Council issued forth to the Bishops immediately and in particular to each of them and to the Abbots and Priors in general by vertue whereof they went inconsulto Rege and sometimes Rege
renitente and appeared either personally or by proxie Others came as parties to give and receive direction or hear Sentence in matters tending to spiritual regards And for this cause issued Summons even to Kings as at the Council of Lyons aforesaid it is said that the Pope had cited Regis terrae alios mundi principes dictum principem meaning Henry the third the matter was for assistance to the holy War and to determine the matter between Henry the third and his Clergie men And as in that case so in others of that kind Kings would send their Embassadors or Proctors and give them power in their Princes name interessendi tranctandi communicandi concludendi First of such matters quae ad reformationem Ecclesiae universalis in capite membris then of such as concern fidei orthodoxae fulciamentum Regumque ac principum pacificationem or any other particular cause which occasionally might be inserted So long then as Kings had their votes in the general Councils they were engaged in the maintenance of their decrees and by this means entred the Canon-law into Kingdoms Nor was the vote of Kings difficult to be obtained especially in matters that trenched not upon the Crown for the Pope knowing well that Kings were too wise to adventure their own persons into foraign parts where the general Councils were holden and that it was thrift for them to send such Proctors that might not altogether spend upon the King's purse allowed Bishops and Clergy-men to be Proctors for their Princes that in the Negative they might be pii inimici and less active but in the Affirmative zealous and so make the way wider by the Temporal and Spiritual vote joyned in one Neither did Kings onely save their purse but they also made their own further advantage hereby for by the engagement and respect which these their Proctors had in Councils they being for the most part such as were had in best esteem obtained better respect to the cause that they handled and speedier dispatch Nevertheless the case sometimes was such as could not expect favour and then as the King's temper was they would sometimes ride it out with full sail and to that end would either joyn with their Ecclesiastcal Proctors some of the Barons and great men of their Realm to add to the cry and make their affairs ring louder in the ears of fame although the Pope had the greater vote or otherwise would send an inhibition unto their Proctors and their assistants or an injunction to look to the rights of the Crown as Henry the Third did at the Council at Lyons and this sounded in nature of a Protest and within the Realm of England had the force of a Proviso or Saving But if the worst of all come to pass viz. that the Council passed the cause against Kings without any Inhibition or Injunction yet could it not bind the Law of the Land or Kings just Prerogatives no not in these times of Rome's hour and of the power of darkness For at a Synod holden by Arch-bishop Peckham An. 1280. the Acts of the Council of Lyons were ratified and amongst others a Canon against non-residency and pluralities and yet neither Council nor Synod could prevail for in Edward the Second's time an Abbot presenting to a Church vacant as was supposed by the Canon of pluralities the King whose Chaplain was disturbed enjoyned the Abbot to revoke his presentation upon this ground Cum igitur c. in English thus Whereas therefore that Decree bindeth not our Clerks in our service in regard that the Kings and Princes of England from time to time have enjoyed that liberty and prerogative that their Clerks whilst they attend upon their service shall not be constrained to undertake holy things or to be personally resident on their Benefices c. And if this present Law be considered whereof we now treat which took leave to enact a sence upon a former Canon so long since made and which is all one to makâ— a general Council will or nill it to tread in the steps of an English Parliament or which is more mean to speak after the sence of an English Declaration that had not yet attained the full growth of a Statute as was then conceived it will evidently appear that the power of a council made up of a mixture of a few votes out of several Nations or the major part of them being unacquainted with the Laws and Customs of Nations other than their own was too mean to set a Law upon any particuler Nation contrary to its own original and fundamental Law. And as the Voters sent to the grand Councils from England were but few so neither were the Proctors as may appear from this that Pope Innocent out of his moderation if we may believe it and to avoid much expence as he saith did order that the number of Proctors in such cases should be few But in truth the times then were no times for moderation amongst Popes and their Officers and therefore it was another thing that pinched for multitude of Proctors if their number had not been moderated might perhaps if not prevail yet so blemish the contrary party that what the Pope should get must cost him loss of spirits if not bloud And although the Bishops being fast Friends to the Pope by vertue of their Oath did prevail in power and the Pope had the controul of the Council yet the exceeding number of the Proctors on the contrary might render their conclusions somewhat questionable in point of honesty as being made against the mindes of the greater number of persons present though their votes were fewer To avoid this difficulty therefore for more surety-sake the Popes enlarged the number of Voters for whereas it seemeth to be an ancient rule that onely four Bishops should go out of England to the general Council in after-ages not one Bishop could be spared unless in cases of great and emergent consequence as may appear by the Pope's Letter to Henry Third and the case required it for the oppressions of the Pope began to ring so loud as the holy Chair began to shake Neither did Kings confine themselves to any certain number of Proctors notwithstanding the Pope's moderation but as the case required sent more or less as unto the Council at Pisa for the composing and quieting that great Schism in the Popedom Henry the Fourth sent solemn Embassadors and with them nigh eighty in all But unto the Council at Basil Henry the Sixth sent not above twelve or thirteen as Mr. Selden more particularly relateth And unto the Council at Lyons formerly mentioned the Parliament sent but six or seven to remonstrate their complaints of the extortions of the Court at Rome their Legates and Emissaries The sum of all will be that the Acts of general Councils were but Counsels which being offered to the sence of the Parliament of England might grow up
to the degree of Laws if the Parliament liked them Nevertheless National Synods in England undertook the quarrel of general Councils for Arch-bishop Peckham in a Synod 1280. enjoyned the Constitutions made in the Council at Lyons to be observed under a curse without consultation first had with the Parliament or before he knew whether they would be right or wrong And before him Boniface made Constitutions in opposition to the customs of the Kingdom so as the matter was now come to a kind of contest whether Synods or Parliaments should hold supremacy in doubtful cases concerning the limits of the Ecclesiastical and Temporal power For henceforth Kings must bid adieu to the Synods and sit no more amongst them and Synods now think themselves free to consult and determine what they please without speaking under correction nor was there other remedy left to Kings but threats by Writs directed to the Bishops firmiter inhibendo quod sicut Baronias quas de Rege tenent diligunt nullo modo praesumant concilium tenere de aliquibus quae ad coronam Regis attinent vel quae ad personam Regis vel statum suum vel statum concilii sui contingunt quod si fecerint Rex inde se capiat ad Baronias suas And this prevailed so effectually that the Bishops durst not adventure too far lest they should go beyond their guard and therefore they come and ask leave of the Parliament in cases that trenched upon the Law of the Kingdom as they did in the case of Bastardy wherein they would have had their consent That Children born before Marriage might be made legitimate by the Marriage subsequent And yet they could not prevail for they were answered Nolumus leges Angliae mutari notwithstanding that the Canon-law and the Laws of the Normans sided with them And so they obtained not their desire although they still retained the Tryal of general Bastardy unto themselves Nevertheless the times were such as Kings being too weakly assisted by the people and the Clergie strongly seconded by the Pope they took advantage of those times of distraction so as to hold themselves no farther obliged to the King than the Pope and their own covetousness would allow them and to make all sure they had setled it so far as they were able by a Constitution that the Clergie were not bound to aid the King Papa inconsulto and they put it in practice in a Synod under Arch-bishop Winchelsie Anno 1295. in the time of Edward the First and although the King prevailed in the conclusion at that time yet from the times of Henry the Third the Clergie for future times granted their aids to the King by themselves and apart from the rest of the body of the Kingdom and held themselves not bound by any aid granted by the Parliament albeit that their own aids granted in their Synods were not obligatory unto the body of the Clergie in this Kingdom unless first allowed and confirmed by the Parliament And thus is England become like a two-bodied monster supported with one pair of Legs CHAP. LXVII Of the condition of the Free-men of England of the Grand Charter and other Statutes during the Reigns of these Kings SHattered asunder by broyls of Civil Wars the Freemen having laid aside that regard of the ancient mutual covenant and bond of Decenners are now become weak and almost enthralled to the lust of Kings Lords Pope and English Clergie and therefore it is no wonder if Taxes and Tributes were many and new although most of them deserved not to march under any banner but the colours of oppression nor did any thing save them from the worst Tenure of all but the several interests of those superiour powers which oftentimes did justle with one another and thereby gave the Commons liberty to take breath so as though for the present they lost ground and hunted upon a cool scent yet they still retained the prey within their view Sometimes they were cast far behind other times they recovered themselves a Truce is cried and Laws are made to moderate all and determine the bounds of every one and thus comes the Grand Charter upon the publick Theatre The Historian saith it was the same with that of King John's framing and yet by comparing them together we find them disagreeing both in words and sence and therefore shall sum the same up as shortly as I can observing the difference of the two Charters as I pass along The First Chapter concerned the Church of which sufficient hath been spoken The Freemen shall enjoy these Liberties to them and their Heirs for ever The Heir in Knight-service shall pay the ancient relief That Reliefs were setled by the Saxons hath been already shewed and also that they were continued and confirmed by Henry the First onely in those times they were paid in Horses Arms c. But in after-times all was turned into money which was more beneficial for all Lords shall have their Wards bodies and Lands after homage received until the full age though the Ward be formerly Knighted The Law of Wardship may seem more anciently seated in this Kingdom than the Normans times for if the Statutes of Scotland bear any credit that Law was in Scotland before those times The Lords were not to have the Wardship before they were possessed of the Tenure because it was theirs as a fruit of the Tenure according to the Saxon Law concerning distress that it could not be in the power of the Lord to distrain till he was possessed of the service And if by fraudulent conveyance the Heir did hold the Lord out of possession a Writ of Ward did lie against him and if he did not appear the Lord might seize the Lands unless in case of Wardship per cause de guard And in case the Lord would hold the Wardship longer than the full age of the Heir an Assize did lie against the Lord for the Heir could not enter without Livery But if the Heir were of full age at the time of the Ancestor's death the Lord could not enter the Lands and yet he should have a Relief and the primer seisin And if the Heir entred the Lands before Homage done he gained no Free hold though he were Knighted before as this Law provideth For it may seem that these times of Civil War brought forth a trick of Knighting betimes as an honourable encouragement for young sparks to enter the field before they were compleat men of discretion to know whether the cause of War was good or evil And yet reason might induce a conceit that he that was thought meet to do Knight-service in his own person might expect the maintenance fit for the ability of the person and honour of the service Grantees or their Assigns or Committees of Wardships shall preserve the Land c. from Waste and the Tenants from extortion They shall yield up the same stocked
and Kent are saved out of this Law by the Statute the first whereof saves the Land to the Heir from the Lord and the second saves the same to the Heirs Males or for want of such to the Heirs Females and to the Wife her moity until she be espoused to another man unless she shall forfeit the same by fornication during her Widow-hood And by the same Law also the King had all Escheats of the Tenants of Archbishops and Bishops during the vacancy as a perquisite But Escheats of Land and Tenement in Cities or Burroughs the King had them in jure coronae of whomsoever they were holden All Wears shall be destroyed but such as are by the Sea-coast The Lieutenant of the Tower of London as it seemed claimed a Lordship in the Thames and by vertue thereof had all the Wears to his own use as appeareth by a Charter made to the City of London recited in the second Institutes upon this Law and this was to the detriment of the Free-men especially of the City of London in regard that all Free-men were to have right of free passage through Rivers as well as through Highways and purprestures in either were equally noxious to the common liberty And therefore that which is set down under the example or instance of the Rivers of Thames and Medway contained all the Rivers in England albeit that other parts of the Kingdom had not the like present regard as the City of London had The Writ of precipe in capite shall not be granted of any Freehold whereby a man may be in danger of losing his Court thereby It seemeth that it was one of the oppressions in those times that if a Suit were commenced in the inferiour or Lords Court concerning a Freehold a Writ of precipe in capite might be had upon a Surmise that the Freehold was holden in capite which might prove an absolute destruction to the inferiour Court and was the spoil of the Demandants case and therefore I think the Charter of King John instead of the word Court hath the word Cause There shall be but one known Weight and Measure and one breadth of Cloaths throughout the Realm of England This Law of Weights and Measures was anciently established amongst the Saxons as formerly hath been shewed and continued in the Normans times and confirmed by Richard the first and King John. And as touching the measure of the breadth of Cloaths although it might seem to abridge the liberty of particular persons yet because it was prejudicial to the common Trade of the Kingdom it was setled in this manner to avoid deceit and to establish a known price of Cloaths And it seemeth that Wine was ordinarily made in England as well as Ale otherwise the Measures of Wine could not have been established by a Law in England if they had been altogether made in other Countries Inquisition of Life and Member shall be readily granted without Fees. This was a Law of latter original made to take away a Norman oppression for by the Saxon Law as hath been already noted No man was imprisoned for Crime not bailable beyond the next County-court or Sheriff's Torn but when those rural Courts began to lose their power and the Kings Courts to devour Tryals of that nature especially by the means of the Justices itinerant which were but rare and for divers years many times intermitted during all which time supposed Offenders must lie in Prison which was quite contrary to the liberty of the Free men amongst the Saxons This occasioned a new device to save the common liberty by special Writs sued out by the party imprisoned or under bail supposing himself circumvented by hatred and malice and by the same directed to the Sheriff and others an Inquisition was taken and Tryal made of the Offence whether he deserved loss of Life or Member and if it were found for the supposed Offender he was bailed till the next coming of the Justices and for this the Writ was called the Writ of inquisition of Life or Member and sometimes the Writ de odio atia But these Inquests were soon become degenerate and subject to much corruption and therefore as soon met with a countercheck from the Law Or first rather a regulation for it was ordained that the Inquest should be chosen upon Oath and that two of the Inquest at least should be Knights and those not interessed in the Cause But yet this could not rectifie the matter for it seemed so impossible to do Justice and shew Mercy this way that the Writ is at length taken away and men left to their lot till the coming of Justices itinerant But this could not be endured above seven years for though the King be a brave Souldier and prosperous yet the people overcome him and recover their Writs de odio atia again Lords shall have the Wardships of their Tenants Heirs although they hold also of the King in Petit Serjeanty Socage Burgage or Fee-farm Inferiour Lords had the same right of Wardships with the King for their Tenures in Knight-service although their Tenants did hold also of the King unless they held of him in Knight-service which was a service done by the Tenant's own person or by the person of his Esquire or other deputy in his stead But as touching such service as was wont to be done to him by render or serving him with Arms or other utensils this was no Knight-service though such utensils concerned War but was called Petit Serjeanty as in the Law-books doth appear Nevertheless Henry the Third had usurped Wardships in such cases also and the same amongst others occasioned the Barons Wars No Judge shall compel a Free-man to confess matter against himself upon Oath without complaint first made against him Nor shall receive any complaint without present proof This Law in the Original is set down in another kind of phrase in the first part thereof which is obscure by reason thereof in express words it is thus No Judge shall compel any man ad legem manifestam which implieth that the matter was otherwise obscure if the party that was complained of or suspected did not manifest the same by his own declaring of the truth or matter enquired after and therefore they used in such cases to put him to Oath and if he denied the matter or acquitted himself the Judge would sometimes discharge him or otherwise put him to his Compurgators and this was called lex manifesta or lex apparens And it was a trick first brought in by the Clergie and the Temporal Judges imitated them therein and this became a snare and sore burthen to the Subjects To avoid which they complain of this new kind of Trial and for remedy of this usurpation this Law reviveth and establisheth the onely and old way of Trial for Glanvil saith Ob infamiam non solet juxta legem terrae aliquis per
the Clergy No man shall be appealed by a Woman for the death of any but her own Husband The right of Appeal is grounded upon the greatest interest Now because the Wives interest seemeth wholly to be swallowed up in her Husband therefore she shall have an Appeal of the death of him onely and such also was the Law in Glanvil's time How far this point of interest shall extend to the degrees of Consanguinity the Norman Law formerly hath shewn And against whom Appeals did lie the Statute at Westminister tells us viz. not onely against the principal but also against accessories yet not against them till the principal be attainted And because it was ordinary for men of nought to appeal others in a malicious way it was by another Law established that if the party appealed was acquitted the appealor should not onely render damages but be imprisoned for a year The County-Court shall be holden at the wonted time The Torn shall be holden at the accustomed place twice in the year viz. after Easter and Michaelmas The view of Frank-pledges shall be holden at Michaelmas The Sheriff shall not extort The Sheriff's Courts had now lost somewhat of their Jurisdiction though for time and place they are confirmed statu quo to the end that through uncertainty thereof the suiter might not make defaults and be amerced Yet they lost much of their respect within the compass of these few years by two Laws the one of which made at Merton allowed all suiters to the rural Courts to appear by Proxie or Atturney which it seemeth had power to vote for the Masters in all cases publick and private and did not onely themselves grow into parties and maintenance of Quarrels and so spoiled these Courts of their common Justice but rendred the Freemen ignorant and careless of the common good of the Country and given over to their own private interest And though the corruption of Justice was soon felt and against it a Law was provided viz. That the Sheriff should not allow of such corrupt Attorneys yet this was no cure to the Freemen who were still suffered to wax wanton at home albeit that they were discharged from doing their suit in all other Hundreds but that wherein they dwell The second Law that took away much honour from these Courts was that Law at Marlbridge that discharged the Baronage of England and the Clergie from their attendance at such service and this also opened the door wider to oppression For where greatness is it carrieth therewith honour from the meaner sort and a kind of awe and stop unto the minds of such men that otherwise would riot without restraint and though it might also be said that the pretence of great men in such Courts would oversway the meaner and make strong parties yet it must also be acknowledged that these parties being greater are the fewer and do not so generally corrupt all sorts as the corruption of the meaner sort do It is said by the wise man Where the poor oppress the poor it is like a raging rain that leaves no food The last branch in this Law is an inhibition to the Sheriff from extortion and surely there was great need and much more need than ever now that the Lords and Clergy are absent It was thought that the great occasion of the Sheriff's oppression was from above I mean from the King that raised the values of the Farm of Counties granted to the Sheriffs for in those days Sheriffs gave no accounts as of later times they have done and therefore the Charter of King John between the 17th and 18th Chap. inserteth this Clause Omnes Comitat. Hundred Wapentag Trethingi sint ad antiquas firmas absque ullo incremento exceptis Dominicis Maneriis nostris But this did not work the work although it took away occasion for the humour was fed from within and turned to a sore upon that place that could never be cured to this day Nor could the wisdom of times find other help to keep the same from growing mortal but by scanting the dyet and taking away that power and jurisdiction which formerly it enjoyed The 37th Chapter hath been already noted in the Chapter of the Clergie next foregoing Escuage shall be taxed as was wont in the time of Henry the second The Charter of King John hath superadded hereunto this ensuing provision There shall be no Escuage set in the Kingdom except for the redeeming of the King's person making of his eldest Son a Knight and on marriage of his eldest Daughter and for this there shall be onely reasonable aid And in like manner shall the aids of the City of London be set And for the assessing of Escuage we will summon the Archbishops Bishops Abbots Earls and greater Barons of the Kingdom specially by our several Writs and will cause to be summoned in general by our Sheriffs and Bailiffs all other our Tenants in capite to be at a certain day after Forty days at the least and at a certain place and we will set down the cause in all our Writs And the matter at the day appointed shall proceed according to the counsel of those that shall be present although all that were summoned do not come And we will not allow any man to take aid of his Freemen unless for redemption of his body and making his eldest Son a Knight and on marriage for his eldest Daughter and this shall be a reasonable aid onely Thus far the Charter of King John concerning this point of Tax or Assessment and if the History saith true the Charter of Henry the Third was one and the same with that of King John then either this was not lest out in Henry the Third's Charter in that Historians time or if it was omitted in the original it was supposed to be included in the general words of the Law as being accustomed in times past And then these particulars will be emergent First that the Aids and Escuage in Henry the First 's time were assessed by the same way with that in this Charter of King John for that all the quarrel between the Lords and King John was concerning the Charter of Henry the first which the Lords sware to maintain Secondly that neither Aids nor Escuage were granted or legally taken but by Act of Parliament although the rate of them was setled by common custom according to the quantity of their Fee. Thirdly that some Parliaments in those times as concerning such matters consisted onely of such men as were concerned by way of such charge by reason of their Tenancy for Escuage onely concerned the Tenants by Knight-service and therefore those onely were summoned unto such Parliaments as onely concerned Escuage Nor had the City of London nor the Burgesses right to vote in such cases it is said p. 258. And thus the Forest-Laws that were made in the time of
are to be ordered by Tutors than Children and therefore this may be annexed to the rest of the Liberties as well as the other Nevertheless it seemeth that the Laws took them into their regard in respect of their Estates which might be abused to the prejudice of the Publick rather than out of any respect had to their persons Now because there is a difference between the disability of these persons the one being perpetual the other temporary therefore is there also by these Laws a difference in the disposal of their Estates for the Tutor had a right in the disposing of the one and but a bare authority or power in providing for the other Secondly the person of the Tutor is to be considered Anciently it was the next kindred grounded as I conceive upon the natural affection going along with the blood and this so continued in custom until these times for though the Mirrour of Justice saith that Henry the First brought in that course of giving the custody of these disabled persons to the King as hath been formerly observed yet Bracton that wrote long after the time of Henry the First speaking of these kind of persons saith Talibus de necessitate dandus est tutor vel curator not so much as mentioning the King in the case And in another place speaking of such as are alieni juris saith that some are under the custody of their Lords and others under their Parents and friends But let the time of the entrance of this Law be never so uncertain it is now a declared Law that the King in such cases is the common Curator or Tutor of all such persons as he is a Chief Justice rendring to every one his right The King shall have the Wrecks of the Sea. What shall be called a Wreck the Statute at West 1. declareth viz. Where the Ship so perisheth that nothing therein escapeth alive and these are rather in their original committed to the King as a Curator than given him as a Proprietor although that Custom hath since setled a kind of right which may perhaps be accounted rather a Title by Estoppel For the fundamental ground is that the right owner cannot be manifested and therefore the King shall hold it and if the right owner can be manifested the King shall hold it till the owner doth appear The Heir in Socage-tenure shall have an Action of Waste and an account against his Guardian for the profits of the Lands and Marriage The Heir in Socage being under age shall also be under custody of such Guardian of the next kinred who cannot challenge right of Inheritance in such Lands so holden as if the Lands descended from the Father's side the Mother or next of the kinred of the Mothers side shall have the custody and so if the Lands descend from the Mother the Father or next kinred of the Father's side shall have the custody And this custody bringeth with it an Authority or Power onely and no Right as in case of the Heir in Knight-service and therefore cannot be granted over as the Wardship in Knight-service might but the Guardian in Socage remaineth accomptant to the Heir for all profits both of Land and Marriage The full age of Tenant in Socage is such age wherein he is able to do that service which is Fourteen years for at such age he may be able by common repute to aid in Tillage of the ground which is his proper service But the Son of a Burgess hath no set time of full Age but at such time as he can tell Money and measure Cloath and such work as concerns that calling Widows deforced of their Dower of Quarentine shall by Action recover damages till they recover their Dower They shall also have power to devise their crop arising from her Dower It was used that the Heir should have the crop with the Land but this Statute altered that former usage and yet saved the Lord's liberty to distrain if any services were due Writs de consimili casu granted in cases that fall under the same Law and need the same remedy and such Writs shall be made by agreement of the Clerks in the Chancery and advice of such as are skilful in the Law. It was none of the meanest Liberties of the Freemen of England that no Writs did issue forth against them but such as were anciently in use and agreed upon in Parliament And it was no less a grievance and just cause of complaint that Kings used to send Writs of new impression to execute the dictates of their own wills and not of the Laws of the Kingdom as the complaints of the Clergy in the times of Henry the Third do witness Nevertheless because many mens cases befel not directly within the Letter of any Law for remedy and yet were very burthensome for want of remedy it is provided by this Law that such emergent cases that do fall within the inconvenience shall be comprehended within the remedy of that Law. Aid to make the Son of the Lord a Knight and to marry his eldest Daughter shall be assessed after the rate of twenty shillings for a Knights Fee and twenty shillings for twenty pounds in yearly value of Socage-tenure The uncertainties of Aids are by this Law reduced and setled as touching the sum and thereby delivered the people from much oppression which they suffered formerly Nor was onely the particular sum hereby but also the age of the Son when he was to be made a Knight viz. at the age of Fifteen years too soon for him to perform Knight-service but not too soon for the Lord to get his money And the Daughter likewise was allowed to be fit for Marriage at Seven years of age or at least to give her consent thereto albeit that in truth she was neither fit for the one or other and therefore it must be the Lords gain that made the Law and it was not amiss to have the aid beforehand though the marriage succeeded not for many years after and if the Lord died in the interim the Executors having Assets paid it or otherwise his Heir CHAP. LXVIII Of Courts and their Proceedings BEsides the Courts of Justices itinerant which were ancient as hath been said other Courts have been raised of later birth albeit even they also have been of ancient constitutions and divers of them itinerant also and some of them setled in one place The work of the Justices itinerant was universal comprehending both the matters of the Crown and Common-pleas That of Oyer and Terminer is onely of Crown-pleas originally commenced and enquired of by themselves and granted forth upon emergent crimes of important consequence that require speedy regard and reformation Justices of Gaol-delivery have a more large work that is to deliver the Gaols of all criminal offenders formerly indicted or before themselves Justices of Assize and Nisi prius are to have cognizance of Common-pleas onely and
espyed the danger and how necessary it was for the people to be well armed in these times of general broil and upon that ground allowed this Law to pass That all such as had Lands worth 20 l. yearly besides Reprizals should be ready not to be Knights nor under the favour of others is there any ancient precedent to warrant it but to find or to enter into the field with the Arms of a Knight or to provide some able person to serve in their stead unless they were under 21 years of age and so not grown up to full strength of body nor their Lands in their own possession but in custody of their Lords or Guardians Nevertheless of such as were grown to full age yet were maimed impotent or of mean estate and Tenants by service of a Knight it was had into a way of moderation and ordered that such should pay a reasonable fine for respit of such service nor further as concerning 〈◊〉 persons were they bound But as touching such that were under present onely and not perpetual disabilities of body upon them incumbent as often as occasion called they served by their deputies or servants all which was grounded not onely upon the Law of Henry the Second but also upon common right of Tenure The Arms that these men were to finde are said to be those belonging to a Knight which were partly for defence and partly for offence Of the first sort were the Shield the Helmet the Hauberk or Breast-plate or Coat of Mail of the second sort were the Sword and Lance and unto all a Horse must be provided These Arms especially the defensive have been formerly under alteration for the Breast-plate could not be worn with the Coat of Mail and therefore must be used as occasion was provided of either and for this cause the service of a Knight is called by several names sometimes from the Horse sometimes from the Lance sometimes from the Helmet and not seldom from the Coat of Mail. The power of immediate command or calling forth the Knights to their service in its own nature was but ministerial and subservient to that power that ordered War to be levied and therefore as in the first Saxon Government under their Princes in Germany so after under their Kings War was never resolved upon but if it were defensive it was by the Council of Lords if offensive by the general Vote of the Grand Council of the Kingdom So by vertue of such Order either from the Council of Lords or Grand Council the Knights were called forth to War and others as the case required summoned to a rendezvouze and this instrumental power regularly rested in the Lords to whom such service was due and the Lords were summoned by the Lord Paramount as chief of the Fee of which their Tenants were holden and not as King or chief Captain in the Field for they were not raised by Proclamation but by Summons 〈◊〉 forth to the Sheriff with distress and this onely against such as were within his own Fee and held of the Crown The King therefore might have many Knights at his command but the Lords more and if those Lords failed in their due correspondency with the King all those of the inferiour Orb were carried away after them so the King is left to shift for himself as well as he can And this might be occasioned not onely from their Tenures by which they stood obliged to the inferiour Lords but probably much more by their popularity which was more prevalent by how much Kings looked upon the Commons at a further distance in those days than in after-times when the Commons interposed intentively in the publick Government And thus the Horse-men of England becoming less constant in adhering to their Soveraign in the Field occasioned Kings to betake themselves to their Foot and to form the strength of their Battels wholly in them and themselves on foot to engage with them One point of liberty these Souldiers by Tenure had which made their service not altogether servile and that was that their service in the Field was neither indefinite nor infinite but circumscribed by place time and end The time of their service for the continuance of it was for a set time if it were at their own charges and although some had a shorter time yet the general sort were restained to forty days For the Courage of those times consisted not in wearying and wasting the Souldier in the Field by delays and long work in wheeling about and retiring but in playing their prizes like two Combatants of resolution to get Victory by Valour or to die If upon extraordinary occasions the War continued longer then the Tenant served upon the pay of the common Purse The end of the service of the Tenant viz. their Lord's defence in the defence of the Kingdom stinted their work within certain bounds of place beyond which they were not to be drawn unless of their own accord And these were the borders of the Dominion of the Crown of England which in those days extended into Scotland on the North and into a great part of France on the South And therefore the Earl-Marshal of England being by Edward the first commanded by vertue of his Tenure to attend in person upon the Standart under his Lieutenant that then was to be sent into Flanders which was no part of the Dominion of England refused and notwithstanding the King's threats to hang him yet he persisted saying He would neither go nor hang. Not onely because the Tenants by Knight-service are bound to the defence of their Lord's persons and not of their Lieutenants but principally because they are to serve for the safety and defence of the Kingdom and therefore ought not to be drawn into foreign Countries Nor did the Earl-Marshal onely this but many others also both Knights and Knights fellows having twenty pounds per Annum for all these with their Arms were summoned to serve under the King's pay in Flanders I say multitudes of them refused to serve and afterwards joyned with the rest of the Commons in a Petition to the King and complained of that Summons as of a common Grievance because that neither they nor their Ancestors were bound to serve the King in that Country and they obtained the King's discharge under his broad Seal accordingly The like whereunto may be warranted out of the very words of the Statute of Mortmain which was made within the compass of these times by which it was provided That in case Lands be aliened contrary to that Statute and the immediate Lords do not seize the same 〈◊〉 King shall seize them and dispose them for the defence of the Kingdom viz. upon such services reserved as shall suit therewith as if all the service of a Knight must conduce thereto and that he is no further bound to any service of his Lord than will consist with the safety of the Kingdom This was the Doctrine that the
sad experience of the latter Government of Kings in these times had taught the Knighthood of England to hold for the future Ages No Tenant in ancient Demesnes or in Burgage shall be distrained for the service of a Knight Clerks and Tenants in Socage of other Mannors than of the King shall be used as they have been formerly Tenants in ancient Demesne and Tenants in Burgage are absolutely acquitted from foreign service the one because they are in nature of the King's Husbandmen and served him and his Family with Victual the other because by their Tenure they were bound to the defence of their Burrough which in account is a Limb or Member of the Kingdom and so in nature of a Castle guard Now as touching Clerks and Tenants in Socage holding of a Subject they are left to the order of ancient use appearing upon Record As concerning the Clergy it is evident by what hath been formerly noted that though they were importunate to be discharged of the service Military in regard that their profession was for Peace and not for Bloud yet could they never obtain their desire for though their persons might challenge exemption from that work yet their Lands were bound to find Arms by their Deputies for otherwise it had been unreasonable that so great a part of the Kingdom as the Clergie then had should sit still and look on whilst by the Law of Nature every one is engaged in his own defence Nor yet did the profession of these men to be men for Peace hold always uniform some kind of Wars then were holden sacred and wherein they not onely adventured their Estates but even their own Persons and these not onely in a defensive way but by way of invasion and many times where no need was for them to appear Tenants in Socage also in regard of their service might plead exemption from the Wars for if not the Plough must stand still and the Land thereby become poor and lean Nevertheless a general service or defence of the Kingdom is imposed upon all and Husbandmen must be Souldiers when the debate is who shall have the Land. In such cases therefore they are evocati ad arma to maintain and defend the Kingdom but not compellable to foreign service as the Knights were whose service consisted much in defence of their Lord's person in reference to the defence of the Kingdom and many times policy of War drew the Lords into Arms abroad to keep the Enemy further from their borders and the Knights then under their Lords pay went along with them and therefore the service of Knighthood is commonly called servitium forinsecum Of these Socagers did arise not onely the body of English Foot-men in their Armies but the better and more wealthy sort of them found Arms of a Knight as formerly hath been observed yet always under the pay of the common Purse And if called out of the Kingdom they were meer Voluntiers for they were not called out by distress as Knights were because they held not their Land by such service but they were summoned by Proclamation and probably were mustered by the high Constables in each Hundred the Law nevertheless remaining still entire that all must be done not onely ad fidem Domini Regis but also Regni which was disputed and concluded by the Sword. For though Kings pretended danger to the publick oftentimes to raise the people yet the people would give credit as they pleased Or if the King's Title were in question or the Peoples Liberty yet every man took liberty to side with that party that liked him best nor did the King's Proclamation sway much this or that way It is true that precedents of those times cry up the King's power of arraying all Ships and men without respect unless of age or corporal disability but it will appear that no such array was but in time of no less known danger from abroad to the Kingdom than imminent and therefore might be wrought more from the general fear of the Enemy than from the King's command And yet those times were always armed in neighbouring Nations and Kings might have pretended continual cause of arraying Secondly it will no less clearly appear that Kings used no such course but in case of general danger to the whole Kingdom either from foreign Invasion as in the times of King John or from intestine Broils as in the times of Henry the third and the two Edwards successively And if the danger threatned onely one coast the array was limited onely to the parts adjacent thereunto Thirdly it seemeth that general arrays were not levied by distress till the time of Edward the first and then onely for the rendezvouze at the next Sea-coast and for defence against foreign Invasion in which case all Subjects of the Kingdom are concerned by general service otherwise it can come unto no other account than that Title Prerogative and therein be charactered as a trick above the ordinary strain Fourthly those times brought forth no general array of all persons between the ages of sixteen years and sixty that was made by distress in any case of Civil War but onely by Sheriffs summons and in case of disobedience by summons to appear before the King and his Council which sheweth that by the common Law they were not compellable or punishable Lastly though these arrays of men were sometimes at the charge of the King and sometimes at the Subjects own charge yet that last was out of the road-way of the Subjects liberty as the subsequent times do fully manifest And the like may be said of arrays of Ships which however under command of Kings for publick service were nevertheless rigged and paid out of the publick charge The sum of all will be that in cases of defence from foreign Invasion Kings had power of array according to the order of Law if they exceeded that Rule it may be more rightly said they did what they would than what they ought CHAP. LXXI Of the Peace WAR and Peace are two births by several venters and may like the day and night succeed but can never inherit each to other and for that cause they may claim to belong to one Father and that one and the same power should act in both and yet it is no good Maxime That he that is the chief Commander in War ought to be the chief in the order of Peace For it naturally befalls that War especially that which we call Civil War like some diseases in the body does rather breed ill humours than consume them and these must be purged by dieting the State and constant course of Justice unto which the rugged Waves of War have little or no affinity if they have not enmity Nevertheless the wisdom of our Ancestors thought it most meet to keep their Kings in work as well in time of Peace as of War and therefore as they anciently referred the principal care thereof to the Lords who together
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
but as heavy dull Debates and inconvenient both for speed and secrecy which indeed are advantages for weak and unwarrantable councils but such as are well-grounded upon truth and strength of reason of State are not afraid to behold the clearest noon-day and prevail neither by speed nor secrecy but by the power of uncontrolled Reason fetcht from truth it self The Grand Council of Lords also are now no less burthensome For though they were not able to prevail against the private designes of an arbitrary Supremacy yet do they hinder the progress tell tales to the people and blot the names of those that are of that aspiring humour which once done like that of Sisyphus they have no other end of their labour than their toil Thus perished that ancient and rightly honourable Grand Council of Lords having first laid aside the publick then lost unity and lastly themselves besides the extream danger of the whole body For the sence of State once contracted into a Privy-Council is soon contracted into a Cabinet-Council and last of all into a Favourite or two which many times brings damage to the publick and both themselves and Kings into extream praecipices partly for want of maturity but principally through the providence of God over-ruling irregular courses to the hurt of such as walk in them Nor were the Clergie idle in this bustle of affairs although not very well employed for it is not to be imagined but that these private prizes plaid between the Lords Commons and King laid each other open to the aim of a forrein pretension whilst they lay at their close guard one against another And this made an Ecclesiastical power to grow upon the Civil like the Ivy upon the Oak from being Servants to Friends and thence Lords of Lords and Kings of Kings By the first putting forth it might seem to be a Spiritual Kingdom but in the blossom which now is come to some lustre it is evident to be nothing but a Temporal Monarchy over the Consciences of men and so like Cuckows laying their Eggs in nests that are none of their own they have their brood brought up at the publick charge Nevertheless this their Monarchy was as yet beyond their reach it was Prelacy that they laboured for pretending to the Pope's use but in order to themselves The Cripple espyed their halting and made them soon tread after his pace he is content they should be Prelates without measure within their several Diocesses and Provinces so as he may be the sole Praelatissimo beyond all comparison And undoubtedly thus had been before these times destroyed the very principles of the Church-Government of this Kingdom but that two things prejudiced the work The one that the Papalty was a forrein power and the other that as yet the Pope was entangled with the power of Councils if he did not stoop thereunto The first of these two was the most deadly Herb in the Pottage and made it so unsavoury that it could never be digested in this Kingdom For Kings looking upon this as an intrenchment upon their Prerogative and the People also as an intrenchment upon their Liberties both or one of them were ever upon the guard to keep out that which was without and would be ruled neither by Law nor Counsel And therefore though both Kings and People yielded much unto the importunity of these men and gave them many priviledges whereby they became great yet was their greatness dependant upon the Law of the Land and Vote of Parliament and though they had the more power they nevertheless were not one jot the more absolute but still the Law kept above their top I deny not but they in their practice exceeded the rule often and lifted themselves above their rank yet it is as well to be granted that they could never make Law to bind the Church-men much less the Laity but by conjunction of the Grand Councils both for Church and Commonwealth-affairs nor could they execute any Law in case that concerned the Liberty or Propriety of either but in a Synodical way or as deputed by the Parliament in that manner And therefore I must conclude that in these times whereof we treat the principles of Church-Government so far as warranted by Law were in their nature Presbyterial that is both in making Laws and executing them Bishops and Arch-bishops were never trusted with the sole administration of them but in and by consent of Synods in which the Clergy and Laity ought to have their joynt vote And all power more or contrary hereto was at the best an usurpation coloured by practice which was easily attained where there was a perpetual Moderatorship resting in the Bishop and over all the Pope the King Lords and Commons in the mean while being buried in pursuit of several interests elsewhere To make all semblable the Free-men met with the sad influence of these distempers as well from the King and Lords as the Clergy Kings to save their own stake from the Pope remitted of that protection which they owed to their Subjects and let in upon them a floud of oppressions and extortions from the Romish and English Clergy and so like a little ship cast out a Barrel for the Whale to pursue till it gets away But this changed no right The Lords by their parties shattered them asunder and dismembred their body by intestine broils The Clergy more craftily making some of them free Denizons of the Roman See and taking them into their protection whilst others of the Free-men at a distance were exposed as a prey to the continual assaults of those devouring times All these conspired together to deface and destroy that ancient and goodly bond of Brotherhood the Law of Decenners by which the Free-men formerly holden together like Cement in a strong Wall are now left like a heap of loose stones or so many single men scarcely escaping with their skin of Liberties and those invaded by many projects and shifts in Government of State-affairs So must I leave them until some happy hand shall work their repair both for time and manner as it shall please that great and wise Master-builder of the World. FINIS THE CONTINUATION OF THE Historical Political DISCOURSE OF THE LAWS GOVERNMENT OF ENGLAND Until the end of the REIGN of Queen Elizabeth WITH A VINDICATION Of the ancient way of PARLIAMENTS In ENGLAND LONDON Printed for John Starkey at the Miter in Fleet-street neer Temple-Bar M.DC.LXXXII THE CONTENTS OF THE Several CHAPTERS of this BOOK I. THe sum of the several Reigns of Edward the Third and Richard the Second fol. 2 II. The state of the King and Parliament in relation of him to it and of it to him fol. 9. III. Of the Privy Council and the condition of the Lords fol. 16 IV. Of the Chancery fol. 21 V. Of the Admirals Court. fol. 24 VI. Of the Church-mens interest fol. 27 VII Concerning Trade fol. 38 VIII Of Treason and Legiance with some Considerations
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
Judicature rested with the Lords in relation not onely to the House of Commons but also in relation to the King whose work in such cases is not to judge above or with the Peers but to execute their sentence And that carries with it a List whereby the power of a King may appear not to be so Supreme in making of the Law as some would have it for if his Judgement and Conscience be bound by the Votes of the Peers in giving a Law in case of a particular person where the Law was not formerly known let others judge of the value of this Negative Vote in giving Law to the whole Kingdom It is true that this Parliament was quarrelled by the King and he kept it at a bay by a Proclamation that pretended Revocation as far as a Proclamation could revoke an Act of Parliament but it effected nothing nor did the contest last long Now though this Jurisdiction thus rested in the House of Lords in such cases as well as in others yet is it not so originally in them as to be wholly theirs and onely as they shall order it For the Commons of England have a right in the course and order of Jurisdiction which as the known Law is part of their Liberty and in the speedy execution of Justice as well as they have right to have Justice done And therefore whereas in Cases of Errour and delays the Appeal was from the inferiour Court to the Parliament which immediately determined the matter and now the trouble grew too great by the increase of pleas For remedy hereof a kind of Committee is made of one Bishop two Earls two Barons who by the advice of the Chancellor Treasurer and the Judges shall make good judgement in all Cases of Complaint of delay in Judgement which Committee is not made by Order of the Lords alone which they might have done in case Jurisdiction had been wholly and onely shut up in their custody but by Act of Parliament and joynt concurrence of the Commons with the Lords For as the Commons challenge speedy Execution of Justice as one of their Liberties so also to be under the Jurisdiction of such Judges and Courts as the Laws in the making whereof themselves challenge a vote do establish and appoint I will conclude this Chapter with the Constitution of the Parliament in these times For the difficulties that befel between the Kings and their people or Houses of Parliament wrought two sad effects viz. A propensity to decline calling of Parliaments so often as was used and expected and when it assembled as great a propensity in the Members to decline their attendance by means whereof as the Historian tells us the Parliament was sometimes enforced to adjourn it self for want of number sufficient The first of these arose from want of good will in the Kings the other from want of Courage and Zeal in the people The first of these was fatal and destructive to good Government for though in distempered Parliaments it is good to withdraw yet in distempered times it is necessary to meet and gain a right understanding of all parties and therefore these times were so happy as to bind themselves by publick Acts of State to re-continue the assembling of Parliaments For the face of the Times represented unto all that agitations were like to be quick violent and to continue for some succession of time It is therefore safe if not necessary that every eye should be open and Councils ready for every occasion A Law at length is agreed upon that A Parliament shall be holden once every year or more if need be But in Thirty years the power of this Law is wasted out of mind and the evil reviving revives also the Statute and yet they had Thirteen or Fourteen Parliaments in Thirty years space and not above Three or but once Four years distance of time between any Two of them in Succession This was the sence of the Members of the Houses in their meeting but at home they had homely conceits and it is found no less difficult to bring them to the meeting than to continue the meeting according to the Law being either loath to adventure their thoughts into the troublesome affairs of the Publick or their persons to expence and hazard But the publick must be served and therefore an Act of Parliament is made That all such Members as decline their appearance at the Parliament after Summons made shall be amerced and the Sheriffs likewise that shall neglect return of Summons And the Statute implyeth that it was no introduction of a new Law but a reviving of former Law now or lately disused or a Custom now out of custom And to take away all objection in point of charges and expences another Law was made to establish the Assessments and levying of their wages upon the Lands that anciently were chargeable therewith in whose hands soever the same shall come I shall conclude with this That the Parliament though like a Garment it sometimes covers the goodly feature and proportion of a well-composed body yet it keeps the same warm and as a Shield is first in all dangers and meets with many a knock which the body feels not this is their work and reward It is true that in the wearing it is felt heavy but it is the easier born if it be duly considered that it is better to be so cloathed than to be naked CHAP. III. Of the Privy-Council and Condition of the Lords THe latter must make way for the former for according to their personal esteem in their own Countries such is their Authority at the Board in joynt Councils And it was one point of happiness in a sad time of War that all men looked one way The Lords were much addicted to the Field and could do much with Edward the Third who was a brave Leader and more with the people who had been so long time used to the rough Trade of Souldiery that they loved not to be at home about matters of Husbandry wherein they had so little experience And having so fair a Garland in their eye as France it is no wonder if domestick designs seemed meaner or more dangerous Thus did God do England a good turn although it was made for the present thereby neither so rich or populous as it might have been in a time of Peace This French heat wasted many a tumultuous Spirit and ennobled the Fame of the King and Lords not onely abroad but won them much Honour and Repute of those that remained at home and so by congregating Homogeneals and severing Heterogeneals rendred the body of the people more Univocal which tended much to the setling of the Joynts of this distracted Nation A timely birth hereof doubtless was the peaceable entry of Richard the Second upon the Throne and quiet sitting there whilst as yet he was but a Child the Princes of the bloud many and they of generous active and
the point of encreasing and diminishing of the Crown in the sixth Section is captious and may sound as if there is a legal enlarging of the Crown whereof he that takes the Oath is to judge A matter which onely and properly concerns the Parliament to order and determine or else farewel all liberty of the people of England The second concerneth immediately the King in his politick capacity but trencheth upon all Laws of the Kingdom in the executive power and all the motions in the whole Kingdom either of Peace or War following in the Rear either immediately or mediately are under this notion interested into the transaction of the Privy-Council to debate and determine the King's Judgement therein unless it will determine alone And how easie a thing it is for such as have power of determining the Action by the Law to slip into the determining of a Law upon the Action and so to rule by Proclamation experience taught succeeding times sufficiently Nevertheless in these times Parliaments were every moment upon the wing and kept this Noble Band in awe by taking them into their Cognizance placing and displacing some or all of them directing and binding them by Oath as they saw occasion of which the Records are full and plentiful I say these times thus constituted added yet further encouragement to them by giving them powers by Statute-Law over and beyond what by ancient Custom they had obtained The King and Council of Lords had anciently a power of Jurisdiction that hath been in the first Part of this Discourse already observed yet it is very probable that it was not any select company of Lords but the whole Association For it is granted by all that they had originally a principal hand in the Jurisdiction and it is hard to conceive how any private number should catch such a power if not by usurpation But the manner of acquiring is less materal the principal consideration resteth upon the quality of this Jurisdiction For it is evident that much difference hath been both concerning the place and manner of exercising this Authority In general it must be granted that all Pleas Coram Rege were grounded upon Writs first purchased and returnable either in Banco or in Camera or in Cancellaria And no difference at all will be concerning the Jurisdiction in Banco for that was by the course of the Common-Law and the people held it one of their Liberties to have one known course of Law for determining matters of right and wrong As touching these Pleas which were holden by Writs returnable in Camera they were properly said to be Coram Rege Concilio whose meeting was in the Council-chamber in those days called the Star-chamber For other returns of Writs in the Star-chamber do not we find but such as were in Camera nor Prohibitions from thence but under the notion of the King's Council and this Camera as I said was the place of the joynt meeting of the Council as well of those of the Chancery and Benches as of those that attended upon matters of State. Now the influence of Society in point of Judicature principally aspected upon some Pleas belonging to the Crown although even these also properly were determinable in the King Bench. Nor can I observe any rule to bound the powers of these two Judicatories but this that the Council-Table would pick and chuse and prohibit the Kings Bench as they pleased and to that end would order Originals out of the Chancery as they thought most meet For it is observed by Fleta that the Kings-Bench hath no jurisdiction of it self but by special Warrant that is to say by Original Writs returned thither Nevertheless it may seem that such Crimes as are contrary to common honesty or the publick profit or peace in a more exemplary way than ordinary and therefore may be called Crimina laesi Regni or against the State these I say might more properly belong to the sublime Judicature of the Council-Table as knowing better how far the publick State was interested or endamaged in such Cases than the other Judges that were experienced onely in ordinary matters of a more private concernment To recite the particular Cases upon record concerning racing of Records Forgeries and other crimes of Falshood Conspiracies Combinations to abate and level the prices of Commodities Riots and such-like will be supersluous In all which and others of that Cognizance the Sentence exceeded not Fine and Imprisonment or Ransom Neither yet were the Common pleas so rural but the Council Table could relish them also and digest them well enough and therefore did not stick to prohibit the Courts of Common-Law under colour of a strange maxime That it is neither just nor honest for a man to be sued at the Common-Law for a matter depending before the King and his Council No though the Court of Common-law had the precedency And therefore although the right of Tythes being depending at the Common-Law the Archbishop in opposition to the Jurisdiction sueth before the Kings Council and the proceedings at the Law are thereby stayed And no wonder for the Council-Table challenged to hold the ballance of all Courts of Law within their own Order and so if any doubt concerning the Jurisdiction depended the Council-Table gave the word and all stooped thereto But enough of the Subject-matter the manner follows a new form of Process is taken up that the Common-Law and ancient Custom never knew and which grew so noisom to the people that complaints are made thereof as of common grievance and remedies are thereto applied by the Laws of these times For whereas by the Grand Charter nothing could be done in Judgement but according to the Laws of the Land and in affirmance thereof a Law was made in these times that no Accusation nor Attachment nor forejudging of Life or Member nor seisure of Lands Tenements Goods or Chattels should be against the form of the Grand Charter and Law of the Land This course of affairs grew so stale that amongst other innovations a trick of a new kind of Trial is brought forth by suggestions upon Articles exhibited against any man before the Council-Table and thereupon issued forth Attachments against the party complained of by means whereof and other courses for they could also sequester much vexation arose unto the people Hereunto upon complaints multiplied a remedial Law is made whereby it is Enacted That all such suggestions made shall be carried to the Chancellor Treasurer and the King 's Grand Council and the Informer shall find Surety to prosecute with effect and to incur the like penalty intended for the Defendant if the Plaintiff's proofs be not compleat and then the Process of Law shall issue forth and the Defendant shall not be taken against the form of the Great Charter that is he shall not be taken until first the fault appear upon Record by Presentment or by due Process or by original Writ
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
to the Customs or Laws of the place yea contrary to them which I believe the Reporter never intended to affirm Thirdly The Reporter salleth upon the matter in fact and tells us that the King of England did many times De facto grant Protections to persons in places out of the English Consines and it will not be denied But never was any absolute and indefinite Protection so granted for the Protection extends to defence from injury and all injury is to be expounded and judged according to the Laws of the place Nor do any of the Precedents vouched by the Reporter clear that the King of England did grant as King of England Protection to any Englishman in any parts of the King's Dominion beyond the Seas which was not qualified according to the Laws and Customs of that place Especially it being apparent that an English King may hold Dominion in Foreign parts in Legiance under a Foreign King as Edward the Third held the Dutchy of Guien and therefore cannot grant absolute Protection in such place nor receive absolute Legiance from any person there being Fourthly The Reporter saith That the King of England hath power to command his Subjects of England to go with him in his Wars as well without the Realm of England as within the same therefore the Legiance of an Englishman to his King is indefinite and not local or circumscribed by place or within the Kingdom of England Although the first of thâ—se be granted yet will not the inference hold for possibly this may arise from the constitution of a positive Law and not from natural or absolute Legiance nor doth any Authority by him cited justifie any such Legiance But I cannot agree the first for it is not true that the King hath any such power from his own personal interest nor doth the authority of former Ages warrant any such matter For a fuller disquisition whereof I shall refer the Reader to the Eleventh Chapter ensuing because the whole matter concerning the Militia cometh there to be handled in course Fifthly To close up all the rest the Reporter brings The Testimony of the Judges of the Common Law out of the Testimony of Hengham wherein an Action was brought by a French woman against an English man who refused to answer because the Plaintiff was a French woman and not of the Legiance or Faith of England This was disallowed by the Judges because Legiance and Faith was referred to England and not to the King. Thereupon the Defendant averred that the Plaintiff is not of the Legiance of England nor of the Faith of the King And upon this Plea thus amended the Plaintiff gave over her Action The Reporter from hence observeth that Faith and Legiance is referred to the King indefinitely and generally and therefore it is so due to him The reason might have had more force had the Object of Allegiance or the nature thereof been the point in question but neither of them coming to debate and Allegiance being subjected to England and Faith to the King I see not what more can be concluded from hence but that Allegiance from an English man is due to England and Faith to the King which I suppose must be intended to be in order to that Allegiance because by the former Plea England had them both and the King was wholly left out in the Case Nevertheless I rather think that the present point in controversie will receive little light herefrom on either part We are now come to the fourth property of English Legiance that it is due to the King 's Natural Capacity and not to his Politick Capacity or due to the Office of a King in regard of the Person of the Man and not to the Person in regard of the Office fol. 20. And because this is of no small importance neither easily understood nor granted Therefore he backeth his Opinion by many reasons First he saith that the King sweareth to his Subjects in his Natural Capacity therefore the Subjects swear to him in his Natural Capacity This reason was intended to be taken from Relatives and then it should have been thus A King doth swear to his Subjects in their Natural Capacity therefore Subjects swear to a King in his Natural Capacity But it being otherwise it is mistaken and proves not the Point Yet if we should take the Reporter in sano Sensu there is no question but the Oath is made to the Natural Capacity yet not Terminativè more than the Oath of the Tenant to his Lord which this Author pleaseth to couple with the mutual dependence between King and Subject fol. 4. b. 5. a. Nor doth the Oath of an Englishman bind him to the Obedience of all or any Commands which the King shall give in relation onely to his Natural Capacity or in opposition to his Politick Capacity Nor will the Reporter himself allow that the Politick Capacity of the King can be separate from his Natural Capacity fol. 10. And yet it is evident that a King may in his Natural Capacity command that of which his Politick Capacity cannot give Allowance The second reason of this Opinion is taken from the nature of Treason which saith the Reporter is committed against the Natural Person of the King and this is against due Legiance according to the form of Indictments in that Case provided This is not demonstrative because that crime which is done against the Natural Person of a Man may as well extend to it in relation to his Place or Office and so may Treason be plotted against the Natural Person of a King as he is King neither is there any other difference between the murther of a King and a private Man but only in regard to the Place and Office of a King which makes the murther of him Treason For which cause all Indictments that do conclude Contra Legiantiae debitum do as well also conclude Contra Coronam Dignitatem c. The third reason is this A body politick can neither make nor take Homage 33. H. 8. Bro. tit Fealty Therefore cannot the King in his Politick Capacity take Legiance The first must be granted only sub modo for though it cannot take Homage immediately yet by the means of the Natural Capacity it may take such service And therefore that Rule holds only where the Body Politick is not aggregate and not one Person in several Capacities for the Tenant that performs his service to his Lord performs the same to his Lord in his Natural Capacity but it is in relation to his Politick Capacity as he is his Lord. For Lord and Tenant King and Subject are but Notions and neither can give nor take service but that Man that is Lord or Tenant or King or Subject may even as the power of protection is in a King not as he is a Man but as a King. The fourth reason is this The King 's Natural Person hath right in the Crown by Inheritance therefore also in the
are not of the Legiance of the King of England but as Lord of that Territory The other matter to be observed concerning pleading in the Courts of Civil Justice is this That whereas anciently from the Normans time till these times the pleadings were in the Norman Tongue they shall be henceforth in English out of an inconvenience I believe rather supposed than felt For though some kind of knowledge of Law-terms may be encreased thereby yet unless that shall be professedly studied it will breed nothing but Notions and they an over-weening conceit which many times sets men to Suits in Law to their own loss like some weak influence of the Celestial Bodies that are strong enough to stir up humours but not to expel them or draw them out However even thus in part is the reproach of Normandy rolled away like that of Egypt from the Israelites at Mount Gilgal CHAP. XI Of the Militia in these times WAR is ever terrible but if just and well governed Majestical the one may excite resistance and defence but the other conquers before blow given because it convinceth the Judgment and so prevails upon the Conscience For that heart can never be resolute in its own defence that is at War with its own understanding nor can such a heart consider such a War otherwise than as Divine and bearing the face of an Ordinance of God and then how can the Issue be unsuccessful It is no strange thing for Kings to miscarry in their Wars because it is rarely seen that they are under good Counsel but if a Christian Counsel miscarry we may conclude it extraordinary in the efficient cause and no less wonderful in the issue and end Upon this ground it concerneth a Christian Nation not onely in point of honour but of safety and continuance to settle fundamental Laws of War against time of War as of Peace in time of Peace Neither was England deficient herein saving that antient times were more obscure in the particulars and these days revealed them at such a time wherein we may say that Edward the Third approved himself not onely King of England but of himself above the ordinary strain of expectation For being now become a famous Commander and Conquerour having also an Army inured to fight and overcome and so might have given a Law he nevertheless received the same submitting both it and himself to the Directory of the Parliament in making a War with France which was three to one against him in very respect but in the Title besides the disadvantage from Scotland that lay continually beating upon his Rear The like may be observed of his War with Scotland in both which he evidently telleth the World that he held it unreasonable to enter upon the managing of an offensive Foreign War without the concurrence of the common consent of the People and that not onely for the thing it self but also for his own Personal Engagement in the Service For a King though he be the Generalissimo yet is he so from the People and his Person being of that high value is not to be exposed to every occasion that may provoke War without due advice first had with the publick Council because in his Person the People adventureth as well as himself And in this manner were the Wars in France by Edward the Third and in Scotland concluded upon debate In the next place as touching the Arrays of Men for War I find no foot-steps of any power which was claimed as peculiar to the King therein and acknowledged by the Parliament but many instances do I meet with in the opposite all which do plainly tell us that the old shifts of Jurati and Obligati ad arma could do little either in the calling of men forth or arming them for the War. But in case of publick defence against Foreigners men were summoned upon their Legiance as anciently was used And this was by both King and Parliament fully declared and all such Obligations by writing called in and damned as dishonourable to the King. In foreign service the course was no less regular if the War was by special direction of the Parliament they likewise ordered the manner of the raising of Souldiers viz. so many out of a County and so many out of a Burrough all which are by the express words of the Statute said to be granted by the Knights and Burgesses But if it was onely upon the King 's particular instigation and not by order or consent of the Parliament the King in such case being Voluntier all the Souldiers were in like manner unless some particular Law or Tenure otherwise obliged them As touching the arming of Souldiers the Law was yet more certain and particular If the Souldiers were men of Estate they were armed according to the ancient rule asserted by the Statute at Winton or otherwise were especially assessed by the Parliament or by virtue of their Tenures The first of these is confirmed by Edward the Third in Parliament wherein he willeth that no man shall be urged to arm himself otherwise than he was wont in the times of his Ancestors Kings of England The two latter were likewise confirmed by another Law made in the same Kings time whereby it was ordained That no Man shall be constrained to find Men of Arms Hoblers nor Archers other than those which hold by such services if it be not by common consent and grant made in Parliament By Men of Arms meaning those which we now call Curiassieres or compleat armed by Hoblers meaning those now called light Horse-men The Archers served on Foot and were principally armed with Bows although they had also Swords or other such offensive portable Weapons The first of these concerneth onely the arming of a man 's own person the other the finding of Souldiers and arming of them and both together sufficient for the safeguard of the Rights and Liberties of the People invaded in those times by Commissions of Array and such other expressions of Prerogative Royal for as touching the arming of a man 's own person the Statute of 1 Edward 3. formerly mentioned is clear in the point And though the Statute of 25 Edward 3. doth not in the latter direct as touching the finding Arms for others as is urged in his Majesty's Answer to the Declaration of the Parliament concerning the Commission of Array July 4. 1642. yet is it therein granted that a compleat Souldier is within the Letter of the Statute and seeing the person of the Souldier is not in the power of any private person in such cases to command him to the service it seemeth clear to me that the Statute must intend the arming of him with compleat Arms and not the armed person of the man. The Souldiery thus arrayed they are in the next place to be called to their Rendezvouz the Knights by Summons sent to the Sheriff but the rest by Proclamation If the Knights appear
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
with this Nation such as are these parts of France Ireland and Scotland then under the English Fee. This is apparent from the nature of the Statute of Henry the Fifth formerly mentioned for if there was need to provide by that Statute that the Kings arrival and personal presence should not dissolve the Parliament assembled by the authority of the Custos Regni then doth it imply that the personal presence of the King by and upon his arrival had otherwise determined the Parliament and that Authority whereby it sate But the Precedents are more clear all of them generally running in these or the like words In absentia Regis or Quamdiu Rex fuerit in partibus transmarinis It is also to be granted that the King's will is many times subjoyned thereunto as if it were in him to displace them and place others in his absence yet do I find no Precedent of any such nature without the concurrence of the Lords or Parliament and yet that the Parliament hath ordered such things without his consent For when Richard the First passing to the Holy Land had left the Bishop of Ely to execute that place during his absence in remote parts the Lords finding the Bishop unfaithful in his Charge excluded him both from that place and Kingdom and made the King's Brother John Lord Warden in his stead But in the Case of the Protectorship which supposeth disability in the person of the King the same by common intendment is to continue during the King's disability and therefore in the Case of Henry the Sixth it was determined that the Protectorship doth Ipso facto cease at the King's Coronation because thereby the King is supposed able to govern although in later times it hath not so been holden For Kings have been capable of that Ceremony assoon as of the Title and yet commonly are supposed to be under the rule of necessity of Protectorship till they be Fourteen years of age or as the Case may be longer For although Henry the Sixth was once thought ripe when he was eight years old yet in the issue he proved scarce ripe for the Crown at his two and twentieth year Nevertheless the default of Age is not the onely incapacity of Kings they have infirmities as other men yea more dangerous than any other man which though an unpleasant Tune it be to harp upon yet it is a Theam that Nations sometimes are enforced to ruminate upon when God will give them Kings in his Wrath and give those also over to their own lusts in his Anger In such cases therefore this Nation sometimes have fled to the refuge of a Protector and seldom it is that they can determine for how long When Henry the Sixth was above Thirty years old Richard Duke of York was made Protector and Defender of the Realm and of the Church It was done if the Record saith true by the King himself Authoritate Parliamenti It was further provided by the Parliament that though this was to continue Quamdiu Regi placuerit yet the Duke should hold that place till the Kings Son Edward should come to years of discretion and shall declare that he will take that place upon himself The ground hereof is said to be that the King was Gravi infirmitate detentus which could not be intended of any bodily distemper for neither doth any such thing appear by any Author or Record Nor if such had been yet had it been an irrational thing in the Parliament to determine the same upon the Princes discretion and acceptance of the Charge upon himself It seemeth therefore that it was Gravis infirmitas Animi and that this way of the Parliament tended to a tacite sliding him out of the Government of the Kingdom by a moderate expression of a general incapacity in his person The Conclusion of all that hath been said concerning this Title is double One that both the Custos Regni and Protector are not subsistent but consistent with that of a King because it supposes a King under incapacity Secondly That they tend to teach the people a necessity of having one Chief although it may in truth seem to be but a trick of State like some pretty carved Cherubims in the Roof of a Building that do seem to bear it up whenas in truth it is the Pillars that support both it and them CHAP. XVI Concerning the Privy-Council NAtions do meet with their Exigences as well as persons and in such condition resolutions taken up by sudden conceit are many times more effectual than more mature deliberations which require more time in composing are more slow in conclusion let slip opportunities and fall short of expectation in the end Such are the ways of debate in the Grand Representative of the Kingdom Add hereunto that in putting the Laws in execution greater discretion is required than can enter into the head of any one man and greater speed than can stand with debate amongst many And therefore it is beyond all doubt that the Conventicles of Council are no less necessary in their degree than the Assembly of the Estates of this Nation in their Grand Convention Yet with this Caveat that one Genius may move in both for otherwise the motions of Government must needs be inconstant inconsistent and like that of an Hypocrite one way abroad another way at home neither comfortable to it self nor confiding to others And therefore cannot these Privateer-Councils by any proportion of Reason be better constituted than by the Representative it self that it may be a Creature made in its own Image one and the same with the Image of the maker This was the wisdom and the practice of these times more ordinarily than in the former for the Parliament was no less jealous of the power of Henry the Fourth than of the infirmities of Henry the Sixth nor more assured in the aims of any of them all than themselves were in in their own Title to the Crown Neither was this sufficient for the Parliament looked upon themselves as a body that sometimes must retire to rest and upon the Privy Council as Watch-men subject to change and therefore they not onely give them instructions but engage them unto observance Their instructions were sometimes occasional but some more general of which I shall instance onely in two which were to be of everlasting regard First That they should hold no pleas before them that is to say at the Council-Table or at the Privy Council nor before any of them unless as Judges in the Chancery Exchequer or Benches at Westminster so as whatsoever misscarriages were had by the Privy Council in Cases of Judicature in the Star-chamber formerly are now reduced The second rule was this That no dispatches should be made at the Council-Table of any matters there agitated but by general consent Unity gives life to Action carrying therewith both Authority and Power and when all is done must derive its original
from without and in all good ends from above And therefore as a Seal to all the rest it was wisely done by the Parliament to draw the mindes of the Privy Council together and to present them joyntly before God by an Oath obliging themselves to a solemn and constant observance of their instructions and to perievere therein For the unchangeable God can onely stamp a lasting Image upon the mind and bind the same that is so subject to change to an unchangeable Law whereby the people may be made as happy for continuance as for Righteousness and Peace The Privy Council thus setled dressed and girt becomes of high esteem both for Trust and honourable Employment in great matters The Mint is the very Liver of the Nation and was wont to be the chief care of the Parliament it self in all the dimensions thereof Now the Mint is two ways considered viz. either in the value of the Metal and Money or in the Coinage The first of these and things most immediately concurring therewith the Parliament still retains to its own immediate Survey such as are the inhibiting of exportation of Gold and Silver and of melting of Coyn into Plate or Bullion the regulating of the current of Foreign Coyn the reducing of money both Foreign and Domestick imbased by Counterfacture Clipping Washing c. the regulating of Allay of Gold and Silver the regulating Exchange and such like concerning all which the Reader may please to peruse the Statutes 2 H. 4. cap. 5 6 11 13. 4 H. 4. cap. 16. 3 H. 5. Stat 1. 4. cap. 6. 9. cap. 11. and 2 H. 6. cap. 6. The second Consideration touching the Mint concerned the election and government of the Officers touching the Mint and Exchange or the places where they shall be holden which with some other matters of inferiour nature were left to the Order of the Privy Council either with the King or alone in case of the King's absence or disability A second power given to the Privy Council was in point of Trade and Merchandize Formerly they had somewhat to do therein but still the Parliament set out their bounds In Richard the Second's time the people had liberty of Trade in some Commodities by way of Exportation but the Privy Council might restrain them upon inconvenience to the publick Now the same is confirmed and though it concerned Corn onely yet it was a Precedent that led the way to a much larger power in the Trade of the Staple Commodities of this Island to enlarge or straiten it as they though meet And so they became in a fair way to have a principal power over the Revenues and Riches of this Nation But this lasted not long for within ten years these Licenses of Transportation cost the Merchant so much as he could make little gains of all his care and pains and therefore a rule is set to a general allowance of all Transportation of Corn till the price of Wheat came to a Noble and Barley at Three shillings and no longer This being first made Temporary was afterwards made Perpetual and so gave a restraint unto the power of the King and Council But where no positive restraint was made by any Statute the King and Council seemed to have the sole power left unto them to open and shut the passes of Trade as they pleased For whereas the Commodity of Butter and Cheese was made Staple the King and Council had power to stop the sale thereof notwithstanding that the Law gave full liberty to the Subjects to bring all their Staple-Commodities to the Staple Nevertheless this power in the King is not primitive but derived from the Parliament for they had power over the Kings Licenses and Restraints in such cases as by the several Statutes do appear A third power given to the Privy Council was a power of Summons and Process against Delinquents in cases of Riots Extortions Oppressions and grievous Offences The Summons to be by Privy-Seal the Process Proclamations and for Non-appearance Forfeiture if the Delinquent be of the degree of a Lord if of inferiour rank then a Fine or Out-lawry At the first view the Statute hath an ill favoured Aspect as if it raised up a new Court of Judicature but the time is to be considered with the occasion for it was made for the securing of the peace in a turbulent time And besides the Law carrieth along with it two restrictions which puts the right of Cognizance in the Privy Council to the question First It saveth the Jurisdiction of other Courts and provideth further That no matter determinable by the Law of this Realm shall be by this Act determined in other form than after the course of the same Law in the Kings Court having determination of the same which implieth that some kinds of Riots and Extortions are of so high a nature that though determinable in the Kingsâ—Court yet are they to be determined before the Lords In the next place this Law provideth That such offences as are determinable by the Law of the Realm that is by Jury shall still be so tried Secondly If Conviction be upon Confession or by Certificate in case where by reason of parties and partakings Inquisition by Jury cannot be had there the Lords shall immediately determine the same Lastly If the Certificate be traversed then the same shall be tried in the King 's Bench. But there is another Restriction that undoeth all in effect in point of right because what this Law setleth therein it setleth but for seven years and leaveth the Privy Council to the limits of the Common Law for the future In the mean time the Privy Council may be thought terrible and very high both by this Law and the greatness of the Lords Kings Unkles and Kings Brothers are Subjects indeed but of so high a degree that if a little goodness of nature or publick spirit shine in them they soon become the Objects of admiration from the Vulgar and gain more from them by their vicinity than the King can do at a distance For the Commons of England by the fair demeanour of popular great men are soon won out of their very Cloaths and are never more in danger to part with their Liberties than when the Heaven is fair above their heads and the Nobility serve the King and flatter them Nevertheless as I said the season must also be considered of this power thus by this Law contracted for what the Lords gained not by their popularity the Queen did with her power who now mindful of her contemned beauty and opposition from the Duke of Gloucester against her Marriage removes him out of the way gets the reins of Government into her hand and like a Woman drives on in full career The Duke of York and other Lords not liking this gallop endeavour to stop her pace but are all over-born the Duke taken prisoner and doubtless had pledged the
Sixth was in view and the minds of men left unassured neither trusting much to Edward the Fourth nor he to them And after that Henry the Sixth was gone out of the way Edward the Fourth could not readily change his posture used Arguments of force and power and for the most part looked like a man in Arms with his hand on his Sword ready to draw upon the next man that stands in his way Thus are the people partly driven and partly drawn into an Oath of Allegiance unto Edward the Fourth under peril of Attainder and the Parliament assured unto him once more For immediately upon the departure of Edward the Fourth beyond Sea after Ten years of his Reign the Parliament never staying for the issue of Providence declared the Throne void of Edward the Fourth and Henry the Sixth King. The Judges likewise of the Courts of Westminster determined the same thing as may appear by the Law-Reports of those times in Print wherein reattachments were often granted by them upon discontinuance of Process by this Demise of Edward the Fourth And thus Henry the Sixth is once more King for six Months viz. from October to April at which time the Ballance turns Edward the Fourth returns gets into the Throne Henry the Sixth is again Dethroned all things are as they were and all confirmed by Act of Parliament For that Body is ever wise enough to side with Power rather than to spend much time upon fruitless Orders and Votes that will pierce no Armour and therefore like the times must needs be subject to fits of distemper at the coming in of every Tide and did build and pull down enact and disenact turn and return the English Crown from York to Lancaster and back again and in conclusion for some time did do little but undo Nor can they be justly censured herein for Councils of men are not ordained to hinder divine Providence or over-rule Fate but to foresee and close with Occasions in the most advantageous way for the publick good and when both Winds and Currents are uncertain to ride at flote till they can discern the most commodious Haven to Winter in To impute therefore fault unto the Parliament in such Cases for want of Uniformity and Immutability of Councils is somewhat like the Notion that Batchelors conceit of Wives they would have but they do not know what other 〈◊〉 an Idea of their own fancy Now if it be enquired which course prevailed in order either to the Kings Royalty or the peoples Liberty I shall answer Neither of these but the House of York prevailed to hold the Crown and might have advanced the Authority thereof had they not fall'n out amongst themselves for the spoil and Edward the Fourth was not altogether disposed thereto The success that he had in the Field and his Souldiery made him look big like a King of the greater size but Kings sleep not securely upon such Pillows When the Militia is on Horseback it is as ready to be a Guard upon the King as for him and when it is most sober not so easily governed as a Commonwealth And therefore Edward the Fourth now in Arms though he found it a hard Notion to maintain the peoples Liberty where no man is free from the Souldier yet he enclined thereto We read of a multitude of Taxations of all sorts and of Benevolences the worst of all those sorts For Souldiers must have money or if not they will have it but the King would not force things so far as his power could reach he will have Money but it shall be by order of the Parliament He might have pretended much upon the Commission of Array yet did it not but chose rather to be Lord of the Seas And because it was too great a Farm for his private Purse he prays aid of the Parliament by the way of Tumage and Poundage which was in demand nine years before the Parliament granted it And when it was granted it was with such restrictions that it is evident the King preferred the right of the Parliament therein above his private honour Secondly Titles of Honour are but windy Notions and every one knows what claim is made by Kings to have the sole interest in conferring the same This Edward the Fourth neglected so far as he interested the Parliament both in the conferring of them and resuming the same Thirdly The course of Trade was now more especially looked to not by the King and Privy Council but by the Parliament And because it was much decayed partly by reason of the ill government thereof and partly by the excessive lavishness of these times many Laws are made for remedy of both And first the Staple was setled sometimes at Calis alone sometimes at it and Middleborough and by this means England gained Trade from both Nations but the principal thanks is to be given to the interest between the King and the House of Burgundy Then course is taken for the bringing of the Staple Commodities onely to those places and the return to be made in Money and not Commodity by exchange Then for the well making of Staple-Manufactures and restraining Importation of Foreign Manufactures of such kinds Then against transporting of English Coyn and importing of Foreign Coyn other than Bullion And as touching the second grievance it seems gallantry or vanity of Apparel was a sore Disease of these times which were become times of Fashions and wherein the King led the way by his own example For he desired to be brave and that he might be more brave he passed Laws that the people should be less brave assessing a sort of Apparel for every degree and therein stooped so low as to define the fashions of their very shoes Fourthly The Parliament retained their ancient right of reducing the course of Judicature For whereas Sheriffs had hitherto holden their course of Trial of the moaner sort of Felonies and Trespasses and Offences determinable onely by Imprisonment or Fines and Amerciaments whereby mens Estates did lie under the continual pillage of these covetous and extorting Officers It was established by the Parliament that these men should have for the future only power of enquiry and to certifie at the next Sessions and there the Trial to be and Fines and Amerciaments to be set Taxed and Estreated unto the Exechequer and from thence to be levied and thereof the Sheriff give account This was a great security to the peoples Estates but gave them not a full remedy For though the Trial was now more fair yet these Officers were Judges of suspicion and had still power upon suspicion to imprison their persons and seize their Estates under colour to save them for the King in case Conviction followed For remedy hereof the Justices of the Peace have now power given them to Bail in Case of light suspicion and it is further declared that no mans Estate shall be first
that Prince that will keep Guards about his Person in the midst of his own people may as well double them into the pitch of an Army whensoever he pleases to be fearful and so turn the Royal power of Law into force of Arms. But it was the French fashion and the King 's good hope to have all taken in the best sence His Title setting aside the saying of Philip the Hardy That Kingdoms onely belong to them that can get them would hardly endure the touch till Pope Innocent by his Bull confirmed the Crown to him to hold by a six-fold right Viz. Of Inheritance of War of Espousals of Election of Gift by Parliament and lastly of Pontifical Benediction which the King liked marvelous well and the rather because his Title by Marriage was buried up in the middle and so made the less noise For though it was his best guard yet he liked not that it should be so reputed lest his Title should seem rather conferred upon him than gained by him and so should hold by a Woman or at the best by the courtesie of England if the Peoples favour should so far extend the Law in that point by both which he holds the honour of a compleat King diminished His Title by Inheritance is much disputable if the right Heirs of John of Gaunt be enquired after And much more that of War for although that brought the Possession yet no right or Title but by wrong which may indeed be plaistered over by Election or Act of Parliament but then he must be Tenant to the People As touching the Pontifical Benediction himself took that but as a redundancy that might sway with the Clergie and do his Title no hurt Nevertheless what severally they cannot do by joynt concurrence he accounts so fully done as if he were a King against all the World and more Yet is he not sure enough but as one jealous is more tender so is his eye ever upon his Title there is his guard and regard as if it were the outworks of his Crown which once lost the Crown cannot hold out long In this work he minded so much his Greatness that he lost the repute of his Goodness Then casting his eye upon the Government and finding it of a mixt temper wherein if Royalty prevails not Popularity will like a good Souldier whilst his strength is full he sallies upon the peoples liberties in regard of their persons with such cunning conveyance as he taught the People to dance more often and better to the tune of Prerogative and Allegiance than all his Predecessors had done Nor did the People perceive it till they were over their Shoes and then they clearly saw their condition and that it was in vain for them to wrangle with their own acts of which more particularly in the next Chapter The Legiance of persons of the People once gained their Estates more easily follow And therefore though in the former he wrought by Ambuscado in this he may be more brave and charge them in the Van. Yet this he did also by degrees first by light skirmishes of borrowing smaller sums of money possibly when he had no need and paying them again thereby to gain credit for greater sums of which he intended not so sudden return Then he charges them home with Benevolences a trick gained in right of his Wife from her Father for he hoped that the person of Richard the Third was now become so abominable as his Laws would be the less regarded But in this course he gained nothing but Wind. Then as Edward the Fourth he falls upon Malevolences of Penal Laws things made in terrorem to scare men to obedience rather than to compel them but are now executed Ad angorem and the people find that he is but a word and a blow with them and thus serving his Prerogative with Power and his Purse with his Prerogative he made all serve his own turn Humanitatem omnem vincente periculo In the Field he always put his Wisdom in the Van for as he was parsimonious in expences of Money so much rather of Bloud if he could prevail by Wit. Generally he was the first in Arms to make men believe he was more ready to fight than they Thus he many times gained the advantage of his Adversaries and sometimes came off without blows In the Battle he did put on courage as he did his Armour and would dare to adventure just as far as a General should as if he had ever regard of his Crown rather than of the honour of a forward Souldier which nevertheless was also so dear to him as he is seldom found in the Rear although his Judgement commanded in chief rather than his Courage In the Throne he is much more wise because he was willing it should be known In doing Justice he is seldom suspected unless where himself is party and yet then he is also so shame-faced as he would ever either stalk behind some Law that had a semblance to his ends or when he meant to step out of the way he would put his Ministers before not so much that his fineness might be known but his Royalty For the Lion hunts not its own prey nor is it Regal for a King to be seen in catching of Money though he be understood Besides it was needless he had Lords Bishops Judges and other instruments of malevolent aspects as so many Furies outwardly resembling men for the Commonwealth but working for the common mischief like some Pictures one way looking right and another way looking wrong And thus the King comes lawfully by what he catched though his instruments did not and must be still holden for a good King though it be his hard hap to have ill servants Take him now amongst the people he is alike to all yea in some things that might seem to brush upon the King 's own train for he had some of his suit that were not altogether of his mind and these he would spare to the course of Justice if need were As it befel in the case of the Duke of Suffolk whom he suffered to be tried at the Kings Bench-bar for a Murder done upon a mean person and by such means obtained the repute of a zealous Justiciar as if Justice had been his principal vertue All this suited well with his main end for he that will milk his Cattle must feed them well and it encourages men to gather and lay up when they have Law to hold by what they have His Religion I touch upon in the last place as most proper to his temper for it was the last in his thought though many times the first in the acting But where it stood in his way he turned it behind him he made Church-men his instruments that the matter might better relish for who will expect ought save well from men of Religion and then if the worst come he was but misled by such as in common reason ought
the people for the present must endure In deposito of the King and other persons that a kind of Interim might be composed and the Church for the present might enjoy a kind of twilight rather than lie under continual darkness and by waiting for the Sun-rising be in a better preparation thereunto For the words of the Statute are That all must be done without any partial respect or affection to the Papistical sort or any other Sect or Sects whatsoever Unto this Agreement both parties were inclined by divers regards For the Romanists though having the possession yet being doubtful of their strength to hold the same if it came to the push of the Pike in regard that the House of Commons wanted Faith as the Bishop of Rochester was pleased to say in the House of Lords and that liberty of Conscience was then a pleasing Theme as well as liberty of Estates to all the People These men might therefore trust the King with their interests having had long experience of his Principles and therefore as Supream Head they held him most meet to have the care of this matter for still this Title brings on the Van of all these Acts of Parliament On the other side that party that stood for Reformation though they began to put up head yet not assured of their own power and being so exceedingly oppressed with the six Articles as they could not expect a worse condition but in probability might find a better they therefore also cast themselves upon the King who had already been baited by the German Princes and Divines and the outcries of his own People and possibly might entertain some prejudice at length at that manner of Worship that had its original from that Arch-enemy of his Head-ship of the Church of England Nor did the issue fall out altogether unsuitable to these expectations For the King did somewhat to unsettle what was already done and abated in some measure the flame and heat of the Statute although nothing was established in the opposite thereto but the whole rested much upon the disposition of a King subject to change As touching the constitution of this Law that also shews that this was not derived from the ancient Right of the Crown now restored but by the positive concession of the People in their representative in regard it is not absolute but qualified and limited diversly First This power is given to this King not to his Successors for they are left out of the Act so as they trusted not the King but Henry the Eighth and what they did was for his own sake Secondly They trusted the King but he must be advised by Counsel of men of skill Thirdly They must not respect any Sect or those of the Papistical sort Fourthly All must be according to Gods Word and Christs Gospel And Lastly Nothing must be done contrary to the Laws and Statutes of this Realm And thus though they trusted much yet not all nor over-long For it was but a temporary Law and during the present condition of affairs Nor did the King or People rest upon this Law for within three years following another Law is made to confirm what was then already done by the King and a larger power granted to the King to change and alter as to his Wisdom shall seem convenient Thus the Kings Injunctions already set forth were established all opposal to them inhibited and the King hath a power of Lawing and Unlawing in Christ's Kingdom and to stab an Act of Parliament in matters of highest concernment And the reason is the King will have it so and who dares gainsay it as Cranmer said The King loves his Queen well but his own opinion better For new things meeting with new love if it be once interrupted in the first heat turns into a displeasure as hot as the first love Nor had either party great cause to boast in their gainings for none of them all had any security but such as kept close to a good Conscience All this though much more than any of his Predecessors ever attained was nevertheless not enough till his Title was as compleat The Pope had fashioned him one now above twenty years old for his service done against Luther and others of that way and sent it to him as a Trophee of the Victory this was Defender of the Faith which the King then took kindly but laid it up till he thought he had deserved it better and therefore now he presents it to the Parliament who by a Statute annexed it to the Crown of England for ever now made triple by the Royalizing of that of Ireland amongst the rest A third Prerogative concerned the Kings power in temporal matters And now must England look to it self for never had English King the like advantage over his People as this man had His Title out-faced all question left rich by his Father trained up in the highest way of Prerogative absolute Lord of the English Clergy and of their Interest in the People of a vast spirit able to match both the Emperour and French abroad and yet more busie at home than all his Predecessors A King that feared nothing but the falling of the Heavens the People contrarily weary of Civil Wars enamoured with the first tastes of Peace and Pleasures whiles as yet it was but in the blushing child-hood over-awed by a strange Giant a King with a Pope in his belly having the Temporal Sword in his hand the Spiritual Sword at his command Of a merciless savage nature but a word and a blow without regard even of his bosome-Companions What can then the naked relation of a Subject do with such an one if Providence steps not in and stops not the Lions mouth all will be soon swallowed up into the hungry maw of Prerogative To set all on work comes Steven Gardiner from his Embassage to the Emperour sad apprehensions are scattered that the motions abroad are exceeding violent and sudden that the Emperour and French King are fast in nothing but in change according to occasion that like the Eagle they make many points before they stoop to the Prey that if the motions at home do wait upon debates of Parliament things must needs come short in execution and the affairs of this Nation extreamly suffer A dangerous thing it is that the King should be at disadvantage either with the Emperour or French King for want of power in these cases of sudden exigencies and for some small time during the juncture of these important affairs that seeing likewise at home the point concerning Religion is coming to the Test the minds of men are at a gaze their Affections and Passions are on their Tiptoes It is reason the King should steer with a shorter Rudder that this care might meet with every turn of Providence which otherwise might suddenly blow up the Peace and good Government of this Nation These and the like represented a fair face to that
and made all practices contrary to the rule damageable to the party Thus far concerning the matters in Cognizance now touching the power of the Keys English Prelacy having laid aside the pretentions of Rome they put the world to a gaze to see which way they would go In the innocent infancy of Prelacy it was led by the hand by the Presbytery and would do nothing without them afterwards having gained some degree of height and strength they entred themselves to be Chariot-horses to the Roman Sun till they had set all on fire Now unharnest it is expected they should return to their former Wits nevertheless forgetting their ancient Yoak-fellows the rural Presbyters they stable with the King use his name sometimes but more often their own serving him with Supremacie as he them with authority beyond their Sphere They raise him above Parliament he them above Councils so as they do what they list let the Plebeian Presbyter will or nill they are the onely numeral Figures and the other but Cyphers to make them Omnibus numeris absoluti Nevertheless the Canon still remains the same Episcopi se debent scire Presbyteros non Dominos nec debent in clerum dominari Episcopus se sedente non permittat Presbyterum stare Episcopi noverint se magis consuetudine quam dispensatione Presbyteris majores Kings may make them Lords but as Bishops they hold their former rank assigned by the Canon as Lord s the King never gave them the Keys and as Bishops the Canon did not yet as under the joynt Title of Lord-Bishops they hold themselves priviledged to get what power they can Two things they reach at viz. The absolute power of Imprisonment and of Excommunication in all causes Ecclesiastical The Common Law would never yield this some Statutes in some Cases did pretend First As touching Imprisonment the Statute of Henry the Fourth concerning Heresie doth lisp some such power of what force the same Statute is hath been already observed In case of incontinency of Church-men it is more directly given them by a Statute in Henry the Seventh's time before which time the Statute it self doth intimate that an Action did lie against them for such Imprisonment which Law also was made useless by another in Henry the Eighth's time who gave a way to Statutes for the punishing them at the Common Law. First with Death which continued for some Moneths and that being found too heavy it was punished by another Law with Forfeiture and Imprisonment And the same King likewise gave way to a Law for the like punishment in case of Heresie By that Law that revoked the Statute of Henry the Fourth formerly mentioned although till Trial the same was bailable And thus continued till the time of Edward the Sixth But as touching Excommunication it was to no purpose for them to struggle the Common Law would never permit them to hold possession quietly but did examine their Authority granted Prohibition enjoyned the Ordinary to grant Absolution where it saw cause Nevertheless in some cases Henry the Eighth gives way to some Statutes to allow them this power as in the â—evying of Tenths In the next place the Prelacy had not this Ecclesiastical Jurisdiction in themselves so as to grant it to others but the Parliament did dispose thereof not onely to Bishops but to Chancellors Vicars general Commissaries being Doctors of the Law and not within holy Orders and limiting their Jurisdiction in cases concerning the Papal Jurisdiction and their manner of sending their Process and Citations to draw men from their proper Diocess and also their inordinate Fees in Cases Testamentary The Prelates therefore might possibly make great claim hereof for generally they were still of the old stamp loved to have all by Divine Right and lived they cared not by what wrong But the Laity enclining too much to the new Religion as then it was termed refused to yield one foot unto their pretentions And so like two Horses tied together by their Bits they endeavour after several courses ever and anon kicking one at another yet still bestrode by a King that was joynted for the purpose and so good a Horseman that neither of them could unhorse him till Death laid him on the ground And thus was the Roman Eagle deplumed every Bird had its own Feather the great men the Honours and Priviledges the meaner men the Profits and so an end to Annates Legatine levies Peter-pence Mortuaries Monasteries and all that Retinue the vast expences by Bulls and Appeals to Rome to all the cares expences and toil in attendance on the Roman Chair The beginning of all the happiness of England CHAP. XXXI Of Judicature THese two Kings were men of towring Spirits liked not to see others upon the Wing in which regard it was dangerous to be great and more safe not to be worthy of regard Especially in the times of Henry the Eighth whose motion was more eager and there was no coming nigh to him but for such as were of his own train and would follow as fast as he would lead and therefore generally the Commons had more cause to praise the King for his Justice than the Nobility had Both the Kings loved the air of profit passing well but the latter was not so well breathed and therefore had more to do with Courts which had the face of Justice but behind were for the Kings Revenue Such were the Court of Requests of mean Original mean Education yet by continuance attained to a high growth The Court of Tenths and first-Fruits The Court of Surveyors The Court of the Lord Steward of the Houshold The Court of Commission before the Admiral The Court of Wards The Court of the President of the North The Prerogative Court The Court of Delegates The Court of Commission of Review Others of more private regard And that which might have given the name to all the rest the Court of Augmentation Besides these there were some in Wales but that which concerned more the matter of Judicature was the loss of that grand Liberty of that Country formerly a Province belonging to this Nation and now by Henry the Eighth incorporated into the same and made a Member thereof and brought under the same Fundamental Law a work that had now been long a doing and from the time of Edward the Third brought on to perfection by degrees First by annexing the Tenure of the Marches to the Crown Then upon occasion of their Rebellion by loss of many of their wonted Liberberties Afterwards Henry the Eighth defaced the bounds of divers the ancient Counties and setled them anew and the bounds of the Marches also and appointed Pleas in Courts of Judicature to be holden in the English Tongue And last of all re-united them again to the English Nation giving them vote in Parliament as other parcel of the English Dominions had True it is that from their
men of so high accomplishment And by this means Lordship once bringing therewith both Authority and Power unto Kings before Kings grew jealous of their greatness in these latter days is become a meer Jelly and neither able to serve the interest of Kings if the people should bestir themselves nor their own any longer Henceforth the Commons of England are no mean persons and their Representative of such concernment as if Kings will have them to observe him he must serve them with their Liberties and Laws and every one the publick good of the people No man's work is beneath no man 's above it the best honour of the Kings work is to be Nobilis servitus as Antigonus said to his Son or in plain English Supream Service above all and to the whole I now conclude wishing we may attain the happiness of our Forefathers the ancient Saxons Quilibet contentus sorte propria A VINDICATION Of the ancient way of PARLIAMENTS In ENGLAND THe more Words the more Faults is a divine Maxime that hath put a stop to the publishing of this Second Part for some time but observing the ordinary humour still drawing off and passing a harsher Censure upon my intentions in my First Part than I expected I do proceed to fulfil my course that if Censure will be it may be upon better grounds when the whole matter is before Herein I shall once more mind that I meddle not with the Theological Right of Kings or other Powers but with the Civil Right in Fact now in hand And because some mens Pens of late have ranged into a denial of the Commons ancient Right in the Legislative power and others even to adnul the Right both of Lords and Commons therein resolving all such power into that one principle of a King Quicquid libet lìcet so making the breach much wider than at the beginning I shall intend my course against both As touching the Commons Right joyntly with the Lords it will be the main end of the whole but as touching the Commons Right in competition with the Lords I will first endeavour to remove out of the way what I find pulished in a late Tractate concerning that matter and so proceed upon the whole The subject of that Discourse consisteth of three parts one to prove that the ancient Parliaments before the thirteenth Century consisted onely of those whom we now call the House of Lords the other that both the Legislative and Judicial Power of the Parliament rested wholly in them Lastly that Knights Citizens and Burgesses of Parliament or the House of Commons were not known nor heard of till punier times than these This last will be granted viz. That their several Titles of Knights Citizens and Burgesses were not known in Parliament till of latter times Nevertheless it will be insisted upon that the Commons were then there The second will be granted but in part viz. That the Lords had much power in Parliament in point of Jurisdiction but neither the sole nor whole The first is absolutely denied neither is the same proved by any one instance or pregnant ground in all that Book and therefore not clearly demonstrated by Histories and Records beyond contradiction as the Title-page of that Book doth hold forth to the World. First because not one instance in all that Book is exclusive to the Commons and so the whole Argument of the Discourse will conclude Ab Authoritate Negativa which is no Argument in humane testimony at all Secondly The greatest number of instances in that Book are by him supposed to concern Parliaments or General Councils of this Nation holden by the Representative thereof whereas indeed they were either but Synodical Conventions for Church-matters whereunto the poor Commons he well knoweth might not come unless in danger of the Canons dint or if they did yet had they no other work there than to hear learn and receive Laws from the Ecclesiasticks And the Lords themselves though present yet under no other Notion were they than as Counsel to the King whom they could not cast out of their Council till after-ages though they often endeavoured it Thirdly The Author of that Tractate also well knoweth that Kings usually made Grants and Infeodations by advice of the Lords without the aid of the Parliament And it is no less true that Kings with the Lords did in their several Ages exercise ordinarily Jurisdiction in cases of distributive Justice especially after the Norman entrance For the step was easie from being Commanders in War to be Lords in Peace but hard to lay down that power at the Foot of Justice which they had usurped in the rude times of the Sword when men labour for Life rather than Liberty and no less difficult to make a difference between their deportment in commanding of Souldiers and governing of Countrymen till Peace by continuance had reduced them to a little more sobriety Nor doth it seem irrational that private differences between Party and Party should be determined in a more private way than to trouble the whole Representative of the Kingdom with matters of so mean concernment If then those Councils mentioned by the Author which concern the King's Grants and Infeodations and matters of Judicature be taken from the rest of the Precedents brought by him to maintain the thing aimed at I suppose scarce one Stone will be left for a Foundation to such a glorying Structure as is pretended in the Title-page of that Book And yet I deny not but where such occasions have befaln the Parliament sitting it hath closed with them as things taken up by the way Fourthly It may be that the Author hath also observed that all the Records of Antiquity passed through if not from the hands of the Clergie onely and they might think it sufficient for them to honour their Writings with the great Titles of men of Dignity in the Church and Commonwealth omitting the Commons as not worthy of mention and yet they might be there then present as it will appear they were in some of the particular instances ensuing to which we come now in a more punctual consideration The first of these by his own words appear to be a Church-mote or Synod it was in the year 673 called by the Archbishop who had no more power to summon a Parliament than the Author himself hath And the several Conclusions made therein do all shew that the People had no work there as may appear in the several Relations thereof made by Matthew Westminster and Sir Henry Spelman an Author that he makes much use of and therefore I shall be bold to make the best use of him that I can likewise in vindicating the truth of the point in hand For whatever this Council was it is the less material seeing the same Author recites a Precedent of Aethelbert within six years after Austin's entry into this Island which was long before this Council which bringeth on the Van of all the rest of
Advertisement THis Book at its first Publishing which was shortly after the Death of King Charles the First had the ill fortune to be coldly received in the world by reason of the Circumstances of those times but after K. Charles the Second was possest of the Crown and endeavoured to advance the Prerogative beyond its just bounds the Book began to be much enquired after and lookt into by many Learned Men who were not willing to part easily with their Birth-Rights so that in a short time it became very scarce and was sold at a great rate this occasion'd the private Reprinting of it in the year 1672 which as soon as the Government perceived they Prosecuted both the Publisher and the Book so violently that many hundreds of the Books were seized and burnt that and the great want of the Book since occasioned the Reprinting of it without any Alterations or Omissions in the year 1682 when the Press was at liberty by reason of the ceasing of the Act for Printing but Prerogative then getting above the Law it met with a new Persecution and the Publisher was Indicted for the Reprinting of it the passages in it upon which the Indictment was found were these Part II. Page 76. beginning Line the 24th thus I do easily grant that Kings have many occasions and opportunities to beguile their people yet can they do nothing as Kings but what of Right they ought to do They may call Parliaments but neither as often or seldom as they please if the Statute Laws of this Realm might take place And Part II. Page 148. Line 32. And though Kings may be Chief Commanders yet they are not the Chief Rulers The Prosecution went on so rigorously that the Publisher tho' beyond the Seas yet willing to try the Cause appeared according to the constant practice of the Court of King's-Bench by his Attorney but for not being personally present in the Court which was then impossible he was by the Arbitrary Power of the then Lord Chief Justice Jefferys Out-Law'd for a Misdemeanour and so remain'd till this wonderful Revolution by the wise Conduct of his Highness the Prince of Orange The Books have been ever since with care and charge preserved for the benefit of all that are willing to know and maintain their Antient Laws and Birth-Rights It was well known to and owned by the late Lord Chief Justice Vaughan who was one of the Executors of the Great and Learned Mr. Selden that the Ground-work was his upon which Mr. Bacon raised this Superstructure which hath been and is so well esteem'd that it is now again made publick by January the 10th 1688-9 John Starkey AN Historical and Political DISCOURSE OF THE Laws Government OF ENGLAND FROM The FIRST TIMES to the End of the Reign of QUEEN ELIZABETH WITH A VINDICATION of the ANCIENT WAY of Parliaments in England Collected from some Manuscript Notes of John Selden Esq by Nathaniel Bacon of Grays Inn Esquire LONDON Printed for John Starkey And are to be Sold by J. Robinson at the Golden Lyon in St. Pauls Church-Yard R. Bentley in Russel-Street in Covent-Garden Jacob Tonson at the Judges Head in Chancery-Lane T. Goodwin at the Maiden Head in Fleetstreet and T. Fox at the Angel in Westminster-Hall 1689. AN HISTORICAL and POLITICAL DISCOURSE OF THE Laws Government OF ENGLAND The FIRST PART From the FIRST TIMES till the REIGN OF EDWARD III. LONDON Printed for John Starkey at the Miter in Fleet-street neer Temple-Bar M.DC.LXXXII Advertisement A Private Debate concerning the right of an English King to Arbitrary rule over English Subjects as Successor to the Norman Conquerour so called first occasioned this Discourse Herein I have necessarily fall'n upon the Antiquity and Vniformity of the Government of this Nation It being cleared may also serve as an Idea for them to consider who do mind the restitution of this shattered Frame of Policy for as in all other Cures so in that of a distempered Government the Original Constitution of the Body is not lightly to be regarded and the contemplation of the Proportions and manners of the Nation in a small Model brings no less furtherance to the right apprehension of the true nature thereof besides the delight than the perusing of a Map doth to the Traveller after a long and tedious travel I propound not this Discourse as a Patern drawn up to the life of the thing nor the thing it self as a Master-piece for future Ages for well I know that Commonwealths in their minority want not onely perfection of Strength and Beauty but also of Parts and Proportion especially seeing that their full age attaineth no further growth than to a mixture of divers Forms in one Ambition hath done much by Discourse and Action to bring forth Absolute Monarchy out of the Womb of Notion but yet like that of the Philosopher's Stone the issue is but wind and the end misery to the undertakers And therefore more than probable it is that the utmost perfection of this Nether-worlds best Government consists in the upholding of a due proportion of several Interests compounded into one temperature He that knoweth the secrets of all Mens Hearts doth know that my aim in this Discourse is neither at Scepter or Crosier nor after Popular Dotage but that Justice and Truth may moderate in all This is a Vessel I confess ill and weakly built yet doth it adventure into the vast Ocean of your Censures Gentlemen who are Antiquaries Lawyers and Historians any one of whom might have steered in this course much better than my self Had my own credit been the fraight I must have expected nothing less than wrack and loss of all but the main design of this Voyage being for discovery of the true nature of this Government to common view I shall ever account your just Censures and Contradictions especially published with their grounds to be my most happy return and as a Crown to this Work And that my labour hath its full reward if others taking advantage by my imperfections shall beautifie England with a more perfect and lively Character THE CONTENTS Of the FIRST PART CHAP. I. Of the Britons and their Government page 1 II. Concerning the Conversion of the Britons into the Faith. 2 III. Of the entry of the Romans into Britain and the State thereof during their continuance 3 IV. Of the entry of the Saxons and their manner of Government 8 V. Of Austin's coming to the Saxons in England his Entertainment and Work. 11 VI. Of the imbodying of Prelacy into the Government of this Kingdom 13 VII Of Metropolitans in the Saxons time 15 VIII Of the Saxon Bishops 16 IX Of the Saxon Presbyters 17 X. Of inferiour Church-Officers amongst the Saxons 18 XI Of Church-mens maintenance amongst the Saxons ibid. XII Of the several Precincts or Jurisdictions of Church-Governours amongst the Saxons 22 XIII Of the manner of the Prelates Government of the Saxon Church 23 XIV Of Causes Ecclesiastical 24 XV.
to glance at the various Aspects of the ancient upon the modern that so these divers Princes and wise Councils in their different course may appear to be no other than the instruments of him that is but one and of one mind whose goings forth have been in a continual course of Wisdom and Goodness for our selves in these latter days And herein I am encouraged because I am not in danger of temptation to Flattery or Spleen nor pinched with Penury of grounds of observation having to do with a Nation than which a clearer mirour of Gods gracious Government is not to be found amongst all the Nations and People under Heaven A TABLE Of the PRINCIPAL MATTERS contained IN THE FIRST PART of this BOOK ABbots page 142 Abbey quarter 151. not taxed or visited from forrein parts 152 Vacancies ibid. Purveyance ibid. Abere murder amongst the Saxons 62 Accolites amongst the Saxons 18 Accusation witnesses amongst the Saxons 94 Action amongst the Saxons 53 Acquittal vide Knight-service Administration vide Intestate Adultery amongst the Saxons 26 Amongst the Normans 88 After 145 Advowsons cognizance 111 Aedeling 33 Age vide Infancy Aids after the Norman times 125 173 178 Alderman 33 Alienations license 114 171 Allegiance according to the Saxons 53 The Normans 94 Amercements 163 Apostacy punished by the Saxons 25 After 121 Appeals amongst the Saxons 53 The Normans 94 After 171 Appeals to Rome 110 Setled 111 To Ecclesiastical Courts ibid. Archbishops vide Metropolitans Arrays 191 c. Arms assessment 128 Vide Arrays Austin the Monk his coming and his Actions 11 c. B. BAil 122 21 158 c. 182 Barks vide Bridges Baron vide Court. Bargain and sale of Goods amongst the Saxons 67 The Normans 82 Barons Wars 221 c. Bastardy amongst the Saxons 26 Battle trial amongst the Saxons 56 Batteries punished by the Saxons 62 120 Bigamists 91 Bishops amongst the Saxons 16 Vide Prelacy amongst the Normans their power encreased 77 c. Vide Elections their Oath to the Pope 115 Blasphemy punished by the Saxons 25 61 Amongst the Normans 86 Bloudshed vide Manslaughter Bridges 164 Britons their Religion and Government 1 c. Conversion 2 Instructed in Learning 4 A Province ibid. The last that submitted to the Papalty and the first that shook it off 13 Burgage amongst the Saxons 51 Burghbote ibid. Burglary punished by the Saxons 63 Burning of Woods punished by the Saxons ibid. Vide 121 Burroughs Mag. Chart. Burroughs English 66 C. CAnon-Law 75 Vide Prelacy Carriages 165 166 Castles their use 73 165 c. Abuse 104 Occasion of the first Civil Wars 130 Castles-guard vide Mag. Chart. 166 De Cautione admittenda 113 Chancery 178 Chancemedley 179 Church maintenance by the Saxons 18 c. Franchise 44 Alienation 115 Reparation 146 Church-men Action 183 184 Discharged from Torns 183 Purveyance 17 143 Their complaints 141 147 Priviledged from distress 150 Cricksceat amongst the Saxons 19 Normans 86 Vide First-fruits Circuits 120 Citation 113 151 242 Clerks trial 116 143 151 Killers of Clerks 116 Comites ex plebe 35 Common-pleas setled 162 Commutation vide Articuli Cleri Compurgators amongst the Saxons 56 Confession sacred 150 Constitutions at Clarindon 111 De Consimili casu 178 Conveyance vide Deeds Copy-hold vide Mannor Coroners amongst the Saxons 41 179 Corporations 48 c. 78 Coverfew 102 Councils general vide Synods Council of Lords amongst the Saxons 33 Vide Lords Counties Courts amongst the Saxons 41 Normans 82 131 After 172 179 285 Court Baron amongst the Saxons 48 Crown-pleas Mag. Chart. 164 Courtesie of England in the Saxons time 65 Custodes pagani amongst the Saxons 35 D. DAne-guelt 102 Released 118 Darreign presentment Mag. Chart. 163 Deacons 18 Deaneries amongst the Saxons 23 Debt to the King satisfaction 160 Debt to the King Mag. Chart. Decenâ—â— amongst the Saxons 43 Normans 83 Deeds among the Saxons 67 Defamation 146 149 Departure beyond Sea without license 112 Diocesses amongst the Saxons 23 Distress in the Normans time 89 Mag. Charta 161 c. Vide County-court Disseisin vide Redisseisin Novel-disseisin Dower in the Saxon time 64 Norman times 91 160. E. ECclesiastical cognizance and power 109 c. 80 127 Vide Stat Circumspecte agatis Articuli Cleri Ederbrece amongst the Saxons 63 Edward the first 133 Edward the Second 35 Elections 75 112 144 151 Elegit amongst the Saxons 59 Englishire a Saxon Law 62 Errour vide Appeals Escheats 167 Vide Forfeiture Felony Escuage Mag. Charta 173 c. Excommunication in the Saxons time 59 Normans 80 After the Normans time 113 Excommunicato deliberando 150 Excommunicato capiendo 151 182 Execution in the Saxon time 59 Executors Mag. Charta Exorcists 18 F. FAirs in the Norman time 89 Fauxonry 120 122 Feast-days Norman Law 87 Felonies and Felons punishment and forfeiture 94 121 167 Concealment 181 Defamed ibid. Feorme or Farm amongst the Saxons 47 Fightwit amongst the Saxons 62 Fine by the Normans 94 175 c. Folkmote vide County-court Fools and Ideots amongst the Normans 93 After 175 Forein Councils 130 132 137 Fornication vide Adultery Forests amonst the Saxons 51 Franchises 42 Frankpledge amongst the Saxons 78 Vide View Freemen of the Saxons 34 Normans 84 After 117 169 Frithbrech amongst the Saxons 62 Fugam fecit 53 Fugitives 167 G. GAvel-kind amongst the Saxons 66 Normans 100 Glebe amongst the Saxons 20 Goods found Saxon Law 68 Norman 89 Sale ibid. Grithbrech vide Frithbrech H. HAbendum Saxon 67 Hamsockne Saxon 63 Heresie punished by the Saxons 24 Normans 86 After 121 Haubergettum Haubertum Halbargellum what it is 194 Heretock Saxon 33 Henry the First 74 Henry the Second 104 Henry the Third 129 c. Shifts for Money 130 Forein Councils 132 Yields up his interest in the Militia to the Lords ibid. c. Heordpeny vide Peter-pence High-ways priviledge 190 Hundred and the Court Saxon 42 Norman 83 Hundred Setena Saxon 43 I. IDolatry punished by the Saxons 60 Normans 86 Vide Blasphemy Imprisonment Saxons 62 Norman 94 Incest punished by the Saxons 62 Indictment Saxon Law 53 Infancy amongst the Saxons 55 After 123 Infangtheoff Saxon 46 Inheritance Saxons 62 Normans 100 After 122 c. Inquest Saxon 56 Interdict in the Saxon time 24 After 113 Intent punished by the Normans 94 Intestate Saxon Law 68 Norman 89 Afterward 144 c. 165 c. John 106 Judgement vide Execution Judges vide Justice Judicatory 118 c. Jury grand petit amongst the Saxons 56 Justice and their Courts amongst the Saxons 52 Chief Justice 119 Judges or Justices itinerant after the Normans 120 124 177 K. KIngs amongst the Saxons election continuance covenant maintenance power in Church matters 22 c. 35 Amongst the Normans election 70 c. Covenant 72 c. Power in Church-matters 77 c. In the times of Stephen Henry the Second Richard the First and John Election 103 Power in Church-matters 109 c. In the time of Henry the Third
an issue of the Neighbouring Nations from the German and Belgick shores induced hereto partly by the vicinity of the Names of he People Cities or Towns and Places but more of their Manners and Customs both in Religion and Civil Government Barbarians they were and so esteemed by the Romans that were but refined Barbarians themselves and yet they worshipped an Invisible Infinite Omnipotent God by Sacrifices but the greatest part of their reverence fell short and rested upon their Priests whom they accounted the only Secretaries that God had on earth feared their interdict worse than death itself and in these times of uttermost darkness held them forth to neighbouring Nations to instruct them into an higher excellency than that of brutish men In their civil Government they allowed preeminence of their Magistrates rather than Supremacy and had many chiefs in a little room the Romans called them little Kings for the greater renown of their Empire But others of more sobriety account them no better than Lords Of liberties not much exceeding those of a City and these though in time of peace independant upon each other yea perpetual Enemies yet in time of Forreign War joyned together to chuse one Head to command them all according to the custom of the Germans as Caesar noteth But that which yet cleareth the matter is the testimony of Dion in the Life of Severus the Emperour who expresly saith That in Britain the People held the Helm of Government in their own power So as these were not Kings nor their Government Monarchical and yet might be regular enough considering the rudeness that in those days overspread the world True it is that by a holy man this Nation was in latter times of Barbarism called Tyrannorum gens the word being taken mitiori sensu or from a common repute of excessive cruelty or oppression by Superiours As touching their Cruelty I find no footsteps in story Somewhat reflecteth upon their Sacrifices as if they offered Mans flesh but that was common to the Gauls who borrowed their Religion from Britain and it might be founded rather upon an error in judgment than savageness of nature Much less cause doth appear of any cry of oppression upon inferiours but rather against that as the multitude of Kings or Lords do manifestly witness who being observed in the time of Julius Caesar continued in Tiberius his time and afterwards until in the Reign of Claudius 't is said that Caractacus ruled over many Nations For it is a certain Maxim that though great Nations may be upholden by power small Territories must be maintained by justice without which the door will be soon set open to the next passenger that comes especially where the people are bent to war as these were and therein had attained such exquisite perfection of skill in Chariot-service as must needs convince us of their much experience against themselves in regard that to other people it was scarce known no nor yet to Caesar himself that had been practised in the Wars of all Nations And this is all that I can produce out of story touching the Government of Britain before the entry of that light that lightneth every one that cometh into the world CHAP. II. Concerning the Conversion of the BRITONS unto the Faith. IT was long before the Son of God was inwombed and whiles as yet Providence seemed to close only with the Jewish Nation and to hover over it as a choice picked place from all the earth that with a gracious eye surveying the forsaken condition of other Nations it glanced upon this Island both thoughts and words reflected on Isles Isles of the Gentiles Isles afar off as if amongst them the Lord of all the earth had found out one place that should be to him as the Gemme of the ring of this Terrestrial Globe and if the ways of future providence may be looked upon as a gloss of those Prophecies we must confess that this Island was conceived in the womb thereof long before it was manifested to the world To recover the forgotten ways of past providence is no less difficult than to search out the hidden bowels of future promises and therefore I shall not busie my self to find out the particular instruments that brought Gods presence into this dark corner but only glance at the time and manner that it may appear we were not forgotten nor yet lost or least in mind at that time of the dispensation of this grace unto all men I dare not instance as Gildas the certain time of six years yet I may say that no sooner was the Scepter departed from Judah but with a swift pace both it and the Law-giver came hither like an Arrow flying through other Countries but sticking with a ne plus ultra in this Island then a People rather than a Commonwealth as if we were the onely White that then was in God's aim It 's probable in the highest degree that the work was done within the first Century and very nigh about the Apostolick times for that in the second Century Britain was a Church of Fame and known to the Fathers that dwelt afar off even to Tertullian and Origen and in short time had outreached the Roman confines in that Island which had cost them above two Hundred years Travel and was grown to the state of the first Christian Kingdom that ever was Unto which if we shall allow time for the gathering and growth thereof unto this Royal pitch proportionable to the half of that which afterward was spent in the like work upon the Saxon and Danish Kings we must in reason conclude that the work was first ordered by Apostolical direction or some of their Emissaries Customs also do not obscurely declare Ages For before that Pius Bishop of Rome began to speak in the big Language of Decrees it was indifferent to keep Easter either upon the day observed by the Roman Church or on the day according to the Jews custom and although the Roman Church began within fifty years after the death of John the Evangelist to stickle to impose their custom upon other Churches yet the Church of Britain conformed not to that course by the space of five Hundred years after that time which reflecteth probability that the Church was there setled in times of indifferency not by Roman Order but by some other purposed Messenger The manner yet is more remarkable for that not onely Principalities and Powers and Spiritual Wickednesses in high places which are but Stumbling-blocks but also natural wisdom of the Druides who were Masters of the Consciences of the Britons and their high conceit of their excellency above the ordinary strain of men and unto which the Cross of Christ is meer foolishness and above all the deep obligement of the People unto these their Rabbies in a Devotion beyond the reach of other Nations All these I say stood in the way and rendred the people
are ready to give and pay to him and to every Christian continually Besides we are under the government of the Bishop of Caerleon upon Uske who is to oversee under God over us and cause us to keep the way spiritual This was the Britons resolution and they were as good as their word for they maintained the liberty of their Church five hundred years after this time and were the last of all the Churches of Europe that gave their power to the Roman beast and Henry the Eighth that came of that blood by Teuther the first that took away that power again Austin having met with this affront and perceiving that the Britons were stronger in their Faith than he by his Miracles cast about to try the Saxons courtesie that what the Ephod could not the Sword wrapt up therein should I say not that he procured but he threatned or prophesied the destruction of the Monks of Bangor and it came to pass and the accasion by writers loudly suspected Nevertheless the Saxons were not so zealous of their new Religion as to make a new National quarrel between the Britons and themselves but left the game to be played out by Austin who finding by experience that it would not prove the work of one man left it to successors to work out by degrees in efflux of time And thus Austin neither good Servant to the Servant of Servants nor good Monk retires to settle his Saxon province and to present or rather to prostitute it to the lusts of that red Whore which was the general piety of those ignorant times CHAP. VI. Of the Imbodying of Prelacy into the Government of this Kingdom I Cannot think that the platform of the mystery of iniquity when boiled to the height was ever fore-seen or in the aim of the wicked spirits on Earth or those in Hell. Yet were they all instruments of this monstrous birth filled with subtilty and mischief guided principally by occasion and over-ruled by the Justice and Wisdom of God to make a yoke for Monarchs and a scourge to the world for their refusal of the government of Christ until this Monster came to perfection and wherein themselves were feloes de se and wrought their own mischief For Austin coming in as a third Proprietor with King and People and having gathered the materials of a Church reason told them that a form of government must be setled in that Church The Saxons had no principles of their own for they had no learning and to go to the Britons for a pattern might be ignoble and where the choice is small it is soon made Rome held now the most part of the Churches of Europe at School the Saxons soon resolve Rome that had been their Mother shall be also their Father And thus at one draught they drank up a Potion of the whole Hierarchy of Rome from the Pope to the Apparator with a quicquid imponitur imponetur which was of such lasting efficacy that it ceaseth not to work even to this day although it was slow in the first operation For the Saxons had a Common-wealth founded in the liberty of the people and it was a masterpiece for Austin and the Clergy so to work as to remain members of this Common-wealth and yet retain their hearts for Rome which was now grown almost to the pitch of that Antichrist For reason must needs tell them that the Saxon principles would not suffer them to be ad omnia for Rome nor the Roman Canon allow them to be wholly Saxon and they faw plainly that the times were too tender to endure them to be declarative on either part and therefore they chose a third way which was to preserve the municipal Laws in moderation towards the Canon and to that end to endeavour such a temper upon the State as must admit them to be in repute such as without whom the Common-wealth could not well subsist no more than a body without a soul and that few occasions should befal but at least in ordine remoto must reflect upon both and then all reason will bespeak them to joyn in the legislative power and government of this Kingdom but especially as Bishops who are now Magnae spes altera Romae and the very top-flowers of wisdom and learning And unto this temper the Saxons were sufficiently prepared and inclinable for it was no new thing for them to admit their Heathenish Priests into their general meetings and allow them much power therein and then it is but the person changed and they must do as much for their Bishops now they are become Christian especially themselves being all for the field and overgrown with a general ignorance the common disease of those times Kings were in no better condition it was hard for them to be Baptized and not to be Baptized into Rome and commonly under such a Covenant as though many might repent of yet none durst amend For whenas the Pope is Lord of the Consciences of the people the Kings power may sometimes out-face but can never govern the Saxon Kings were therefore fain to make a vertue of necessity and advance Bishops to be common favorites both of Rome and themselves to maintain good correspondency between both Swords and to countenance the power of the temporal Magistrate in cases of dispute else he oftentimes might command and yet go without Thus entred the Prelates upon affairs of Kings and Kingdoms and became lovers of Lordships and troublers of States and if in any thing they served their Country they served Rome much more their merchandise was made of the policies and Counsels of all Kingdoms and States and such returns proceeded as were still subservient to the Roman interest and they intoxicated the domestick counsels in such manner as they generally staggered and many times came short of home Nevertheless at the first this was but rare clancular and covered with much modesty for excepting such choice spirits as Austin had Roman Prelacy in these younger times was but Velvet-headed and endured not much greatness or big titles but spake like a Lamb Ego non verbis quaero prosperari sed moribus said this Gregory to the Alexandrian Bishop who had put upon him the title of Universal Bishop or Pope and whereas he had in a way of Courtship called Gregories Counsels commands he startles at it quod verbum jussionis saith he peto a meo auditu removeri quia scio quis sum qui estis Thus Prelacy first conveyed it self into opinion afterwards into conscience and ambition coming in the rear made it become both Bishop and Lord. CHAP. VII Of Metropolitans in the Saxons time BEing in pursuit of the Government of this Kingdom in elder times and therein first of the persons with their relation then of their work and lastly of their Courts and Laws and now in hand with the Ecclesiastical persons I shall descend to their particular ranks or degrees and shall shew what
they were in their original and what overplus they had by Laws And first concerning the Metropolitan In his original his Office was to visit the Bishops admonish and exhort them and in full Synod to correct such disorders as the Bishop could not reform and in all things to proceed according to the prescript Canon Thus witnesseth Boniface an Archbishop to an Archbishop of an Archbishop not according to the practice of the times wherein it was written but according to the ancient rule For long before Boniface his time Archbishops were swoln beyond the girt of the Canon and before that England waâ— honoured with that rank of men Metropolitans were become Metronoâ—â—ians and above all rule but that of their own will and through common custom had no regard to any other so as if England will have them it must be content to have them with their faults But the truth is the dignity or title which you will was a plant of that virulent nature that would scarce keep under-ground in the time of the hottest persecution For Steven Bishop of Rome liked the title of Universal Bishop And after a little peace it 's a wonder how it grew to that height that it had and no less wonderful that the Saxons gave entertainment to such Potentates Much of whose spirits they might have observed in the entrance of their first Archbishop Austin if God had not given them over to thraldom under the mystery of iniquity of sinful man aspiring into the place of God taught by that Courtly messenger of Rome because they would not stoop to that mystery of godliness God manifested in the flesh as it was taught in simplicity by the rural Picts and Britons But this was not all for because Archbishops were gotten above Canon which was thought scandalous therefore they gave as large a power by Canon as the former usurpation amounted unto and so stretched the Canon to the mind of the man whenas they should have rather reduced the man to the Canon The words of the Canon in our English tongue run thus It belongs to the Metropolian Bishop to rule Gods Churches to govern chuse appoint confirm and remove Abbots Abbotesses Presbyters and Deacons and herewith the King hath nothing to do And thus though the apparent power of Archbishops was great and unlimited yet what more was wrapped up in that word Churches only time must declare for it is very likely that in those daies it was not understood yet the practice doth not obscurely declare the matter for before this Law was established by Withered in a Council wherein Bertnaldus Archbishop of Canterbury was president and who was first Primate of England Theodore Archbishop of Canterbury used such power over other Bishops in ordaining or removing them as a Writer saith that his rule was no other than perturbatio and impetus animi But the Metropolitan in England as the times then were had yet a further advantage even over Kings themselves for there were divers Kingdoms in this Island and Kings had no further power than their limits afforded them But there was but one Metropolitan for a long time in all the Saxon Territories so as his power was in spirituals over many Kingdoms and so he became indeed Alterius orbis Papa And it was a remarkable testimony of Gods special providence that the spirits of these petty Popes should be so bound up under the notion of the infallibility of the Roman Chair that they had not torn the European Church into as many Popedoms as Provinces But no doubt God ordered it for a Scourge to the World that Antichrist should be but one that he might be the more absolute Tyrant and that Kings should bow down their necks under the double or rather multiple yoke of Pope and Archbishops for their Rebellion against the King of Kings CHAP. VIII Of the Saxon Bishops HAd not Bishops been somewhat sutable the Roman Clergy had not been like it self and it had been contrary to Austin's principles to have advanced to Bishopricks men better qualified than himself They first ruled the Saxon Church joyntly in the nature of a Presbytery till about Sixty years after Austin's time their pride would not endure together any longer and it may be grew somewhat untractable under the Metropolitan that resolved to be prouder than all and thereupon Theodore Archbishop of Canterbury first divided his Province into Five Diocesses and by appointment of the Kings and People placed Bishops over each every one of them being of the right Roman stamp as himself was of the right Roman shaving And it had been a wonder if Episcopacy now for the space of Three hundred years degenerated and that into such a monstrous shape as a Pope should by transplanting become regenerate into their original condition of meekness and humility But it is a much greater wonder that they should become so purely ambitious as not to endure a thought of the ways of sobriety but would be proud by Law to let all the world know that they held it no infirmity but an honour For albeit that in the first time the Bishops work was to instruct teach to see the service of God to be diligently purely administred in publick Congregations to Exhort Reprove by teaching to amend such matters as he should find in life and Doctrine contrary to Religion and accordingly they carried themselves meekly and humbly studying peace truth and medled not with Secular Affairs they are now grown up into State and must now ride on horse-back that were wont to go on foot Preaching the Word and must be respected above the rank of ordinary Presbytery none must doubt of their truth nor question their words but they must be holden Sacred as the word of a King sine juramento sit irrefragabile Their presence must be a Sanctuary against all violence all Clerks and Religious houses must stoop under their power their sentence must be definitive and thus advanced they must keep state viz. not go too far to meet Princes in their approach towards them nor to light off their Horses backs to do Princes Reverence at their meeting because they are equal to Princes and Emperours and if any Bishop shall behave himself otherwise and after the old rustical fashion for such are the words of the Canon for disgrace done to their Dignity they must be suspended So as by their own confession Bishops henceforth are Bishops of a new fashion that must incur a note of infamy for shewing any gesture of humility to Princes which if any man will see more fully let him peruse the Canon if he please But this is not sublime enough they must be not only equal but in many respects superiour to Princes for in matters that concern God Omnibus dignitatibus praesunt and more plainly Princes must obey them Ex corde cum magna humilitate and this was
relation I shall first fall upon the persons and degrees abstractively then in their Assemblies and lastly of their Laws and customs The Saxons in their first state in Germany were distributed into four Classes viz. the Nobles the Free-men the Manumitted persons and the Bond-men Under the Nobility and from them arose one that was called a King of whom I shall speak apart the two last differed only in the bare liberty of their persons and therefore may be comprehended under one head as they were in their original A King amongst the Saxons in probability was anciently a Commander in the field an Officer pro tempore and no necessary Member in the constitution of their State for in time of peace when the Common-wealth was it self the executive power of the Law rested much in the Nobility but in times of War and in publick distractions they chose a General and all sware Obedience unto him during the War it being finished the General laid down his Command and every one lived aequo jure propria contentus potestate But in their transmigration into Britain the continuance of the War causing the continual use of the General made that Place or Office to settle and swell into the condition of a King and so he that was formerly Dux became Rex there being no more difference in the nature of their places than in the sense of the words the one signifying to Lead the other to Govern so as he that formerly was a servant for the occasion afterwards became a servant for life yet cloathed with Majestly like some bitter Pill covered with Gold to make the service better tasted Nor was the place more desirable if duly considered For first his Title rested upon the good opinion of the Free-men and it seemeth to be one of the best Gems of the Crown for that he was thereby declared to be most worthy of the love and service of the people Yet was the ground of their Election so uncertain as a man might imagine that sometimes there appeared more of the will than of the judgment in it that it might be said to be the more free for they neither excluded women nor children further than present occasions led them The West-Saxons deposed Seburg their Queen because they would not fight under a woman but the Mercians obeyed Elfled their Queen and under her fought valiantly with good success against the Danes imitating the custom of the Sitones or Norwegians in Germany or they might borrow it from the Lacedemonians A Custom it was so much the more honourable by how much it demonstrateth freedom and that the worth of the people rested not so much in the head as it 's diffused through the whole body And it seemeth to run in the Blood of an English-man even to this day to be as brave under a single Queen as under the most valiant King if not much more and still to strive to be as famous for the defence of Majesty wherever they set it as the Britons were of old Nor were they different in their respect of age from that of the Sex for though after the death of Edmond Edwin or Edgar were to have succeeded in the Crown by the right of descent yet the States would not admit them because they were Minors but the Mercians admitted Kenelme a child of Seven years old to be their King. They likewise excluded not Bastards till the Clergy interposed for they having wound themselves into the Councils of the Kingdom procured a Constitution to back them in the Election of Kings Legitimate c. Let the Kings be legally chosen by Priests and Elders and not such as are begotten by Adultery or Incest which Constitution was made in a Legatine Council and confirmed by great Offa. The rule of their Election was the same with that in Germany viz. to elect the chiefest out of the chiefest Family that is the chiefest for worth not by descent yet the honour they bare to their brave Kings who had deserved well made some to honour their posterity and to chuse their eldest after their decease and so in time Crowns were taken up by custom and Election oftentimes subsequent was accounted but a ceremony unless the people will dispute the point Secondly this Election was qualified under a stipulation or covenant wherein both Prince and people were mutually bound each to other the people to defend their King which the Historian saith was praecipuum Sacramentum and the Prince to the people to be no other than the influence of the Law sutable to that saying of Aethelstan the Saxon King Seeing I according to your Law allow you what is yours do you so with me as if the Law were the sole umpire between King and people and unto which not only the people but also the King must submit The like whereunto Ina the great Saxon King also No great man saith he nor any other in the whole Kingdom may abolish the written Laws Kings furthermore bound themselves at their entrance into the Throne hereunto by an Oath as it 's noted of Canutus unto whom after Aetheldred was dead the Bishops Abbots Dukes and other Nobles came and Elected him to be their King and sware Fealty unto him and he again sware to them that Secundum Deum secundum seculum c. viz. according to the Laws of God and of the Nation he would be a faithful Lord to them It 's probable I grant that the praecipuum Sacramentum formerly mentioned was in the first nature more personal for the defence of the person of their Leader whilst he was their Captain because it much concerned the good of the Army and without whom all must scatter and be brought to ruine and this the words of the Historian do evidence But the safety of the whole people depended not on him after the War was done and therefore the Oath tied them not any further nor did the safety of the people afterwards when as the Saxons entred this Land so absolutely rest upon the person of the King especially if he proved unfit to manage the work and therefore the fealty that the people sware to their King was not so absolutely determined upon their persons otherwise than in order to the publick weal as may appear from the Laws of the Confessor who was within Thirty years after the Reign of Aethelstan formerly mentioned The words in English run thus All the people in their Folkmote shall confederate themselves as sworn Brethren to defend the Kingdom against strangers and enemies together with their Lord the King and to preserve his Lands and Honours together with him with all faithfulness and that within and without the Kingdom of Britain they will be faithful to him as to their Lord and King. So as 't is evident the Saxons fealty to their King was subservient to the publick safety and the publick safety is necessarily dependant upon the
totius Angliae Ecclesiarum vice nostra cum concilio Episcoporum Abbatum constituatis ubique quae justa sunt How the King took the conclusion I find not but he could never make better use than by way of estoppel unless he meaned to sacrifice his own right as a thank-offering to a shadow which I find not that he or his next Successors ever did But as touching the Laity Histories do not touch upon any conceit of withdrawing Monarchical power It 's true Kings had their excesses yet all was amended either by the body of the people when they pleased to examine the matter or by the Princes fair compliance when complaint was made and so the Law was saved And thus upon all the premises I shall conclude a Saxon King was no other than a primum mobile set in a regular motion by Laws established by the whole body of the Kingdom CHAP XVII Of the Saxon Nobility THe ancient Saxon Nobility in Germany were the chiefest in action both in War and in Peace That rank of men was continued by three means viz. by Birth or Blood by Valour and by Wisdom The first was rather at the first a stem arising out of the first two than a different degree or kind for Noble blood was at the first enobled by brave actions afterward continued in their honour to their Posterity till by as base courses it was lost as it was gained by worthy Atchievements these were called Adelingi The Nobility of Action consisted either in matters of War or of Peace Those of Peace arose principally from Wisdom which being gained for the most part by much experience were therefore called Aldermanni or elder men The Nobility of War arose somewhat from valour or courage with wisdom but more from good success for many brave and fortunate Commanders have not been very daring and the bravest spirits though wise have not been ever honoured with good success these were called Heretochii Nevertheless all these names or titles were used promiscuously in following times and all called Nobiles But both that and Duces Satrape and Comites were all of the Roman Dialect as the former were of the Saxon. Time also brought others into this honourable Band viz. The great Officers of the Kings Houshold and their attests are found amongst the Kings Charters amongst the Nobles and that much advanced the price of Kings for he that is worthy to be not onely Lord above Nobles but Master of some may by a little courtesie prevail over all This starry Heaven had several Orbs some so high as in common esteem they were next the Imperial Heaven having a tincture of Royal Blood and at the next door to the Throne Others though not of so clear light had nevertheless no less powerful influence upon the people but rather more by how much more nigher to them Their power in matters of Peace or Government of the Commonwealth was exercised either collectively or apart and severally In their meetings they ordered the smaller emergencies of the publick in convocating and directing the people De minoribus rebus consultant principes These minora are such as are subservient to the majora and pro hic nunc require suddain order touching any particular part or member of the Common-wealth At other times they visited their several Territories or Circuits hearing and determining matters of Controversie and executing Judgment according to the known Laws Principes jura per pagos vicosque reddunt Yet they had Comites of the Country joyned with them whereof afterward This was their course in German Saxony but in England the new stem of Kingly power arising higher than all the rest sucked much from them and kept them under for the judiciary power was in time drawn up into the Regal order and the Lords executed the same as Deputies from and under him designed thereto by Writs and Commissions as it is more particularly noted of King Alfred The Lords thus lessened in their judiciary power carried the less authority in their Votes and Consultations The King was a perpetual Moderator in that work and it was no small advantage he had thereby to sway the Votes Men that are advanced if they have any excellency soon gain admiration and it 's a hard thing for one that hath yielded his heart to admiration to keep it from adoration This hath mounted up Kings to the top more than their own ambition and made them undertake what they ought not because we esteem more highly of them than we ought I speak not against due but undue Obedience for had the Saxon Lords remembred themselves and the true nature of the authority of their King they needed not to be amazed at their check nor to give way to their passion as they did many times and advised others to do the like Nor had Kings by degrees become beyond controul and uncapable to be advised This errour the Lords espied too late and sometimes would remember their ancient right and power and did take boldness to set a Law upon the exorbitancy of their King as in that case of Aethelwolf and his Queen amongst others may appear but that was like some enterprizes that owe more to extremity of occasion than to the courage of the undertaker CHAP. XVIII Of the Freemen amongst the Saxons THe next and most considerable degree of all the people is that of the Freemen called anciently Frilingi or Free-born or such as are born free from all yoke of Arbitrary power and from all Law of compulsion other than what is made by his voluntary consent for all Freemen have votes in the making and executing of the general Laws of the Kingdom In the first they differed from the Gauls of whom it is noted that the Commons are never called to Council nor are much better than servants In the second they differ from many free people and are a degree more excellent being adjoyned to the Lords in judicature both by advice and power consilium authoritas adsunt And therefore those that were elected to that work were called Comites ex plebe and made one rank of Freemen for wisdom superiour to the rest Another degree of these were beholding to their Riches and were called Custodes Pagani an honourable title belonging to Military service and these were such as had obtained an estate of such value as that their ordinary Arms were a Helmet a Coat of Mail and a gilt Sword. The rest of the Freemen were contented with the name of Ceorles or Pagani viz. Rural Clowns who nevertheless were the most considerable party both in War and Peace and had as sure a title to their own liberties as the Custodes pagani or the Country Gentleman had CHAP. XIX Of the Villains amongst the Saxons THe most inferiour rank amongst the Saxons were those that of latter times were called Villains but those also antiently divided into two degrees the
Author reciting another example of his justice against another of his Justices for putting one to death without president rendreth the Kings reason for that the King and his Commissioners ought to determine such cases excepting those Lords in whose precinct the Kings Writ passeth not CHAP. XXX Of Francheses of the Person FRancheses of the Person are such Liberties annexed unto the Person as are not absolute Lordships but only tending thereto and limited within a Precinct but not annexed thereto and these are matters of profit rather than power as those of Bury St. Edmonds Doncaster Dorchester Circester all which were in the Saxon times and these or some of them had juridical power in cases of Felonies and Robberies arising within that Precinct so as the Delinquent was both Inhabitant and taken within the same this was called Infangtheoff and if upon fresh pursuit made by the right owner or possessor the Delinquent was taken with the prey in his possession or as the old Dialect is Handhaben Backhearend Then was he carried immediately before the Coroner of that Liberty and the Sakeber or party wronged made his proof by Witnesses and thereupon judgement forthwith passed without answer and execution immediately ensued Some Liberties had Outfangtheoff that is the trial and forfeiture of such Delinquents being no Inhabitants and yet taken within the Liberty or Inhabitants and not taken within the Liberties but this Trial was always by Jury The Antiquity of these Liberties are not obscurely manifested in their names and more clearly by the Saxon Laws and Acts for it 's observed of Alfred that he seized a Franches of Infangtheoff because the Lord of that Franches would not send a Felon taken within his Liberty for a Felony committed without the same to the Goale of the County as he ought to have done Other Liberties there were granted also by Charter a tast whereof may be seen in one Grant made by King Edgar to the Monastery of Glastenbury wherein was granted Sack Hamsockne Friderbrece Forstel Teme Flemone Ferdre Hundred Setene Sock Tholl Adae Horda Bufan Orderan Bene Orderan the particular natures of each may be observed in the Glossaries all of them being allowed to the Crown by the Law and by the advice of the Council of Lords granted over to these Grantees in nature of Deputies to the King to possess both the power and profit thereto belonging CHAP. XXXI Of Manors NEvertheless most of these Liberties if not all of them were many times granted by Kings as appendant to Manors which were Francheses of smaller circuit being at the first portions of ground granted to some particular persons and by them subdivided and granted over to particular persons to hold of the Grantors by Rents Services and suit to one Court all being no other than the spoils of War and rewards of valour or other service These in their collective nature are called a Manor and by continuance of time become a kind of body politick In Antiquity it is called Mansum from the Mansion-house although it is not of the Essence of a Manor nor ought the words of Bracton to be construed according to the literal sense for the house may be destroyed and yet the Manor continue and the ground was granted in tenure before any house built thereupon The quantity of the ground thus given to hold by Service was according to the pleasure of the Lord more or less and therefore might extend into divers Parishes as on the other part one Town might comprehend divers Manors The Estate that was granted depended partly on the condition of the Grantee for some were servi or Bond-men and their Estate was altogether at the will of the Lord as was also the benefit but the servants merit and the Lords benignity concurring with some Conscience of Religion as the light grew more clear abated the rigour of the tenure into that which we now call Copy-hold Other Estates were made to the Free men which in the first times were only for years albeit therein they were not niggardly for they sticked not at Leases for a hundred years yet with a render of Rent which in those days was of Corn or other Victual and thence the Leases so made were called Feormes or Farmes which word signifieth Victuals But times ensuing turned the Victual into Money and terms of years to terms of lite and inheritance retaining the Rents and those called Quit-rents or the Rents of those persons that are acquitted or free But in case of estates of inheritance for the most part after the death of the Tenants were reserved Heriots or a relief which were not left to the will of the Lord but was put in certainty in the very letter of the Law for according to each mans degree such was his Relief or Heriot But over and above all they reserved special service to be done by the person of the Tenant or some other by his procurement of which those that were their servi or villains were at the will of the Lord others had their particular service set down in their grants These concerned either War or Peace the former was afterwards called the service of the Knight or Souldier the latter the service of the Husbandman or Plough That of the Souldier was the more honourable and suitable to the old German trade Pigrum iners videtur sudore acquirere quod possis sanguine parare and the work was to defend the Kingdom the Lords person and Honour and to this end he was ever to have his weapons in readiness which gave name to the service and altered as times and customs changed This service by custom from a work degenerated into the bare Title and became a dignity and the men named or rather intituled Milites and many of the Saxon Charters were attested by men bearing that Title yet the service itself was far more ancient and called servicium loricae of which sort also were the Custodes pagani that wore a Helmet a coat of Mail and a guilt Sword not unlike the old German way of calling forth of their Tirones to the war. Of this rank some were more eminent than others for some bare the single title of Knight and it seemed served on foot others served on horseback and were called Rad knights or Knights-riders as Bracton noteth and these I take to be the Vavasours noted in the Conquerours Laws for that their relief is a Helmet a Coat of Mail a Shield a Sphear and a horse Now for the maintaining of this service they had Lands and Tenements called Knights-Fees which bound the owner to that service into whose hands soever they came to be done either by the person of the owner or other fit person by him procured and therefore were discharged from the payment of all Taxes and Tollage which was the Law of the Goths of old and remains in Sweden at this day
The number of these Fees much increased so as in the Conquerours time they were above sixty thousand which was a mighty body for a small Island and brought much honour to the Nation But the profit arose from beneath I mean from the soccage tenure or service of the Plough which in the first times was performed by those that were unfit for the service of the Wars either being green and young or decrepit and aged and sometimes by the Women But after that the Saxon Conquest was at a stop and that no more was to be gotten by Blood men endeavoured to satisfie their desires by sweat and turned their Swords into Plough-shares and thus the Husbandry increased exceedingly and hath proved the best Pillar of the Common-weal the nature of this tenure is fully set out by the Reporter nor can I add thereto more than the Law of the Confessor concerning these men viz. That no man might trouble them but for their Rent nor any Lord thrust them out of their Farm so long as they do their service And thus it appeareth that the service became in nature of a condition subsequent begetting an increaser of the Estate which by continuance wrought an inheritance and so the Title of Entry was turned wholly into distresses for service not performed yet the Lord was no looser thereby so long as Heriots Rents and Services accrewed unto him CHAP. XXXII Of Courts incident and united unto Manors BY Grants made by Lords unto Tenants already noted the Lords had power by common right to call their Tenants before them and enquire concerning their payment of Rents and performance of service which became Courts of constant appointment of which sort there-were two one for the Free-men the other for the Bond-men and this brought forth another service which we call suit of Court. The Court of Free-men was holden from three weeks to three weeks wherein the Free-men as in the Hundred and County were Judges of the fact and from them named as at this day Court-leet or the Court of the Liti of such as are manumitted or Free-men In this Court all Actions or Suits between the Free-men of the same Manor and within the same arising were determined nor could any Court no not the Kings intermeddle with such Suits before Trial had but by the Lords allowance And upon this priviledge the Writ of right Patent was grounded But the full nature of this Court is not within my intention but I must refer the Reader to the Law-books For it was the least part of the work and power which this Court obtained by continuance of time in regard that Manors exceedingly multiplied so as no part of the Land was left free and many one of them extended into divers Decennaries the Lords obtained great power over them and had of Kings grants of view of Frank-pledge within their several Lordships and further power of inquiry and punishing of matters of publick nusance and such as were contra Pacem Coronam which by custom became annexed unto the Court-leet The nusances of Copy-holds being done to disherison of the Lord and not proper for the Court of publick inquiry The Judge of this Court-leet was the Lord or his Steward for the directory part and the Steward was properly Coroner within the Mannor to take Presentments and certifie them to the Coroner of the County And thus this Court swallowed up much of the power of the Decenners Court in the very infancie so as we find no foot-steps of any Writ of Right to the Decenners or Chief-pledges but contrariwise many views of Frank-pledge granted to particular persons in the time of Alfred and many things done by the Chief pledges in the Courts of these Mannors as is to be yet seen in many ancient Court-Rolls The other Court which by common Right belonged to the Lords of Mannors was that of the Copy-holders called or rather included under the name of the Court-Baron which albeit it is called in the ordinary stile Curia Baronum yet not so properly as I conceive and it may be by way of mistake for Baronis for if it were so properly united formerly to the Court of Free-men as ab excellentiori it always passed under that name yet when that Court is omitted and slipt out of the way the Court of Copy holders that remaineth improperly retaineth the name of that which is gone This Court at the first was intended onely for the Lords benefit and for the Tenants right as subservient thereunto I say the Tenants right not against their Lord for they had no right against him but against any other they had protection of Law both for themselves and their Estates And as I said before by custom or rather light of Religion their persons and Estates were considerable even by the Lords themselves Which also caused a Law to be made ut sic de suis hominibus agant quatenus erga Deum reatum non incurrant Regem non offendant Which Law could never be intended of the Free-holders for it had been a vain redundancy to have made an especial Law for that which was provided for by the known fundamental Law of the Kingdom against which a speedy remedy lay by the Kings Writ And these men how mean soever had even in those days a kind of Property both in Lands and Goods for the Laws though by their antick Language darkned yet plainly speak de terra sua Catallis ejus And if the ancient Germans were so generous to their Bond-men surely much rather after their coming into this Island inasmuch as their service was more and more necessary in Agriculture which could never be performed by the Natives who were not in their own persons conquered although their Land was CHAP. XXXIII Of Townships and their Markets THE next Franchese is that of Towns This was taken up as a Birth of War and Nurse of Peace for their Ancestors liked not to dwell in crowds ne pati quidem inter se junctas sedes it being their trade or pastime to war upon Beasts when they found no Enemies amongst them This solitudinary custom could not be soon shaken off and might well occasion multitudes of Towns in those times though small ones doubtless that Writers speak of if true it be that after the wasting times of the Danes and Normans in the Conquerours time were found in England Forty five thousand Parishes and Sixty two thousand Villages Nor was Peace less beneficial to them than they careful of it for by continuance of Peace Husbandry Manifactures and Commerce occasioned people to gather to places commodious for Habitation in good Soil nigh Navigable Rivers or Havens and according to their scituation and trade so they swelled in multitude or decayed Some of whom growing more eminent than others more care was had of their government and safety for the latter by building of
Walls and Castles and for the former by setling a Magistracy peculiar to that place or Township not as so many Decenners but as one body consisting of many members And thus by custom they grew to be Fraternities or Corporations under one Magistrate or Head whom they called Alderman and held a Court of Justice at the first holden twice a year which was in nature of a Leet with a view of Frank-pledge as may appear in the cases of Dorchester Circester and Doncaster in Alfred's time and herewith they had publick Markets which served them for their better conveniencies This priviledge of Market was a liberty of publick sale and trade in Commodities that principally concern the Belly but by common course became a pass for Commodities of every kind almost Concerning this liberty I shall desire leave to interpose this Parenthesis ensuing before I proceed in the intended discourse In the first times as every man by common right had property in his own Goods so by the same right he had power to alien to any person at any time in any place by gift sale exchange or other ways and that by such Alienation but especially by sale a Right was vested in the Buyer against all men saving the Eigne-right which was recompenced upon warranty and recovery in value And in those days common sense taught men to buy or sell of or to the next Neighbour that would bargain with them and for want of such occasion to repair to the next Assembly Meeting or Concourse of people for the sale of such Commodities as their Neighbourhood would not take off their hands And thus the greater Towns that had Walls or Castles became the greatest Markets and others less and this made the Neighbourhood of those Towns to repair thither to buy as others to sell. But time discovering a double inconveniency herein viz. that by these less publick sales in smaller Villages where little or no care of Right or Justice was had and by which means the word Pagan became a word of reproach many mens Goods by clandestine Contracts were lost and no care had of their recovery and which was yet more prejudicial to the Publick that the greater Towns appointed for the strength and defence of the Kingdom became ill provided with supply of Victuals either for the present or future and what was had for the most part was gotten at the second hand and higher rate than the Country-Villages had The wise men by publick Edict laid a restraint of Markets in smaller Villages and more private places and thus the greater Towns having Markets formerly became more publick Markets not by any new Right or Priviledge from the Crown for it neither had such power nor could have but upon usurpation against the common Right of such Towns and places of publick defence This Restraint upon the reasons aforesaid was made first in the Saxon-times as may appear by their Laws but more cleerly declared and confirmed afterwards by the Laws of the Normans which never gave any new Right of Market-overt unto those places of publick defence but onely did inhibit the same in the smaller Villages and private places In which respect although the Kings of this Nation in future times took leave to abolish that Restraint which did lie upon some of those more private places for certain reasons of State and so these places became Markets-overt which formerly were none yet could they never take away that priviledge which Nature it self cast upon those greater Towns being the very Limbs of the Kingdom without wrong done to the common Right and the publick Good nor abridge them of that power but that they might still use their liberty at times and places within their Precinct as might best conduce with the benefit of the Inhabitants of those places even as any particular Free man may govern his own Estate as him liketh best And thus upon the whole matter it is to be concluded that the ancient Burroughs of this Kingdom properly do not hold their liberty of Market-overt by Prescription or Charter but by common Right and not as a Corporation made by Charter but as they are a multitude of people anciently gathered together and united upon whom the strength and wealth of the Kingdom doth or did formerly much more depend than on any of the smaller Villages and open Towns even as every Free man possesseth and useth his proper Inheritance and Estate without particular priviledge derived from the Crown Nor can the King take away the liberty of Market-overt from such places more than he can take away the liberty of buying and selling from any Free man to whom the Law alloweth a liberty of ownership This I submit to the censure of the learned in the Laws in regard of the different opinions concerning the same This liberty of Township thus made and the Place and People Inhabitants thereof being of such consequence in the publick administration had for their better support and safety liberty of Fortification and power to charge one another with the maintenance of the Fortifications by an imposition called Burghbote and held their Tenements under a Rent to their Lord or King called Burgage as they were a body aggregate CHAP. XXXIV Of the Forests BEsides other Prerogatives of the Saxon Kings they had also a Franchise for wild Beasts for the Chase which we commonly call Forest being a precinct of ground neither parcel of the County nor the Diocess nor of the Kingdom but rather appendant thereunto This savoured of the old German sport but by custom turned from sport to earnest For although in the first times the Saxons were so few and the Country so spacious that they might allow the Beasts their Farm as well as themselves their own People nevertheless so multiplied as of necessity they must intercommon either with Beasts or Fishes the former whereof however more cleanly yet the latter had the surest footing and was chosen as the least of two evils rather than for any likelihood of good Neighbourhood For as Nature taught Beasts to prey for themselves so men to defend their own and this bred such a fewd between Beasts and men as that Kings doubting to lose their Game took in with the weaker that the world might see the happiness of England where Beasts enjoy their liberty as well as men But this was as it were by compromise for it had been very hard to have pleased the Free men who had liberty of Game within their own ground by common Right and to preserve the Kings liberty of Forest co-incident therewith had not the King employed on the one side the power of a Dane that looked somewhat like a Conquerour and on the other side that which looked as like to the bounty of a King in allowing liberty of ownership to men inhabiting within the bounds of the Forest which at the first was set apart onely for the Kings pleasure and all his wits to
make a Law somewhat short of a full freedom and yet outreaching that of Bondage which we since have commended to posterity under the Forest-Charter And yet for all that it proved a hard matter for Kings to hunt by Law and the Law it self is a Yoke somewhat too heavy for a Commonwealth to bear in old age if self-denying Majesty shall please to take it away CHAP. XXXV Concerning Judges in Courts of Justice THus far of the several Tribes and numbers of this Commonwealth which like so many Conduit-heads derived the influence of Government through the whole body of this Island and in every of which Judiciary power acted it self in all Causes arising within the verge of that Precinct some of which had more extraordinary trial before the King and his Council of Lords according as the parties concerned were of greater degree or the Cause of more publick concernment Examples hereof are the Cases between the Bishop of Winchester and Leoftin in Aetheldred's time and between the two Bishops of Winchester and Durham in Edward's time But custom made this Court stoop to smaller game in latter times and to reach at the practice of the County-Court by sending the Kings Writs to remove certain Causes from the cognizance of those rural Judicatories to their sublime determination And thus became the Council of Lords as an Oracle to the whole Nation and the King amongst the rest as the Priest that many times rendred the Answer or Sentence of that Oracle in his own sense and had it confirmed to him by an Oath se judicium rectum in Regno facturum justitiam per concilium procerum regni sui tenturum so as though he was the first in view yet the Council of Lords was the first in nature and the Cynosure to direct his tongue and actions From this Fountain issued also streams of Judicature into all parts by Judges itinerant under the Kings Commission to reform errors punish defaults in the ordinary rural Judicatories and to dissolve hard and knotty Cases and these were occasioned at the instance of the party and Alfred whose birth this was sent them forth in way of Association with the Sheriff Lord of the Fee or other ordinary Magistrate CHAP. XXXVI Of the Proceedings in Judicature by Indictment Appeal Presentment and Action FOr the proceedings in course the Saxons were wont to begin with matters belonging to the Church and afterward to Secular causes in which if the matters were criminal the most ancient way of proceeding was by Appeal of the party complaining But afterward in cases that concerned Damage Injury or Violence done to the Body of a man or his Estate the King was found to be therein prejudiced besides the prejudice immediately done to the Subject for a man disabled in Body or Estate is disabled to serve the King and the Publick and upon this ground a way was found out to punish the offender by Indictment besides the satisfaction done to the party wronged The proceedings against such Delinquents were by attachment of the party who thereupon gave Pledges for his appearance If the party could not be found a fugam fecit was returned and that was a conviction in Law and pursuit was made after the party by Huy and Cry. If he was thereby taken the ancient way was that of Hallifax-Law but in latter times he was imprisoned or admitted to Bail if the offences were bailable and if the party bailed made default or did not abide the Trial his Bail suffered as Principal If no Bail could be procured the Delinquent was imprisoned till he was legally acquitted but this imprisonment was only in nature of restraint If the Delinquent was found upon the Huy and Cry and would not yield himself he was in repute a common Enemy and as a Wolf any man might kill him as the Law was also the same in case of Vtlary At the time of tryal if at the Kings suit the Delinquent was indicted in this manner by any party present I D. C. do say for the King that I. S. is defamed by good men that he upon day of c. into the House and Goods of did cast fire and the same did burn or if it were for Bloodshed with a Sword did strike and wound him in the left arm and that this was done Feloniously or if the case required Traiterously and if I. S. deny the same I will for the King prove the matter against him as the King ought to do that is to say by Witnesses and Twelve men But if the complaint was at the suit of the party then the Prosecutor sued him upon Appeal in manner following I. C. appealeth D. H. here present for that E. Father Brother Son or Vncle according as the case was to I. C. being in the peace of God and of our Soveraign Lord the King at the dwelling house of E. at c. the said D. H. upon the day of in the year of with a Sword made a Wound of two inches long and six inches deep in the left pap of the body of the said E. whereof he died and this was done Feloniously and of Malice forethought And if the said D. H. shall deny the same the said I. C. is ready to prove the same against him in his body or as a Monk Woman or Clerk behoveth to prove the same that is by Champion for neither Monk Woman nor Clerk was by Law to justifie by Battle in their own person The several causes of Appeal and Indictment may be found in the Law-books to whom I refer the Reader it not being within the compass of this Discourse to fall upon the particulars I shall onely observe the difference between Indictments former and latter and between them and Appeals viz. that Appeals are positive Accusations in the name of the Prosecutor of the fact done by the party appealed whereas Indictments were onely a publication or affirmation of the same of a fact done by the party indicted and wherein Not guilty pleaded served onely as in nature of a Quere to usher in the votes of the Freemen concerning the fact Secondly the difference between former Indictments from these in these days consists in this that the ancient Indictments were in the name of one man those of the later sort are in the name of the Jury and the former were onely of a same the later of the fact A third way of bringing Controversies unto judgement concerned onely such matters as were of less consequence and these were introduced by way of Presentment in the name or behalf of the King in nature of a positive Accusation of one for a Crime first laid down generally and then asserted by a particular fact in this manner I say for our Soveraign Lord the King That H. here is perjured and hath broken saith against the King because whereas H. is or was Chancellour of the King and was
sworn that he would not sell Right or any remedial Writ to any one yet upon the day of c. he sold to B. a Writ of Attaint and would not grant the same under half a Mark. So as the difference between an Indictment and Presentment in those days was onely in the degree of the Crime for which the party Delinquent was accused and in the manner of conclusion of the Presentment which was without Averment The last way of Trials concerns such offences that exceed not the nature of Trespass done to a mans Person or his Goods and this was by way of Action and it was to obtain recompence for Damage sustained Now because the former were called Personal Trespasses the Process was by attachment of the Person who thereupon put in Bail or else his Person was secured by imprisonment till Trial and satisfaction made But in the later that concerned the reality Three Summons went forth in the Hundred-Court and if default were made complaint thereof ensued in the County-Court and thence issued forth a Distringas and if the Defendant still persisted in declining his appearance the Distress was forfeited and a Summons issued upon the Land. If then the Defendant would not appear or upon appearance would not give Pledges to abide Judgement his whole Land was seized for the benefit of the King of the Lord of the Hundred and of the Complainant because he had offended against all three But if the party appeared in former times he answered forthwith and Judgement passed without delay as hath been said unless in urgent cases where the matter was raw and then it was adjourned and Pledges given by the Defendant to the full value after the custom of the Athenians and if the Defendant made Default at the day his Pledges were forfeited But in after-times for better and more advised proceeding the Defendant was admitted to his Essoines yet with a Proviso that no Essoine should be allowed for above Fifteen days and this was the direction of King Alfred In the answer of the Defendant he either traversed the matter in fact or confessed and justified or confessed and submitted The first put the matter to the judgement of the Freemen the second to the judgement of the Judge the third to the discretion of the Complainant whereby the Defendant generally found mercy and in case of Trespass rendred less damage I find no footsteps in those times of Dilatorypleas or Demurrer or other delays unless in case of infancy for the Saxons knew no other age of ability to do or suffer but the age above One and twenty years and in Alfred's time a Judge suffered death for passing Sentence of death upon one under that age Albeit the Canonists had in those days brought into custom other ages of ability in matters concerning Marriage although it may well be thought that it requireth no less maturity to manage the affairs of a married life than to discern the nature and difference of manners especially in case of crimes which are contrary to the very light of nature CHAP. XXXVII Of the several manners of extraordinary trial by Torture Ordeale Compurgators and Battle EVidence of the matter in fact upon trial of Causes in the Saxon Judicatory sometimes consisted in the pregnant testimony of the Fact it self and sometimes in the testimony of some Circumstances The first was an unquestionable ground of conviction the second was too weak to command the Verdict although sometimes it perswaded it and therefore those incompassionate times found out a trick of extorted confession by torture of the party following the principles of passion therein rather than sober judgement for circumstances are sufficient to irritate the hearts of those that are passionate and where Jealousie is once entred there 's no place for sparing be the matter never so untrue Yet I do not find any Law amongst the Saxons to patronize this fashion of conviction albeit it seemeth it was practised for Alfred the King punished one of his Judges with death for passing Sentence upon an extorted confession by Torture before the Corner And possibly it might be gained from the Lacedemonians although little to the praise of their Greekish wisdom in that particular Seeing that in all reason it must be supposed that Fear and Grief will enforce Flattery upon the Tormentor as well as Self-love draw forth Flattery to the Benefactor A second sort of Evidence was that of Ordeale being also grounded upon a pre-conceit or suspicion the manner hereof was divers The thing seemeth to be the birth of the Brain of some Church-man who had read of the cursed Water The first mention that I find thereof was at the Council of Mentz and afterwards in the Council of Triers but not a footstep thereof in this Kingdom till by Aethelstan it was advanced into the degree of a Law after which time it continued in use well nigh Three hundred years A strange monument of God's idulgency to an ignorant Age thus turning extraordinary to ordinary for the clearing of innocency and which is no less wonderful allowing in those times unto men under nature such a power over themselves as to adventure against nature Doubtless that man or woman was of a daring spirit that first tried the trick if he had not a miraculous faith in that promise Cum ambulaveris per ignem c. and it shewed metal in them that followed the example But the next age grew dull and men being weary of such bane-touches the Clergy that cried it up their successours cried it down and so devoured their own birth without any difficulty other than a bare injunction of a King that had power to command onely such as would obey But where fame was yet more slight and springing rather from want of charity and misapprehension than promising circumstances men were wont to be contented with a voier Dire or the Oath of the party suspected and the concurrent testimony of other men The first attesting his own innocency the other contesting their Consciences of the truth of the former testimony and therefore were and still are called Compurgators Their number was more or less and of greater or less value according as the offence or the party suspected was of greater or less concernment This manner of trial was of ancient use and both it and that Ordeale under the directory of the Clergie yet this was the ancienter by Three hundred years and first brought into this Nation by the Council at Berghamsted under Bertwald Archibishop of Canterbury And it was performed sometimes more solemnly by solemn receiving of the Eucharist especially if the person suspected was of the sacred Function One manner of trial yet remains which was used both in trial of matters of Crime and Title and it is the trial by Battle which was in criminal matters with sharp Weapons but in titulary matters with blunt
accused of Homicide he shall be acquitted by Twelve Lords but if of inferiour rank he shall be acquitted by Eleven of his Equals and one Lord. Thus Gods providence disposed of the pride of men to be an instrument of its own restraint For the great men ere they were aware hereby lost one of the fairest Flowers of their Garland viz. the Judicature or rather the mastership of the Life or Death of the meaner sort and thereby a fair opportunity of containing them for ever under their awe And no less remarkable was the benefit that redounded to this Nation hereby for had the great men holden this power as once they had it it might soon have endangered the liberty of the Freemen and thereby been destructive to the Fundamental Constitution of the Government of this Realm which consisteth in the just and equal participation of these Priviledges wherein all are equally concerned This was the trial wherein the people of this Nation were made happy above all other people and whereby the Freemen as they had the Legislative power so likewise had the Juridical and thereby next under God an absolute dominion over themselves and their Estates For though this course of trial was first applied to matters of Crime yet it soon also seized upon the Common-pleas which for the most part was the work of main import in the Hundred Court and suitable hereunto are the prescriptions which are extant in the Law-books of Cognizance of Pleas and Writs of Assize c. from the times of the Saxons as in that case of the Abbot of Bury amongst others doth appear CHAP. XXXIX Of passing of Judgement and Execution AFter Verdict Judgement passed according to the letter of the Law or known Custom in criminal matters according to the greatness of the offence either for death or loss of Member But if the circumstances favoured the Delinquent he was admitted to redemption of Life or Member by Fine also setled by letter of the Law and not left to the Judges discretion If the Crime reached onely to shameful penance such as Pillory or Whipping the last whereof was inflicted onely upon Bondmen then might that Penance be reduced to a Ransom according to the grain of the offence assessed in the presence of the Judge by the Freemen and entred upon the Roll and the Estreat of each Ransom severally and apart sent to the Sheriff This Ransom was paid usually unto the King and Lord and the party indamaged or his friends if the case so required according to the old German rule Pars mulctae Regi vel civitati pars ipsi qui vindicatur vel propinquis ejus This course opened indeed a way for Mercy but through corruption a Floud-gate to Wickedness in the conclusion Of Imprisonment there was little use in the eldest times afterwards it was more used not onely to secure the person to come to trial of Law for miscarriages past but sometimes to secure men against committing of future mischief especially if it more concerned the publick I find but little or no use thereof barely as a punishment nor would their Ancestors so punish their Bondmen Vinculis coercere rarum est In case of Debt or Damage the recovery thereof was in nature of elegit for the party wronged either had the offenders goods to him delivered or the value in money upon sale of the goods made by the Sheriff and if that satisfied not then the moity of the Lands was extended and so by moities so far as was possible salvo contenemento and when all was gone the Defendants Arms which were accounted as the Nether-milstone or stock of maintenance were last of all seized and then the party was accounted undone and cast upon the charity of his friends for his sustenance but the person of the man was never imprisoned as a pledge for the debt no not in the Kings case Alfred imprisoned one of his Judges for imprisoning a man in that case One punishment of death they had in cases of crime and that was by hanging or strangling and where the crime was not so great sometimes ensued loss of member or mutilation and in many such cases Excommunication pronounced indeed by the Clergy but determined by the Law which in the first conception was framed in the womb of the Legislative power in Parliament as may appear in many Laws there made nor was there in those times any question made of the cognizance thereof so long as the Clergy and Laity had charity enough to joyn in all publick Councils CHAP. XL. Of the Penal Laws amongst the Saxons PAssing the Courts and manner of proceedings till Sentence we are now come to the particular Laws that directed the Sentence and first of those that concerned criminal offences During the Saxons time the Commonwealth was in its minority the Government tender the Laws green and subject to bend according to the blast of time and occasion and according to the different dispositions of Governours Ages and People For though the Saxons were in name our first matter yet not they onely but they having once made the breach open and entred this Island it became a common receptacle of those Eastern people the Angles Danes Almains and Goths as their several Laws left with us in power do not obscurely inform us and amongst all the rest the Goths were not the least concerned herein for the Saxon King determining what people shall be holden Denizons in this Kingdom saith That the Goths ought to be received and protected in this Kingdom as sworn Brethren Kinsmen and proper Citizens of this Commonwealth Nor can any Nation upon earth shew so much of the ancient Gothique Law as this Island hath Nevertheless in this mixture of people of several Nations there being a suitable mixture of Laws as the power of any one of these people 's changed so likewise did their Laws change in power and long it was ere a right temper of one uniform Law could be setled yet in the interim these short remembrances left unconsumed by time I have subjoyned that it may appear their motions were excellent though somewhat inconstant in their practice Those times were dark and yet so far as any light appeared the people were to be honoured for their resolution in the defence thereof For there was few of the Commandments of the two Tables which they did not assert by Laws by them made the third and tenth excepted which latter commands the inward man onely and whereof God hath the sole cognizance True it is that the first Commandment containeth much of the same nature yet somewhat is visible and that they bound For whereas in those times the Devil had such power as he did prevail with some and those it may be not a few to renounce God and deliver themselves wholly to his own will they punished this crime with banishment as judging him unworthy their society that would communicate
with Devils Yet if the Delinquent had done any mischief whereby death ensued the parties punishment was death yet might all be discharged by Ransome and good security for good behaviour for time to come For their worship of God they were no less zealous in maintenance of the manner as their Forefathers liked not the use of Images or Pictures for adoration neither did they and though the Clergy in other matters led them much yet in this they were alone for a long time for though the Roman Church had the use of Images above Three hundred years before Austin's coming yet could not that custom fasten upon the Saxons for the space of above One hundred years after Austin's coming notwithstanding the endeavours of Charlemain and Pope Constantine by his bastard-decree begotten upon the dream of the Bishop of Worcester that saw the Virgin Mary's picture brought him in his sleep by her self and with a command from her That it should be set up in the Church and worshipped I say it could not fasten any constant practice of Idol-worship nor ever wrest a Law from the Wittagenmote to countenance the same but rather on the contrary they still preserved the memorial of the second Commandment in the Decalogue even then when as the Romanists had expunged the same out of the number and they enforced the same by a Law of their own making so far as their Clergie or Reverence they bear to Rome would allow It hath been formerly observed that the Saxons took no note of the vice of prophane swearing and cursing which crime if it were in use as it cannot be otherwise conceited but it was as the times then were must lie upon the Clergie-mens account for their neglect of teaching the point or upon the general ignorance of those times which understood not the Commandment nor the Scripture For we find no Canon against it nor scarce any Doctrine concerning it but onely in case of false swearing till Anselm's time True it is that Chrysostom seemeth zealous against all swearing but that was his personal goodness which for ought appeareth died with him And Anselm contending against swearing by the Creatures and idle swearing renders his grounds in such manner as it may be well conceived that he understood not the main I am the rather induced to conceive charitably of those times in regard of their exceeding zeal for the honour of the Lords day which sheweth that so far as their knowledge would maintain them they had zeal to make it into action They began this day doubtless as other days according to the custom of their Forefathers in Germany Nox ducere diem videtur And because they would not allow their secular affairs to trench too nigh that days devotion they made the Lords day to begin on Saturday at three of the clock in the afternoon and to continue till Munday-morning No pastime no not their beloved sport of Hunting was allowed during all that while nor no works were to be done but such as concerned the Worship of God and those Laws they bound with penalty of Fine if the Delinquent were a Free-man if he were a bond-servant he was to be whipped Nor were these the Laws of one King or Age onely but of the whole current of the Saxon Government and may although dark times they were yet put us in these days of light to the blush to enter into comparison with them for their Devotion In their Conversation with men the Saxons seemed yet more strict and being a people of a publick spirit they preferred the good of their Country above all accounting Treachery against it or neglect thereof in time of danger to be a Crime of the greatest concernment and to be punished in the highest degree Proditores transfugas arboribus suspendunt Other Treason than this no not against Kings did they then acknowledge any and therefore the form of the Indictment for contriving the death of their King concluded onely Felonicè as may appear in that form of an Indictment for an offence of that nature intended and plotted against Edmond the Saxon King Whenas for the plotting against Alliance though of common and inferiour nature the Indictment concluded Felonicè Proditoriè And wereas the penalty in case of Treachery against the Country was death and forfeiture of the whole Estate both real and personal In Treachery against the King it was onely loss of life and of the personal Estate And therefore it may seem that Majesty had not yet arrived at its full growth or else that the greatest measure thereof rested in the body still If in any thing the Saxons were indulgent it was in matters of Blood for they were a warlike people and looked upon it as under the regiment of valour and therefore it was punished only with fine according to the old rule Luitur homicidium certo armentorum pecorum numero So as even in Germany they had learned the trick to set a price upon that crime and this they afterward called Manbotta wera wirgida wita and lashlight and which was worse they countenanced that which in after-ages was called deadly feud and so under colour of punishing Murder with revenge they added blood to blood But as times grew more tame and inclining to civility or Religion the cry of Blood was more hideous and this urged on the Law of Appeals and so private revenge became under the power of the Law which punished death with death savouring of such a King as Alfred was who first taught the Scriptures to speak in the dialect of our own Laws like the Rubrick amongst the Canons bringing therewith both strength and beauty yet they had degrees of blood-shed and made a difference in the punishment for some sprung from sudden passion but other was forethought and purposed which last they called Abere Murther or Murther by foreplot or treachery and this was made nullo pretio emendabile and yet towards the times of the Danes devotion grew of so high a dye that a Sanctuary could represent any bloodshed more allowable if not acceptable under the golden colour of recompence made to the King the Lord of the party slain and the parties friends for the loss of a Subject a Tenant and a Friend according to that of their forefathers recepitque satisfactionem universa domus It would be too tedious to recite all the particular Laws with their changes and therefore they shall be lest to the view in the several Laws of Alfred Edmond Canutus and Edward the Saxon Kings Yet one custom first begun by the Danes I cannot omit That if a man were found slain whose parents or friends were unknown by common intendment he was presumed to be a Dane and then if the delinquent were not taken nor fled to Sactuary nor known where he is the whole
Land as without they would be faithful to their Lord King William and in every place to keep with all fidelity his Lands and Honours together with him and against Enemies and Strangers to defend It is the self-same in substance with the fealty that the Saxons made to their Kings as will appear by the parallelling them both together The Saxons were sworn to defend the Kingdom against Strangers and Enemies together with their Lord the King and to preserve his Lands and Honours together with him with all faithfulness so as by the Saxon way the Allegiance first terminated on the Kingdom and then as in order thereunto upon the King with his Lands and Honours But the Norman either wholly omitted the first as needless to be inserted in a municipal Law it self being a Law in nature or else includeth all within the words Lands and Honours taking the same in a comprehensive sence for the whole Kingdom and so made up the sum of the Saxon fealty in fewer figures Which may seem the more probable of the twain because little reason can be rendred why the King should restrain that defence to his private Lands if he claimed all by Conquest whenas all equally concerned him or why he should exclude the publick whenas both himself and all he had was embarqued therein and it might subsist without him but contrarily not he without it appeareth not to my understanding nor did the thing enter into the King's purpose if the file of his purposes be rightly considered For speaking concerning Castles Burroughs and Cities which are in nature limbs of the Common-wealth he saith that they were built for the defence of the people and Kingdom Was this the service of Walls and Fortifications and not much rather of men within those places of strength Certainly the plain English is that in time of breach of publick quiet and peace the Subjects were bound to defend the Kingdom and in order thereto the people of the same and of the King 's right included in the publick defence else it were a strange conclusion that each man in particular and in their own personalone was bound to defend the King 's right but being imbodied the Kingdom And yet more clearly it 's apparent in that the service of the order of Knight-hood which was the chief strength of the Nation in those days was determined upon the service of the King and defence of the Kingdom or which is more plain for the service of the King in or for defence of the Kingdom as the Statute of Mortmain expounds the same But not to force the King's sence by argument if the King had purposely omitted that clause of the Kingdoms safety as of inferiour regard to his own personal interest it was one of his rashest digressions wherein he soon espied his errour for in the midst of his strong and conquering Army he held himself unassured unless he had a better foundation than that which must change with the lives of a few at the utmost And therefore besides the Oath of fealty formerly mentioned he established a Law of Association that all free men should be sworn Brethren 1. To defend the Kingdom with their lives and fortunes against all enemies to the utmost of their power 2. To keep the peace and dignities of the Crown 3. To maintain right and justice by all means without deceit and delay Joyn then these two Oaths together viz. that of fealty and this of fraternity and it will easily appear that the Allegiance of the English to the Norman Kings was no other than what might stand with Brotherhood and tender regard of the publick above all and differing from the Saxon fealty onâ—y in this that that was in one Oath and this in two Wherefore whatsoever respects steered in the rear of the King's course it is less material so long as the van was right albeit that the sequel will prove not much different from the premises as will appear in the foot of the whole account Thus entred the first Norman upon the Saxon Throne and as he had some colour of right to countenance his course so had his Son his Fathers last Will and yet he had as little right as he This was William Rufus that was of his Fathers way but of a deeper dye and therefore might well be called William Rufus or William in grain He was exceeding happy in the fear or favour of the people for he had nothing else to make room for his rising True it is he had the good will of his Father but he was dead and probably the people as little regarded it as he did them Nor was it ever observed that the English Crown was of so light account as to pass by devise of cestui que use and therefore though it was designed to him from his Father yet both right and possession was left to the people to determine and maintain The Clergy first led the way having first taken a recognizance of him for his good behaviour towards them which he assured as far as large promises and protestations would serve the turn and within one year after standing in need of the favour of the Commons to maintain possession against his Brother Robert he gave them as good security as the Clergy had which he kept in such manner that it was a wonder that one of so small interest in the Title but what he had by the peoples lieve and favour should rule in such manner and yet die a King the favour of the people being like a Meteor that must be continually fed or it soon goes out and falls for evident it is that the right of inheritance was his elder Brother Roberts who was the braver man and more experienced Souldier and upon these principles had obtained the love of the Norman Barons the flower of his Fathers Chivalry and the liking of the Clergy after they had found by experience the emptiness of their hope in his Brother William and was every way so superiour to his Brother in advantages as we are left to believe that William got the day without any other ground but only that God would so have it It is true the English stuck close to him but how they were gained or contained Writers speak not but tell us of his promises which also they tell us were vain and never had issue further than would stand with his profit Exit William Rufus and in comes his younger Brother Henry the first of that name a Prince that excelled in wisdom and by it ruled his courage which served him so far as his aims and ends reached his Title was no better than his Fathers or Brothers but rather worse for he had no colour of last Will to propound him to the people and his elder Brother Robert was still alive and by his service of the Church in the War of Jerusalem might merit that respect of the Clergy as not to permit him to
the hands of the Clergie from whom moderation might be expected as from Friends and Neighbours and as Partners in one Ship mutual engagement to withstand the waves of Prerogative of Kings that seldom rest till they break all Banks and sometimes over-reach their own Guard and cannot return when they would And thus it fell out for many times the Pope and Clergie became Protectors of the peoples Liberties and kept them safe from the rage of Kings until the time of restitution should come and became not onely a Wall of defence to the one but a Rock of offence to the other For the Tripple-Crown could never solder with the English nor it with that the strife was for Prerogative wherein if the Clergie gained the Crown lost and no moderation would be allowed For the conquering King was scarce warm in his Throne whenas the Pope demanded Fealty of him for the Crown of England and the King 's own good Archbishop and friend Lanfrank delivered the Message as also Anselm did afterwards to William Rufus which though these Kings had courage enough to deny yet it shewed plainly that the Popes meaned no less Game than Crown-glieke with the King and people the Archbishops and Bishops holding the Cards for the Pope while in the interim he oversaw all The Norman Kings thus braved paid the Popes in their own Coin and refused to acknowledge any Pope but such as are first allowed by their concurrence Thus have we the second bravado of the Canon-Law for as yet it was not so fully entered as it seemed The words of the Act of Parliament it 's true were general yet their sence was left to time to expound and the course of succeeding affairs nevertheless passed with a non obstante For whereas in those days the Clergie claimed both Legislative and Executory power in Church-matters the Normans would allow of neither but claimed both as of right belonging to the Imperial power of this Island originally and onely As touching the Legislative power it is evident that notwithstanding the Canon that had long before this time voted the Laity from having to do with Church-matters yet the Norman Kings would neither allow to the Metropolitans the power of calling Synods nor such meetings but by their lieve although it was earnestly contended for Neither could the Clergie prevail to exclude the Laity out of their Synods being assembled nor from their wonted priviledge of voting therein albeit that for a long time by Canon it had been contradicted The differences between the Clergie and the Kings concerning these and other matters grew so hot that Kings liked not to have any Synods or meetings of publick Council and Archbishop Anselm complained that William Rufus would not allow any to be called for thirteen years together Which by the file of story compared with that Epistle made up the King's whole Reign And this was questionless the cause that we find so little touch upon Parliamentary Assemblies in the Norman times Kings being too high to be controuled and Bishops too proud to obey but necessity of State like unto Fate prevails against all other interests whatsoever and the wisdom of Henry the first in this prevailed above that of his predecessors as far as their Will was beyond his For it was bootless for him to hold out against the Church that stood in need of all sorts to confirm to him that which common Right as then it was taken denied him and therefore though it cost him much trouble with Anselm he re-continued the liberty of publick Consultations and yet maintained his Dignity and Honour seemly well I shall not need to clear this by particulars for besides the publick Consultations at his entrance and twice after that for supply or aid for his Wars and the marriage of his Daughter with the Emperour it is observed that the Archbishop of Canterbury summoned a Council at Westminster but it was Authoritate Regia and that there assembled magnae multitudines Clericorum Laicorum tam divitum quam mediocrium and that upon the third day the Debate was de negotiis saecularibus nonnullis The issue of all was that some things were determinata others dilata and other matters propter nimium aestuantis turbae tumultum ab audientia judicantium profligata Out of which may be probably concluded 1. That the Laity as yet were present in Councils with the Clergie 2. That they were all in one place 3. That they all had votes and that the major number concluded the matter 4. That certain persons used to determine of the major number by the hearing and that the Votes were still clamore non calculis 5. That they held an Order in debating of affairs viz. on some days Ecclesiastical and on other days Secular 6. That all matters concluded were attested by the King who as 't is said did give his consent and by his authority did grant and confirm the same And upon the whole matter it will be probable that as yet Councils and those now called Parliaments differed not in kind although possibly there might be difference of names in regard that some might be immediately and mainly occasioned and urged by Temporal Exigences and others by Ecclesiastical but whether Temporal or Ecclesiastical the first occasion was yet in their meetings they handled both as occasion offered it self Secondly as the Clergie could not attain the sole Legislative power so neither had they the sole Juridical power in Ecclesiastical Causes for not onely in case of errour in the Ecclesiastical Courts was an Appeal reserved to the King's Court as formerly in the Saxons time but even those things which seemed properly of Ecclesiastical cognizance were possessed by the King's Court in the first instance as that of Peter pence which was a Church-tribute and might be claimed to be properly the Church-cognizance much rather than Tythes and yet by the Law of this Kingdom in the Conquerour's time it is especially provided That defaults of payment of that duty shall be amended in the King's Court and a fine for default was given to the King albeit that the Bishop was made the Collector and the Pope the Proprietor And many other particulars which were holden to be of Ecclesiastical cognizance Kings would draw them within the compass of maintaining the peace of the Church which properly belonged to them to defend and so had the cognizance of them in their own Courts and fines for invasion of the Church-rights But because this may seem but colourable and by way of flattery of the Churches right and not in opposition thereof in other things it will appear plainly that Kings were not nice in vindicating their own claim in matters which the Clergie held theirs quarto modo as namely in the case of Excommunication a Weapon first fashioned by the Church-men and in the exercise whereof themselves were in repute the onely Masters and yet in this were mastered by Kings whose Laws
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
they had in bodies aggregate may appear as followeth The Free-men of England were such as either joyned in the War with Harold against the Normans or such as absented themselves from the way of opposition or enmity and were either waiting upon their own affairs or siding with the Normans And questionless all the sadness of the War befel the first sort of the English whose persons and Estates to make the ways of the first Norman William regular and of one piece never fell so low as to come under the Law or rather the Will of Conquest but in their worst condition were in truth within the directory of the Law of forfeiture for Treason against their Soveraign Lord whose claim was by Title as hath been already noted The other sort either did appear to be the Normans friends or for ought appeared so were and so never offending the Law never suffered any penalty but held their persons and possessions still under the patronage of Law as anciently they and their Ancestors had done And that this was the Normans meaning they publish the same to the World in a Fundamental Law whereby is granted That all the Free-men of the whole Kingdom shall have and hold their Lands and Possessions in hereditary right for ever And by this being secured against forfeiture they are further saved from all wrong by the same Law which provideth That they shall hold them well or quietly and in peace free from all unjust Tax and from all Tallage so as nothing shall be exacted nor taken but their free service which by right they are bound to perform This is expounded in the Laws of H. 1. cap. 4. That no Tribute or Tax shall be taken but what was due in the Confessor's time Under the word Tax is understood monetagium commune per civitates or comitatus so as aids and escuage are not included for they are not charged upon Counties and Cities but upon Tenures in Knight-service nor was Dane gelt hereby taken away for that was a Tax in the Confessor's time and granted by Parliament So then the Norman Kings claimed no other right in the Lands and possessions of any of their Subjects than under and by the Law or common right and they conclude the Law with a sicut which I thus English As it is enacted to them or agreed by them and unto them by us given and granted by the Common-council of our whole Kingdom I leave the words to be criticized upon as the Reader shall please being well assured that the most strained sence can reach no further than to make it sound as an Estoppel or Conclusion to the King and his Successors to make any further claim unto the Estates of his Subjects than by Law or Right is warrantable under which notion Conquest never did nor can come as shall more fully be manifested hereafter But the right genius of this Law will also more evidently appear by the practice of those times which even when Justice it self did most importune so tenderly regarded the liberty of mens Estates that no Distress could issue without publick Warrant obtained and upon three Complaints first made and right not done And when Rape and Plunder was in the heat and men might seem to have no more right than they had power to maintain yet even then this Law was refuge sufficient for such as were oppressed and was pleaded in bar against all usurpations and intrusions under pretext of the Conquerour's right whatsoever as by the Case of Edwyn of Sharneburn may appear Secondly the Freemen of England had vote in the making of Laws by which meum and tuum was bounded and maintained as may appear by what hath been already said nor shall I endeavour further therein Thirdly they had an influence upon the judicatory power For first the matter in fact was determined by the votes of the Freemen as the laws of the Conquerour and of Henry the first do sufficiently manifest Secondly they had an influence in the making of the Sheriff who as well as the Bishop was by Election of the people Thirdly they had an influence upon all Judges by setting a penal Law upon them in case of corruption which if not so penal as to take away life was nevertheless penal enough to make an unjust Judge to be a living pattern and example of misery to teach others to beware Two things more must be added though somewhat collateral to this purpose Concerning the right of the Freemen in the common Mint and in their Villains Concerning the Mint that the Saxons having made it as parcel of the demesues of the Kingdom and leaving to the King onely an overseership reserved the controul and chief survey thereof to the Grand Council of the Kingdom who had slated the same in the Confessour's time But after him the Normans changed the current according to their own liking till by Henry the first it was reduced into the ancient course allowing no money but such as was currant in the days of the Confessour whose Laws also with some alterations by the Conquerour with common advice he also established Concerning the Lords right to their Villains it is observable first that liberty of infranchisement was allowed which could never have been had not the Liberty of the Subject been saved Secondly that Infranchisement properly is the work of the people or the body and the Lord was to deliver his villain by his right hand unto the Sheriff in full County-court and pronounce him free from his Service and shall make room for him by free passage and open doors and deliver him free Arms viz. a Lance and a Sword and then he is made a Freeman as I conceive to all intents and purposes Otherwise there might be manumission as if the villain remained in a City Borough walled Town or Castle by a space of a year and a day and no claim made to his service by his Lord he shall be thenceforth free from the service of his Lord for ever and yet this manumission could not conclude any but the Lord and his Heirs or Assignes nor could it enforce the body to allow that for a Member which was none before Thirdly that notwithstanding they allowed the Lords liberty of infranchisement yet would they not allow them free liberty of disposing them as other Chattels nor by the Law of the Conquerour might they sell their Villains out of the Countrey or beyond Sea for the King had right to the mediate service of every Villain though the Lord had the immediate and therefore that Law might hold in force nevertheless the Ordinance that Anselm made that no Lord should sell his Villain they would never allow for a Law nor did it hold in force CHAP. L. A recollection of certain Norman Laws concerning the Crown in relation to those of the Saxons formerly mentioned I Call them Norman Laws because they were allowed by them or continued
the Canon Robbery is finable The different Law between the Saxons Angles and Danes now by the Normans is setled in the more merciful way and in case the delinquent made flight the pledge satisfied the Law for him But in the latter times of Henry the first the Law was again reduced to the punishment of this crime by death and so hath continued There shall be true weights and measures throughout the Kingdom and those shall be sealed And this was the constant Saxon Law. Perjury to be punished by fine and as formerly still inquirable amongst the Crown-pleas CHAP. LI. The like of Laws that concern common interest of Goods IF Cattle be taken by Distress the party that will replevy them shall pay for the return of the Cattle and give security to bring the Distress into the Court if with within a year and a day it be demanded This Law I take to be intended where the Cattle are taken damage feasant because nothing shall release the Distress in other cases but obedience to the Summons No Distress ad comparendum shall be taken but after three several Summons and so many defaults made and in such case Distress shall issue by especial order from the County-court I noted this partly to shew the difference of the Normans from the Saxons in the delay of execution of Justice by so much mean process and partly to shew the difference between the Norman times and these days wherein mens Cattle lie open to the distress of every oppressing or extorting Bayliff or unknown person and no Summons made at all whereby many poor mens Estates are either undone or they must submit to the unjust demands of their adversary No manner of Goods of above four pence in value shall be bought unless in the presence of four Witnesses of the Town And the vendor shall satisfie out of his own Estate if the sale be not effectual and in case the vendor have no warrant for such Goods by him sold. No living Cattle shall be sold but onely in Cities and before three Witnesses nor shall any thing forbidden be sold without Warranty No Fairs or Markets shall be holden but onely in Cities Boroughs Wall'd-Towns and Castles These Laws concerning sales and Markets were ancient Saxon Laws and tend all to the avoiding of cheating men of their Cattle by surreptitious sale of them made by such as had no right Goods found shall be published by the Finder to the Neighbourhood and if any makes claim and proof of them to be his he shall have them giving security to bring them into the Court in case any other shall within a year and a day make his claim thereto The Children of persons intestete shall equally divide the Heritage This is in terminis the Saxon Law and therefore concerning it I shall refer to the same formerly recited onely I shall add hereto the Law of Henry the first which may serve as an explanation of the former Any Freeman may devise his Chattels by will and if he die intestate his Wife Children Parents or next kin shall divide the same for his Souls good The first branch whereof was ancient and doubtless in continual use but the iniquity of the Norman rude times was such that the Lords under surmise of arrears or relief would seize all the personal estate after the Tenant's death and so the right of last Wills was swallowed up but this restoreth the power of last Wills into it's place anâ— in case the party died intestate preserveth a kind of nature of descent although they be more personal Nor doth that last clause of the Souls good disanul the same although the words may seem to carry away the benefit to some other hand For the whole matter is left to the discretion of such as are next to the Intestate CHAP. LII Of Laws that concern common interest of Lands THe Laws that concern Lands and peculiarly belonging to the Normans are such as concern principally the tenure of Lands which if duly considered although savoured somewhat of the King yet little of the Conquerour For generally it must be granted that Tenures long before and after this time were as the services ordered according to the Will of the giver in which as the King had the greatest share and he the most publick person of all so were his Donations ordered chiefly to advance the publick service and in this regard the Tenure by Knight service might more principally challenge the King's regard than the regard of all the great men besides But this was not the sore yea rather it was the beauty and strength of the Kingdom and for which the King deserved an honourable name above most of his progenitors who had not so much Land to dispose of as he had and therefore could not advance that service in any proportion equal unto him The sore that caused so many sighs was the incumbrances raised upon this most noble and free service which through the evil of times by this means became the most burdensome and the onely loathed and abhorred service of all the rest I say through the evil of times for it cannot lodge in my thoughts but that in the Norman times the incumbrances were nothing so great as of latter Ages and that much hath been imputed to the Laws of the Conquerour which they never deserved as may appear in these particulars which the Laws of Henry the First have preserved in memory Tenant of the King or other Lord dying his Heir shall pay no other relief than what by Law is due That which by Law is due is set down in the Laws of William the Conquerour The Relief of an Earl. 8 Horses sadled and bridled 4 Helmets 4 Coats of Mail. 4. Shields 4 Spears 4 Swords 4 Chasers 1 Palfray bridled and sadled The Relief of a Baron 4 Horses with Saddles and Bridles 2 Helmets 2 Coats of Mail. 2 Shields 2 Spears 2 Swords 2 Chasers 1 Palfray bridled and sadled The Relief of a Vovasor to his Lord. His best Horse His Helmet His Coat of Mail. His Shield His Spear His Sword. Or if he had no Arms then he was to pay s. 100 The Relief of the Country-man is the best Beast that is in his possession and of him that farmeth his Lands a years rent These are the Reliefs due by Law and now setled in Goods or Arms but afterwards turned into Money and it is likely that the ill customs in the former times did extort both Money and Arms or such sums of Money as they pleased and by the very words of the Law it seems they had brought it to an Arbitrary power to take what they could get and yet all against Law. The Kings Tenant shall advise with the King in marriage of his Daughter Sister Niece or Kinswoman and his Widow in like manner The sence hereof in short is that these might
enough to make and maintain a right and that it by Law was a right belonging to some persons before others and that this had been a custom before the former unjust customs crept into the Government of the Conquerour and principally of his Son Rufus And though it be questionable whether it setled first upon the Normans or the English yet it is manifest that if one people had it the other people now coming into union with that people could not in reason except against that custom which the other people had taken up upon so honourable grounds as reason of State which as the times then were was evident and superlative especially the customs being under the regulating of Law and not of any Arbitrary power and can be no Presidents of Relief Marriage and Wardship that after-ages usurped Tenants in Knight-service shall hold their Lands c. acquitted of all Taxes that they may be more able to provide Arms and be more ready and fit for the Kings service and defence of the Kingdom This Law whether it be a renewing of a former custom or an introduction of a new Law it is clear it was upon an old ground That Tenants by Knight-service must be ready for the service of their Lord and defence of the Kingdom whereof afterwards But the Law is that these men shall hold their Lands of that Tenure acquitted of all Taxes though legally imposed upon the body of the Kingdom which must be conceived to be for the publick benefit viz. either for the preparation or maintenance of publick War for in such cases it hath been in all times held unreasonable that those whose persons are employed to serve in the Wars should hold Lands doubly charged to the same service viz. to the defraying of their own private expences in the War and maintenance of the publick charge of the same War besides CHAP. LIII Of divers Laws made concerning the execution of Justice ALthough in proceedings in Cases of vindicative Justice Delinquents might seem to be left rather to the fury than mercy of the Law yet so long as men are under the Law and not without the Law it hath been always held a part of Justice to extend what moderation might possibly stand with the honour of the Law and that otherwise an over-rigid and fierce prosecution of the guilty is no less tyranny than the prosecution of the not-guilty and although violence was the proper vice of these times yet this point of honour must be given to the Normans That their Sword had Eyes and moved not altogether by Rage but by Reason No Sentence shall pass but upon averment of the complaint by Accuser or Witnesses produced Fine and Pledges shall be according to the quantity of the offence By these two Laws of Henry the first the Subjects were delivered from three great oppressions First in making them offenders without Complaint or Witness Secondly in imposing immoderate Fines Lastly in urging extraordinary Bail. Forfeiture of Felons Lands is reduced to a year and a day The Normans had reduced the Saxon law in this case unto their own Last which stretched their desire as far as the estate would bear but this being so prejudicial to the immediate Lords who were no offenders in this case and so contrary to the Saxon law it was both done and undone in a short space by the allowance of Henry the first Intent of Criminal offences manifested by Act punished by Fine or Mulct This by Alfred's Law was punished by Talioes Law but now by a Law of Henry the first reduced to Mulcts Mainperners are not to be punished as Principals unless they be parties or privies to the failing of the Principal This Law of Henry the first repealed the former Law of Canutus which must be acknowledged to be rigorous although not altogether without reason No person shall be imprisoned for committing of a mortal Crime unless first he be attained by Verdict of Twelve men By imprisonment is intended close imprisonment or imprisonment without Bail or Mainprize for otherwise it is apparent that as well by the Saxon as Norman Laws men were brought to Trial by restraint Appeals of Murder restrained within the fourth degree Before this Law Appeals were brought by any of the bloud or kin of the party slain but now by Henry the first restrained The ground seems to be for that affection that runs with the bloud grows so cold beyond the fourth degree that the death of the party is of so small account as it can scarcely be reputed a loss of such consequence to the party as to expose the life or price of the life of the Manslayer unto the claim of such an one And thus the Saxon law that gave the satisfaction in such case to the whole kinred became limited to the fourth degree as I conceive from the Ecclesiastical constitution concerning marriage Two things more concerning juridical proceedings may be noted the one concerning speedy course of Justice wherein they may seem to justifie the Saxon way but could never attain to their pace in regard they yielded so much time to Summons Essoyns c. The other concerns election of Judges by the parties for this we find in the Laws of Henry the first CHAP. LIV. Of the Militia during the Normans time THe power of Militia is either the Legislative or Executory power the Legislative power without contradiction rested in the grand Council of the Kingdom to whom it belonged to establish Laws for the government of the Kingdom in time of peace And this will appear in the preparation for War the levying of War and managing thereof after it is levied For the preparation it consisteth in levying men and munition or of money In all which questionless will be a difference between raising of War by a King to revenge a personal injury done to the King 's own person and a War raised by the whole Kingdom or representative body thereof which is commonly done in defence of publick interest and seldom in any offensive way unless in recovery of a right possession either formerly lost or as yet not fully setled Now although it be true that seldom do injuries reflect upon the King's person alone but that the Kingdom will be concerned therein to endeavour a remedy yet because it may fall out otherwise and Kings have taken occasion to levy War of their own accord in such case they could neither compel the persons of their Subjects or their Estates to be contributary And of this nature I take the War levied by Harold against the Conquerour to be wherein the greatest part of the Kingdom was never engaged nor therefore did it feel the dint of the Conquerour's Sword at all and in this case the Militia must be allowed to such as bear the purse nor can it be concluded to be the Militia of the Kingdom nor any part thereof although the Kingdom may connive thereat But to
over-spread the body of the Clergie in those days and therefore I shall sum them up as follows Rights of Advowsons shall be determined in the King 's Court. This had been quarrelled from the first Normans time but could never be recovered by the Clergie Before the Normans time the County-courts had them and there they were determined before the Bishop and Sheriff but the Ecclesiastical Causes being reduced to Ecclesiastical Courts and the Sheriff and the Laity sequestred from intermeddling the Normans according to the custom in their own Country reduced also the tryal of rights of Advowsons unto the Supreme Courts partly because the King's Title was much concerned therein and the Norman Lords no less but principally in regard that Rights require the consideration of such as are the most learned in the Laws Rights of Tythes of a Lay-fee or where the Tenure is in question belong to the King 's Court. Pleas of Debts by troth-plight belong to the King 's Court. These were Saxon Laws and do intimate that it was the endeavour of the Clergie to get the sole cognizance of Tythes because they were originally their dues and of Debts by troth-plight because that Oaths seemed to relate much to Religion whereof they held themselves the onely Professors The King's Justice shall reform Errours of the Ecclesiastical Courts and Crimes of Ecclesiastical persons Appeals shall be from Arch-Deacons Courts to the Bishops Courts and thence to the Archbishops Courts and thence to the King's Court and there the Sentence to be final No man that ever was acquainted with Antiquity will question that these were received Laws in the Saxons time nor did the Clergie ever quarrel them till the Normans taught them by courtesie done to Rome to expect more from Kings than for the present they would grant whereof see Cap. 47. But King Steven that was indebted to the Clergie for his Crown and could not otherwise content them parted with this Jewel of Supreme power in Causes Ecclesiastical to the Roman cognizance as hath been already noted but Henry the second would have none of this Cheat at so easie a rate This struck so smart a blow as though the Popedom had but newly recovered out of a paralytick Schism yet seeing it so mainly concerned the maintenance of the Tripple-Crown Alexander the Pope having lately been blooded against a brave Emperour made the less difficulty to stickle with a valiant King who is conclusion was fain to yield up the Bucklers and let the Pope hold what he had gotten notwithstanding against this Law and all former Law and Custom And thus the Popes Supremacy in Spiritual Causes is secured both by a Recovery and Judgment by confession thereupon The King shall have vacancies of Churches and power to elect by his secret Council The Party elected shall do homage salvo ordine and then shall be consecrated This certainly was none of the best yet it was a custom not altogether against reason although not suitable to the opinion of many yet we meet two alterations of the ancient custom First that the election shall be by the King and secret Council whereas formerly the election of Bishops and Archbishops was of such publick concernment as the Parliament took cognizance thereof and that which was worse a Council was hereby allowed called a secret Council which in effect is a Council to serve the King's private aims and unto this Council power given in the ordering of the publick affairs without advice of the publick Council of Lords which was the onely Council of State in former times And thus the publick affairs are made to correspond with the King 's private interest which hath been the cause of much irregularity in the Government of this Island ever since The second alteration resteth in the salvo which is a clause never formerly allowed unless by practice in Steven's time whenas there was little regard of the one or the other Nor doth it concur with the file of story that it should be inserted within these Constitutions seeing that Writers agree it was the chief cause of quarrel between him and Becket who refused submission without the clause and at which the King stuck with the Archbishop for the space of seven years which was six years after the Constitutions were consented unto and concluded upon No Clergie-man or other may depart the Realm without the King's License It is a Law of Nations and must be agreed on all hands that no reason of State can allow dispensations therein especially in a doubtful Government where the Supremacy is in dispute and this the wilful Archbishop never questioned till he questioned all Authority but in order to his own for but the year before when he went to Turonn to the general Council upon summons he first obtained License from the King before he went. No Sentence of Excommunication or Interdiction to pass against the King's Tenant or any Minister of State without License first had of the King or his Chief Justice in the King's absence Till the Conquest no Excommunication passed without Warrant of Law made by the joynt assembly of the Laity and Clergy but the Conquerour having let loose the Canons and the Clergie having got the upper hand in Councils made Canons as they pleased and so the Laity are exposed to the voluntary power of the Canon onely as well the Normans as until these times Kings have saved their own associates from that sudden blow and upon reason of religious observance lest the King should converse with excommunicate persons e're he be aware The Laity are not to be proceeded against in Ecclesiastical Courts but upon proof by Witnesses in the presence of the Bishop and where no Witnesses are the Sheriff shall try the matter by Jury in the presence of the Bishop A negative Law that implieth another course was used upon light Fame or Suspition ex officio although the Oath at that time was not born into the World and that all this was contrary to the liberty of the Subject and Law of the Land And it intimates a ground of prohibition in all such cases upon the Common Law which also was the ancient course in the Saxons times as hath been formerly noted Excommunicated persons shall be compelled onely to give pledge and not Oath or Bail to stand to the Judgement of the Church Upon the taking and imprisoning of the party excommunicate the course anciently was it seemeth to give Pledge to stand to Order Of this the Bishops were weary soon as it seemeth and therefore waved it and betook themselves to other inventions of their own viz. to bind them by Oath or Bail both which were contrary to Law for no Oath was to be administred but by Law of the Kingdom nor did it belong to the Ecclesiastical Laws to order Oaths or Bail and therefore this Law became a ground of prohibition in such
because the Ecclesiastical Judge for the most part favoured them As an expedient to all which this Law was made and so the Clergy was still left to their Clergy and Justice done upon such as sought their bloud Clergy-men shall not be holden to trial by Battle It was an ancient Law of the Saxons and either by neglect worn out of use or by the valour of the Clergie laid aside as resolving rather to adventure their own bloud than to end their quarrel before the Lay-Judge by Plea but grown weary of that course and likely also put hard to the pinch upon Complaints made by them against Clerk-slayers they are fain to have recourse to their ancient Priviledge Hitherto therefore it is manifest the Clergie were in their growing condition notwithstanding the policy and power of Henry the second who was the Paragon of that age After him reigned Richard the first that must expiate his disobedience to his Father by obedience to his ghostly Father the Pope in undertaking the holy War and being gone left the Government in his absence so deeply intrusted to the Clergy as they could lose nothing of what they had gained unless they would and might have gained much more than they did or should had not the Bishop that was the overseer of the whole Kingdom been drunken with vanity and spued out his own shame However the success was it was not contrary to the principles of those times for Richard had experience in the Emperour Frederick and his Father's example that the Pope and Clergie were too hard for all the Potentates in Europe and therefore might most safely trust them with all he had at home whilst he was in their service abroad Nor were they short of what was intrusted to them but stuck close for the maintenance of his right to the Crown and emptied themselves even to the very consecrated Vessels and procured the Laity of all sorts to do the like to save the Kingdom from the rape of strangers and usurpers who esteemed the King dead in Law and as one buried alive Thus passed they to King John the Government supposing themselves well enough assured of what they had gotten by their several atchievements had under the Reigns of three several Kings successively And King John might well enough have understood the times if he had seriously considered them but being heightned all his life-time with lawless Government wherein he was trained up in Ireland he knew not how to stoop till he stooped so low as the Legat's Knee and his Crown at the Pope's Foot leaving an example to posterity to beware of striving with the Clergie If then these sparks of ambition were so violent being alone certainly in their joynt consultations much more They had long striven now since the Conquest to have excluded the Laity from their Synods and about these days effected it And yet about Henry the second 's time it may be supposed the thing either was not yet done or so lately that the Law was not clear in that point for Petrus Blecensis who was Arch-deacon of Bath about those times in his Epistle to the Arch-bishop of York concerning the restraint of the growing Sect of the Publicans he adviseth in these words Accipite clerum congregate populum ex eorum communi deliberatione qui Spiritum Domini habent terribilis constitutio promulgetur c. And if the Historian doth not mistake the proceedings against that Sect being onely for errours in Religion was in a Council of Bishops and Lords Nevertheless whether present or absent the Laity sate there as Cyphers making the number great but not valuable by themselves For even in the Norman times they were brought so low as the Constitution made by the Clergie wrought more upon them than civility it self can work upon professors of Religion in these days For it seems excess of long Hair was grown to that measure that the Synod cried out against it and decreed that men should cut their Hair so as their Eyes and laps of their Ears might be seen and the King himself I mean Henry the first submitted to this cut and made all his Knights to do the like and exposed themselves to the then-odious by-names of Clowns or Priests like to the round-heads of these days who formerly marched under the title of Criniti or Ruffians This did but touch the Hair but they went to the quick when they decreed that Lords should not sell their Villains and that Outlawries should pass in certain particular cases as in the Constitutions of Archbishop Anselm may appear Afterwards in these Kings times they flew at the Throat of the Government got all places of honour or profit or power whether for Peace or War under their gripe deposed and advanced as they pleased even to the Royal Throne it self and that not onely out of a sudden passion of State but advisedly concluded for a maxime That the election of the King belonged to them as in the case of the election of Maude the Empress they did hold forth to all the World and in which the King also then flattered them as holding their Election so necessary that he kept the whole Synod in duress to have their votes for the election of his Son to be his Successor CHAP. LX. Of the English Commonalty since the Normans time THe dignity of the English Crown thus deflowred by the great men was no loss to the Common people For as in all decays of Monarchy the great men get nothing if they please not the people so the King can hold nothing if they be not contented And yet contented or not contented they could not gain much for as affairs stood then in the Christian world the Politicians discourse of three kinds of Government proved idle neither could Monarchy Aristocracy nor Democracy attain any semblable condition in any place so long as the Church held its design apart and prevailed to have the greatest share in all not now by the favour either of great or small but by a pretended divine right through which they now had gotten to their full pitch of Lordship in the Consciences of men It must be acknowledged that this was a distemper in Government yet such it was as kept humours low and restrained the inordinate excesses that in all kinds of Government are subject to break forth so as neither King nor Lords nor People could swell into larger proportion than would suit with the ends of the Church-men But to mind the matter in hand somewhat the Commons gained in these stormy times The Taxes that they were charged with were rather perswaded than imposed upon them and generally they were sparing in that work and it is noted for the honour of King Steven that though he was seldom without War yet he not onely never charged the people with any Tax but released that of Dane-gelt and acquitted the Subject for ever of that Tax which former Kings challenged as their right all
Circuit had six Justices which the King made Justices of the Common pleas throughout the Kingdom Neither yet did the first Commission continue so long as four years for within that time Richard Lucy one of the Justices had renounced his Office and betaken himself to a Cloister and yet was neither named in the first Commission nor in the latter nor did the last Commission continue five years for within that time Ralph Glanvil removed from the Northern Circuit to that of Worcester as by the story of Sir Gilbert Plumpton may appear though little to the honour of the justice of the Kingdom or of that Judge however his book commended him to posterity I take it upon the credit of the reporter that this itinerary judicature was setled to hold every Seven years but I find no monument thereof before these days As touching their power certainly it was in point of judicature as large as that of the Court of Lords though not so high It was as large because they had cognizance of all Causes both concerning the Crown and Common-pleas And amongst those of the Crown this onely I shall note that all manner of falshood was inquirable by those Judges which after came to be much invaded by the Clergie I shall say no more of this but that in their original these Iters were little other than visitations of the Country by the grand Council of Lords Nor shall I adde any thing concerning the Vicontiel Courts and other inferiour but what I find in Glanvil that though Robbery belonged to the King's Court yet Thefts belonged to the Sheriff's Court and if the Lords Court intercepts not all batteries and woundings unless in the complaint they be charged to be done contra pacem Domini Regis the like also of inferiour Trespasses besides Common-pleas whereof more shall follow in the next Chapter as occasion shall be CHAP. LXII Of certain Laws of Judicature in the time of Henry the second ANd hereof I shall note onely a few as well touching matter of the Crown as of property being desirous to observe the changes of Law with the times and the manner of the growth thereof to that pitch which in these times it hath attained We cannot find in any story that the Saxon Church was infested with any Heresie from their first entrance till this present Generation The first and last Heresie that ever troubled this Island was imbred by Pelagius but that was amongst the Britains and was first battered by the Council or Synod under Germanus but afterwards suppressed by the Zeal of the Saxons who liked nothing of the British breed and for whose sake it suffered more haply than for the foulness of the opinion The Saxon Church leavened from Rome for the space of above five hundred years held on its course without any intermission by cross Doctrine springing up till the time of Henry the second Then entred a Sect whom they called Publicans but were the Albigences as may appear by the decree of Pope Alexander whose opinions I shall not trouble my course with but it seems they were such as crossed their way and Henry the second made the first president of punishing Heresie in the Kingdom under the name of this Sect whom he caused to be brought before a Council of Bishops who endeavoured to convince them of their errour but failing therein they pronounced them Hereticks and delivered them over to the Lay power by which means they were branded in the fore-head whipped and exposed to extremity of the cold according to the decree of the Church died This was the manner and punishment of Hereticks in this Kingdom in those days albeit in seemeth they were then decreed to be burnt in other Countries if that Relation of Cog shall be true which Picardus noteth upon the 13th Chapter of the History of William of Newberry out of which I have inserted this Relation Another Case we meet with in Henry the second 's time concerning Apostacy which was a Crime that as it seems died as soon as it was born for besides that one we find no second thereto in all the file of English story The particular was that a Clerk had renounced his Baptism and turned Jew and for this was convicted by a Council of Bishops at Oxford and was burned So as we have Apostacy punished with death and Heresie with a punishment that proved mortal and the manner of conviction of both by a Council of the Clergie and delivered over to the Lay-power who certainly proceeded according to the direction of the Canon or advice of the Council These if no more were sufficient to demonstrate the growing power of the Clergie however brave the King was against all his Enemies in the field Treason was anciently used onely as a Crime of breach of Trust or Fealty as hath been already noted now it grows into a sadder temper and is made all one with that of laesa Majestas and that Majesty that now-a-days is wrapped up wholly in the person of the King was in Henry the second 's time imparted to the King and Kingdom as in the first times it was more related to the Kingdom And therefore Glanvil in his book of Laws speaking of the Wound of Majesty exemplifies Sedition and destruction of the Kingdom to be in equal degree a Wound of Majesty with the destruction of the person of the King and then he nameth Sedition in the Army and fraudulent conversion of Treasure-trove which properly belongs to the King. All which he saith are punished with Death and forfeiture of Estate and corruption of Bloud for so I take the meaning of the words in relation to what ensueth Felonies of Manslaughter Burning Robbery Ravishment and Fausonry are to be punished with loss of Member and Estate This was the Law derived from the Normans and accordingly was the direction in the Charge given to the Justices itinerant in Henry the second 's time as appeareth in Hoveden But Treason or Treachery against the Oath Fealty or Bond of Allegiance as of the Servants against the Lord was punished with certain and with painful deaths And therefore though the murther of the King was Treason yet the murther of his Son was no other than as of another man unless it arose from those of his own Servants The penalty of loss of Estate was common both to Treason and Felony it reached even unto Thefts in which case the forfeiture as to the Moveables was to the Sheriff of the County unto whose cognizance the case did belong and the Land went to the Lord immediately and not to the King. But in all cases of Felony and of a higher nature the party though not the King's Tenant lost his personal Estate to the King for ever his Free-holds also for a year and a day after which they returned to the Lord of the Soil by way of Escheat
saith That he will set down frequentius usitata and it is past question but that the tryal by twelve men was much more ancient as hath been already noted One thing more yet remaineth concerning the Widow of the Tenant whose Dower is not onely provided for but her reasonable part of her Husband 's personal Estate The original hereof was from the Normans and it was as popular as that of Wardships was Regal and so they made the English women as sure to them as they were sure of their Children The Justices shall by Assize try Disseisins done since the King 's coming over Sea next after the peace made between him and his Son. This is called the Assize of Novel disseisin or of disseisins lately made It seems that the limitation was set for the Justices sake who now were appointed to that work which formerly belonged to the County-courts and to prevent intrenchments of Courts a limitation was determined although the copy seemeth to be mistaken for the limitation in the Writ is from the King 's last Voyage or going into Normandy Justices shall do right upon the King 's Writ for half a Knights Fee and under unless in cases of difficulty which are to be referred to the King. The Justices itinerant ended the smaller matters in their Circuits the other were reserved to the King in his Bench. Justices shall enquire of Escheats Lands Churches and Women in the King's gift And of Castle-guard who how much and where So as the Judges itinerant had the work of Escheators and made their Circuits serve as well for the King's profit as justice to the Subjects They used also to take Fealty of the people to the King at one certain time of the year and to demand Homage also These matters of the King's Exchequer made the presence of the Judges less acceptable and it may be occasioned some kind of oppression And as touching Castle-guard it was a Tenure in great use in these bloody times and yet it seemeth they used to take Rent instead of the personal service else had that enquiry how much been improper Of a Tenants holding and of several Lords That one man may hold several Lands of several Lords and so owe service to them all is so common as nothing can be more nevertheless it will not be altogether out of the way to touch somewhat upon the nature of this mutual relation between Lord and Tenant in general that the true nature of the diversity may more fully appear The foundation or subject of service was a piece of Land or other Tenement at the first given by the Lord to the Tenant in affirmance of a stipulation between them presupposed by the giving and receiving whereof the Tenant undertook to peform service to the Lord and the Lord undertook protection of the Tenant in his right to that Tenement The service was first by service solemnly bound either by Oath which the Lord or his Deputy by the Common-Law hath power to administer as in the case of Fealty in which the Tenant bound himself to be true to the honour and safety of his Lords person and to perform the service due to the Lord for the Tenement so given or otherwise by the Tenants humble acknowledgment and promise not only to perform the services due but even to be devoted to the Lords service to honour him and to adventure limb and life and be true and faithful to the Lord. This is called Homage from those words I become your man Sir and yet promiseth upon the matter no more but fealty in a deeper complement albeit there be difference in the adjuncts belonging to eách For though it be true that by promise of being the Lord's man a general service may seem to be implied yet in regard that it is upon occasion only of that present Tenure it seemeth to me that it is to be restrained only to those particular services which belong to that Tenement and therefore if that Tenement be holden in Socage although the Tenant be bound to homage yet that homage ties not the Tenant to the service of a Knight nor contrarily doth the homage of a Tenant in Knight-service tie him to that of Socage upon the command of his Lord though he professeth himself to be his man. Nor doth the Tenant's homage bind him against all men nor ad semper for in case he holdeth of two or divers Lords by homage for several Tenements and these two Lords be in War one against the other the Tenant must serve his chief Lord of whom the Capital house is holden or that Lord which was his by priority who may be called the chief Lord because having first received homage he received it absolutely from his Tenant with a saving of the Tenant's Faith made to other Lords and to the King who in order to the publick had power to command a Tenant into War against his own Lord. If therefore he be commanded by the King in such cases unto War he need not question the point of forfeiture but if he be commanded by a chief of his other Lords into War against a party in which another of his Lords is engaged his safest way is to enter upon the work because of his Allegiance to that Lord yet with a salvo of his fealty to that other Lord. But in all ordinary cases Tenants and Lords must have regard to their stipulation for otherwise if either break the other is discharged for ever and if the fault be in the Tenant his Tenement escheats to his Lord and if the Lord fail he loses his Tenure and the Tenant might thenceforth disclaim and hold over for ever Nevertheless the Lords had two Priviledges by common custom belonging to their Tenures which although not mentioned in the stipulation were yet more valuable than all the rest the one concerning matter of profit the other of power That of profit consisted in aids and relief The aids were of three kinds one to make the Lords eldest Son Knight the other to marry his eldest Daughter the third to help him to pay a relief to his Lord Paramount which in my opinion sounds as much as if the Tenants were bound by their Tenures to aid their Lord in all cases of extraordinary charge saving that the Lord could not distrain his Tenant for aid to his War and this according to the Lords discretion for Glanvil saith that the Law determined nothing concerning the quantity or value of these aids These were the Norman ways and savoured so much of Lordship that within that age they were regulated But that of reliefs was an ancient sacrifice as of first-fruits of the Tenement to the Lord in memorial of the first Lords favour in conferring that Tenement and it was first setled in the Saxons time The Lords Priviledge of power extended so far as to distrain his Tenants into his own Court to answer to himself in all causes that concerned his
right and so the Lord became both Judge and Party which was soon felt and prevented as shall appear hereafter Another priviledge of the Lords power was over the Tenants Heir after the Tenants death in the disposing of the Body during the minority and marriage of the same As touching the disposing of the Body the Lord either retained the same in his own power or committed the same to others and this was done either pleno jure or rendring an account As concerning the marriage of the Females that are Heirs or so apparent the Parents in their life-time cannot marry them without the Lords consent nor may they marry themselves after their Parents death without the same and the Lords are bound to give their consent unless they can shew cause to the contrary The like also of the Tenants Widows that have any Dowry in the Lands of such Tenure And by such-like means as these the power of the Barons grew to that height that in the lump it was too massie both for Prince and Commons Of the power of the last Will. It is a received opinion that at the common-Law no man could devise his Lands by his last Will. If thereby it be conceived to be against common reason I shall not touch that but if against custom of the ancient times I must suspend my concurrence therewith until those ancient times be defined for as yet I find no testimony sufficient to assert that opinion but rather that the times hitherto had a sacred opinion of the last Will as of the most serious sincere and advised declaration of the most inward desires of a man which was the main thing looked unto in all Conveyances Voluntas donatoris de caetero observetur And therefore nothing was more ordinary than for Kings in these times as much as in them did lie to dispose of their Crowns by their last Will. Thus King John appointed Henry the Third his Successour and Richard the first devised the Crown to King John and Henry the first gave all his Lands to his Daughter and William the Conqueror by his last Will gave Normandy to Robert England to William and to Henry his Mothers Lands If then these things of greatest moment under Heaven were ordinarily disposed by the last Will was it then probable that the smaller Free-holds should be of too high esteem to be credited to such Conveyances I would not be mistaken as if I thought that Crowns and Empires were at the disposal of the last Will of the possessor nor do I think that either they were thus in this Kingdom or that there is any reason that can patronize that opinion yet it will be apparent that Kings had no sleight conceit of the last Will and knew no such infirmity in that manner of conveyance as is pretended or else would they never have spent that little breath left them in vain I have observed the words of Glanvil concerning this point and I cannot find that he positively denyeth all conveyance of Land by Will but only in case of disherison the ground whereof is because it is contrary to the conveyance of the Law and yet in that case also alloweth of a disposing power by consent of the Heir which could never make good conveyance if the Will in that case were absolutely void and therefore his Authority lies not in the way Nor doth the particular customs of places discountenance but rather advance this opinion for if devises of Lands were incident to the Tenure in Gavel-kind and that so general in old time as also to the burgage Tenures which were the rules of Corporations and Cities Vbi Leges Angliae deperiri non possunt nec defraudari nec violari how can it be said contrary to the common Law And therefore those Conveyances of Lands by last Will that were in and after these times holden in use seem to me rather remnants of the more general custom wasted by positive Laws than particular customs growing up against the common rule It is true that the Clergy put a power into the Pope to alter the Law as touching themselves in some cases for Roger Arch-bishop of York procured a faculty from the Pope to ordain that no Ecclesiastical persons Will should be good unless made in health and not lying in extremity and that in such cases the Arch-bishop should possess himself of all such parties goods but as it lasted not long so was himself made a president in the case for being overtaken with death e're he was provided he made his Will in his sickness and Henry the Second possessed himself of his Estate And it is as true that Feme coverts in these days could make no Will of their reasonable part because by the Saxon Law it belonged joyntly to the Children Nor could Vsurers continuing in that course at the time of their death make their Will because their personal Estate belonged to the King after their death and their Lands to their Lords by escheat although before death they lie open to no censure of Law but this was by an especial Law made since the Conquerour's time for by the Saxon-Law they were reputed as Out-Laws Nevertheless all these do but strengthen the general rule viz. That regularly the last Will was holden in the general a good conveyance in Law. If the Will were only intended and not perfected or no Will was made then the Lands passed by descent and the goods held course according to the Saxon Law viz. the next Kinsmen and Friends of the intestate did administer and as administrators they might sue by Writ out of the Kings Court although the Clergy had now obtained so much power as for the recovery of a Legacy or for the determining of the validity of the Will in its general nature it was transmitted to the Ecclesiastical Court. CHAP. LXIII Of the Militia of this Kingdom during the Reign of these Kings I Undertake not the debate of right but as touching matter of fact shortly thus much that from the Norman times the power of the Militia rested upon two principles the one the Allegiance for the common defence of the King's person and honour and Kingdom and in this case the King had the power to levy the force of the Kingdom nevertheless the cause was still under the cognizance of the great Council so far as to agree or disavow the War if they saw cause as appeared in the defections of the Barons in the quarrel between King Steven and the Empress and between King John and his Barons The other principle was the service due to the Lord from the Tenant and by vertue hereof especially whenas the liberty of the Commons was in question the Militia was swayed by the Lords and they drew the people in Arms either one way or the other as the case appeared to them the experience whereof the Kings from time to time felt to their extream prejudice and the Kingdoms
with a stiff spirit and a weak mind brought sudden fire into the course of government till it consumed it self in its own flame For this King having newly slipt out of a bondage of wise Government under his Father ran the wild chase after rash desires spending his former time in inordinate love and his latter time upon revengeful anger little inferiour to rage and so in his whole government was scarce his own man. His love was a precedent of a strange nature that commanded him from all the contentments of his Kingdom to serve one man a stranger and prostitute to all manner of licentiousness meerly for some personal endowments It shews that his judgement was weak and his affections strong and in that more weak because he discovered it before he was crowned like some of the weakest of the weaker Sex the birth of whose minds are born assoon as they are conceived and speak assoon as they are born It is true that the bravery of spirit may work after absoluteness in Kings under the colour of some kind of wisdom But it is one thing to rule without Law and another to live without Rule the one dashes against the Law of an English King and may put on the name of Policy but the other destroys the Law of mankind and can bear no better name than of brutish desire All the while Gaveston was in view we find nothing concerning Commonwealth or monument of Parliament saving two Ordinances made by the King and such Lords as suted to the King's way rather than to his wants The first was that de militibus the other de frangentibus prisonam for all the King's labour was to royallize Gaveston into as high a pitch as he could and so to amaze his own eye-sight with contemplating the goodliness of his person So as Gaveston is become the Image of the King and presents his beams and influence into all parts of the Kingdom and according to his Aspect they often change and wane and yet at the best were but as in a misty night The Barons liked not this condition of State-Idolatry they were willing to adore the King but they could not bow to an Image they desired nothing more than that their King might shine in his proper glory Thrice is Gaveston banished thrice he returns the last occasioned another Civil War wherein Gaveston lost his head Thus the Lords removed the Eclipse but little the better thereby they find it a vain labour to compel the Sun to shine by force when it hath no light Though Gaveston be gone the mist of foreign Councils prevail this was bred in the Bloud fed with Bloud and ended in Bloud Through the Glass of foreign Councils all things seem of foreign colour the King to the People and the People to him The King at length begins to see himself undervalued and that it began in himself ventures himself into the Wars with Scotland to win honour goes with much splendour but returns with the greatest blot that ever English King suffered confounded abroad and slighted at home For the bravest men by ill success are lost in common opinion or to speak in a higher strain where God doth not bless man will not The King thus almost annihilated catches hold of Rome fawns on the Clergy passes to them the Ordinances of Articuli Cleri and de prisis bonis Cleri which lost the Free-men no Right although it concluded the Crown And to caress the Commons made the Statute de Vice-comitibus and the City of London likewise by the Statute de Gavelletto But God saw all sorts of men run at riot and sends in upon the Nation Plague Famine and other extraordinary Testimonies of his displeasure even to the wonderment of other Nations and this brought a kind of sobriety into Affairs made all sorts tame and for the present onely prepared them for better times For the King's time of longing again is come and he must have new Play-fellows finds the Spencers or rather was found of them they grow in honour almost beyond the reach of the Nobles but not beyond their envy and are more secure than Gaveston in this that in their first sprouting the King's Council served himself and them to keep in with the Commons by making good Laws such as the Statutes at York of Essoyns Attaints of Jurors Levying of Fines and Estreats into the Exchequer c. all of them promising good Government The Barons nevertheless liked not the Spencers greatness and being by several occasions exasperated joyn in one and occasion a new War The King aided by the Commons who yet thought better of the King than of the Barons whom they saw prejudiced rather out of self-apprehensions than the publick good prevailed against the Barons and made them the first president of death upon the Scaffold Now the Spencers are Lords alone thinking themselves above the reach of the once formidable Barons and the Commons too inferiour for their respect Thus lifted up they take a flight like that of Icarus They had so much of the King's heart as they could not spare any part thereof to the Queen and she being as loth to spare so much for them as they had retired with the Prince to a relief which they brought from beyond Sea and with whom both Lords and Commons joyn The favourites missing of their wonted wings come down faster than they ascended and together with them the King himself all of them irrecoverably Thus favourites instead of Cement between Prince and people becoming rocks of offence bring ruine sometimes to all but always to themselves The King foresaw the storm and thought it safest first to cry truce with the people and come to agreement with them by common consent for the extent of his Prerogative in certain particular cases questionable and this summed up became a Statute for future times to be a ne plus ultra between the King and people The like agreement likewise was concerning services of Tenants to their Lords and an Oath framed to vindicate them from all encroachments And something was done to calm the Clergie for the demolishing of the Templar-Knights but the wound was incurable words are not believed if actions do not succeed nor will Oaths now made to bind Kings Bishops Counsellors of State Sheriffs Mayors Bailiffs or Judges to justice nor directions for regulating of Courts nor Ordinances against false Moneys and Weights nor all of them settle the people but they adhere to the Queen burning with jealousie against the King and both her self and the Lords with rage against the Spencers The King flies and being forsaken of the people the Lords the Clergie his own Son and the Wife of his own bosom and of God himself as the most absolute abject that ever swayed the Scepter lost the same and being made a monument of Gods revenge upon inordinate desires in a King and of the English people being enraged not long surviving his
that they may not appear to be Clerks 16. Justices itinerant do imprison Clerks defamed for Felony or otherwise out-law them if they do not appear And otherwise proceed against Clerks after their purgation before the Ordinary 18. The Lay-power seizes upon the Estates of Clerks degraded for Crimes 19. Clergie are compelled to answer and give satisfaction for offences against the Forest-Laws before the Lay-power And in case of default the Bishop by distress is compelled to order satisfaction as well in such cases as in personal Actions 22. Priviledges of Sanctuary are invaded by force 23. Executors of Bishops are hindred from administring the Estate without License first obtained from the King. 24. The King's Tenants Goods are seized after their decease by the King's Bayliffs 25. Intestates goods are seized by their Lords and their Ordinary hindred from Administration 26. The King's prohibition passeth in case of Tythes and Chappels 27. The like in cases of Troth plight Perjury Cerage Heriet or other Church-duties as money for reparations of Churches and fences in Church-yards pecuniary punishment for Adultery and costs of suit in Ecclesiastical Court Sacriledge Excommunication for breach of the Liberties of the Church contrary to the Grand Charter 30. In cases of prohibition if the Ecclesiastical Judge proceed contrary to the same he is attached and compelled to shew his Acts in Court if the Lay-Judge determine the cause to be Temporal the Ecclesiastical Judge is amerced if he proceed against the prohibition and it is tryed by Witnesses of two ribaulds and in case it be found for the Ecclesiastical Judges cognizance yet there is no costs allowed for such vexation 32. That Jews in matters Ecclesiastical aforesaid are by the King's prohibition drawn from the Ecclesiastical Judge unto the Lay-Magistrate 34. Question about Lands given in Frankalmoin are tryed in the Lay-Courts and by reason of such Tenure the owners though Clergie men are compelled to do suit at the Lay-Courts and are charged with impositions and are distrained hereunto although the Lord have other Land of the Donor in Frankalmoin subject to his distress 39. Prelates summoned to higher Courts are not allowed to make Attorneys to appear for them in the inferiour civil Courts 41. Grantees of Murage or other unwonted impositions compel the Church-men to pay the same 42 43. The Clergie are charged with Quarter Cart-service and purveying 44. The Chancery sendeth out new Writs contrary to the liberties of the Church and the Law of the Land without the assent of the Council of the Kingdom Princes and Prelates 45. The King doth compel the Clergie to Benevolences to the King at his Voyage into foreign parts 46. Amercements granted to Clergie-men are turned into Fines by the Justices and by them taken 47. Clergie-men are fined for want of appearance before the Justices itinerant and of the Forest upon common summons 48. Quo warranto's granted against the Clergie for their Liberties and the same seized unless they be set down in express words in their Charter notwithstanding that by long custom they have enjoyed the same and many times contrary to express grant This is the sum of their Paper of Grievances and because they found the King either wilful or unconstant they resolve upon a Remedy of their own by Excommunication and Interdiction not sparing the persons of any principal or accessory nor their Lands no not of the King himself and for this they joyn all as one man. Now what scare this made I know not but Henry the third in the Stat. of Marlb and Edward the first in his Stat. at Westminster and other Statutes the first spake fair and seemed to redress some of these complaints as also did Edward the second and yet the Common Law lost little ground thereby That which Henry the third did besides his promises of reforming was done in the Stat. of Marlbridge The successors of Abbots Priors and Prelates c. shall have an Action of Trespass for Trespasses done nigh before the death of their decessors upon the Estates of their Corporations And shall prosecute an Action begun by their Predecessors And also shall have an Assize against Intruders into any of the Possessions belonging to the said Corporations whereof their Predecessors died seized This might seem a remedy provided against the first Malady complained of and questionless bound all but the King and so might perchance abate somewhat the edge of that Article But it being the Clergies reach to grow rich and the Pope's cunning to help on that Work that they might be as stores for supply of his Treasury and had forbidden Abbots and other Prelates c. the liberty of disposing their Estates by last Will Kings therefore as supreme Patrons to these bodies in their vacancies used to seize all the Estates of the Prelates with the Temporalities to their own use as well to preserve the Riches of the Kingdom to it self and the possessions of such Corporations from spoil as to be a cloke of their own covetousness And under the Estates of the Prelates or Heads of these Corporations all the Goods and Chattels belonging to the said Corporations were comprehended in regard that all was by Law adjudged to be in the sole possession of such Head and without whom all the rest were accounted but as dead persons No Clergie-man is bound to attend at the Sheriff's Turn William the Conquerour first exempted the persons of the Clergy from attendance upon Temporal Courts yet they were still urged thereto and especially by a Law in Henry the first 's time but by this Law they are discharged and in some measure a provision made against the grievance in the 39th Article before-mentioned These amends we find made to the Clergie by Henry the third besides his confirming the Grand Charter And his Son Edward the first pursued the same course especially in his first times when he was but tenderly rooted as may appear in the Statute of West 1. Clergie-men nor their Houses shall be charged with Quarter nor their Goods with Purveyance or Cart-service under peril of imprisonment and damages by action or imprisonment The great endowments of Lands Rents and Revenues given to the Church-men by the Laity was for the maintenance of Hospitality and works of Charity The Founders and Benefactors hereby obtained a right of Corody or Entertainment at such places in nature of Free-quarter which in the necessitous times of Henry the third became so common that every one that had power never questioned right and the King above all the rest By means whereof the Church-revenues were exceedingly wasted for remedy whereof all Offenders are by this Statute made liable to fine and imprisonment and double damages in case of Action of Trespass the King onely excepted against whom they had no defence but would rather have won him to have been their defence against the exactions from Rome that
Freemen in such cases it being contrary to the Grand Charter never asked by the Clergie formerly nor no complaint before now for denial for my part therefore I shall not apprehend it of a higher nature than the King 's Writ which in those days went forth at random if the 44th Article of the Clergies complaints foregoing be true It being so contrary to the common sence of Parliament to give the bodies of the Freemen to the will of the Clergie to whom they would not submit their Free holds But the Writ proceeds in enumeration of particulars Reparations and adornings of Churches and Fences of Church-yards Violence done to a Clerk Defamation to reform not to give damage Perjury oblations payments of Tythes between Rector and Parishioner Right of Tythes between two Rectors to a fourth part of the value Mortuaries due by custom A Pension from a Rector to a Prelate or Advocate The most of which were under the power of a prohibition in the time of Henry the Third who was King but yesterday as the Articles of complaint formerly set down do manifest Nor had the Clergie ever better Title than connivance of some such favourites as King Steven whose Acts may peradventure be urged against Kings but not against the people unless their own act can be produced to warrant them The learning in the Princes case will I suppose admit of a difference for it can never be made out that the King's Council in Parliament was the Magnum concilium Regni but onely the House of Lords and therefore whatever passed in Parliament by their onely advice might bind the King but could never reach the Commons nor their Liberties And thus the Grand Charter in the first conception was conclusive to the King but was not the act of the Parliament because the Parliament cannot grant a Charter to it self of that which was originally custom And therefore this Law however countenanced can never be concluded to be other than a Permission not onely because it was never the Act of the Commons of England but because it is contrary to the liberty of the Freemen And it is beyond all imagination that the Commons should out themselves from the protection of the Common-Law and yoke themselves their Free-holds and Estates under the bondage of the Canons nor ought such a construction to be admitted without express words to warrant it As for the conclusion it is worse and not onely dishonourable to the King in binding his Arms from protecting his Subjects by the Common Laws and so in some respects making them Outlaws but dishonourable to it self whilst it makes Prohibitions grounded upon Laws to be nullities by a late trick of non obstante which was first taken up by the Pope then by Henry the third and by this King granted to the Clergie and thus are all set at liberty from any rule but that of Licentiousness Nevertheless this Law did thrive accordingly for we find scarce any footsteps in story of any regard had thereof till it became grey-headed For it was not long e're the King stood in need of money and was necessitated to try the good wills of the Clergie more than once this occasioned them to be slow in answer and in conclusion to deny that they should aid the King with any more money Papa inconsulto The King hereupon disavows the Clergy and leaves them to the Romish oppressions which were many and then the Clergie rub up all old sores and exhibit their complaints to their holy Father to this effect 1. That the King's Justices intermeddle in Testamentary causes accounts of Executors and cognizance of Tythes especially to the fourth part of the Living 2. That the Clergie were charged to the King's Carriages That the King's Mills were discharged from paying of Tythes That Clerks attending on the Exchequer were necessitated to non-residency And that after their decease their Goods were seized till their acounts were made That Ecclesiastical possessions were wasted during vacancies 3. That Clerks were admitted to free Chappels by Lay men 4. That the King's Justices took cognizance of Vsury Defamation violence done to Clerks Sacriledge Oblations Fences of the Church-yards and Mortuaries 5. That prohibitions are granted without surmise 6. That Clerks are called to answer in the King's Court for crimes and being acquitted the Informers escape without penalty 7. That Clerks are not allowed their Clergie 8. That after purgation made Clerks are questioned in the King's Court for the same offence 9. That persons in Sanctuary are therein besieged 10. That the Writ de Cautione admittenda issueth forth although the Church be not satisfied and excommunicate persons being imprisoned are enlarged in like manner 11. That Debts between Clerks due are determined in the temporal Courts 12. That Bishops are compelled by Distress to cause Clerks to appear in Lay-courts without cause 13. That the Church loseth it's right by the ceasing of Rent or Pension by the space of two years 14. That Nuns are compelled to sue in the Lay-courts for their right in possessions befalling by decease of their Kinred 15. That Churches are deprived of their Priviledges till they shew Quo warranto they hold them 16. That Ecclesiastical Judges are stopped in their proceedings by Sheriffs and great men 17. That Bishops refusal of Clerks presented are examined in the Lay-courts 18. That Patrons of Religious Houses do oppress them by extream Quarter 19. That Bigamy and Bastardy are tried in Lay-courts 20. That the King suffers his Livings to be vacant for many years 21. That the Clergie are wronged by the Statute of Mortmain Here 's all and more than all that 's true and more than enough to let the Reader see that the Writ Circumspecte agatis was but a face put on for the present after laid aside and the Clergy left to the bare Canon They likewise shew what the Clergy aimed at and in that they did not obtain it was to be attributed to the resolution of the Laity and not any neglect in themselves for the Arch-bishop died in the service and it is thought that grief for these matters was no little cause thereof But the times within a while grew troublesome and the King in pursuit of the French Wars being unadvised in his way angred the people by his arbitrary levie of Men and Money as it brought forth a State-scoul little inferiour to a Quarrel And to pacifie the Clergie he granted them the Writ de consultatione habenda in all matrimonial and testamentary cases which were of their least doubted priviledges and this qualified the first Article of complaint next foregowing if such cause they had of complaint and this was all that the Clergie got at Edward the first 's hands Edward the second was a man that was neither well-affected to Rome nor weak in spirit and yet so unhappy that his way neither promised good success nor ever had it and so he became a Servant unto
the humours of his Servants to keep his head above water but especially after he was chased by the Scots and quite out of breath he calls for help of all but first of the Clergie and bespeaks them with the Ordinance of Articuli Cleri wherein he gives some satisfaction to the complaints formerly mentioned which it seems by Baronius were exhibited in Parliament Ecclesiastical cognizance extendeth unto Tythes Oblations and Mortuaries and to pecuniary recompence In the first times neglect or denial of Church-duties was punished in the King's Court by Fine Afterwards the Bishop was joyned in that Work and the Tythable Goods were seized eight parts whereof were taken to the Lords and the Bishops use by moyeties a ninth part left to the Owner and the tenth to the Church Nor had the Bishops any peculiar Courts of cognizance of causes till the times of the Normans nor as yet in those times had they power to all intents For though it be true that the Roman Tribute of Peter-pence was allowed by the Conquerour's Law to the Bishop's Court yet we find no Law for Tythes and other profits to be recovered by the Ecclesiastical Court till about the end of Henry the second 's Reign or King Steven's time For at a Council at London in Henry the second 's time it was ordained that three Summons in the Pope's name should be made to such as payed not their Tythes and in case they then refused they should be Anathema And after that time in a Council at Oxford under Steven Archbishop of Canterbury it was decreed that the Laity should be entreated first to pay their Tythes and then if necessity require that they should be compelled by Ecclesiastical censure So as their power crept up by degrees in recovering of Church duties as it did in Testamentary matters and at length Henry the third worn and spent with the Barons Wars about his latter end yielded to Boniface the Archbishop his importunate demands and first gave liberty to the Clergie to be their own Judges and yet the Lay-Judges although divers of them were Clergie men did not suddenly forbear till this Law came which gave some satisfaction to the first and fourth Articles of Complaint foregoing Ecclesiastical cognizance extendeth not to a fourth part of the Tythes of any Living nor to pecuniary mulcts for sin saving by way of commutation The Complaint of the Clergie in Henry the third's time was against the King's prohibition in case of Tythes indefinitely for in those times and afterwards in Edward the first 's time the King's Court had the cognizance of all Tythes and therefore in the Statute of West 2. c. 5. the Writ of Indicavit was allowed in case of right of any portion of Tythes yet the Church still gained ground and about or before the death of Edward the first the Temporal Judge had yielded unto the Clergie the cognizance of a portion of Tythes under the value of the fourth part for in the Article next foregoing the Clergies complaint was that the Kings Justices held cognizance of the fourth part and here they were confined thereto by this Law which the Clergie could never remove For violence done to Clerks the offender shall render damage in the Kings Court but Excommunication Penance and Commutation shall be in the Bishops Court. The Canon-Law had an ancient claim to the protection of Clerks both as touching their persons and estates and prevailed so far as they were thereby emboldened to offer violence unto others But as I formerly shewed by a Law in Henry the Second's time the Temporal Judge resumed his original power and this became a sore evil between the Clergie and Laity for though it were allowed that Clerks should not be sued but before the Ecclesiastical Judge in such cases yet it was no warrant for the Laity likewise to be called before the Ecclesiastical Judge in such cases and therefore the Clergies complaints shew that the matter was doubtful and that the Lay-Judge generally maintained his Jurisdiction although sometimes he disclaimed it as it may appear in the case of a Trespass in the nature of a riot committed upon the Priory of St. John's of Jerusalem in the seventh year of Henry the Third when as it was adjudged per Curiam that it belonged to the Ecclesiastical Court to punish But in Edward the First 's time by the Ordinance of Circumspecte agatis and Articles concerning prohibitions the difference was made between damages and pro reformatione and the same affirmed by this Law and so the matter setled and the fourth Article of the Clergies complaint in some measure was satisfied Defamation within Cognizance of the Ecclesiastical Court and corporal penance therefore and Commutation The words are general and peremptory with a non obstante the Kings prohibition and yet the Law afterwards restrained the sence to defamation for crimes or offences triable in the Ecclesiastical Court and this gave further satisfaction to the fourth Article of the Clergies complaint foregoing Tythes of new Mills may be recovered in the Ecclesiastical Court. This Tythe of Mills was a new encroached Tythe never mentioned in any former Law of this Kingdom nor demanded by the Synod at London Anno 1173. which mentions Fruit-Trees young broods of living creatures that are tame Herbage Butter Cheese with other particulars but mentions not new Mills It is true that anciently Mills paid Tythes but such they were which were ancient and had paid the same by custom and such as by Law in the Confessors time were declared to be given a Rege Baronibus populo But by the second Article of the Clergies complaint next foregoing it appears that the Kings Mills refused to pay this Tythe now whether the new Mills were called the Kings Mills as being made upon the publick streams by the Kings license or whether the Mills newly made within the Demesnes of the Crown it is not to be insisted upon but it is evident that till this Law made the new Mills would not Tythe their labours One and the same matter may be tryed at the Common-Law after Sentence in the Spiritual Court in divers respects The great sore that was complained of was that the Clergie after purgation in the Ecclesiastical Court made were proceeded against in the Kings Court in case of breach of peace or Felony as may appear out of the 16th Article of the Clergies first complaints and the 8th Article of that taken out of Baronius Nevertheless the present Law subjoyns an example of the questioning a Lay-man in the Ecclesiastical Court in case of violence done to a Clerk as a matter which may be tryed in the Ecclesiastical Court and yet reviewed by the Kings Court. The Writ de Excommunicato deliberando shall not issue forth but upon evident breach of the Kings Liberty This might be intended in satisfaction of the Tenth Article of the Clergies complaint
if they receive them stocked The first of these is the Law of common reason for it is contrary to Guardianship to destroy that which by their office they ought to preserve As touching the words of the Law the Grantees are omitted in the Charter of King John and also their Assignees albeit that doubtless they were within the intent and meaning of the Law. The matter declares plainly not onely the oppression of Lords upon their Wards but also the corruption even of the Law itself that at the first aimed at the good of the Publick and honour of Knight-service but now was degenerated into the base desire of profit by making market of the Wards Estates and Marriages that brought in strip and waste of Estates and niggardly neglect of the education and training up of the persons of the Wards and an imbasing of the generation of mankind and spoil of times Nor did these times ever espy or provide against the worst of these but onely endeavoured to save the estate by punishing the wasters in damages by this Law and by forfeiture of the Wardship by a Law made in the time of Edward the First and this as well for Waste done during the time of the custody as in the life-time of his Ancestors by another Law in Edward the First 's time And because the Escheators and their under-Officers used to serve themselves out of the Estates of Minors before they certified to the King his right and those were not within the Law of Magna Charta or at least not so reputed It was therefore afterwards provided that these also should render damages in a Writ of Waste to be brought against them The marriage of Wards shall be without disparagement It was an ancient Law among the Germans and the Saxons brought it hither and as a Law setled it that Marriage must be amongst equals but this the Danes and Normans slighted and yet it continued and was revived Now as the Lord had the tuition of the Ward instead of the Ancestor so had he the care of the marriage in such manner as the Ancestor might have had if he had lived For in case the Ward were stoln and married the Delinquent suffered fine and imprisonment Or if the Ward married without the Lord's consent he shall have the double value and hold the Land over till satisfaction But in case the Lord marrieth the Ward within fourteen years of age to its disparagement he shall lose his Wardship thereby And if the Ward refuseth to accept of a marriage tendred by the Lord before her age of sixteen years the Lord shall hold the Lands till he have received the full value and in case where one Tenant holdeth of divers Lords the Lords by priority shall have the marriage These Laws were in use during the Reigns of those Kings although it cannot be certainly concluded hereby that the Wives portion properly belonged to the Lord as for his own benefit partly because the Female-Wards should have no advancement if it belonged to the Lords and partly because this forfeiture was given to the Lords in nature of a penalty as appeareth by the frame of the Statute of Merton Widows shall have their Dower inheritance their inheritance which they have joyntly with their Husbands their marriage freely and their Quarentine With due regard of the opinion of others I shall propound my own It seemeth to me that the King is within this Law as well as within the former Laws of the Normans and those of Henry the Second that are of this kind and as he is within the compass of every Law of this Charter and that it is called the Grand Charter as most immediately coming from the King to the people and not from the Lords Nor is there any ground that the Law should intend to give liberty to Widows of Wards belonging to inferiour Lords to marry whom they will and that onely the Kings Widows shall be bound Nor did this suit with the contest between the Barons and the King that their Widows should be bound unto the King and the Widows of their Tenants discharged from their tuition and therefore I conceive by the word maritagium is not meant liberty of Marriage but her Marriage-portion or rationabilis pars according to the foregoing Laws of Henry the First and Henry the Second and the Saxon Customs But as touching the liberty of Marriage it is defined and expressed that the Widows shall not be compelled to marry nevertheless if they shall marry they must marry with the Lord's liking otherwise he might have an enemy to be his Tenant that might instead of homage and service prove Traitor and be his ruine Lastly touching the Widows dwelling the Law thought it unreasonable that she should immediately after the death of her Husband be exposed to be harbourless and therefore ordained that she might continue in her Husband's house Forty days if it were not a Castle and then she was to have another dwelling assigned to her because by common intendment she is not supposed to be a person meet to defend a Castle and this was called her Quarentine which I meet not with amongst the Saxon Laws and therefore suppose it to be of Norman original No Man's Land shall be seized for Debt to the King so long as the Personal Estate will satisfie Nor shall his pledge be troubled so long as the Principal is sufficient unless he refuse to satisfie and then the pledge shall recover in value The first part hereof was the issue of the Law concerning elegit formerly observed in the Saxon times for the regard of Law principally extended unto the person next unto the Free-hold and lastly unto the goods The latter part of this Law was the Law of Pledges or Decenners in the same times unto which the Reader may resort for further light herein The City of London and other Cities Burroughs and Towns and the Cinque-ports and other Ports shall enjoy their ancient Liberties The whole Kingdom and the Members thereof herein expressed had all their Liberties saved from the dint of Conquest by the Law of William the first upon which although some of the succeeding Kings did invade yet none of them made any absolute disseisin although disturbance in some particulars But King John did not only confirm them by his grand Charters but by particular Charters to each Corporation with some enlargements and in his grand Charter inserted one clause which in the grand Charter of Henry the Third appeareth not which thus ensueth Et ad habendum commune concilium Regni de auxiliis assidendis aliter quam in tribus casibus praedictis which if the barbarism of the Latine mislead me not is thus in English And to have right of Common-Council or to be of the Common-Council of the Kingdom for the assessing of aids other than in three cases aforesaid viz. for
redemption of their Captive King for Knighting of the Kings Son and for his Daughters Marriage because these three might be due by the Common-Law the two latter by custom the former by common right although mentioned from the late disaster of King Richard which King John might with shame enough remember and expect the same measure from the censure of an unquiet conscience I shall not enter into debate concerning the omission hereof in the later Charters possibly it might seem a tautology Nor concerning the restriction as if it did imply that the Burgesses had Vote only in cases of general assesments but shall leave it to the consideration of the Reader No Distress shall be taken for greater service or other matter than is due Distresses are in nature no other than a summons in act or the bringing of a man to answer by seizure of part of his Goods and it was used by the Saxons as hath been shewed and because the rich men under colour of seeking their right many times sought for wrong and though they could not prevail in the issue yet prevailed so far that the Defendant could not escape without charge and hinderance therefore the Law provided a Writ of remedy against unjust vexation which Glanvil remembreth us of and yet because that remedy also carried with it matter of charge and disturbance to the Plaintiff and so the remedy might be worse than the disease therefore the Law defined distresses by circumstances of person matter time and place under penalties of fine and amercement besides the recompence to the party first it must not be taken but by leave from the Kings Court unless in case of matters due by common right and upon complaint made by the Plaintiff The King sent out a Summons in this manner Henricus Rex Ang. Hominibus Abbatis de Ramsey salutem Precipio quod cito juste reddatis Abbati Domino vestro quicquid ei debetis in censu firma debitis placitis quod si nolueritis ipse vos inde constringat per pecuniam vestram And in all cases of matters due by common right the distress never was done in an arbitrary way but by Judicial Act in the Lord's Court. Secondly no distress for suit shall be made out of the Fee nor against any person but such as are of that Fee. Nor shall any distress be made in the King's High-way or open street but by the King's Officer and special Writ because distress is incident to service and that is due as from the Fee and therefore by common right the same must be recovered from the Fee and such as owe service in the same but the High-way or open street are more properly a Franchise belonging to the King although the Soil haply may be the Lords And therefore it was an old Law that they should be under the King's safeguard Sit pax publica per communes vias and no violence must be there tolerated but by the King 's special Writ which presupposeth the especial notice taken by the King of the nature of the occasion A moderation also must be observed in the taking of the distress for it must not be excessive and also in keeping thereof for if the owner will he may replevy the same according to the ancient course and the Sheriff must grant replevy if it be demanded although formerly no replevy was without special Writ and yet that also not always readily obeyed for the times were such as the Lords were bold with the King's Courts and Ministers and refused the order of the Law. Now in such cases wherein the matter concerned contempt of the King's Authority a Fine was set upon the Offender but in case it concerned onely a Tort done to the party he was amerced The one is called Redemption because the penalty otherwise must lie upon the person if it be not redeemed by pecuniary Fine the other is called Amercement which is originally a satisfaction unto the party wronged by recompence out of the personal Estate of the Delinquent Thirdly as touching the matter of the distress it must not be of Plough beasts or Sheep unless in case of damage fesant if other distress may be had for the Law had a care of such Cattel as were most of publick concernment and which was the main stock of subsistence so far as Justice would allow And therefore the unjust taking of any man's Cattel by any person whatsoever is liable to the same penalties that unjust distresses are Fourthly concerning the using of the distress it must not be sold no not in the King's case till fifteen days be past after it is taken nor must it be carried out of the County but it must be so impounded as the owner may come to feed it and it must be discharged if the owner give security of satisfaction before the return of the Writ Fifthly the intent of the distresses must be that which is just and therefore not for other suit than by the Feoffment is due or else by Prescription and in case many are joyntly seized the suit shall be by one and the rest shall contribute Nor must any man be compelled to shew his Title to his Land by distress The Common-pleas shall be holden in one certain place The Office of Judge of the Common-pleas was in my opinion distinct and several from that of the Crown-pleas nor though one and the same man might execute both Authorities doth it therefore follow that it was by one and the same power as if being Judge he had thereby power in all matters of the Common-pleas and also of the Crown For though it be true that Bracton saith The King hath one proper Court wherein are the Chief Judges which both by his own Testimony and Briton's also did hear and determine Causes of all sorts yet is it true also that it was by Appeal or Writ of Errour as in case of false Judgment and that the King had plures curias which doubtless had their proper work And in the time of Henry the second it is clear that six were especially assigned for the Common-pleas throughout the whole Realm and yet by another especial Commission or Letters-Patents the same men might also have power to determine matters of the Crown as at this day in their several Circuits This Law therefore doth not as I conceive work any alteration but onely in this that whereas formerly the Judges of Common-pleas attended on the King's Court continually as all other Judges did and whither the King removed they did the like which was a great uncertainty and grievance unto the Commons henceforth they are fixed to a certain place Assize of Novel Disseisin and Mortdancester shall be determined in the proper County onely and by the Justices itinerant sent by the King or his Chief Justices The Law was so declared in Henry the second 's
time and was questionless put in practice so far forth as with convenience to the Judges might be but now the convenience of the people is preferred and they must not be brought up to the King's Court but the Justices must come down to them And yet in case of difficulty the Bench where the Common-pleas are holden must determine the matter and where the time in the Iter in one County is too scant the Remanets shall be adjourned over to be tryed elsewhere in that Circuit which sheweth that the Judges itinerant had their time proportioned out to every County These Tryals also were so favoured as in the then holy times of Advent and Septuagessima or Lent they might be tried which although it was gained by Prayer made by the King to the Bishops as the words of that Law are concluded yet it shews that the Parliament had so much light as to hold the time not inherently holy but meerly sequestred by the Will of the Clergie The Plaintiffs also in Mortdancester may be divers if there be divers Heirs of one Ancestor by one Title And if there be joynt-Tenants and the Writ be against but one and the same pleaded the Writ shall abate but if joynt-Tenancy be pleaded and the Plea be false the Defendant shall be fined and imprisoned And if in the Action the Verdict be for the Plaintiff he shall recover Damages Darrein presentment shall be taken onely in the common Bank. Tryals in the common Bank or other Courts at Westminster have ever had an honourable esteem above those in the County by Nisi prius although all be equally available This might be one cause why the Titles of Churches were still retained at the common Bank whenas all other rode Circuit for that Churches affairs in those times were of high regard Speed of Tryal also was not little regarded herein for Justices by Nisi prius properly were but for enquiry till the Statute at Westm the second made them of Oyer and Terminer in the cases of Quare Impedit and Darrein presentment and gave them power to give Judgment And thus the Commons gained still in point of conveniency Free-men shall be amerced according to the degree of the fault saving to them their Free-hold and to Merchants their main Stock and to Villains their Waynage and Clergie-men shall be amerced according to their Lay-fee Barons shall be amerced by their Peers others by the Vicinage In this regard is to be had first of the persons that are to be amerced then of the parties by whom and lastly of the nature and quantity of Amercements The persons amerced are ranked into four Classes Barons Clergie Free-men and Villains But in regard of the parties by whom they are to be amerced they are but two Barons and Free-men for the Clergie Villains and Free-men are to be amerced by the Free-men of the Neighbourhood In what Courts these Amercements shall be the Stat. Marlbr tells us not before the Escheator nor other that make enquiry by Commission or Writ nor before the Justices of Assize or Oyer and Terminer but onely before the Chief Justices or Justices itinerant The Statute of Westminster adds a fifth Classis of Cities and Towns by express words which seems not so necessary unless in pillaging and oppressing times for they were taken to be within the Statute of Magna Charta though not therein named The rule of the quantity of Amercements is now set down in general and left to the discretion of the Peers or Vicinage which formerly by the Saxons were specially set down in the Law. The rule in general is with a ne plus ultra viz. not further or more than that the party amerced may spare and yet hold on in the maintenance of his course according to his degree And it must be also according to the quantity of the offence for the greatest Amercements must not be ranked with the least offences so as in every degree the main sustenance of the party is saved yea the Villains however mean they be they must have their maintenance And this sheweth that Villains had a maintenance which was under the protection of the Law and not under the gripe of their Lords to all intents unless they were the Kings Villains who it seemeth were meerly under the Kings mercy as being both their Lord and King against whom they could hold nothing as properly their own And therefore in all other cases even then the Villains were born under a kind of liberty as in the Saxons time formerly hath been declared which the Law protected against their own Lords No man shall be compelled to make repair or maintain any Bridges Banks or Causies other or otherwise than they were wont to be made repaired or maintained in the time of Henry the second The limitation to the times of Henry the second sheweth that his Justice was such as maintained the common rights of men but in the times of Richard the first and more especially of King John those Rivers Waters and Fishings formerly used in common were encroached upon enclosed and appropriated to particular mens uses which occasioned many Bridges Banks and Causies to be made and repaired to the great charge of private men all which are discharged by this Law. No Sheriff Constable Coroner or other Bayliff shall hold any Pleas of the Crown Escheators are also expressed in the old books of Magna Charta and the Abridgements however it seemeth that it is within the intent of the Law which was made to avoid the extraordinary oppression that these Officers exercised upon the people For Escheators under colour of inquiry of Estates of men would enquire of matters concerning the lives of men and Sheriffs that had power of Tryals in cases of Theft as hath been already shewn abused the same for their own benefit because in such cases they had the forfeitures This Law therefore takes away such occasions viz. from the Sheriffs and Coroners and Bayliffs or Justices other than by express commission thereto assigned all power to hold Pleas of the Crown by tryal leaving unto them nevertheless power of enquiry of which anciently they had the right If the Kings Tenant dieth supposed in arrear an Inventory shall be made of his Stock by honest men but it shall not be removed till Accounts be cleared and the overplus shall go to the Executors saving to the Wife and Children their reasonable part The first clause hereof was a Law in Henry the first 's time and a customary Law in Henry the second 's time being a remedy against an old Norman Riot of the Lord's seizure of the whole personal Estate of the party deceased under colour of a Law. The second part concerning the overplus hath this additional subjoyned in the Charter of King John If any Free man die intestate his Chattels shall be divided by his Parents and his Friends in the presence of
the Church saving to every one their proper debts And thus since the Conquest the Church-men encroached by degrees unto a great power in matters Testamentary I say by degrees for as yet by this Law it appeareth that they were but Overseers or Eye-witnesses for as yet right of ordering or disposing they had none as may appear in that case of a Bastard dying without Issue and intestate the Lord shall have his personal Estate And in all cases the Executor had then nothing but bare Assets and the overplus was assigned between the Wife and Children according to their reasonable part Or if the party died intestate the next friends did administer paying the Debts and making Dividend of the overplus into the reasonable parts according to the ancient Saxon custom still continued Nor doth the testimony cited out of Bracton prove any other than that the Ancestor hath free power to order his Estate as he pleaseth and that the Children shall have no more than is left unto them by their Ancestor either in his Will or in case of dying intestate by the custom or Law which is and ever was the rationabilis pars No purveyance for any Castle out of the same Town where the Castle is but present satisfaction must be made and if in the same Town satisfaction must be made within forty days Purveyance was ancient provision for the necessities of the publick and so far was commendable seeing it is not the common case of all men to regard the publick above their own private interest therefore the publick must provide for it self by their means in whom the publick is most concerned And this was in those elder times but in two cases viz. of Kings and Castles in the one of which the Government is principally concerned in the other the publick defence For it may be well conjectured that Castles were either first made in places commodious for habitation and great Towns gathered to them for their better safety or that the Towns were first gathered in places of commodious habitation and then Castles were made for their better defence Or if they were imposed upon them by the Victor to keep them in awe they were nevertheless by continuance together become tractable and conspired for the mutual defence of each other But as touching such Cittadels or Castles that were set in solitary places they may seem rather first intended for the particular defence of some particular Man and his Family and neighbouring Tenants and therefore in the purveyance for Castles it seems the proper Town wherein it is principally liable to that duty because their safety is more principally interested and therefore Prizes there taken may be paid at a day to come but in all other places immediately Nevertheless this lasted not long for the Souldiers found out a trick of favouring their own Quarters and preserving them in heart against a back Winter knowing that at such times it is better to seek for provision nigh than to be compelled to seek far off But this Stratagem was cut off by the next King who inhibited all manner of purveyance in any other Town than in the same Town wherein the Castle is seated This was a charge that was but Temporary and occasional That which was more lasting and burthensome upon the Subjects was purveyance for the King which nevertheless cannot be avoided by reason of the greatness of his Retinue especially in those days and if they should have their resort to the Market the same could not be free to the people for that the first service must be for the Kings Houshold and so what scraps will be left for the Commons no man can tell It was therefore necessary for the Kings Family to be maintained by purveyance and to avoid the many inconveniencies which might and did arise in those spoiling times It was ordained 1. That it should be Felony for any Purveyor to purvey without Warrant 2. That none but the Kings Purveyor must purvey for the Kings house and that he must purvey onely for the Kings house and to purvey no more than is necessary and to pay for the things they take And because Kings were oftentimes necessitated for removal from place to place purveyance of carriage was also allowed And in case the Subjects were grieved either by more purveyance than was necessary or by non-payment for the Commodities so taken or with composition for the Kings debts for such purveyance the Offenders were liable to fine and imprisonment Or if they were grieved by Purveyors without Warrant the Offender was to be proceeded against as in case of Felony He that serveth in Castle-guard is not liable to payment of Rent for that service nor is be compellable to either so long as be is in the service in the Army By the ancient custom none but a Knight might be charged with the guard of a Castle belonging to the King for the letter of this Law mentioneth onely such and therefore to hold by Castle-guard is a Tenure in Knight-service And it seemeth that Rent for Castle-guard originally was consistent with Knight-service and that it was not annual but promiscuously Knights might either perform the service or pay Rent in lieu thereof and upon occasion did neither if the King sent them into the field And lastly that a Knight might either do the service in his own person or by his Esquire or another appointed by him thereto No Knights nor Lords nor Church-mens Carriages nor no mans Wood shall be taken against the Owners consent nor shall any mans Carriages be taken if he will pay the Hire limited by the Law. Church-men were exempted from charge to the Kings Carriages meerly in favour to the Canon which exempted the Goods of the Clergy from such Lay-service nevertheless the complaints of the Clergie formerly mentioned shew that this was not duly observed Knights and Lords were discharged not onely for the maintenance of their Port but more principally because they were publick servants for the defence of the Kingdom in time of War and the Kingdom was then equally served by themselves and their equipage and their carriages as a necessary assistant thereunto The King shall have no more profit of Felons Lands than the year and a day and the Lord is to have the remainder Anciently the Lords had all the Estate of Felons being their Tenants and the King had onely a Prerogative to waste them as a penalty or part thereof but afterwards the Lords by agreement yielded unto the King the year and a days profit to save the Lands from spoil and in continuance of time the King had both the year and day and waste Fugitives also were in the same case viz. such as deserted their Country either in time of need or such as fled from the Tryal of Law in criminal cases for in both cases the Saxons accounted them as common Felons Nevertheless the two customs of Gloucester
legem apparentem se purgare nisi prius convictus fuerit vel confessus in curia and therefore no man ought to be urged upon such difficulties unless by the express Law of the Land. The old way of Trial was first to bring in a Complaint and Witnesses ready to maintain the same and therefore both Appeals and Actions then used to conclude their pleas with the names of Witnesses subjoyned which at this day is implied in those general words in their conclusions Et inde producit sectam suam that is he brings his sect or suit or such as do follow or affirm his complaint as another part also is implied in those words Et hoc paratus est verificare For if the Plaintiffs sect or suit of Witnesses did not fully prove the matter in fact the Defendant's Averment was made good by his own Oath and the Oaths of Twelve men and so the Trial was concluded No Free-man shall be imprisoned or disseised of his Freehold or Liberties outlawed or banished or invaded but by the Law of the Land and judgement of his Peers Nor shall Justice be sold delayed or denied This is a comprehensive Law and made up of many Saxon Laws or rather an enforcement of all Laws and a remedy against oppression past present and to come And concerneth first the person then his livelihood as touching the person his life and his liberty his life shall be under the protection of the Law and his liberty likewise so as he shall be shut into no place by Imprisonment nor out of any place by Banishment but shall have liberty of ingress and egress His Estate both real and personal shall also be under the protection of the Law and the Law also shall be free neither denied nor delayed I think it needless to shew how this was no new Law but a confirmation of the old and reparation added thereto being much impaired by stormy times for the sum of all the foregoing discourse tendeth thereto Merchants shall have free and safe passage and trade without unjust Taxes as by ancient custome they ought In time of War such as are of the Enemies Countries shall be secured till it appear how the English Merchants are used in their Countries That this was an ancient Law the words thereof shew besides what may be observed out of the Laws of Aetheldred and other Saxon Laws So as it appeareth that not onely the English Free-men and Natives had their liberties asserted by the Law but also Forreiners if Merchants had the like liberties for their persons and goods concerning Trade and maintenance of the same and were hereby enabled to enjoy their own under the protection of the Law as the Free-men had And unto this Law the Charter of King John added this ensuing It shall be lawful for every Freeman to pass freely to and from this Kingdom saving Fealty to the King unless in time of War and then also for a short space as may be for the common good excepting Prisoners Outlaws and those Country-men that are in enmity and Merchants who shall be dealt with as aforesaid And it seemeth that this Law of free passage out of the Kingdom was not anciently fundamental but onely grounded upon reason of State although the Freemen have liberty of free passage within the Kingdom according to that original Law Sit pax publica per communes vias and for that cause as I suppose it was wholly omitted in the Charter of Henry the Third as was also another Law concerning the Jews which because it left an influence behind it after the Jews were extinct in this Nation and which continueth even unto this day I shall insert it in this short sum After death of the Jew's debtor no usury shall be paid during the minority of the Heir though the debt shall come into the King's hand And the debt shall be paid saving to the Wife her Dower and maintenance for the Children according to the quantity of the Debtors Land and saving the Lord's service and in like manner of debts to others The whole doctrine of Vsury fell under the Title of Jews for it seemeth it was their Trade and their proper Trade hitherto It was first that I met with forbidden at a Legatine Council nigh 300 years before the Normans times but by the Confessor's Law it was made penal to Christians to the forfeiture of Estate and Banishment and therefore the Jews and all their substance were holden to be in nature of the King Villains as touching their Estate for they could get nothing but was at his mercy And Kings did suffer them to continue this Trade for their own benefit yet they did regulate it as touching Infants as by this Law of King John and the Statute at Merton doth appear But Henry the Third did not put it into his Charter as I think because it was no liberty of the Subjects but rather a prejudice thereto and therefore Edward the First wholly took it away by a Statute made in his time and thereby abolished the Jews Tenants Lands holden of Lands escheated to the King shall hold by the same services as formerly In all alienations of Lands sufficient shall be left for the Lords distress Submitting to the judgement of the learned I conceive that as well in the Saxon times as until this Law any Tenant might alien onely part of his Lands and reserve the services to the alienor because he could not reserve service upon such alienation unto the Lord Paramount other than was formerly due to him without the Lord's consent and for the same reason could they not alien the whole Tenancy to bind the Lord without his express license saving the opinion in the book of Assizes because no Tenant could be enforced upon any Lord lest he might be his Enemy Nevertheless it seemeth that de facto Tenants did usually alien their whole Tenancy and although they could not thereby bar the Lord's right yet because the Lord could not in such cases have the distress of his own Tenant this Law saved so much from alienation as might serve for security of the Lord's distress But Tenants were not thus satisfied the Lords would not part with their Tenants although the Tenants necessity was never so urgent upon them to sell their Lands and therefore at length they prevailed by the Statute of Quia emptores to have power to sell all saving to the Lords their services formerly due and thus the Lords were necessitated to grant Licenses of alienation to such as the Tenants could provide to buy their Lands Nor was this so prejudicial to the Lords in those days when the publick quiet was setled as it would have been in former times of War whenas the Lord's right was maintained more by might and the aid of his Tenants than by Law which then was of little power The 35th Chapter I have formerly mentioned in the Chapter concerning
for the most part are but for enquiry All which saving the Justices itinerant in ancient use were instituted about these times and therewith ended both the work and common use of the ancient iters and yet all these later Courts joyntly considered have not the like comprehensive power that the iters had for they had the power of hearing and determining all causes both of the Crown and Common-pleas albeit in a different manner That is to say in the first times promiscuously united into one and the same person but soon after the Norman times and more clearly in the time of Henry the Second that power was divided into several persons some sitting upon the Common-pleas others upon the Crown-pleas The Judges of these journeying Courts were specially assigned by the King as in the case of the Gaol-delivery or setled by the Law upon the Judges of both Benches at Westminister as in case of Oyer and Terminer and of the Assizes or Nisi prius saving that in the last case they were associated with Knights in the Counties for the taking of Assizes Now concerning the Courts that were setled some were setled or annexed to the King 's personal residence as the Chancellor's Court for in these times it began to have a judiciary power of eminent stature and growing out of the decays of the great chief Justice of England Then also the Kings-Bench was annexed by the same Law unto the Kings Court or personal residence as it anciently ever had that honour although it seems the endeavours were to make it like the Common-pleas in that particular Another and last Court that was setled in this manner was the Marshals Court which in the original onely concerned the Kings houshold but afterwards compassed in a distance of the neighbouring places because the Kings attendants were many in those times whenas the Courts of Justice continually attended on his person and this precinct was called the Verge and all cases of debt and covenant where both parties were of the Houshold and of Trespasses vi armis where one of them was of the Houshold were handled in the Court of the Verge or the Marshals Court. And Inquests of death within the same shall be taken by the Coroner of the County with the Coroner of the Houshold Other Courts were rural and affixed also to some certain place either of the County or Town or other particular place That of the County suffered in these times great diminution even almost to destruction by a Law restraining the power thereof onely to Trespasses of 40 s. value or under for though formerly the Kings Justices incroached upon the County-Courts and contracted suits before themselves which by the ancient Law they ought not yet it was ever illegal and the County-Courts held their right till this Law was made which kept under those inferiour Courts and made them of less account than formerly Nevertheless the Kings Justicies or Writ to the Sheriffs oftentimes enableth the inferiour Court to have cognizance of cases of greater value Lastly a rule was set to the smaller Courts of Corporations Fairs and Markets viz. That no person should be sued in any of them which was not a debter or pledge there CHAP. LXIX Of Coroners Sheriffs and Crown-pleas COroners shall be chosen in the County from the wisest greatest and chief men of the Country Of these Officers formerly hath been spoken as touching their election qualification and work this Law brought in no change of any former Law but onely of a former Custom gained by these degenerating times which brought men into place that were far unfit who otherwise of poor and mean condition maintained themselves by bribery and extortion and being found guilty had not sufficient to give recompence This Law therefore revives the first Law and holds these men to their work of taking Inquests and Appeals by Indenture between themselves and the Sheriff and these were to be certified at the next coming of the Justices The Free-holders in every County if they will shall elect their own Sheriff unless the Sheriffwick be holden in Fee. This was indeed the ancient custom as the Officers of the Kingdom were elegible by the Common-council of the Kingdom so were all the Officers of the County chosen by the County But within a few years in the time of Edward the Second comes another Law That the Sheriffs shall be appointed by the Chancellor Treasurer Barons of the Exchequer and the Justices Which Law was made in favour of the people as by the file of that Statute doth more fully appear for though at the first blush it may seem a priviledge lost by the Freemen that these great men should have the election of the Sheriff yet it proved a great advantage to the common quiet of the people in those times of parties and was so apprehended Otherwise as the case stood in those days of Edward the Second it was no time for him to gain upon the peoples Liberties Nor had the Statute of Articuli super cartas whereof we how treat been penned with these words if they will. And questionless in these days we now live in if the people had but a little taste of this seeming liberty of electing Sheriffs in the County-court as formerly it was used it would be soon perceived that the election of these chief Officers were better disposed in some other hand if rightly pursued Homicide by misfortune shall not be adjudged murder That the Saxons made difference between Homicide by misfortune and that which was done felleo animo or with a spirit of gall formerly hath been shewed now what it was that altered the case I cannot say unless the violence cruelty and oppression of the times Formerly all kind of Manslaughter was finable I mean in the Norman times and so might more rationally be ranked into one degree but now the punishment began to change from forfeiture of Estate and loss of Member to death and forfeiture of Estate and therefore it was more necessary to make the difference in the penalty seeing in the fine formerly a difference was observed and this difference to assert by a Law that might limit the invenomed spirits of the Judges of those days Robbery punished by death This crime hitherto was punished by fine and loss of member at the utmost but is now made capital and punished with death One example whereof and the first that Story maketh mention of we find of an Irish Nobleman in the days of Henry the Third who suffered death for piracy and it was a Law that then though rigorous yet seasonably was contrived to retard the beginnings and hasten the conclusion of a Civil War in a Nation who value their Estates and Liberties above their own lives Rape upon the complaint of the party violated made within forty days shall have right If the Delinquent be convicted without such complaint made he shall be fined
waxing weak by the weakness of their Estates now wasted by the Civil Wars therefore in Edward the Second's time a Law was made to restrain the Felony in such cases onely to the breach of Prison by such as were committed for Felony And as touching Imprisonment upon Excommunication it is manifest that within five years before the making of this Law it was complained that such were set at liberty by the King 's Writ de homine replegiando without the Bishop's consent But now the Clergie had gotten the day of the Law which did much decline from that guard of imprisonment but hated perpetual imprisonment Nor was this complaint grounded upon any other Law than that of the Canon for the Common Law ever held the supreme cognizance of Excommunication within its own power as upon the Writ de quare excommunicato may appear Other crimes are yet also by this Law allowed bail such as are persons indicted of Larceny before Sheriffs c. persons imprisoned upon slight grounds Receivers and Accessories before Felony Trespassers persons appealed by provers after the death of the approvers If bail be granted otherwise than the Law alloweth the party that alloweth the same shall be fined imprisoned render damages or forfeit his place as the case shall require And thus the iniquity of the times was so great as it even forced the Subjects to forgo that which was in account a great liberty to stop the course of a growing mischief Publishers of false News whereby discord or slander may arise between the King and his people shall be imprisoned till he produce the Relator It is therefore an offence against the Crown to procure or maintain an ill conceit in the King of the people or an ill conceit in the people of the King and it is as well an offence against the Crown for the King to conceive ill of his people as for them of him But all must be grounded upon falshood for truth respects no man's person and all men are equally bound by the woe if they call good evil or evil good although difference must be made in the manner of representation And upon this ground of maintaining strife was a Law made also against Conspiracy to make or maintain Indictment Suit or Quarrel and it was likewise finable Redisseisors and postdisseisors found upon verdict before the Sheriff Coroners and Knights shall be imprisoned Formerly Redisseisin was under no other Law than that of Desseisin but by this Law made a matter belonging to the Crown and tried before the same Judges that had the power of enquiry of all offences against the Crown The penalty of imprisonment in this case was to be without bail but onely by the King 's Writ de homine replegiando and yet even thus the penalty was not sufficient to restrain the offence and therefore a Law was made to abridge the power of that Writ as touching such offender and they became irremediable as touching their liberty by that Writ besides that upon recovery had against them they lost double damages Trespassers in Parks and Fish-ponds convicted within a year and a day shall render damages suffer imprisonment for three years and give security of good behaviour for time to come If any Beasts be taken in a felonious manner he shall be proceeded against as a Robber From the times of King Steven the Lords and great men endeavoured to advance their power and greatness so high above the meaner sort of Free men as they made Kings continually jealous of their power Castles had been a bone of long contention between them but they being for the most part taken away the strife was about Prisons and power to imprison offenders and that also after much opposition they laid aside Yet the violence of these times being such as though Felonies were somewhat dreaded Trepasses of the highest nature were little regarded such as were riotous hunting in their Parks and fishing in their Waters The Lords and great men made it their last request that at least in such cases they might have power to imprison such as they found so trespassing but this was also denied them though by Henry the Third in his first time when as yet the Government was not worsted by projects of Arbitrary power or corrupt Counsels of Forreigners nor himself a man able to sway with the Lords in matters that were of doubtful prerogative And to speak indifferently it is better for the Liberty of the Subject that the power of imprisonment should be regulated onely by the Kings Writ ordered by Law than by the Warrants of great men especially in their own cases and therefore in this matter the Kings Prerogative was a patron to the Free mens liberty Nevertheless these great men give not thus over their game for though in times of publick calamities little place is left for pleasure to any man yet when times are grown to more quiet pleasure revives and the great men renew their motion and though they could not obtain prisons to their own use as they endeavoured at the meeting at Merton yet now they obtain the Kings prisons to the use of a Law that was as good as their own and thereby satisfied their own displeasure for the loss of their pleasure And yet this Law sufficed them not but they obtain a further priviledge that such persons as are found so trespassing and refusing to submit may be killed without peril of Felony CHAP. LXX Of the Militia during these Kings Reigns THe Souldiery of England may be considered First in regard of the Persons Secondly their Arms. Thirdly their Service The persons were as formerly not onely such as were milites or Tenants in Knight-service but also such as served at the Plough and concerning them both it is to be considered what the Law made by Edw. the 2 d. holdeth forth All such as ought to be Knights and are not shall be distrained to undertake the weapons of Knighthood if they shew not cause to the contrary Regularly all Tenants by Knight-service ought to be Knights but de facto were not so as in these times there was a further work to make a man a Knight than his bare Tenure for such onely were milites facti who had both Lands sufficient to maintain the Arms and state of a Knight and also a body fit to undertake the service in his own person and whereof he had given sufficient proof the field Others that had Land either had not sufficient maintenance or not habiliments of person and as not expected were laid aside of this sort were many by reason of the late Civil Wars in which they had much impaired both their bodies and Estates This rendred the strength of the Kingdom and Militia so much decayed and the minds of men so wearied that they began to love ease before the times would brook it and a cessation from Arms before they had any mind to peace The Parliament
with certain select persons in every County did administer Justice in several Iters or Circuits so when Kings had once gotten the name of being chief in civil affairs as they had it in martial they soon left the Lords behind them who also were willing enough with their own case and had the name of doing all notwithstanding it was done by advice of the Lords and directory of Ministers or Commissioners thereto deputed And thus that Peace which formerly passed under the Titles of Pax Domini pax Vicecomitis which is pax Regni became by eminency swallowed up in that which was called the Kings Peace and the Justices called the Kings Justices and himself flattered into that Title of Fountain of Justice which belongeth onely to him that is The Most High or Chief Law-giver The manner how this honourable care of the Safety and Peace of the Kingdom was employed may be referred to a double consideration the one in execution of Justice upon Delinquents the other in preventing occasions of offence or delinquency by means whereof the publick Peace might be endangered The first was acted diversly according to the present sence of affairs for what was at first done by the Princes in their Circuits with one hundred of the Commons called Comites and that done per pagos vicosque was afterwards done by itinerant Judges sent from the King for the greatest matters and by Lords in their Leets Governours or chief Magistrates of Towns in their Courts and Sheriffs in their Torns as Judices stati for the ease of the people in matters of less moment I say I conceive it was in the Torn for I suppose no emergent Court taken up upon occasion could by the Law draw a necessity of a sudden appearance of all above twelve years of age at the same And for the same cause it seemeth that one certain Torn every year was holden for inquiries of Homicide unto which all above twelve years of age were to come except Barons Clergie and Women or otherwise all such had been bound to attendance on every Torn Nevertheless the work of the Torns continued not to hear and determine as anciently they had done For in Henry the third's time and formerly divers men had Prisons to their own use some as Palatines others as Lords of Franchise and others by power and usurpation and had the benefit of all Fines incident and by this means many were fined that deserved it not and some also that deserved worse To prevent which evil Henry the third took away that power of holding Crown-pleas And Edward the first took away their power to determine Escapes and left them onely the power of inquiry and to certifie at the next coming of the Justices But these injurious times had holden too long to be forgotten or laid aside by such cool pursuit Men were still ordinarily imprisoned and so continued oftentimes till the coming of the Justices itinerant For whereas in case of Bloudshed the Writ de odio atia was a remedy the other had no remedy but by procuring a Commission of Oyer and Terminer which ordinarily was a cure worse than the hurt As a remedy hereof Edward the first found out the new way of making Justices of Peace as may appear by the Statute at Winton which Law being purposely made for the conserving of the Peace providing for penalty of Crimes already committed as well as for the suppressing of future ordaineth That offences against that Law shall be presented to Justices assigned to enquire thereof and though these at the first might be itinerant yet it soon made way to resiant And before that Statute it seemeth the King had found out the way if that Note be true which is left revived into memory by that honourable Reporter which relating to the sixth year of Edward the first saith That then prima fuit institutio justiciariorum pro pace conservanda And yet some semblance there is that it was yet more ancient even in the time of Henry the first if I mistake not the sence of that clause in his Laws concerning Vagabonds he ordereth that they shall be carried Justiciae quae praeest although the Language be not so Clerkly as to speak the sence out Now though their Work as yet was but in tryal and they were onely trusted with power of inquiry yet it induced a new way wherein the Sheriff was not so much as intrusted to intermeddle and which not onely intermitted the course of his proceedings in such matters but also led the way to the dispoiling of the Sheriff's Torn and Lord's Leet of that little remainder that was left them of Judicatory power in matters that were against the Peace and made their Inquisitory power less regardful and eased the Justices itinerant of much of their Work in regard they were speedily to certifie up to the King and so these matters should be determined in Parliament according as those Justices were elected in Parliament who as it seems were jealous of giving the power of determining those offences into any sudden hand To sum up then the first part as touching the punishment of offences against the Peace the wheel is now in the turning the Leets and Torns begin to be slighted the labour of the Justices itinerant lessened the Commissions of Oyer and Terminer disused by the bringing in of a new Order of Justices for the Peace especially appointed and the Parliament as the supreme Providers left as the reserve for the asserting and maintenance of the same albeit that under it the power of determining much rested upon Justices or Judges that attended the King's Court after that the Common-pleas were setled and confined to a certain place The preserving of the Peace for the future consisted in preventing and suppressing Riots Routs unlawful Assemblies and in apprehending and securing of such as were actors and contrivers of such designes and other Malefactors And herein we are to consider 1. The Laws 2. The Means 3. The executive power Concerning the first there is no question to be made but that the power of making Laws for the maintenance of the Peace rested in the Parliament although endeavour possibly might be used to settle the same in the sole order of the King 's own person and therefore we find not onely the assize of Arms but generally the substance of the Statute at Winton to be formerly taken up by Proclamation by Kings predecessors to Edward the second who first that I can find put the same into force of a Law by Parliament finding by experience that Proclamations may declare the King's Mind but not command the Peoples Wills although peradventure the thing enjoyned was of ancient use and little inferiour to Custom or Common Law. Such are the Distempers of Civil Broils that bring up Peace in the rear as a reserve when their own strength is wasted rather than out of any natural inclination thereto A brief
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
concerning Calvin's Case fol. 45 IX Of Courts for Causes criminal with their Laws fol. 54 X. Of the course of Civil Justice during these times fol. 56 XI Of the Militia in these times fol. 58 XII Of the Peace fol. 62 XIII A view of the summary courses of Henry the Fourth Henry the Fifth and Henry the Sixth in their several Reigns fol. 68 XIV Of the Parliament during the Reigns of these several Kings fol. 75 XV. Of the Custos or Protector Regni fol. 79 XVI Concerning the Privy Council fol. 83 XVII Of the Clergie and Church-government during these times fol. 86 XVIII Of the Court of Chancery fol. 95 XIX Of the Courts of Common-pleas and Common Law. fol. 97 XX. Concerning Sheriffs fol. 98 XXI Of Justices and Laws concerning the Peace fol. 99 XXII Of the Militia during these times fol. 102 XXIII A short Survey of the Reigns of Edward the Fourth Edward the Fifth and Richard the Third fol. 106 XXIV Of the Government in relation to the Parliament f. 109 XXV Of the condition of the Clergie fol. 112 XXVI A short sum of the Reigns of Henry the Seventh and Henry the Eighth fol. 113 XXVII Of the condition of the Crown fol. 118 XXVIII Of the condition of the Parliament in these times fol. 130 XXIX Of the power of the Clergie in the Convocation f. 134 XXX Of the power of the Clergie in their ordinary Jurisdiction fol. 136 XXXI Of Judicature fol. 141 XXXII Of the Militia fol. 143 XXXIII Of the Peace fol. 148 XXXIV Of the general Government of Edward the Sixth Queen Mary and Queen Elizabeth fol. 152 XXXV Of the Supream power during these times fol. 157 XXXVI Of the power of the Parliament during these times fol. 162 XXXVII Of the Jurisdiction Ecclesiastical during these last times fol. 166 XXXVIII Of the Militia in these later times fol. 168 XXXIX Of the Peace fol. 173 XL. A summary Conclusion of the whole matter fol. 174. THE CONTINUATION OF AN Historical and Political Discourse OF THE Laws Government OF ENGLAND THE former times since the Norman entry like a rugged Sea by cross Winds of Arbitrary Vapours in and about the Crown and by Forrein Engagements from the holy Chair made the true face of affairs cloudy and troublesome both for the Writer and the Reader Henceforward for the space of Three hundred years next ensuing Kings by experience and observation finding themselves unequal to the double chace of absolute Supremacy over the sturdy Laity and encroaching Clergie you will observe to lay aside their pretensions against the Peoples Liberties and more intentively to trench upon the Spiritualty now grown to defie all Government but that of Covetousness Nor would these times allow further advantage to Kings in this work they being either fainted by the ticklish Title of the Crown hovering between the two Houses of York and Lancaster or drawn off to forrein employments as matters of greater concernment for the present well-being of the Kingdom or for the spreading of the fame of such as desired to be renowned for valiant men It will be superfluous to recount the particular atchievements formerly attained by these Ecclesiastical men the former Treatise hath already said what was thought needful concerning that For the future I shall even premise this that the ensuing times being thus blessed with a Truce or stricter League between the Kings and Commons the errours in Government more readily do appear the corruptions in natures of men more frequently discover themselves and thereby the body of the Statute-Laws begins to swell so big that I must be enforced to contract my account of them into a narrower compass and render the same unto the Reader so far forth only as they shall concern the general stream of Government leaving those of privater regard unto every mans particular consideration as occasion shall lead him For whatever other men please to insist upon this I take for a Maxime That though the Government of a King is declared by his Actions yet the Government of a Kingdom is onely manifested by ancient Customs and publick Acts of Parliament And because I have undertaken a general Survey of the Reigns of thirteen several Kings and Queens of this Nation for I shall not exceed the issue of Henry the Eighth and to handle each of them apart will leave the Reader in a Wilderness of particulars hard to comprehend in the general sum I shall therefore reduce them all into three heads viz. Interest of Title Interest of Prerogative and Interest of Religion the last of which swayed much the three Children of Henry the Eighth the second as much in their two Ancestors viz. Henry the Eighth and Henry the Seventh and the first in the three Henries of Lancaster and three succeeding Kings of the House of York And because Edward the Third and his Grand-child Richard the Second do come under none of these Interests I shall consider them joyntly as in way of Exordium to the rest although the course of the latter was as different from the former as Lust falls short of a generous Spirit CHAP. I. A sum of the several Reigns of Edward the Third and Richard the Second SEveral I may well call them because they are the most different in their ways and ends of any two of that race that ever swayed their Scepter and yet the entrance of the first gave countenance to the conclusion of the last For the Scepter being cast away or lost by Edward the Second it was the lot of his Son Edward the Third a youth of Fifteen years of age to take it up he knowing whose it was and feeling it too heavy for him was willing enough it should return but being overswayed by Counsels drawn from reason of State and pressed thereto by those that resolved not to trust his Father any more he wisely chose to manage it himself rather than to adventure it in another hand But that is not all for as it is never seen that the Crown doth thrive after divorce from the Scepter but like a blasted Blossom falls off at the next gale of adversity such was the issue to Edward the Second his power once gone his Honour followeth soon after he had ceased to be King and within a small time did cease to be Edward His Son thus made compleat by his Fathers spoil had the honour to be the Repairer of the ruines that his Father had made and was a Prince which you might think by his story to be seldom at home and by his Laws seldom abroad Nor can it be reconciled without wonder that Providence should at once bestow upon England a courageous People brave Captains wise Council and a King that had the endowments of them all Otherwise it had out-reached conceit it self that this small Island wasted by the Barons Wars the people beaten out of heart by all Enemies in the time of the Father should nevertheless in the time of the Son with honour
wade through so many difficulties of mighty Wars on every side abroad and devouring Pestilence at home and yet lay a platform of an opulent wise and peaceable Government for future Generations Yet he had his failings and misfortunes a great part whereof may be attributed to infirmity of age which in the first part of his Reign was too little and in the latter part too much True it is that Governours of the persons of Kings may in some measure supply defects of Non-age but seldom where the Governours are many and never if they be ambitious And it was this King's fate to miscarry in both for he had in his Youth Twelve Governours by constitution and they two supream by usurpation viz. the Queen and Mortimer till they were both consumed in the flame which themselves had kindled And this disparity wrought somewhat unsuccessfully in the King 's first War For the generosity of his spirit himself being young and active minded his Council to advise him employment in a forrein War rather than they would adventure its motion at home lest it might prove circular which is most dangerous for Government if the Prince be not under command of himself This first War was with Scotland whose power was inferiour to that of France the King young and the danger nearer and therefore though the last affront was from France that more fresh in memory and more poinant yet the King was advised to give place and speak fair till he had tried masteries with Scotland and thereby secured his Rear This he wisely hearkned unto and met with such a successful turn of Providence that like an O Yes before a Proclamation gives warning to Scotland that the Wheel is turned upon them and that there is somewhat more than humane motion in the matter that exasperates the English upon an enterprize so often crossed by Providence hitherto and the King also being but a Souldier in hope as yet to dare against those that had so shamefully foiled his Father and also put himself already once to the Retreat And yet there did concur a kind of necessity of second Causes for the King found the Crown engaged and the minds of the Scots so elate as the English-man's case was not to live to fight but to fight to live and so imbittered against one another by the fierce Wars under the Barons that nothing could quench the fire but the withdrawing of the Brands into Forreign action like some angry spirits that spoil their own bodies unless they chide or fight it out with others In the first brunt with Scotland the King gained nothing but understanding of the humours of some of his great Lords which once purged out he renews the War prevails and after ten years stir wherein he became a trained Souldier against the Scots he wan the Cross and then goes to play his Prize in France to compleat his Crown with the Flower-de-luce Which was the great work of the rest of his Reign in which four parts of five were victorious the fifth and last was declining like some Gamesters that win at the first and for want of observation of the turning of the Dice come off losers at the end For the King being rather satiated than satisfied with Victory and Honour returned home to enjoy what he had leaving his Son the Black Prince to pursue the War and to act the Souldiers alone who now began to honour his Valour above his Father's But the Tide is spent the Prince of Chivalry dies the brave Commanders wasted and the French too sickle to continue subject to the English longer than needs must tack about for another adventure and make it plain That France is too big to be Garrison'd by England and that it will cost England more to hold it than to have it His Religion was more to the purpose than of any of his Predecessors since the Norman times He reâ—lected upon God in common events more ordinarily than the general stream of the Clergie did in those days He loved if not adored devout men and their prayers and yet intentively disclaimed opinion of merits in the Creature He saw the Pope through and through loved him but little feared him less and yet lost neither honour nor power thereby His chief policy at home was to be much at home great with his People and they great with him what the Parliament did he accounted well done he never questioned their power though he was over-reached in questioning their Wisdom For he that shall prefer his own wisdom above that of the Parliament must needs think himself extreamly wise and so much the more to know himself to be such But the worst of his fate was to live to his Winter-age and after fifty years Reign or more to die in his minority under the rule of a woman of none of the best fame after he had enjoyed the honour of greatest note in the Christian world in his days Such was not Richard the Second though the onely Son of that famous Chieftain the Black Prince of Wales a renowned Son of a renowned Father but as a Plant transplanted into a Savage soyl in degree and disposition wholly degenerate retaining a tincture of the light inconstancy of his Mother and the luxuriousness of his great Grandfather Edward the Second and running his course he came to his end His entrance however by colour of Inheritance yet was a greater adventure than his Predecessors that came in by Election upon the designation of his Father by his last Will say some For this man came in upon many disadvantages both of time and person The times were very troublesome the Kingdom new wrapped up in a double War abroad and which is worse flouded with distraction at home contracted partly by his Predecessor's weaknesses in his decrepit estate partly by a new interest of Religion sprung up against the Papal Tyranny from the Doctrine of Wickliff all which required a very wise Man and a brave Commander in both which the King failed Religion now began to dawn through the foggs of Romish Usurpations and Superstitions aided thereto by a Schism in the Triple Crown that continued forty years with much virulancy abroad and with as bad influence upon our Myters at home Some of whom were called Clementines others Vrbanists and yet none of them all worthy of either of the names in their proper signification The Laity though lookers on yet were not quiet For though Liberty be a hopeful thing yet it is dangerous to them that are not a Law to themselves especially in matter of Opinion for that arraigns the Rule and lays the way open to licentiousness And now that the Liberty from the Keys began to be taught as a duty of Religion the inferiour sort meet with Doctrines of licentiousness upon mistake of the notion and will acknowledge no rule now they must be all at liberty And thus sprang up the insurrection of the Servants and Bond-men against their Lords
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
what manner they thought meet and not otherwise Aids are lawful if they be legally given by common consent of Parliament Taxes if legally given by Parliament are no less lawful yet they must be collected in such manner and by such means as the Parliaments Order doth direct Loans of moneys to the King may be made by them that will but the King must not demand them because the Subject hath no means to recover the debt This trick had been lately tryed by Edward the Second much money he got and it was repayed by the Order of the Parliament But of all the rest nothing shewed more absolute Authority in the publick Revenue than the care that was had of the Demesnes of the Crown for whereas the Expxences of Kings grew so vast that neither the yearly Revenue could suffice nor Aids Assessments and Taxes could satisfie however ordinary they in these times were become rather than Kings would contain themselves they would invade their own Demesnes by pawning selling and giving them away either for love or money and thus was poverty treasured up against the future both for King and Crown The Parliament espying this leak that was like to undo all applyed a speedy remedy undoing what was done and undoing some by an Act of Resumption and thereby taught Kings to look to their Honour better for the future and People also to take heed of medling with such ticklish matters and to know that he that hath such in his possession hath them by a crack'd Title that cannot be amended but by Act of Parliament Fourthly an English King is no Out-law nor can he do any wrong though the man may He hath a double relation one as a King the other as a Man and the uniting of both in one person hath cheated many a man of his judgment in the case of Prerogative He hath a double Will and these many times contrary equally as in other Relations and in this contrariety sometimes the King overcomes the Man and sometimes the Man the King so as if any man the King hath much more cause to cry out O miserable man These divers Wills are generally led by divers Rules One of a man which many times reacheth no higher than the Affections and if the man be weak they deserve little better name than Lusts. The rule of a King is Law or Councils of these in place and unto these in all prudentials he must submit his Judgment and Will as he is a King. Nor can he do otherwise unless he will presume to be wiser than his Council Suitable hereunto doth that clause in one of the Statutes of these times conclude viz. That the King is bound by his Oath to pass all Laws that are for the good of the Kingdom For were the power of Election or determination of the point onely in the King then were the Oath in vain nor is the Parliament at all in case of the King's dissent to judge of the convenience or inconvenience of Proposals made for the good of the whole body according to that power which is exercised in these times Nor is it rational to infer here from that if Law and Council be the Rule of a King then the Obedience of the People unto this King must be in order to Law and Council otherwise the Disobedience cannot be determined to be against the King but against the Man and though against the private Will of the Commander yet not against the Law nor therefore can it be said illegal or unjust The Parliament in these times held forth this Doctrine plainly to the World That it is their proper work in Cases needful to do right to such as are wronged by the King his Command is no Warrant in such Cases If a man be wrongfully imprisoned by him he shall be released and set at liberty by them Let his Act be never so authentical under the Broad Seal it can take no man's Right away Richard the Second did his utmost to satisfie and quiet the tumultuous Rabble under Cade and Straw and granted store of Manumissions to the Bond-men by Declaration and by his Letters-Patents but not one of them good enough to deprive any one of the meanest of the Free-men of their Rights in those Bond-men The priviledge of shewing mercy and granting pardon hath been anciently betrusted to the King as an Overseer of the execution of Law yet he hath not that Prerogative To have mercy on whom he will have mercy Ever since this Nation had learned to read the Bible Murther hath been excepted from mercy nor did the Law ever allow any King that Prerogative to pardon that Edward the Third did not challenge any such not onely bound thereto by his Coronation-Oath but by publick Acts of State declaring the same yet because the Parliament was not always sitting and Kings were ever subject to this Temptation to favour Servants by granting mercy to Malefactors a general Rule of Inhibition is made against all pardon to be granted by the King in case of Felony but onely in cases allowed by advice of the Council It is true that in the first times of Richard the Second he liked not to be thus girt in his power which he pretended was more at liberty in his Predecessors possibly he meaned King John and Edward the Second who many times did what they listed yet under his favour no Law was so shameless as to hold forth such a power till Richard the Second's Law countenanced it But why do I call it a Law which is onely a Declaration by consent of the Lords such as then were the Commons would never own such an Opinion And therefore it soon proved abortive for within three or four years by publick Act of Parliament it is peremptorily declared That the King's Pardon shall not extend to Murther So as upon the whole matter it is plain That it is not the King's Will though supported by the Council of Lords and backed by the Opinion of the Judges that must be a Rule for the Government of this Kingdom nor doth any Allegiance bind Obedience thereunto in case where Justice or the Liberty of the People is concerned Three things yet remain which Kings have claimed to be their own viz. Conferring Titles of Honour and Places of Trust and the Legislative Power The first is but a Feather and not worthy of regard yet it is plain that these times produce many precedents of Dukes Marquesses and Earls made in Parliament and possibly it may be apparent that the first motion of any such Title of Honour did first fetch its original thence if not in the Field but it is not worthy of the labour The second is more considerable viz. The power of conferring Places of Publick Trust This Kings have pretended unto although in course of congruity it will be thought more meet that it belongeth rather to that chief
and grand Trust of the whole Kingdom committed to the Parliament And the practice of these times is not much discrepant whether we regard such as are for advice or execution Of the first of these are those whom we commonly call the Privy Council whose advice in course toucheth first upon the King's Person but by reflection worketh strong impressions upon the People so far as the influence of the King's power extends And therefore it is not beyond the Sphear of the Parliament to interpose and qualifie that influence so as it may be for the general good of the whole Kingdom For many times Kings are either above or beneath themselves and in such cases if the Council be of the King's suit he is of the deeper dye and proves more Malignant to the People Edward the Third growing into great opinion in the World his proportion exceeds his own portion and the Peoples good wills to boot they think the fault is in the Privy-Council and an Inquisition is set upon it So also they do in his fiftieth year when he grows downward And the like in the beginning of Richard the Second's Reign he being now a Youth and therefore unstable in his Resolutions and unable to make Election So as upon the whole matter if the King fall short in point of Judgment or Resolution or inordinate in his Affections but more especially where they observe the major or more considerable part of the Council to draw towards a designe in such cases as these the Parliament as its own duty undertook to settle a good Council about the King's person that might advise him during their recess For the Privy-Council is never more it self than when it is an Epitome of the Common-Council of the Kingdom In like manner such Officers as concern execution of Law and Counsel are as narrowly to be enquired into for if their motion be irregular it is less material what the rule be The Parliament therefore held it their duty to interpose in the Election of grand Officers of the Kingdom such as are the Chancellors Judges and Justices or to confirm or displace them or bind them by Oath The Rolls of the eighth fourteenth fifteenth and thirty-sixth years of Edward the Third and the sixth tenth and eleventh years of Richard the Second do manifest this sufficiently I have done with the Subject-matter or work of the Parliament in the mutual relation of the King and it the manner of proceeding was either joyntly with the King or without him and either joyntly with the two Houses or severally and either immediately by themselves or their Committees As touching the first it is evident that in all matters wherein gain ariseth to the Crown from the people by Subsidy or otherwise the strength of the Grant by Act of Parliament resteth in the two Houses and that the King's Assent is but pro forma as touching that matter and therefore such Grants have been made as tended in some measure to derogate either from the King's Wisdom care or fidelity yet even these have passed with the Royal Assent though the full Assent or good will of the person of the King was not correspondent thereto as in these Cases formerly noted where Subsidies were given with Limitations and Conditions and upon rendring account to the people And it is as evident that where the King's person is disabled to understand as in case of Infancy there the Royal Assent can bear little weight with it but most of all in the King's absence where either the Assent is put thereto by Commissioners that know not the King 's particular mind or the Act is done onely by the Houses in nature of Ordinances and yet these of force to bind all parties but the King. But nothing more debased the Royal Assent in these times than a trick that Edward the Third plaid in the midst of the fullest strength of his Government It was in time of War which never is time of good Husbandry and laying up nor of sober advice in laying out nor of equity in levying and collecting moneys for the Nerves of War. This forward Warrier in the heat of his Atchievements finds his strength benummed for want of money he leaves off comes home rages against his Archbishop to whom he had committed the care of provision for his War and the Archbishop as hotly falls upon some of the Treasury in the Army on the one side and upon others in the Country whose oppressions saith he instead of bringing in money made the people to give a stop thereto A contest hereupon thus had it was concluded by the power of the Parliament that such men should be questioned and that the Parliament from time to time should call all Officers of State to account and thereupon ensues a calm After the Parliament ended the King repeats the matter it makes his heart sick he disgorgeth himself by a Proclamation made by advice of Nobles and Wise men as he saith and tells all the World he dissembled with his Parliament and what he did was done by duress of mind to please for the time and to gain his ends which being now had he by his Proclamation revokes what he had done in Parliament or endeavoured it And thus is England put to School to learn to dissolve three hard knots First Whether a King can dissemble with his Parliament Secondly Whether Edward the Third his dissembling assent makes a Law Lastly Whether by a Proclamation by advice of Nobles and Wise men he can declare that he dissembled with his Parliament and therein not dissemble the Royal Assent so as to bring all the Laws made in any Kings time into question at least during his Life However the result may be it is evident the Royal Assent gets no honour hereby and the Statute as little that hath suffered this Proclamation all this time to pass among the number of the Statutes in Print as a Law whenas many Statutes that are Laws of not are left out as useless Although in the general the two Houses joyned in every Act Ad extra yet Ad intra and in relation one to another they had their several operations the House of Commons intermedled more in the matter of Fact the House of Lords in matter of Right although in either of these there is a mutual aspect from both In matters of Judicature much rested with the Lords and therefore it is ordained that The House of Lords shall remedy all offences contrary to the Law of Magna Charta And in cases where no remedy is left nor Judgement by the Law the matter shall be determined in Parliament and the King shall command execution to be done according to the Judgement of the Peers Which Laws seem to be but declarative of the former Law and in the nature of reviving that power into Act which was formerly laid asleep and doth strongly imply that the ultimate act in
daring Spirits yet do we not meet with a whisper in story of any turbulent or aspiring humour in them or the people during those tenderer times of that King's Reign But after that he came to know more in himself than was to be found and to outreach his abilities having some of the Lords ready at his Elbow to help him these changed the King's course although the general part of that noble Band kept still their Array and retaining the body of the people in due composure thereby declared themselves to be the King's Friends though the others were Richard's Favourites so as he was fain to stoop to occasion and submit to be a King that would have otherwise been more or less And thus the Lords were become Supporters to the Crown Studds to the Throne and a Reserve to the People against the violent motions of an unbridled mind in their King who seeing them so united and endeavouring to break them into parties to obtain his desire lost both it and himself It is a degree of cleanly modesty to impute the miscarriages of unruly Kings to their Council For however during their minority Counsellors are more rightly Officers of State yet when Kings will be their own men their Counsellors are no other than the breath of the King 's own breast and by which a King may be more truly discerned than any man by his Bosom-friends Edward the Third was a man of a publick Spirit and had a Council suitable to his aim Richard the Second a man that desired what him pleased would have what he desired and a Council he had that served him in all For God answers the desires of mens hearts in Judgement as well as in Mercy and a sore Judgement it is both to King and People when the corrupt desires of the King are backed by a flattering Council It must be granted that the Privy Council of Kings hath been an old Ginn of State that at a sudden lift could do much to the furthering of the present estate of publick Affairs Nevertheless through the Riot of Kings their designes generally tended to make more work for the Parliament than to dispatch to do much rather than well like works for sale rather than for Master-piece and sometimes to undermine yea to out-face the Parliament it self like some unruly Servants that will put away their own Masters Nor can it otherwise be expected unless the King 's elected ones be turned into the Parliaments Committee or that constant annual Inquisition by Parliament be made into their actions for occasional inquiries breed ill blood though no attainder be nor are they easily undertaken whereas constancy in such cases makes the worst to be resolved but into a matter of common course The natural and original power of the Privy-Council is very obscure because there are several degrees of them that occasionally have been used all of whom may deserve the name of Privy-Council in regard of the Parliament which is the most publick Council of all the rest and always hath a general interest in all Causes in the Kingdom The first of these is that which was called The Grand Council of the King which as I think was not the House of Lords who are called by Summons and were onely to attend during the Parliament but a body made up of them and other wise men of his own Retinue And of this it seems there was a constant body framed that were sworn to that service for some in these times were sworn both of the Grand Council and the Privy-Council and so entred upon Record The second of these Councils was also a great Council and probably greater than the other but this was called onely upon occasion and consisted of all sorts like a Parliament yet was none An example whereof we have in the Ordinances concerning the Staple which at the first were made by the King Prelates Dukes Earls Lords and Great men of the Kingdom one out of every County City and Burrough called together for that end their results were but as in point of trial for six Moneths space and then were turned into Statute-law by the Parliament These two are Magna Concilia yet without power further than as for advice because they had no ancient foundation nor constant continuance Another Council remaineth more private than the other of more continual use though not so legally founded and this is called the King's Privy-Council not taking up a whole House but onely a Chamber or a Table signifying rather communication of Advice than power of Judicature which more properly is in Banco And yet the power of this grew as virile and Royal as it would acknowledge no Peer but the Parliament and usurped the representative of it as that had been of the whole Kingdom The ambition thereof hath ever been great and in this most notoriously evident that as it had swallowed up the Grand Council of Lords it seldom can endure the mention of a Parliament but when Kings or Affairs are too rugged for their own touch The Platform of their power you may behold in this their Oath 1. That well and lawfully they shall counsel the King according to their best care and power and keep well and lawfully his Counsels 2. That none of them shall accuse each other of any thing which he had spoken in Council 3. And that their lawful Power Aid and Counsel they shall with their utmost diligence apply to the King 's Rights 4. And the Crown to guard and maintain save and to keep off from it where they can without doing wrong 5. And where they shall know of the things belonging to the Crown or the Rights of the King to be concealed intruded upon or substracted they shall reveal the same to the King. 6. And they shall enlarge the Crown so far as lawfully they may and shall not accounsel the King in decreasing the Rights of the Crown so far as they lawfully may 7. And they shall let for no Man neither for love nor hate nor for peace nor strife to do their utmost as far as they can or do understand unto every man in every Estate Right and Reason and in Judgement and doing right shall spare none neither for Riches nor Poverty 8. And shall take of no Man without the King's leave unless Meat or Drink in their Journey 9. And if they be bound by Oath formerly taken so as they cannot perform this without breaking that they shall inform the King and hereafter shall take no such Oaths without the King's consent first had All which in a shorter sum sounds in effect that they must be faithful Counsellors to the King's Person and also to his Crown not to decrease the true Rights but to enlarge them yet all must be done lawfully And Secondly that they shall do right in Judgement to take no Fees nor any other Oath in prejudice of this The first of these concern the publick onely at a distance and yet
way is different from the common Road both in it's original and in the course of proceedings nor could it otherwise be considering the condition of the Nations and the people of the same interested in common Traffique The people thus interested as much differed from the other sort of Dry men if they may be so called as Sea from Land and are in nature but as March-men of several Nations that must concentre in some third way for the maintenance of Commerce for peace-sake and to the end that no Nation may be under any other Law than its own The condition of the Nations in the times when civilized Government began to settle amongst them was to be under the Roman Emperours who having setled one Law in the general grounds throughout all Nations made the Sea likewise to serve under one rule which should float up and down with it that men might know upon what terms they held their own wheresoever they went and upon what terms to part with it for their best advantage In its original therefore this Law may be called Imperial and likewise in the Process because it was directed in one way of Trial and by one Law which had its first birth from the Imperial power and probably it had not been for the common benefit of Europe to have been otherwise at other time or by other directories formed Nevertheless this became no Gem of Prerogative to the English Crown for if England did comply with forrein Natives for its own benefit it being an Island full of the Sea and in the common Road from the most parts of Europe that border upon the Sea and of delight in Merchandise it is but suitable to its self and it did so comply as it saved the main Stake by voluntary entertaining those Laws without being imposed upon by Imperial power For the Saxons came into this Kingdom a free people and so for ought yet appeareth to me continueth to this day I say that in those first times they did take into the consideration of Parliament the regulating of the fluctuating motions of Sea-laws nor were they then or after properly imposed by the King's Edict For though it were granted that Richard the First reduced the Sea-Laws in the Isle of Oleron yet that the same should be done without advice of Parliament in his return from the Holy land is to me a Riddle considering what Histories do hold forth concerning his return through Germany nor can that be good evidence to entitle Kings of England to a power to make and alter Laws according to their private pleasure and interest Nor doth that Record mentioned in the Institutes warrant any such matter but rather on the contrary groundeth the complaint upon Laws Statutes Franchises and Customs established and that this Establishment was by the King and the Council This Law was of a double nature according to the Law of the Land one part concerning the pleas of the Crown and the other between party and party for properly the King's Authority in the Admiralty is but an Authority of Judicature according to Laws established which both for process and sentence are different from the Common-Law as much as the two Elements do differ yet not different in the power that made them I shall leave the particulars to be enquired into by them that shall mind it elsewhere and only touch so much as shall reflect upon the main Government This power was executed by Deputies diversly according as the times and opportunities were for War or Peace and either transitu or portu What was done in time of War or whilst the Ship is out of the English Seas comes not to our purpose and therefore I shall not meddle with that further than this that in the first times Kings were wont to divide the work of Judicature and of War into several hands The power of War and Peace they committed unto men of approved Courage and Skill in that service and therefore generally not to the men of highest rank who had neither Mind nor Skill for a work of such labour dyet and danger This power passed under divers names sometimes by grant of the custody of the Sea-coasts sometimes of the parts and Sea coasts sometimes by being made Captain of the Sea-men and Mariners and sometimes Admiral of the Ships It was a great power and had been much greater but that it suffered a double diminution the one in the time for three or four years commonly made an end of the command of one man and at the best it was quam diu Regi placuerit the other diminution was in circuit of the power for all the Maritine Coasts were not ordinarily under the power of one man but of many each having his proper precinct upon the South or North East or Western shores and under the Title of Admiral in the times of Edward the First and forwards who brought that Title from the Holy Land. Nevertheless about the end of the times whereof we now Treat the custody of the whole Sea began to settle in one hand under the Title of Admiral of the English Seas and the place was conferred upon men of the greatest rank and so continued ever afterward The power of Jurisdiction or Judicature all this while remained distinct and it seems was setled in part in the power of the Sheriff and Justices For by the Law the Sheriff and Justices had cognizance of matters between the high water and the low water mark and what was done Super altum mare was within the directory of the Admiral these were but few things and of small consideration the principal of them being concerning War or Peace and those only within the English Seas But after Edward the Third had beaten both the French and Spaniards at Sea the people grew much more towards the Sea and became so famous that the greatest Lords thought the Regiment of Sea-affairs worthy of the best of their Rank and were pleased with the Title of Admiral whilst they left the work to others and so the Admiral became a person of more honour and less work than he had been formerly The greatness of the honour of this place thus growing soon also began to contract greatness of power beyond what it had formerly and this was principally in matter of Jurisdiction For not contented with the power of a chief Justice of War and Peace within the Seas which was his proper dominion the Lord Admiral gained the same within the low water mark and in the main streams below the next Bridge to the Sea and in all places where Ridels were set and yet these places were within the body of the County Nor did he endeavour less to gain in matters of distributive Justice for although he had a legal Jurisdiction in things done upon the Sea so far as to defend order determine and cause restitution to be made in cases of damage done unjustly yet was it no less difficult to keep
this power within its own bounds than the watry Element upon which it sloated but it made continual waves upon the Franchise of the Land and for this cause no sooner had these great men savoured of the Honour and Authority of that Dignity but comes a Statute to restrain their Authority in the Cognizance of Cases only unto such matters as are done upon the main Sea as formerly was wont to be And within two years after that Act of Parliament is backed by another Act to the same purpose in more full expressions saving that for Man-slaughter the Admirals power extended even to the high water-mark and into the main streams And this leadeth on the next consideration viz. What is the subject matter of this Jurisdiction and Authority I shall not enter into the depth of particulars but shall reduce all to the two heads of Peace and Justice The Lord Admiral is as I formerly said a Justice of Peace at Sea maintaining the Peace by power and restoring the Peace by setting an Order unto matters of Difference as well between Foraigners as between the English and Foraigners as may appear by that Plea in the fourth Institutes formerly mentioned Secondly That point of Justice principally concerneth matters of Contract and Complaints for breach of Contract of these the Admiral is the Judge to determine according to Law and Custom Now as subservient unto both these he hath Authority of command over Sea-men and Ships that belong to the State and over all Sea-men and Ships in order to the service of the State to arrest and order them for the great voyages of the King and Realm and during the said voyage but this he cannot do without express Order because the determining of a voyage Royal is not wholly in his power Lastly the Lord Admiral hath power not only over the Sea-men serving in the Ships of State but over all other Sea-men to arrest them for the service of the State and if any of them run away without leave from the Admiral or power deputed from him he hath power by enquiry to make a Record thereof and certifie the same to the Sheriffs Mayors Bailiffs c. who shall cause them to be apprehended and imprisoned By all which and divers other Laws not only the power of the Admiral is declared but the original from whence it is derived namely from the Legislative power of the Parliament and not from the single person of the King or any other Council whatsoever But enough hath been already said of these Courts of State in their particular precincts One general interest befalls them all That as they are led by a Law much different from the Courts of Common-Law so are they thereby the more endeared to Kings as being subservient to their Prerogative no less than the Common-Law is to the peoples liberty In which condition being looked upon as Corrivals this principal Maxime of Government will thence arise That the bounds of these several Laws are so to be regarded that not the least gap of intrenchment be laid open each to other lest the Fence once broken Prerogative or Liberty should become boundless and bring in Confusion instead of Law. CHAP. VI. Of the Church-mens Interest BUt the Church-mens interest was yet more Tart standing in need of no less allay than that of the King's Authority for that the King is no less concerned therein than the people and the rather because it was now grown to that pitch that it is become the Darling of Kings and continually henceforth courted by them either to gain them from the Papal Jurisdiction to be more engaged to the Crown or by their means to gain the Papal Jurisdiction to be more favourable and complying with the Prerogative Royal. The former times were tumultuous and the Pope is gained to joyn with the Crown to keep the people under though by that means what the Crown saved to it self from the people it lost to Rome Henceforth the course of Affairs grew more civil or if you will graced with a blush of Religion and it was the policy of these times whereof we now treat to carry a benign Aspect to the Pope so far only as to slave him off from being an enemy whilst Kings drove on a new design to ingratiate and engage the Church men of their own Nation unto it's own Crown This they did by distinguishing the Office or Dignity of Episcopacy into the Ministerial and Honourable Parts the later they called Prelacy and was superadded for encouragement of the former and to make their work more acceptaple to men for their Hospitalities sake for the maintenance whereof they had large Endowments and Advancements And then they reduced them to a right understanding of their Original which they say is neither Jus Divinum nor Romanum but that their Lordships power and great possessions were given them by the Kings and others of this Realm And that by vertue thereof the Patronage and custody of the Possessions in the vacancy ought to belong to the Kings and other the Founders and that unto them the right of Election into such advancements doth belong not unto the Pope nor could he gain other Title unto such power but by usurpation and encroachment upon the right of others But these great men were not to be won by Syllogisms Ordinarily they are begotten between Ambition and Covetousness nourished by Riches and Honour and like the Needle in the Compass turn ever after that way Edward the Third therefore labours to win these men heaped Honour and Priviledges upon them that they might see the gleanings of the Crown of England to be better than the vintage of the Tripple Crown Doubtless he was a Prince that knew how to set a full value upon Church men especially such as were devout and it may be did somewhat outreach in that course For though he saw God in outward events more than any of his Predecessors and disclaiming all humane merits reflected much upon God's mercy even in smaller blessings yet we find his Letters reflect very much upon the Prayers of his Clergy he loved to have their Persons nigh unto him put them into places of greatest Trust for Honour and Power in Judicature and not altogether without cause he had thereby purchased unto his Kingdom the name and repute of being a Kingdom of Priests But all this is but Personal and may give some liking to the present Incumbents but not to the expectants and therefore the Royal Favour extended so far in these times as to bring on the Parliament to give countenance to the Courts and Judiciary power of the Ordinaries by the positive Law of the Kingdom although formerly the Canons had already long since made way thereto by practice I shall hereof note these few particulars ensuing Ordinaries shall not be questioned in the King's Court for Commutation Testamentary Matters or Matrimonial Causes nor other things touching Jurisdiction of Holy-Church Things
imprison the person of a Clergy-man than to attach his possessions And therefore they held That if the Ordinary remove not the Incumbent when the King 's Writ commands him so to do his Temporalties should be seized And if the Ordinary should certifie one to be a Clerk which is none the like course is to be taken They shall depute the next and most lawful Friends of the Intestate to administer his Goods The Statute at Westminster the second having given formerly a kind of allowance that the Ordinary should be Administrator to the Intestate so far as to answer the Intestate's Debts lent him thereby an opportunity to possess himself of the whole to all intents and purposes Which being observed by the Parliament by this Law they made way for Administration to fall through the hands of the Ordinary into the Lap of Administrators made by the Authority of the Parliament but of the Ordinaries nomination according to the Authority hereby to him given These Administrators thus made had a greater power than ever the Ordinary had or could give For though the Ordinary by the Statute at Westminster was bound to pay the Debts of the Testator yet could he never bring Action as the Administrator to all intents by this Law is enabled to do And though it be true that the Administrator is by this Law ordered to account to the Ordinary yet doth not that entitle the Ordinary to any interest in the personal Estate but only gives him a bare Authority to take the account without any compulsory power by Ecclesiastical censures to enforce him thereto Secondly it is such an account as is no Evidence in any Court of Record And lastly if upon the foot of the account any arrere remained or surplusage of Estate the Ordinary could neither recover nor order the same because by the Law anciently the next friends had the sole interest therein and being by this Statute made Administrators the whole power of ordering the Estate is vested in them To conclude this Statute was made in favour and for the ease of the Ordinary if they would please so to take it for they could get no benefit by executing the Administration in their own persons if they intended to Administer according to the Law. The persons of the Clergy are priviledged from Arrests during the Holy Actions of the Officiating This was plotted since Anselm's time he and his Successors endeavoured by Constitution and Canon continually to mind the Civil Magistrate thereof but could never nurse it up to the degree of a Law till now they gained the advantages of the times growing into a more tender apprehension of Devotion than formerly The penalty of transgressing this Law is left in general and therefore did the less scare but within three years after it was confirmed with a certain penalty of Fine and Imprisonment as to the King's suit and damages to the party offended and the Priviledge was enlarged for and during their continuance in the Consecrated ground in order to such services and not upon Fraud or Collusion to avoid Arrests But by neither of these Laws was the Arrest although contrary to them made void as touching the Process The Goods of the Clergy are discharged from Purveyance and their Houses from Quarter The latter of these was an Encroachment upon the greater Clergy-men For under the Title of Hospitality which the Prelates were obliged to by their great Possessions and Revenues conferred upon them to that end Kings used to quarter Messengers to and from Scotland the King's Horses Dogs and Hawks c. But the point of Purveyance was an ancient Prerogative belonging to Kings and by no Custom were the goods of any man discharged therefrom till it was by Act of grace first confirmed by Edward the First and afterwards by grant of Edward the Second yet by reason of the rudeness of the times did not those Acts prevail to that settlement that was promised till now Edward the Third renewed the Law. Nevertheless could not this Law of Edward the Third perfect that work because it was but a bare command till Richard the Second made a remedial Law giving thereby the Clergy that were wronged a right of Action of Trespass against the Purveyors and to recover treble damages whereas formerly they were liable only to a Fine to the King which many times was as soon pardoned as asked These condescensions might have wedded the English Clergy to the English Crown but that it was coy and expected further gratuities Besides they beheld their old Step-dame Rome now in its full Splendor and Power and deeply interested in the sway of affairs in this Kingdom and above all the rest the nigh affinity between the Prelate and the Pope was such that they sucked one Milk breathed one Air and like the Philosophers Twins lived in each other The latter of these was not discerned by those dim-sighted times and therefore they could do nothing towards the dissolution of that knot but left it to future times who found no other way than to cut it asunder But Edward the Third and his Successor espyed the first felt the inconvenience thereof and applyed themselves to such remedy as they found most ready at hand All things that are subject to time are also subject to change which comes commonly slower upon Governments that are less Ecclesiastical for Churches continue longer in a growing condition than in their complete estate like a Christian that seldom endures long after his full ripeness Thus in England it is hitherto above a thousand years since the Gospel came to the Saxons and well-nigh a thousand years since the Pope set his foot amongst us ever approaching nigher the Throne and ascending thereunto but finding it full of a King that would not remove he sits down in his Lap a heavy burthen questionless he was considering his claim of Jurisdiction his provisions pensions exemptions impositions and such like oppressions and therefore it is no wonder if the King feeling the incumbrance gives a lift at the Popes power by stoping the current of Money from England Rome-wards To this end the Statute made at Carlisle is revived whereby the Clergy are inhibited from conveying Treasure beyond the Seas but the Pope knew how to ride and will not so easily forgo his saddle The Roman Eagle had made many a fair flight in England and had not yet fully gorged himself he grants ten thousand Marks yearly out of Taxes laid upon the Church-livings in England unto two Cardinals neither of which did nor by the Canon could live in England the Treasurership of York also to another Cardinal after that the King had conferred the same elsewhere He proceeds also further to invade the undoubted rights of the Crown by making an Election of the B. of Norwich and causing him to be invested Rege renitente The King spent eight years in the recovery of his right and was deluded in the
conclusion he now sees it bootless to stand always upon his defence and receives affronâ—s he resolves therefore to enter the lists and maketh seizure of the Deanery of York which formerly by usurpation the Pope had conferred upon a Cardinal and of all Church-livings given by the Pope to aliens Then a Law is made more sharp than those in the eighteenth year wherein Provisors of Abbies and Priories are made liable to a Proemuniri and Provisors of other Ecclesiastical Livings and Dignities whereby the presentation of the rightful Patron is disturbed to be fined and imprisoned until the fine and damages to the party wronged be paid And all such as draw men to plead out of England in cases that belong to the cognizance of the Kings Court and all obtainers of provisions in the Court at Rome these were also subject to a Proemuniri For whilst these things were thus in action the Pope bestirred himself notably with Citations Excommunications Interdictions and such other birds of prey not only against mean men but Judges Bishops and the King's Council as amongst others the case of the Bishop of Ely at the solicitation of some of some of inferiour regard as I remember a Clerk or some such thing Yet as these Bull-drivers or Summoners to the Romish Court were no late upstarts so were not these times the first that took them to task for before the Statutes of Proemuniri we find provision was made against Provisors and that some Statute did precede those in Print which punished a disturber of the King 's Incumbent by a Bull from Rome with perpetual Imprisonment or at the King's will. Besides the party wronged was allowed an Action for his Damages Qui tam pro Domino Rege quam pro seipso sequitur And before that time also bringers of Bulls from Rome were imprisoned although in all these cases aforesaid the liberty of the Persons both of Lords and Prelates was saved And thus all the while King Edward the Third kept the Field he gave the Pope cuff for cuff but retiring himself to take his ease he waxing wanton waxed weak and more slowly pursued the vindication of his own Right and his Subjects Liberty The Laws are laid aside and Rome had further day given to plead and in the mean time Execution is staid the double mind is double dyed and advantage is soon espyed above sixty Church-livings more are suddenly catched and given to the Favourites at Rome The Parliament rings herewith yet the King delays the remedy and in this Eddy of affairs Edward the Third dies and Richard the Second takes up the place who had wit enough to observe what concerned his own interest and courage enough to pursue it but neither wit nor courage to over-rule his Lusts which in the conclusion over-ruled all rule and brought himself to destruction He found the people at his entrance into the Throne irritated with the Pope's oppressions and vexed at his Grandfather's desidiousness his spirit is also stirred within him and himself thereby pressed to tread in his Grandfather's former ways and to out-run him in his latter He made the penalty of Proemuniri to extend to all Farmers or others in nature of Bailiffs that held any Church maintenance to the use of any Alien and unto all Aliens that are Purchasors of such Provisions to any use and unto all Lieges that shall in like manner purchase such Provisions But as touching such as shall accept such Provisions he ordained Banishment for their Persons and Forfeiture of their Estate Notwithstanding all this the Roman Horse-leech would not so give over The King grew into displeasure with his Subjects and they with him and with one another they see the Pope still on horseback and fear that the English Clergie their own Country-men if not Friends and Abettors yet are buâ— faint and feigned Enemies to the Pope's Cause Nor was it without cause that their fear was such for as the Pope had two hands to receive so they had two hearts making shew of forming blows at the Pope but then always at a distance or when without the Pope's Guard and thus the Laws begin to stammer and cannot speak so plain English as they were wont The people hereat offended resolve to put the Clergie into the Van and to try their mettle to the full At the last parliament that Richard the Second did hold both the Lords Temporal and Spiritual are opposed one by one The Lords Temporal like themselves resolve and enter their Resolutions to defend the Right of the Crown in the Cases of Provisors although even amongst these great men all were not equally resolute for Sir William Brian had purchased the Pope's Excommunication against some that had committed Burglary and he was committed to the Tower for his labour But the Prelates answer was ambiguous and with modifications which was all one to cry as men use to say Craven yet was the Statute made peremptory according to what was formerly enacted And though the Prelates cautionary way of proceeding might be a principal reason why the Pope's power held so long in England in an usurping way yet Kings also much conduced thereto by seeking too much their personal ease above the honour of their place and the Pope's blessings and opinion of his favour more than their own good or the peoples Liberty for there was no other balm for a distracted mind than that which dropped from the Pope's Lips. In like manner Richard the Second being already at least in purpose estranged from his people sought to get friends at Rome to hold by the Spiritual Sword what he was in danger to lose by laying aside the Sword of Justice which is the surest Tenure for Kings to hold by And though the Popedom was now under a Schism between two Popes Clement and Vrban yet he was so far won for Vrban that he not onely engaged himself and the Parliament to determine his Election and uphold the same but also Ex abundante did by Implication allow to him an Indefinite power to grant provisions and so at once he lost the Die and gained a Stake that like a bubble looked fair but soon vanished away Nevertheless these two Comrades whilst they were togather resolved to make the most of each other that they could and therefore though the Popedom liked not the King yet the Pope had his love so far as he could deny himself for he had already denied his Kingdom And if the Articles exhibited against the King by Henry the Fourth be true the Pope had his Faith also For that he might be rid of his reputed Enemy Archbishop Arundel he trusted the Pope with that Complement of making Walden Archbishop of Canterbury in Arundel's stead which the Pope took so kindly as he made it a Precedent for Provisors for the future Nor did the King stick in this one Singular but made it his custom in passing of Laws
especially such as the King was most devoted unto to put more confidence in the Pope's Amen than in all the prayers of his Commons with his own Soit fait to boot The sum then will be that the Prize was now well begun concerning the Pope's power in England Edward the Third made a fair blow and drew bloud Richard the Second seconded him but both retired The former left the Pope to lick himself whole the later gave him a salve and yet it proved a Gangrene in the conclusion The second means used to bring down the power of the Pope in this Nation was to abate the power or height of the English Clergie For though the times were not so clear as to espy the root of a Pope in Prelacy yet experience had taught them that they were so nigh engaged that they would not part And therefore first they let these men know that Prelacy was no essential Member to the Government of the Kingdom but as there was a Government established before that rank was known so there may be the like when it is gone For Edward the Third being troubled with a quarrel between the two Archbishops of Canterbury and York concerning Superiority in bearing the Cross and the important affairs of Scotland so urging summoned a Parliament at York which was fain to be delayed and adjourned for want of appearance and more effectual Summons issued forth But at the day of adjournment none of the Clergy of the Province of Canterbury would be there and upon this occasion the Parliament was not onely interrupted in their proceedings but an ill Precedent was made for men to be bold with the King's Summons in such Cases as liked not them and thereupon a Statute was made to enforce Obedience upon Citizens and Burgesses and such Ecclesiasticks as held per Baroniam Nevertheless when the matters concerning provisors began to come upon the Stage which was within two years after that Law was made the Clergy found that matter too warm for them and either did not obey the Summons or come to the Parliament or if they came kept aloof or if not so would not Vote or if that yet order their Tongues so as nothing was certainly to be gathered but their doubtful or rather double mind These Prelates thus discovered the Parliament depended no more upon them further than they saw meet At six or seven Parliaments determined matters without their Advice and such matters as crossed the principles of these men and therefore in a rational way might require their Sence above all the rest had they not been prepossessed with prejudice and been parties in the matter Nor did Edward the Third ever after hold their presence at so high Repute at such Meetings and therefore summoned them or so many of them as he thought meet for the occasion sometimes more sometimes fewer and at a Parliament in his forty and seventh year he summoned only four Bishops and five Abbots And thus the matter in fact passed in these times albeit the Clergie still made their claim of Vote and desired the same to be entred upon Record And thus the Parliament of England tells all the world that they hold themselves compleat without the Clergie and to all intents and purposes sufficient to conclude matters concerning the Church without their Concurrence Thus began the Mewing time of Prelacy and the principal Feather of their wings to fall away having now flourished in England nigh eight hundred years And had future Ages pursued the flight as it was begun these Lordings might have beaten the air without making any speedy way or great work saving the noise A third step yet was made further in order to the reducing of the power of the Popedom in England but which stumbled most immediately upon the greatness of the Prelates For it was the condition of the Spiritual powers besides their height of Calling to be set in high places so as their Title was from Heaven but their Possessions were from Men whereby they gained Lordship Authority and power by way of Appendix to their Spiritual Dignities This addition however it might please them yet for a long time before now it had been occasion of such murmure and grudge in the Commons against the Clergie as though it advanced the Clergie for the present yet it treasured up a back-reckoning for these men and made them liable to the displeasure of the Laity by seizure of their great places whenas otherwise their Ecclesiastical Dignities had been beyond their reach And of this these times begin now to speak louder than ever not only by complaints made in Parliament by the people but also by the Lords and Commons in Parliament to the King That the Kingdom had been now long and too long governed by the Clergie to the disherison of the Crown and therefore prayed that the principal Offices of the Kingdom might henceforth be executed by the Laity And thus the stir arose between the Lords Temporal and Spiritual each prevailing or losing ground as they had occasion to lay the way open for them The Duke of Lancaster being still upon the upper ground that as little regarded the Popes Curse as the Clergie loved him But the worst or rather the best is yet behind outward power and Honourable places are but under-setters or props to this Gourd of Prelacy that might prove no less prejudicial by creeping upon the ground than by perking upward For so long as Errour abideth in the Commons Truth can have little security amongst Princes although it cannot be denyed but it is a good sign of a clear morning when the Sun-rising gloryeth upon the top of the Mountains God gives Commission therefore to a Worm to smite this Gourd in the Root and so at once both Prelate and Pope do wither by undermining This was Wickliff that had the double honour of Learning in Humane and Divine Mysteries The latter of which had for many years passed obscurely as it were in a twilight amongst the meaner sort who had no Endowments to hold it forth amongst the throng of Learned or great men of the world And though the news thereof did sound much of Holiness and Devotion Themes unmeet to be propounded to an Age scarce civilized yet because divers of them were more immediately reflecting upon the policy of the Church wherein all the greater sort of the Church-men were much concerned but the Pope above all the rest the access of all the matter was made thereby more easie to the consideration of the great Lords and Princes in the Kingdom who out of principles of State were more deeply engaged against the Pope than others of their Rank formerly had been Duke John of Gant led the way in this Act and had a party amongst the Nobility that had never read the Canon-Law These held forth Wickliff and his Learning to the world and Edward the Third himself favoured it well enough but in his old Age desiting his
embasing of Money against forein Money not made currant against counterfeit and false Money For according to the goodness of the Money so will the Trade be more or less For the Merchant will rather lose in the price of his Commodity in Money than in exchange for other Commodity because the value thereof is less certain and the Transportation more chargeable Secondly as touching the plenty of Money that is as necessary to the advance of the Trade as of the goodness of it For according to the plenty thereof will be the plenty of the Manufactures because Handicrafts-men having no Commodities but their labour cannot work for exchange nor can exchange supply Rents and maintenance to the greater sort of people To this end therefore it is provided against melting of Money and Exportation of Silver and Gold. And yet to encourage or not discourage Importation of Silver and Gold liberty was given to every man to Export so much as they did Import provided that what they carry away must be of the new stamp or Minted in this Nation By this means Bullion came in with probability that much thereof would remain in the Nation in lieu of Commodities exported or if not the greater part yet at least the Mint gained and that was some benefit to the Nation Thirdly for the fuller currance of the Money the Issue was established in several parts of this Kingdom according to the ancient custom and this was advantageous both to the Mint and to the Stock of Money in the Kingdom This establishment was with this difference that though the Mint was setled by the Parliament yet the Exchange was left to the Directory of the King and his Council Because the Exchange is an uncertain thing subject to sudden alteration in other Nations and it is necessary that in this Country it be as suddenly ballanced with the Exâ—change in other Countries or in a short time the Nation may receive extream damage In regard whereof and many other sudden exigencies in Trade it seemeth to me convenient that a particular Council were established for continual influence into all parts of these Dominions to take into consideration the quantity of the Staple-Commodities necessary to be retained as a Stock at home for the use of the people and the Manufactures and accordingly to ballance the trade of Exportation and Importation by opening and enlarging or shutting and straitning the Stream as occasion doth require And lastly to watch the course of the Exchange in forein parts and to parallel the course thereof in this Land thereto For otherwise the publick must necessarily suffer so long as private men seek their own particular interests onely in their course of Trade CHAP. VIII Of Legiance and Treason with some Considerations upon Calvin's Case AS Times change Manners so do Manners change Laws For it is the wisdom of a State when it cannot over-rule Occasion to pursue and turn it to the best issue it can Multitude of Laws therefore are not so much a sore to the people as a symptome of a sore people Yet many times Laws are said to be many whenas they are but one branched into many particulars for the clearing of the peoples understanding who usually are not excellent in distinguishing and so become as new Plaisters made of an old Salve for Sores that never brake out before Such sore times were these whereof we now treat wherein every touch made a Wound and every Wound went to the Heart and made the Category of Treason swell to that bigness that it became an individuum vagum beyond all rule but the present sence of timorous Judges and a touchy King. Thus were many of the ignorant and well-meaning people in an hideous danger of the gulf of forfeiture before they found themselves nigh the brim All men do agree that Treason is a wound of Majesty but all the doubt is where this Majesty resteth originally and what is that Legiance which is due thereto the breach whereof amounteth to so high a censure for some men place all Majesty in one man whom they call an absolute Monarch Others in the Great men And others in the People and some in the concurrence of the King and body of the People And it is a wild way to determine all in one Conclusion whenas the same dependeth wholly upon the constitution of the Body Look then upon England in the last posture as the rigider sort of Monarchical Politicians do and Majesty will never be in glory but in the concurrence of the King and Parliament or Convention of Estates and so upon the whole account it will be upon the People whose welfare is the supream Law. Rome had Kings Consuls Dictators Decemviri and Tribunes long before the Orator's time and he saw the foundation of an Empire or perpetual Dictatorship in the person of the first of the Caesars any of all which might have challenged the supremacy of Majesty above the People And yet the often change of Government shewed plainly that it rested upon another pin and the Orator in express words no less when speaking of the Majesty of that Government he allotteth it not to those in chief command but defineth it to be magnitudo populi Romani Afterwards when the pride of the Emperours was come to its full pitch in the times of Augustus and Tiberius an Historian of those times in the Life of Tiberius tells us That he declared the bounds of Treason to be determined in Three particular instances of Treachery against the Army Sedition amongst the People and violating the Majesty of the People of Rome In all which men were not punishable for words but for actions and endeavours I do not herein propound the Government of the Roman Empire as a model for England but à majori may conclude that if the proper seat of Majesty was in the people of Rome when Emperours were in their fullest glory it is no defacing of Majesty in England to seat it upon the whole body from whom the same is contracted in the Representative and so much thereof divided unto the person of the King as any one Member is capable of according to the work allotted unto him These several seats of Majesty making also so many degrees do also imply as many degrees of wounding for it is written in Nature That the offence tending to the immediate destruction of the whole body is greater than that which destroyeth any one Member onely and when the written Law maketh it Treason to compass the destruction of the King's Person it leaveth it obvious to common sence that it is a higher degree of Treason to compass the destruction of the Representative and above all to destroy the whole body of the people Crimes that never entred into the conceit of wickedness it self in those more innocent times much less saw they any cause to mention the penalty by any written Law. Nevertheless because many sad examples had occurred
within the memory of this present Age of the danger of the person and honour of Kings and yet on the other side they saw that in such cases of Treason the King's honour was made of reaching Leather and might easily be strained within the compass of a wound of Majesty therefore Edward the Third imitating Tiberius reduced the crime of wound of Majesty in the Person of the King into certain particular instances out of the compass whereof the Judges of the Law in ordinary course must not determine Treason These concern either the safety of the Person of the King or of the Succession in the Royal Throne Or lastly the safeguard of the publick Right by the Broad and Privy seal the value of Money and by persons in matters of Judicature judicially presiding all of them reflecting upon the King considered in his politick capacity For otherwise many crimes might have been mentioned more fatally reflecting upon the King in his natural capacity which nevertheless are omitted as not worthy of so high a censure Other Treasons are left to the determination of the Parliament as occasion should offer it self whereof divers examples of a new stamp occurred within forty years next ensuing which were of a temporary regard and lived and died with the times To these two notions of Majesty and Treason I must adde a third called Legiance for it is that which maketh Majesty to be such indeed and lifteth it into the Throne and whereof the highest breach makes Treason And because that which hath been already said reflecteth upon an Opinion or rather a knot of Opinions for I find them not punctually adjudged in Calvin's Case I must a little demur to them because as their sence is commonly taken it alters the fundamental nature of the Government of this Nation from a Common-wealth to a pure Monarchy In handling of this Case the honourable Reporter took leave to range into a general discourse of Legiance although not directly within the conclusion of the Case and therein first sets down the general nature thereof That it is a mutual bond between an English King and his people and then more particularly sets forth the nature of this bond in the several duties of obedience and fealty fol. 5. a. and those also in their several properties viz. Natural Absolute fol. 7. a. due to the King omni soli semper fo 12. a. in his natural and not publick capacity fol. 10. a. Whereas he saith this bond is natural he meaneth that it is due by birth fol. 7. a. By absolute if I mistake him not he meaneth that it is indefinite fol. 5. b. viz. not circumscribed by Law but above Law and before Law fol. 13. a. and that Laws were after made to enforce the same by penalties fol. 13. b. and therefore he concludeth that this legiance is immutable fol. 13. b. and fol. 14. a. Thus having slated the point as truly as I can both for the nature of Legiance and the object thereof viz. the King and not the People otherwise than in order to the safety and honour of the King's person considered in his natural capacity as he is a man I shall in the next place examine the grounds as they are severally set down and therein shall lead the Reader no further than the Reporters own concessions Not troubling the Reader with any doubt whether this Bond consists in obedience onely or in that fealty and in all shall ever be mindful of the honour of that Pen with which I have to deal First whereas it is said that English Legiance is natural and grounded upon the birth of each party within the Kings Dominions and protection it needeth no debate so as the same be taken sano sensa viz. for a qualified Legiance without those sublimities of absolute indefinite immutable c. for otherwise if such a high strain of Legiance be due from every English man by birth then all the Magna Charta or Laws concerning the Liberties of the people come too late to qualifie the same because they cannot take away the Law of Nature fol. 14. a. And thus the party once born English must for ever remain absolutely obliged to the King of England although haply he lives not two Months under his protection all his ensuing life-time Secondly the Legiance of an English-man to his King ariseth from that civil Relation between the two Callings of King and Subject and therefore it is not a natural bond which cannot be taken away The first is true by the Reporter's own concessions Protectio trahit subjectionem subjectio protectionem so he saith fol. 5. a. fol. 9. b. and therefore though it be granted that Magistracy in general is from Nature as he saith fol. 13. a. yet of weak birth is that inference which he maketh viz. That English Allegiance is a principle in Nature Unless it be also admitted that all men on Earth that submit not to English Legiance do sin against Nature The difference then will stand thus Magistracy is founded in Nature therefore Legiance also But English Magistracy is from Civil constitution therefore is English Legiance of the like nature In the next place the Reporter saith that before any Municipal Law was made Kings did dare jura and he mounts as high for an example as the Trojans Age by the Testimony of Virgil. But I believe he intended not much strength in this seeing it is well known by any that knows the Scriptures that there were Municipal Laws given and that concerning the Office of a King by Moses which were more ancient than those of Troy and long before the time of Virgil who neither tells us in what manner those Trojan Laws were made though the Kings gave them nor if all were according to the Reporter's sence is the testimony of a Poet who sometimes useth his Poetica licentia to be taken in terminis In the next place the Reporter voucheth the Testimony of Fortescue c. 12 13. which is as absolutely opposite to the main point in hand as any Pen can declare For he tells us of divers sorts of Kingdoms some gotten by Conquest as those of Nimrod and Belus c. But saith he There is a Kingdom politick which is by the association of men by consent of Law making one chief who is made for defence of Law and of his Subjects Bodies and Estates and he cannot govern by any other power and of this nature faith he the Kingdom of England is fol. 30. 31 32. A second piece of the foundation of this opinion of the Reporter is taken ab inani it is a vain thing saith he to prescribe Laws but where by Legiance foregoing people are bound to obey But this compared with the words of Fortescue formerly mentioned falls of it self to dust and therefore I shall not further enlarge concerning it Thirdly The Reporter brings in to help the matter the consent of the Law in elder times by
certain Cases vouched to that purpose the first concerning the Legiance of Children to Parents which cometh not to this case because it is a Legiance of Nature and this Legiance whereof we speak is yet under a litigious Title And I suppose will in the conclusion be found to rest onely upon a Civil constitution therefore I leave that The second is That a man attainted and outlawed is nevertheless within the King's protection for this saith the Reporter is a Law of Nature Indelebilis immutabilis and neither Parliament nor Statue can take this power away fol. 13. b. 14. a. And therefore the Reporter concludes That as well the Legiance of the Subject as the Protection of him by the King are both of them from the Law of Nature An opinion that speaks much mercy yet it seems strange considering the Pen for if it be a Law of Nature and immutable for the King to protect persons attainted then must no such person suffer for if he be under the King's protection that being by a Law of Nature cannot be changed by any positive Law as the Reporter saith nor can the King be so bound by any such Statute but by a non obstante be can set himself at liberty when he pleaseth and then the issue will be this The King hath a natural power to protect the persons of Law-breakers from the power of the Law therefore much more their Estates and then farewel all Law but this of the Kings natural Protection I say that these are of a high strain considering what the Reporter speaketh elsewhere But to pursue his instance he saith That the King hath power to protect an attainted person That if any man kill him without warrant he is a Man-slayer and yet this person attainted hath lost the legal protection It is true yet not to all intents for by the Sentence of the Law his life is bound up under the Law of that Sentence viz. That he must not suffer in other manner than the Sentence determineth nor before Warrant of Execution issue forth to that end And notwithstanding the Sentence yet the Law leaveth him a liberty of Purchase or Inheritance though to the use of the Crown and therefore in some respects the Law protects his person so long as he lives and the King 's natural Protection is in vain in such cases Lastly suppose the King hath a power of Non ohstante if the same be allowed to him in a limited way by the Law it is no Argument to prove the King's natural power which is driven at under natural Legiance much less if it cannot be made forth that the Law doth allow any such power of Non obstante at all but by the iniquity of the times permitteth the same to subsist onely to avoid Contention as it came into this Kingdom by way of Usurpation And thus I have onely discovered the Foundation of this first Qualification which I shall onely leave naked supposing that no man seeing it will build at all thereupon The second Property that cometh to be considered is That English Legiance is absolute fol. 5. b. fol. 7. a. which is a word of a vast extent serving rather to amaze men's apprehensions than to enlighten them And therefore the Reporter did well not to trouble himself or the Reader in the clearing or proof thereof but lest the point rather to be believed than understood nor shall I in the Negative For God himself can have no other Legiance from an Englishman than absolute Legiance and Kings being as other men subject to erre especially in this point of Prerogative are much rather subject thereto being misled by such Doctrines as these are The Scripture determines this point and cuts the knot in sunder The third property of English Legiance which the Reporter insisteth upon is that it is indefinite which he explaineth to be Proprium quarto modo so as it is both Vniversal and Immutable fol. 5. b. fol. 12. and neither defined by Time Place or Person As touching the Time and Person the Reporter enlarged not at all therefore I shall onely leave the Reader to chew upon the point supposing himself in the first times of Edward the Fourth when Henry the Sixth was then alive and let him resolve to which of them his Legiance had been due considering them both in their natural capacity as the Reporter would have it But as touching the place it is reported that English Legiance is not onely due from an English man to an English King in England but in all places of the Kings Dominions though otherwise Forem as to the power of the Law of England Yea saith the Reporter as far as the Kings power of protection doth extend And yet this had not been enough if the Premises be granted For if this Legiance whereof we speak be absolute and omni soli semper then it is due to the King from an English man ubivis Gentium Nevertheless to take the Reporter in a moderate sence it is worth consideration whether English Legiance in the days of Edward the Third extended as far as the Kings power of Protection whenas he had the Crown of France in a Forein right to that of England In this the Reporter is extreamly positive upon many grounds which he insisteth upon First he saith that Verus and Fidelis are qualities of the mind and cannot be circumscribed within the predicament of Vbi and upon this ground he might conclude that this Legiance is due to the King from an English man all the world over as well as in all the King's Dominions But concerning the ground it may be denied for though simply in it self considered as a notion Verity or Fedility are not circumscribed in place yet being qualities of the Soul and that being in the Body in relation thereunto it may be in the predicament of Vbi for where-ever that Body and Soul is there is Faith and Truth according to its model which though not absolute and indefinite yet if according to the Laws of the place wherein the man is he is truly said to be Verus Fidelis Secondly The Reporter argueth that the King's Protection is not local or included within the bounds of England therefore also is not the Legiance for Protectio trahit Legiantiam Legiantia Protectionem Had this reason been formed into a Syllogisim it had appeared less valuable for the Protection of an English King qua talis of an English man is local and included within the bounds of the Kingdom But if the same King be also King of France or Duke of Aquitane and an English man shall travel into those parts he is still under the same King's protection yet not as King of England but as King of France or Duke of Aquitane Otherwise let the party be of France or Aquitane or England all is one he must be whether French or English under an unlimited absolute Protection without regard had
Legiance of the Subject This is the strength as nigh as I can collect of that which is set down as a sixth reason but I make it the fourth because the third as I conceive is but an illustration of the second and the fifth is upon a supposal of a Fides ficta whereas that Faith of an English Subject which is according to Law is the truer of the twain But to the substance of this fourth reason If the first be granted yet the Reporter cannot attain his conclusion for the King may in his Natural Capacity have right to the Crown by Inheritance and yet not right in the Legiance of his Subjects otherwise than in the right of the Crown As in the case of Lord and Tenant the Lord may inherit the Lordship in his Natural Capacity but the service is due to him as Lord and not as by Inheritance in the service in the abstract And though it be granted that the Legiance to a King is of a higher strain than that of a Tenant to his Lord fol. 4. b. 5. a. yet doth the Reporter bring nothing to light to prove them to be of a different Nature in this regard The fifth and last reason that cometh to consideration is from a Testimony of the Parliament for it is said That this damnable Tenet of Legiance to the King in his Politick Capacity is condemned by two Parliaments But in truth I can find but one under that Title that mentioneth this Opinion and that is called Exilium Hugonis which is sum is nothing else but Articles containing an enumeration of the particular offences of the two Spencers against the State and the Sentence thereupon The offences are For compassing to draw the King by Rigour to Govern according to their Wills for withdrawing him from hearkning to the advice of his Lords for hindring of Justice and Oppression and as a means hereunto they caused a Bill or Schedule to be published containing That Homage and Legiance is due to the King rather in relation to the Crown than absolutely to his Person because no Legiance is due to him before the Crown be vested upon him That if the King do not Govern according to Law the Lieges in such case are bound by their Oath to the Crown to remove him either by Law or Rigour This is the substance of the Charge and upon this exhibited in the Lords House the Lords super totam materiam banish them before their Case is heard or themselves had made many appearance thereto So as to the matter of this Schedule which contains an Opinion suitable to the point in hand with some additional aggravations the Parliament determineth nothing at all but as to the publishing of the same to the intent to gather a party whereby they did get power to act other enormities mentioned in the Charge And in relation to those enormities the Lords proceeded to sentence of Banishment all which was done in the presence of the King and by his disconsent as may appear by his discontent thereat as all Historians of those Affairs witness And it is not probable that the King would have been discontented with the proceedings of the Lords in asserting the Prerogative of a King in that manner of the Schedule if he had perceived any such thing in their purposes Add hereunto that the Lords themselves justified the matter of the Schedule in their own proceedings all which tended to enforce the King to govern according to their Counsels and otherwise than suited with his good pleasure By force they removed Gaveston from the King's presence formerly and afterward the Spencers in the same manner So they removed the King from his Throne and not long after out of the World. Last of all I shall make use of one or two Concessions which hath passed the Reporter's own Pen in this discourse of his for the maintaining that the Legiance of an Englishman is Neither Natural nor Absolute nor Indefinite nor due to the Natural Capacity but qualified according unto Rules The first is this Englishmen do owe to their Kings Legiance according to their Laws therefore it is not Natural or Absolute or Indefinite The inference is necessary for the latter is boundless and Natural the former is limited and by civil Constitution If any breach therefore of English Legiance be bounded by Law then the Legiance of an English man is circumscribed and not Absolute or Natural The major proposition is granted by the Reporter who saith that the Municipal Laws of the Kingdom have prescribed the order and form of Legal Legiance fol. 5. b. And therefore if by the Common Law the Service of the King's Tenant as of his Mannor be limited how can that consist with the absolute Legiance formerly spoken of which bindeth the Tenant being the King 's Subject to an Absolute and Indefinite Service Or if the Statute-Laws have setled a Rule according to which each Subject ought to go to War in the King's service beyond the Sea as the Reporter granteth fol. 7. 8. then cannot the Legiance be absolute to bind the Subject to go to War according to the Kings own pleasure Secondly An English King's protection of his Subjects is not Natural Absolute Indefinite nor Originally extendeth unto them in their Natural Capacity therefore is not the Legiance of an English Subject to his King Natural Absolute Indefinite nor Originally extendeth to the King in his Natural Capacity The dependence of these two resteth upon the Reporters own words who tells us that Protectio trahit Subjectionem Subjectio Protectionem Protection draws with it Subjection and Subjection draws with it Protection so as they are Relata and do prove mutually one anothers Nature fol. 5. a. And in the same Page a few lines preceding he shews why this Bond between King and Subject is called Legiance because there is a reciprocal and double Bond for as the Subject is bound in Obedience to the King so is the King bound to the Subject in protection But the King is not Naturally bound to protect the people because this Bond begins not at his Birth but when the Crown settles upon him Thirdly This Protection is not absolute because the King must maintain the Laws fol. 5. a. and the Laws do not protect absolutely any man that is a breaker of the Laws Fourthly This protection is not Indefinite because it can extend no further than his power and his power no further than his Dominions fol. 9. b. The like also may be instanced in continuance of time Lastly The King's protection extendeth not originally to the Natural Capacity but to the politick Capacity therefore till a Foraigner cometh within the King's Legiance he cometh not within his protection And the usual words of a Writ of Protection shews that the party protected must be in Obsequio nostro fol. 8. a. The sum then is that as protection of an English King so neither is Legiance or Subjection of an Englishman Natural Absolute
Indefinite or terminated in the Natural Capacity of the King. And to make a full periodâ— to the point and make the same more clear I shall instance in one Precedent that these times of Edward the Third produced The former English Kings had Title to many Territories in France but Edward the Third had Title to all the Kingdom And being possibly not so sensible of what he had in possession as of what he had not He enters France in such a way and with that success that in a little time he â—â—ns the highest seat therein and so brought much honour to the English Nation and more than stood with the safety of the Kingdom For in the union of two Kingdoms it is dangerous for the smaller lest it be swallowed by the greater This was foreseen by the English who knew England did bear but a small proportion to France and complained of that inconvenience and thereupon a Law was made that the people of England should not be subject to the King or his Heirs as Kings of France Which manifestly importeth that an English King may put himself in such a posture in which Legiance is not due to him and that this posture is not onely in Case of Opposition but of diversity when he is King of another Nation and doth not de facto for that Time and Place rule an English King. Which if so I suppose this notion of Natural Absolute and Indefinite Legiance to the King in his Natural Capacity is out of this Kingdom if not out of the World and then the foot of the whole Account will be that the Legiance of an Englishman is Originally according to the Laws the sum of all being comprehended in the joynt safety of the people of England CHAP. IX Of Courts for Causes criminal with their Laws THe great growth of Courts founded upon Prerogative derogated much in these times from the Ancient Courts that formerly had attained the Soveraignty over the people and in the hearts of them all This was a hard lesson for them to learn but especially of the King's-Bench that was wont to learn of none and yet must be content to part with many of their Plumes to deck the Chancellor much of their work to busie the Prerogative Courts holden Coram Rege and more to those holden Coram Populo I mean The Courts of Oyer and Terminer Goal-delivery and Justices of Peace Those of Oyer and Terminer were now grown very common but less esteemed as being by men of mean regard nominated for the most part by the party that sued out the Commission which for the most part was done in behalf of those that were in danger and meaned not to be justified by Works but by Grace These escapes though small in the particulars yet in the full sum made the matter so foul as it became a common grievance and a Rule thereupon set by the Parliament for the regulating both of the Judges of such Court and the Causes The Commissions for Goal-delivery likewise grew more mean and ordinary The chief sort of Men in the several Counties had formerly the power but were found to savour too much of Neighbourhood and Alliance The leading of the work therefore is now committed to the Judges at Westminster and the other made onely Associates to them But above all the Courts of Sheriffs Coroners Leets were now grown sowr with Age having attained courses by common practice differing from Oppression onely in Name and yet were the times so unhappy as by these courses they had obtained favour and respect amongst the great men and so gained more power from above to abuse them below These men loved to be Commissioners of Oyer and Terminer and having learned how to make capital offences pecuniary found-such sweetness as they used not to be weary of their places though the Country grew weary of them and therefore disliking uncertaintes in such matters of benefit they cannot rest till they obtain more certain settlement in their places some for Years others for Life and some for ever The Disease thus contracted by degrees the Cure must be accordingly First the Sheriffwicks much dismembred to please the Court-favourites and fill the Kings privy Purse and all raised to the utmost peny of the full and beyond the just value A Law is made to restore the several Hundreds and Wapentakes to the Sheriffs and their Counties and all of them are reduced to the old Rent And it is likewise provided that none shall execute that place in County or Hundred who shall not then have sufficient Lands in that County to answer damages for injustice by them done And that no Sheriff shall serve in that place above one year and then not to be chosen again for that service till three years be past which latter clause was onely a medium taken up for the present occasion in regard that men of ability became very rare in these times especially in some of the Counties The election of the Sheriff is likewise not to be forgotten for though the Counties had the election of Coroners in regard they looked that no man should come nigh their bloud but whom they trusted yet the Sheriff came not so night their skin nor yet so nigh their Free-holds as anciently they had done for that their power in Judicature was much abated and so not worthy of so high regard yet in respect he was still to be a Minister of Justice and his place valuable more than formerly it was holden convenient that such as had the chief power of Judicature at Westminster viz. the Chancellour Treasurer Chief â—aron and the two Chief Justices should nominate the man that should be their Servant and in the Parliament nevertheless they interposed in that Election as often as they saw cause Secondly As touching Causes criminal which more ordinarily come within the cognizance of these Courts They generally held the same regard in the eye of the Law in these times that they had done formerly nevertheless in two crimes these times wrought diversly urging the edge of the Law against the one and abating it as to the other The latter of these is commonly called Petit Treason which is a murther destructive to the Commonwealth in an inferiour degree and at a further distance because it is destructive to that Legiance by which Families do consist and of whom Kingdomes are derived In former times it extended unto the Legiance between Lord and Tenant and Parents and Children But by this Law of 25 E. 3. it is reduced to the Legiance onely of Man and Wife Master and Servant Clerk and his Ordinary the last of which was now lately taken up and might have been as well laid aside as divers others were but that in these times much is to be yielded to the power of the Prelacy who loved to raise the power of the Ordinary to an extraordinary pitch that themselves might be the more considerable
This reducing of Treason into a narrower ground made the Regiment of Felonies to swell A hard thing it was in a Warring time for men to conceit themselves well drest until they were compleatly armed Some used it for a Complement and amongst others honest men had as good cause to use it as some that were ill-affected had a bad and of the last sort some did aim at private revenge though many aimed against the publick quiet But however the intentions of men thus harnassed might be different the looks of them all are so sour that it is hard to know a man for Peace from a man for War. And therefore the people were now so greedy after Peace as they are ready to magnifie or multiply all postures of arm'd men into the worst fashion being well assur'd that the readiest way to keep themselves from the hurt of such men is to have none of them at all But Edward the Third had more need of them than so and will therefore allow men to ride armed but not to Troop together to rob kill or imprison any man and if any person did otherwise it should be Felony or Trespass but not High Treason All this was in favour to the people and yet it was not all for when Mercy groweth profuse it becomes Cruelty Murther is very incident to times of War yet is an Enemy to the Peace of so high a nature that though the King's Pardon may do much yet both King and People declare it an impardonable crime by the Common Law and that the King's Prerogative shall not extend so far as to pardon the same This Justice done to the party dead was a mercy to them that were alive a means to save bloud by bloudshed and not so much by the King's Grant as by his Release One thing more in these cases of bloud the people obtained of the King which they had not so much by Release as by Grant and that was the taking away of Englishire an ancient Badge of the Imperial power of the Danes over the Saxons and which had either continued through the desidiousness of the Saxons in the times of Edward the Confessor unto the Normans time or by them taken up again and continued until these times that Edward the Third was so far desirous to declare his readiness to maintain the Liberties of the people as to be willing to restore them where they failed and in particular took away the manner of presentment of Englishire blotting out the Title and Clause concerning it out of the Articles of Inquiry for the Judges Itinerant And thus whether Native or Foreiner all men are now made in death equal and one Law serves all alike Next unto bloud these times grew more sensible of Ravishments than former times had done For though they had determined a severe penalty against so foul a crime and made it in the nature of a Felony capital which was enough to have scared any man from such attempts yet for the proof of the matter in Fact much rested upon the will of the Woman which for the most part grounded upon self-respects and private prudence laboured to conceal that which could not be made whole by revealing and by after-consent skin'd over the sore as to themselves which corrupted inwardly and endangered the whole Body To cure which a Law is made to restrain such late connivance in the Woman by depriving her both of her Joynture and Inheritance which otherwise had been saved to her by such compliance as after-consent unto such violations CHAP. X. Of the Course of Civil Justice during these times HOwever the course of the Law concerning matters of the Crown passed in a troubled Wave yet in matters of Common Pleas it passed in a Calm and full Channel as the Reports in Print do sufficiently witness nor was there any change of Principles but onely some alteration tending to a clearer manifestation of the same I will not touch upon every particular but onely upon two which reflect somewhat upon the publick Policy the one touching the course of Inheritance in some particular cases the other touching pleading in the Courts of Civil Justice The first of these was occasioned from Conjuncture of Affairs the case being such that Edward the Third had now gotten himself a new Kingdom unto that of England and must look to maintain that by power which he obtained by force and conducing thereunto must have continual employment of the English in that Service as being most trusty to his Cause And that it is unreasonable that such English as had devoted themselves to his Service in this Cause and in order thereunto had transported themselves and their Families into those foreign parts should thereby lose the benefit of Lieges in the Birth-right of their Children born in those foreign parts Upon consideration had thereof and of a former leading Opinion of the Lawyers Parliament a Declarative Law was made That all Children born without the Kings Legiance whose Father and Mother at the time of their birth shall be under the Faith and Legiance of the King of England shall have the benefit of Inheritance within the same Legiance as other Inheritors have These are the words of the Statute and do occasion a double observation one from the matter the other from the manner of the Expression The Subject matter is so delivered not as an Introduction of a new Law but as a Declarative of the old that lay more obscurely hidden for want of occasion to reveal it and the substance thereof resteth onely in this To enable the Children of English Natives born beyond the Seas not the Children of those that are of foreign birth though within the Kings Territories in those parts as the Opinion hath been Nor doth any ancient Precedent or Case warrant the same as might be at large manifested if it might conduce to the end of this Discourse And for the same cause after this Statute whenas the Commons would have had a general Naturalizing of all Infants born beyond the Sea within the Kings Segniories the same would not be granted otherwise than according to the former Statute and the Common Law. That which in the next place concerneth the manner of Expression is this That a Child is said to be born out of the Kings Legiance and yet the Father and Mother at the same time to be of the Faith and Legiance of the King of England It seemeth to me that it intendeth onely those Children of English Parents born within the Kings Territories beyond the Seas because the words ensuing concerning Certification of Bastardy of such Children are That the same shall be made by the Bishop of such place upon the Kings Writ directed to him which could never have passed into those places that are not of the Kings Territories And so the Issue will be That the Legiance of those born in those parts though they are Leiges to the King yet they
not a Fine is set upon them if others run away from their Conduct a Writ issued to the Serjeant at Arms to apprehend them if they were not arrayed then the Recognizances of such as undertook the work are estreated All plunder or spoil committed by the Souldiers in their Conduct was to be satisfied by the Conductor or Commander that received their Pay or Charges for their Conduct And although the Charges for Conduct had formerly de facto been defrayed sometimes by the County by virtue of Commissions that issued forth both for the raising and conducting of them yet was this no rule nor did Edward the Third claim any such duty but disclaimed it and ordained by Act of Parliament That both the Pay and Conduct-money should be disbursed by the King from the time of their departure from their several Counties For to this end and for the safeguard of the Realm and for the maintenance of the Wars of Scotland France and Gascoign the King had supply from Aids Reliefs Wardshipâ— Marriages Customs and Escheats Nor did the Parliament grant any particular Aid by the Assessment or publick Tax but when they evidently saw the burthen of War to be extraordinary as it befel in the Conquest of so great and potent a Realm as France was Wherein although the Taxes were many yet so well ordered were they and with that compliance from the King that the people endured them with much patience so long as the King lived Lastly in all these Cases of Foreign Wars for of such Cases onely these Laws are to be understood it was especially provided That no man should be distrained or urged against his will to go out of his County But in case of defensive War the course was otherwise for all men in such cases are bound by the Law of Nature to defend their own Country from Invasion in order to the safety of their own Estates and Habitations They were arrayed or gathered together by Commission of Array from the King armed according to the Laws formerly mentioned and not by Arbitrary order of the Commissioners And by virtue of such Commissions they were drawn forth and led to places where need required Sometimes to one Coast sometimes to another yet not altogether at the Kings pleasure for the Parliament upon occasion set rules of Restriction and generally exempted the North-parts beyond Humber from being drawn Southward and left them as a reserve for the defence of the Marches bordering upon Scotland and sometimes ordered the Array should be executed onely in some particular Counties and other times wholly exempted the County adjacent within six miles of the Sea-coast And because the King might under colour of a defence array the people where no such occasion led the way and command them out of their Counties a Statute is made that states the Case wherein such Array shall be the words whereof are variously set forth in the Books in print whether determinatively or carelesly I cannot tell but all of them to differ in sence one from another and from the Truth Some of the common Books have the words thus None shall be distrained to go out of their Counties unless for cause of necessity and of sudden coming of Strangers or Enemies into the Kingdom Others read it thus But where necessity requireth and the coming of strange Enemies into the Kingdom The Kings Answer to the Parliaments Declaration concerning the Commission of Array would read it thus Vnless in case of Necessity or of sudden coming of strange Enemies c. But the words in the Roll are these Et que nulls ne soient distresses d'aller hors de les Countees si non pur Cause de necessity de suddaine venue des Stranges Enemies en Reyaulme In English thus word for word And that none be distrained to go out of the Counties if not for cause of Necessity of sudden coming of strange Enemies into or in the Kingdom which words determine the point That none shall be by Commission of Array drawn out of their County but in case of necessity And secondly that this case of necessity is onely the coming of strange Enemies into or in the Kingdom so as probably the Invasion must be actual before they be drawn out of their Counties and not onely feared and it must be a sudden Invasion and not of publick note and common fame foregoing for then the ordinary course either of Parliament or otherwise must be used to call those that are bound by Statute or Tenures or Voluntiers to that service seeing every Invasion is not so fatal as to require a Commission for a General Array Against what hath been thus noted the judgement of Sir Edward Coke in Calvin's Case lies yet in the way who affirmeth that the Subjects of England are bound by their Legiance to go with the King in his Wars as well within the Realm as without and this Legiance he telleth us is that natural Legiance which he saith is absolute and indefinite c. and not local which if not so then were not the English bound to go out of England an inference that is neither necessary nor is the thing affirmed certain It is not necessary because English men may be bound to go out of England by vertue of their Tenures particular Contract or else by special Act of Parliament and not by vertue of that natural Legiance which in truth is nowhere Now for the maintenance of the point the Reporter alledgeth two Statutes affirming the thing and common practice and lastly Authorities of the Judges of the Common Law. As touching the Statutes one in Henry the Seventh's time and the other in Edward the Sixth's time I shall speak of them in the succeeding times when we come at them for they are no Warrant of the Law in these times whereof we now treat much less is the modern practice of these later days a demonstration of the Law in the times of Edward the Third nor of the nature of the Law in any time seeing that it is obvious to times as well as particular persons to do and suffer things to be done which ought not so to be and therefore I shall for the present lay those two Considerations aside But as touching the Opinions of the Judges of the Common Law two Cases are cited in the Affirmative which seem in the Negative and the rest conclude not to the point The first of the two Cases is the opinion of Justice Thirning in the time of Henry the Fourth word for word thus A Protection lies for the Defendant in a Writ upon the Statute of Labourers and yet the Defendant shall not have such matter by way of Plea viz. That the King hath retained him to go beyond the Sea for the King cannot compel a man to go out of the Kingdom that is as the Reporter saith Not without Wages intimating thereby that if the King shall tender Wages to
any Man he must go whither the King shall please to send him which is not onely destructive to the opinion of Thirning concerning the Plea but also though granted is destructive to the Reporter's Judgement in the main point For if an English man may refuse to go without Wages then is he not bound to go by any natural absolute Legiance as the Reporter would have it And as touching the second Case which is Bigot's and Bohun's Case it cleareth the same thing for it was resolved that they ought to go but in manner and form according to the Statutes then is not the ground in the absolute Legiance for that is not qualified but in the positive Statute-law which tieth onely in manner and form and that by voluntary consent in Parliament The rest of the Cases do neither conclude the main point nor the particular thing that the Reporter intendeth For he would imply to the Reader that English men were anciently used to be imprested for the Wars in France and hereunto he voucheth one Authority out of ancient Reports of Law in Edward the Third's time one Anthority in the time of Henry the Fourth and three in the time of Henry the Sixth none of all which do speak one word concerning Impresting And that in Edward the Third doth imply the contrary for the Case is that in a Praecipe quod reddat a Protection was offered by the Defendant as appointed to go beyond the Sea with the Duke of Lancaster and the Plaintiffs Counsel alledged That the Defendant had been beyond Sea with the Duke and was returned To this the Defendant's Counset answered That the Duke was ready to return again and for this cause the Protection was not allowed Yet a Quere is made upon this ground that it might be that the Defendant would not go over with him nor was it proved that he would which sheweth plainly the party was not imprested for then the thing had not been in his power to will or nill The last instance that the Reporter produceth is that of Forinsecum Servitium or Foreign Service and that seemeth to be Knight-service to be performed abroad But this falleth short of the Reporter's intention in three respects First Though it belongeth to the King yet not to him onely but to other chief Lords so saith Bracton Secondly It is not due from every English man. And lastly It is a Service due by vertue of Tenure and then the Conclusion will be That which is due by Tenure of Lands is not due by natural and absolute Legiance and so this Foreign Service arising meerly by compact and agreement between Lord and Tenant and not by the natural duty of an English-born Subject which is the thing that the Reporter drives at in all his discourse will be so far from maintaining the Reporters opinion as it will evidently destroy the same And thus the posture of this Nation in the Field remaineth regular in the rule whatever hath been said against it notwithstanding that in the very instant of Action there may be some irregularity which no doubt both was and ever will be in stormy times Nor did it conquer the Law For though War may seem to be but a sickness of the State yet being in Truth as the Vltimum refugium and onely reserve unto Law beaten to a retreat by opression it is no wonder if this motion or rather commotion that brings on the Law of Peace in the Rear be still and ever subject to rule of Law how unruly soever it self seemeth to be Now because Law imports execution and that presupposes a Trial and it a Court therefore did our Ancestors amongst other Courts not regulated by the Common Law form a Court for the service of War called the Court-Marshal or the Constables Court according as the Office of one or the other had the preheminence The proceedings herein were ordered as I said not accordiag to the Common Law for that is like the Land much distant from all other Nations and the Negotiation of this Island with other Nations as in time of Peace so of War requires a rule common to all those Nations or otherwise no Negotiation can be maintained And for this cause the proceedings in this Court were ever according to the rule of the Civil Law. The work of this Court is principally Judicial and in some cases Ministerial The first reflects upon cause Foreign and Domestick and both of those are either Criminal and such as concern the common Peace of the place of War or more civil relating onely unto private interest As touching the first of these I suppose it is no Bull to speak of a common Peace in the place of War. For a common Peace must be in each party within it self or otherwise no party at private variance can subsist within it self much less make War with the other and therefore in order unto War there must be a Law of Peace for the Trial of Offenders and punishing them for offences committed against the good Government of the War Such as are breaking of Ranks deserting the Standard running away from the Colours Mutinies Murthers Rapes Plundering-private Quarrels disobedience to command and such-like all which do bear the shew of crimes against the common Peace of the Army and the Country Of the second sort are matters concerning Quarter and Contracts in order to the government of the War saving such as are made before either part be inrolled for the War. For if a man doth covenant to serve in the War and keepth not his day at the first Rendezvouz he is to be attached by Writ at the Common Law. Causes Domestical likewise fall under the like division for whatsoever cause may be Forein may also be Domestick because the Army is ever embodied within the Kingdom and must be under the Directory of the Martial law upon the first forming thereof Now though the particular Laws of the Army for the government thereof be ordinarily according to the prudence of the General yet certain Fundamentals have been ab Antiquo made by Custom and the Parliament against which the course of Judicature must not go And as the Parliament saw need it set also particular directions as for the payment of Souldiers Wages for remedy of wastings and plunderings in their own Country and other such emergencies But the execution of all these Laws Originally was in the Marshal of the Army And because that the Army was generally dissolved or such persons engaged in such matters of controversie departed from the Army before the same were concluded therefore the Marshals Court continued in order to the determining of these matters And in continuance of time other matters also crowded into that Society although sometimes under the Directory of the Constable of England as well as at other times under the Marshal more particularly that power of determining matters concerning Torniament a sport that like a Sarcasm tickles the fancy but
till by Laws Enacted in Parliament they lost their Liberties of bearing Office Ministerial or of Judicature of holding Castle of Convention without the Kings License yea of Purchase and by degrees were brought down from the height of a Free Principality to be starved in their power and inferiour to a Free People And thus the Welsh on the one side the discontented Lords on the other and Mortimar's Title in all so busied the King as though he lopped off the Tops as they sprang up yet they sprang forth as they were lopped nor was it the Kings lot all this while to find out the root of All or to strike at that Lastly when time had made all Troublers weary yet he still sits upon Torns he was jealous of his Subjects jealous of his Son yea jealous of himself it being ever the first and last of his thoughts how to keep his Crown For the most part of his Reign he was troubled with the walking Ghost of Richard the Second ever and anon he was alive he was here he was there and so the peoples minds were always kept at random but when all these Spirits are conjured down Richard the Second's Ghost is yet within Henry's own breast So ruled Henry the Fourth an unhappy confident man that durst undertake more than he would did more than he ought was successful in what he did yet never attained his end to be sure of his Crown and quiet of mind For a Plaister to this Sore he turned somewhat towards Religion but shewed it more in zeal to Church-men than in works of Piety and therefore may be thought to regard them rather as his best Friends in right of Archbishop Arundel than as in relation to Religion Yet as if he overlooked that he desires their Prayers becomes a strict observer of superstitious Rites is fiery zealous against the Lollards intends a Journey into the Holy Land and War against the Infidels the common Physick of guilty Kings in those days Briefly he did will to do any thing but undo what he had done and had done more had his Journey to the Holy Land succeeded But whether hastned or delayed by a Prophecie of the ending of his days falls not within my Pen to censure entring upon the Work he died in the beginning of his purposes in the midst of his fears never came to the Holy Land and yet yielded up his last breath in Jerusalem The Parliament was then sitting and was witness of the death of Henry the Fourth as it had been of his entrance upon the Throne as if purposed to see the course of the Crown in the doubtful current between the two Houses of Lancaster and York and to maintain their own Honour in directing the Scepter according to their warranty upon a late Intail by Act of Parliament Yet did not all rest upon this for the Heir of Henry the Fourth was a Man every inch of him and meant not to Moot upon the point His Father died a King and he his Heir had the Crown and was resolved to hold it A rough young man he had been formerly and bold enough to out-face small doubts in point of Succession for he could for need out-face common Civility it self This might have lien in his way for he that cannot govern himself can much less govern a Kingdom Yet a hidden providence concluded quite contrary and rendred him a clear Testimony of a strange change by the anointing Oyl like that of Saul that forthwith had the Spirit of another man. So though not hammered thereto by Affliction as was Edward the First yet was he his parallel in Government and superiour in Success Being seated in the Throne all men thought it dangerous to abide the adventure of the Turn of this Kings Spirit The Clergie had but yesterday tried the Mastery with the Laity and gained it but by one Vote there was no dealing with the Clergie whilst Archbishop Arundel lived nor with him whilst Henry the Fourth lived or his Merits were in memory but now they both are dead the Clergie and the Laity are upon even ground This might make the Clergie now not over-confident The Lords looked on the King as a man like enough to strike him that stands next The wise men saw he would be doing all men were tired with Intestine Quarrels and jumped in one That he that would be in action should act abroad where he might get Renown and a Purchase big enough for his Spirit Scotland was a Kingdom yet incompetent to the King's Appetite France was the fairer Mark and better Game and though too big for the English gripe yet the Eagle stooped and sped himself so well as within six years he fastned upon the Sword and Scepter and a Daughter of France and might have seized the Crown but chose to suffer a blur to lie upon his Title derived from Edward the Third rather than to incur the censure of Arrogancy over a stooping Enemy or to pluck the fruit from the Tree before it was fully ripe which in time would fall â—nto his lap by a better Law than that of the Sword Otherwise it might be well conceited that he that hath both Right and Power and will not seize disclaims Besides the King was as well Inheritor to his Father's Fate as Crown still he had success but the end was so far distant that he died in the way thereto The brave Dauphine of France maintaining War after his Father the French King had yielded up the Bucklers to Henry the Fifth till Henry the Fifth died and the English did forgo what they had formerly gotten in France by the Sword of that great Commander Nor did the English gain any thing in the conclusion of this War but an honourable windy repute of being one of the five Chief Nations of Christendom if honour it be to be reputed amongst the Nations a Conquerour of France the chief Leader unto the dethroning of three Popes at once the Election of Pope Martin and of giving a Cure to that deadly Wound of the Popedom which had spent the bloud of two hundred thousand mens lives lost in that Quarrel These Foreign Engagements made the King less sollicitous of the point of Prerogative at home and the rather because he knew the way to conquer his private Enemies Arms and his Subjects Hearts without loss of Honour in the one or Reverence in the other He loved Justice above the rank of his Predecessors and in some respects above himself for he advanced Gascoign for doing Justice though to the King 's own shame He liked not to intrude himself into Elections and therefore though requested by the Monks of Canterbury he would not nominate a Successour to Archbishop Arundel but left the whole work to them In the Authority of his place he was moderate and where his Predecessors did matters without the Lords consent when he made his Unkle the Marquiss of Dorset Duke of Exeter and had given
eat their own word However for the present the House of Lancaster hath the Crown entailed and the Inheritance is left in the Clouds to be revealed in due time For though this was the first precedent of this kind yet was it not the last wherein the Parliament exercised a Power by Grant or Confirmation to direct the Law and Course of the Crown as they pleased The due consideration hereof will make the things that follow less strange For the Parliament according to occasion as the Supream Power of this Kingdom exercised Supream Jurisdiction in order to the safety of the Kingdom as if no King had been to be found in issuing forth Writs under the Great Seal concluding of matters without the Royal Assent treating of Peace with Foreign Nations and of other matters and determining their Resolves before discovery made to the King of their Counsels making Ordinances and ruling by them 3 H. 6. n. 29. 2 H. 6. n. 27. 8 H. 6. n. 12. referring matters determinable in Parliament to be determined according to their directions Authoritate Parliamenti confirming Peace made by the King protesting against Peace made without or against their consent making Embassadours with power to engage for the Kingdom making Generals of the Army Admirals at Sea Chancellors Barons and Privy Counsellors and giving them instructions 8 H. 4. n. 73. and 76. and 31. 5 H. 4. n. 57. 31 H. 6. n. 21. and binding them to observance upon Oath 11 H. 4. n. 19 39. ordering the person of the King denying his power of Judicature in Parliament and ordering his Houshold and Revenue besides many other particulars Now if such as these things were thus done not by one Parliament which possibly might be overswayed by Factions but by the course of a Series of Parliaments that mightily laboured against Faction and unworthy ends and aims that man who shall determine the same to be unjust or indiscreet should himself first be determined to be very just and exceeding wise Nor was the Parliament partial in all this but being in a way of Reformation it set upon the work of reforming it self Some that are very zealous in the point of Arbitrary and Absolute Government of Kings in this Nation and in all other amongst other grounds rest upon this one That an English King hath power to call Parliaments and dissolve them to make and unmake Members as he shall please I do easily grant that Kings have many Occasions and Opportunities to beguile their People yet can they do nothing as Kings but what of right they ought to do They may call Parliaments but neither as often or seldom as they please if the Statue-Laws of this Realm might take place Nor if they could is that power necessarily and absolutely arising from Supremacy seeing it is well known that such power is betrusted by the Superiour States in other Nations to the Inferiour who dayly attend on publick Affairs and therefore can discern when the general Conventions are most necessary As touching the dissolving of Parliaments against the wills of the Houses it is true that sad precedents have been of later times in that kind and so for want of due attendance Parliaments have been enforced to adjourn to prevent a worse inconvenience but these are infirmities better buried in silence than produced as Arguments of power seeing it is evident that Kings themselves were no greater gainers thereby than an angry man is by his passions It is true alâ—o that Kings may make Lords and Corporations that may send their Burgesses to the Parliament and thus the King may make as many as he will as the Pope did with the Bishops in the Council of Trent yet cannot he unmake them when he pleases nor take the Members from the Parliament without attainder and forfeiture according to the known Law. Neither can all these Instances prove that the Kings of England have the sole and supreme power over the Parliament Nor did the Parliament in these times allow of any such Authority and therefore proceeded for the reforming of themselves by themselves in many particulars as the Statutes do hold forth And first in the point of Elections for an errour in that is like an errour in the first Concoction that spoils the whole Nutriment they ordained that the Election of Knights shall be at the next County-Court after the Writ delivered to the Sheriff That in full Court between the hours of eight and nine in the morning Proclamation shall be made of the day and place of the Parliament That the Suters duly summoned and others there present shall then proceed to the Elections notwithstanding any Prayer or Commandment to the contrary That the names of the persons elected whether present or absent they be shall be returned by Indenture between the Sheriff and the Elizors and that a Clause to that end shall be added to the Writ of Summons This was enough to make the Sheriff understand but not to obey till a penalty of one hundred pound is by other Laws imposed upon him and a years imprisonment without Baibor Mainprise besides damages for false return in such cases and the party so unduly returned fined and deprived of all the Wages for his service Thus the manner of Election is reduced but the persons are more considerable for hitherto any man of English bloud promiscuously had right to give or receive a Vote although his Residency were over the wide World. But the Parliament in the time of Henry the Fifth reduced these also whether they were such as did chuse or were chosen unto their proper Counties or else rendred them uncapable to vote or serve for any County And the like Order was made for the Burroughs That no person must serve for any City or Burrough nor give vote in Electing such as shall serve for that Town unless they be both free and resiants within that City or Burrough A Law no less wholsom than seasonable For the times of Henry the Fourth had taught men to know by experience That a King that hath Souldiers scattered over the Kingdom can easily sway the County-courts and make Parliaments for their own Tooth Yet this was not enough for all Elizors though of the meanest sort yet are still able to do as much hurt with their Vote as those of the best sort both for wisdom and publick mind can do good by theirs This made Elections much subject to parties and confusions and rendred the Parliament much less considerable A remedy hereunto is provided in the minority of Henry the Sixth viz. That no man should give his Vote in Elections in the County unless he hath forty shillings yearly in free Lands or Tenements and this is to be testified upon Oath of the party And more plainly it is orderded within two years after that each Elizor shall have Frank-Tenement of that value within the same County
rest looked to the Provisors more strictly than his Predecessors had and not onely confirmed all the Statutes concerning the same already made but had also provided against Provisors of any annual Office or Profit or of Bulls of Exemption from payment of Tythes or from Obedience Regular or Ordinary and made them all punishable within the Statute And further made all Licenses and Pardons contrary thereto granted by the King void against the Incumbent and gave damages to the Incumbent in such vexations for the former Laws had saved the right to the true patron both against Pope and King. And thus the English Kings were Servants to the Church of England at the charges of Rome whilst the Popedome being now under a wasting and devouring Schism was unable to help it self and so continued until the time of Henry the Sixth at which time the Clergie of England got it self under the power and shadow of a Protector a kind of Creature made up by a Pope and a King. This was the Bishop of Winchester so great a man both for Birth parts of Nature Riches Spirit and Place as none before him ever had the like For he was both Cardinal Legate and Chancellor of England and had gotten to his aid the Bishop of Bath to be Lord Treasurer of England Now comes the matter concerning Provisors once more to be revived First More craftily by colloguing with the Nobility who now had the sway in the Kings Minority but they would none An answer is given by the King that he was too young to make alterations in matters of so high concernment yet he promised moderation The Clergie are put to silence herewith and so continue till the King was six years elder and then with Money in one hand and a Petition in the other they renew their suit but in a more subtile way For they would not pretend Rome but the English Churches Liberties they would not move against the Statutes of Praemuniri but to have them explained it was not much they complained of for it was but that one word Otherwhere which say they the Judges of the Common Law expound too largely not onely against the Jurisdiction of the Holy See but against the Jurisdiction of the English Prelacy which they never intended in the passing of those Laws Their Clonclusion therefore is a Prayer That the King will please to allow the Jurisdiction of their Ecclesiastical Courts and that Prohibitions in such Cases may be stopped But the King either perceiving that the Authority of English Prelacy was wholly dependant on the See of Rome and acted either under the shadow Legatine or at the best sought an Independent power of their own Or else the King doubting that the calling of one word of that Statute into question that had continued so long might endanger the whole Law into uncertainty declined the matter saving in the moderation of Prohibitions Thus the English Clergie are put to a retreat from their Reserve at Rome all which they now well saw yet it was hard to wean them The Cardinal of Winchester was a great man and loth to lay down his power but his own Tribe grew weary of him and his power For the greater some Church-men are unless they be better than men the inferiour and better Church-men are worse than men At length therefore the Cardinal is Vnlegated and that power conferred upon the Archbishop of Canterbury a man formerly well approved but by this very influence from Rome rendred suspected Which he perceiving protested against the exercise of the Jurisdiction Legatine without the Kings allowance and so mannerly crept into the Chair The English Kings and Clergie having thus attained the right discerning of each other begin to take up a new way of policy which was to hold nothing of the Popedom but the Form of Worship and Discipline but as touching Jurisdiction they held it a high point of wisdom either to fetch it nigh at home or to be silent in the matter having now found a main difference between the Popes Will and the Church-Law and therefore as formerly the Convocation and Parliament joyned in excluding of Foreigners from Church-livings under the notion of Intelligencers to Enemies abroad So neither now will they allow any provisions for English men and upon this ground the Dean and Chapter of York refused to admit the Bishop of Lincoln to the See of York although assigned he was thereto by Pope Martin and he the darling of Nations being by joynt consent advanced to the Triple Crown that had been formerly tripled amongst three Popes and troubled all Europe And whereas during the Tripapalty much money had been levyed here in England to serve for the recovery of the Popedom to one of English interest now by joynt consent the same is seized upon and stopped as fewel from the fire and spent by Henry the Fifth in the recovery of a Kingdom in France that should have been employed in recovery of a Popedom at Rome These things concurred to give a wound to the Popedom that was never cured to this day Nevertheless the English Clergie was no loser by all this but gained in the whole sum For as it made them more depending on the Crown so it made the Crown more fast to them from which they had received more real immunities and power than the Pope ever did or was able to give them and might expect to receive many more What personal respects these three Kings shewed them hath been already touched Henry the Sixth added one favour which made all the rest more considerable Hitherto they had used to meet in Convocation as upon the interest of Rome and little notice was taken of them now the Nation owns them and in some respects their work and it is granted That the Clerks of Convocation called by the Kings Writ and their Menial Servants shall have such priviledge in coming carrying and going as the Members of the Parliament have So as though they be not Members yet they are as Members if they assemble by the Kings Writ and not onely by the power of the Legate or Metropolitan The antiquity of this Court is great yet not so great as hath been supposed nor is it that Court of the Ordinary called the Church Gemot mentioned in the Laws of Henry the First as not onely the works thereof therein set down do sufficiently declare but also it is evident that in Henry the Second's days the Grand Councils of this Kingdom were joyntly mixed both of Clergie and Laity Nor could the Clergie shut the Laity from their Councils till about the times of Richard the First or King John. From which time forward the Laity were so far from protecting of them that till these times now in hand all their care was to keep them from violating the Liberty of the people That they were many times notwithstanding called together by the Kings Writ before these times hath
also been cleared by another Pen. That their work at such times was to advise concerning such matters as should be propounded to them by the King in Parliament their Summons do shew the particulars whereof for the most part concerned supplies of Money from the Church-men And yet sometimes matters of great moment were debated therein As in a Convocation summoned by Henry the Fifth in his ninth year the preheminence of Pope Eugenius above the Council of Bazil was debated and as much as they could they determined the same The credit of their decisions in former time I believe was not much amongst the people because the men were looked upon with an evil eye Now that the Parliament seemeth to own them in their way and to protect them their determinations are somewhat The Church-men espy their opportunity and whilst the benevolent influence of the State is in its first heat they improve it in this manner The times were now come about wherein light began to spring forth conscience tobestir itself and men to study the Scriptures This was imputed to the idleness and carelesness of the Clergie who suffered the minds of young Scholars to luxuriate into Errours of Divinity for want of putting them on to other Learning and gave no encouragement to studies of humane Literature by preferring those that were deserving The Convocation taking this into consideration do decree That no person should exercise any jurisdiction in any Office as Vicar-general Commissary or Official or otherwise unless he shall have first in the University have taken Degrees in the Civil or Canon Law. A shrewd trick this was to stop the growth of the study of Divinity and Wickliff's way and to imbellish mens minds with a kind of Learning that may gain them preferment or at least an opinion of abilities beyond the common strain and dangerous to be meddled with Like some Gallants that wear Swords as Badges of Honour and to bid men beware because they possibly may strike though in their own persons they may be very Cowards And no less mischievously intended was this against the rugged Common-Law a Rule so nigh allied to the Gospel-way as it favoureth Liberty and so far estranged from the way of the Civil and Canon-Law as there is no hope of accommodation till Christ and Anti-Christ have fought the field Thus much of the Church of England in relation to the State now as it is absolutely considered in regard of the several degrees of persons therein Although these three Kings were much endeared to the English Clergy yet the difference between the Laity and them growing high the King 's principal care is now to keep an even hand between them both for he that will back two Horses at once must keep them even or put his joynts to the adventure First Henry the Fourth granteth That no more shall be paid to Rome for the first-fruits of Archbishops and Bishops than hath been anciently used The occasion hereof was to prevent the horrible mischief and damnable custom of Rome for such are the very words of that Statute unto which the Clergy gave their Vote if not the first Vote and therefore certainly did neither believe nor honour that infallible Chair as their own Mother nor did they bear her Yoke further than their own benefit and reason of State did require For though the immediate benefit of this Law did descend upon the Prelacy yet it also much concerned the interest both of the honour and benefit of the Nation that the Clergy should not be at the Pope's pleasure to tax and assess as he thought good Secondly Henry the Fifth added unto the Prelacy some kind of increase both of Honour and Power viz. to visit Hospitals that were not of the King 's own foundation and to reform abuses there for the Patrons either had no power to punish or will or care to reform them And thus upon the point although they lost a Right yet they gained ease Thirdly The same King confirmed by a Statute unto Ordinaries the cognizance of Accounts of Executors for their Testators Estates which formerly was granted by the Canon-Law but they wanted power to execute and a Right to have and receive In all these the Clergie or Prelacy were the immediate gainers In as many other things the people were made gainers and yet the Clergie were no losers otherwise than like the Kite of that prey which was none of their own First They refused formerly to grant Copies of Libels either thereby to hinder the course of Prohibitions or to make the Copies the moredear and Money more cheap with them Henry the Fifth finding this a grievance to the people passeth a Law That all Ordinaries shall grant the Copies of Libels at such time as by Law they are grantable Secondly As the probate of Wills had anciently belonged to the Ordinary by the Canon-Law and formerly also confirmed to them by the Parliament so it also regulated and settled the Fees for such Service But the Clergy having been ever under the noutriture of their Mother Rome that loved to exceed they likewise accounted it their liberty to take what they could get But the nigher they come to engage with Kings in their Government according to Law the more reformed they grow Formerly Edward the Third had settled their Fees but they would not hold to the rule Now the Law is doubled by Henry the Fifth with a penalty of treble damages against Delinquents Furthermore the very Priests could not contain their Pater-Nosters Requiems Masses and such Wares they had engrossed and set thereof what price they pleased The Market was risen to that height that Edward the Third undertook to set a rate upon those Commodities but that also would not hold long Henry the Fifth he sets a certain stipend somewhat more than Edward the Third had done and yet less than the Priests had formerly Lastly Some Laws were made wherein the Commonwealth gained and the Church were losers First Whereas the Church-men formerly held all holy things proper and peculiar to their own Cognizance especially such as concerned the Worship of God the Parliament now began to be bold with that and never asked leave It had now for a long time even since the Saxon times been the unhappy condition of this Church of England amongst others to decay continually in Piety and right Devotion but through the light that now revived and God's goodness it in these times came to pass that the people did entertain some sense of their duty towards God more than formerly and begin to quarrel the abuses done to the Lords day in the manner of the keeping thereof London hath the honour for beginning this Reformation by an Act of their Common Council The Parliament within seven years after that engage the whole Kingdom in that service though therewith also are adjoyned other holy Feasts then holden and all Fairs and Markets are enjoyned to cease on that
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
Liveries are all great though in themselves never so small and therefore are sure of Fine and Ransome and it is well if they escape a years imprisonment without Bail or Mainprize Lords may wear the King Livery but may give none Knights and Esquires may wear the Kings Livery in their attendance upon his person but not in the Country The King and â—â—ince may give Liveries to Lords and menial Servants The sum is that Liveries may be given by the more publick persons for state not to make parties and men may wear Liveries in token of Service in Peace and not in Arms. One thing must be added to all which may concern Trial in all Viz. A Law was made that Noble Ladies shall be tried by their Peers A Law now of the first stamp and strange it is that it never came before now into the breast of the Law but that it came now it is not strange No meaner person than the Dutchess of Gloucester is first charged with Treason when that could not appear then for Necromancy very fitly that she might be tried by the Ecclesiastical way of Witnesses She is found guilty and a Sentance of Penance and Imprisonment or Banishment passed thereupon after such a wild way as both Nobles and Commons passed this Law for the vindication of that noble Sex from such hudling Trials for the future CHAP. XXII Of the Militia during these times THe Title of Henry the Fourth to the Crown was maintained principally by his Tenures which the Courtiers call Knight service but the Common people force of Arms And that which destroyed many a man was the principal means of his subsistence Otherwise it is clear that his Title was stark naught nor could he outface Mortimer's Title without a naked Sword which he used warily for he had Enemies enough to keep his Sword in hand and Friends enough to keep it from striking at random For coming in by the peoples favour he was obliged to be rather remiss than rigorous yet his manner of coming was by the Sword and that occasioneth men much to debate about his absolute power in the Militia as supposing that what power he had other Kings may De jure challenge the same And let that be taken for granted though it will not necessarily follow in true reasoning And let it also be taken for good That Henry the Fourth entred the Throne by his Sword yet is there not any Monument in Story or Antiquity that favoureth any absolute right in him over the Militia but the current is I think somewhat clear against it First Because Henry the Fourth De jure could not compel men to serve beyond the Seas but raised them by contract and therefore by Act of Parliament he did confirm the Statute 1 Edw. 3. Stat. 2. cap. 5. which Statute was purposely made to that end And the same also is countenanced by another Statute made in these times whereof we now Treat by the words whereof appeareth that the Souldiers for the Foreign Service were levied by Contract between them and the Captain who undertook to levy them by Wage so as none were then compelled to enter into Service by Imprest or absolute Command Nor is there any Authority amongst all those cited in Calvin's Case that doth mention any such thing but contrarily that Opinion of Thirning is express That the King cannot send men beyond Seas to Wars without Wages and therefore no man is bound to any such service by any absolute Legiance as the Reporter would understand the point but if he receiveth Wages thereto he by that Contract binds himself Secondly It seemeth also to be granted that such as went voluntarily in the Kings Service ever had the Kings Pray after they were out of their Counties if the King ruled by his Laws For by the Statute formerly mentioned the King did likewise confirm the Statute of 18 Edw. 3. Stat. 2. cap. 7. which is express in that point and the matter in fact also is evident upon the Records Thirdly Touching the arming of those that were thus levied as there was a certain Law by which all men were assessed to certain Arms either by the Service and Tenure of their Lands or by Parliament for such as were not bound to find sufficient Arms by their Tenure according as is contained in the Statute 25 Edw. 3. Stat. 5. cap. 8. So did Henry the Fourth by the Statute formerly mentioned to be made in his time confirm that Law of Edward the Third In the argument of Calvin's case it is much insisted upon to prove the Legiance of an English man to the King to be absolute because he hath power to send men to War at his pleasure and he hath the onely power to make War and if so then hath he absolute power in the Militia As touching the power of sending men to War hath been already spoken but as touching the power to make War there is no doubt but where a King hath made a League with another King he onely can break that League and so make War and that Opinion of Brian must be agreed for good in that sence But if a League be made by Act of Parliament or if the King will have War and the Parliament will make a League without him no Authority doth in such case avouch that it is the right of the King or that he hath a legal power to break that League as he pleaseth Neither in the next place hath the King any Right or legal Power to make War with his own Subjects as he pleaseth but is bound to maintain the Peace not onely by his Oath at his Coronatiion but also by the Laws whereto he is bound if he will reign in right of an English King. For every man knoweth that the grounds of the Statutes of wearing of Liveries was for the maintaining of the publick Peace And Henry the Fourth amongst other provisions made against that trick hath this That the King shall give onely his Honourable Livery to his Lords Temporal whom shall please him and to his Knights and Esquires menial and to his Knights and Esquires which be of his retinue and take of him their yearly Fee for term of Life and that no Yeoman shall take or wear any Livery of the King nor of none other Lord. And another Law was made within one year ensuing confirming the former and providing that the Prince may give Liveries to such Lords as he pleases and to his menial Gentlemen and that they may wear the same as in the Kings Case By both which the King and Prince are both in one Case as touching the power of giving Liveries if the one hath absolute power then hath the other the like if one be under the Directory of Law in that point then is also the other For it is clear that the King is intended by the Statute to be bound from giving Liveries and the people from wearing them
otherwise than in especial Cases And then the conclusion will be that if the King may not give Liveries to the prejudice of the Peace then may he much less break the Peace at his pleasure or levie Men Arms and War when he shall think most meet Take then away from the King absolute power to compel men to take up Arms otherwise than in case of Foreign Invasion power to compel men to go out of their Counties to War power to charge men for maintenance of the Wars power to make them find Arms at his pleasure and lastly power to break the Peace or do ought that may tend thereto and certainly the power of the Militia that remaineth though never so surely setled in the Kings hand can never bite this Nation Nor can the noise of the Commission of Array entitle the King unto any such vast power as is pretended For though it be granted that the Commission of Array was amended by the Parliament in these times and secondly that being so amended it was to serve for a Precedent or Rule for the future yet will it not follow that Henry the Fourth had or any Successor of his hath any power of Array originally from themselves absolutely in themselves or determinatively to such ends as he or they shall think meet First As touching the amendment of the Commission it was done upon complaint made by the Commons as a grievance that such Commissions had issued forth as had been grievous hurtful and dangerous And the King agrees to the amendments upon advice had with the Lords and Judges And if it be true that the amendments were in the material clauses as it is granted then it seemeth that formerly a greater power was exercised than by Law ought to have been and then hath not the King an absolute power of Array for the just power of a King can be no grievance to the Subject Secondly If the Commission of Array thus mended was to serve as a rule of Array for the future then there is a rule beyond which Henry the Fourth and his Successors may not go and then it will also follow that the power of Array is not originally nor absolutely in the King but from and under the Rule and Law of the Parliament which rule was not made by the Kings own directions but as we are told beyond expectation alterations were made in material parts of the Commission and the powers in execution there whereof no complaint of grievance had been made The issue then is If the King had an Universal power in the Array the Parliament likewise had a general liberty without any restriction to correct that power Lastly Suppose that this power of the Parliament is executed and concluded by the Commission thus amended and that thereby the Kings power is established yet can it not be concluded that this power is originally or absolutely in the King. It is not absolutely in him because it is limited in these particulars First It is not continual because it is onely in case of eminent danger Secondly It is not general upon all occasions but onely in cases of a Foreign and sudden Invasion and attempts Thirdly The powers are not undefined but circumscribed 1. To Array such as are armed so as they cannot assess Arms upon such 2. To compel those of able Bodies and Estates to be armed and those of able Estates and not able Bodies to arm such as are of able Bodies and not Estates but this must be Juxta facultates and salvo Statu 3. Whereas they strain themselves to make the Statute of Henry the Fourth and the Commission of Array to consist with the Statutes of 13 E. 1. 1 E. 3. and 25 E. 3. thereby they affirm so many more restrictions unto this power of Array as those Statutes are remedial in particular cases yet do I not agree to their Glosses but leave them to the debate already published concerning the same Secondly As this power was not absolutely in the Kings so was it not originally from themselves because they had not the Legislative power concerning the same but the same was ever and yet is in the Parliament Hereof I shall note onely three particular instances First The Militia is a posture that extendeth as well to Sea as Land That which concerneth the Sea is the Law of Marque and Reprizal granted to such of the people of this Nation as are pillaged by Sea by such as have the King's Conduct or publick Truce And by this Law the party pillaged had power to recompence himself upon that man that had pillaged him or upon any other Subject of that Nation in case upon request made of the Magistrate in that Nation satisfaction be not given him for his wrong it was a Law made by the Parliament whereby the Chancellour had power to grant such Letters or Commission upon complaint to him made This was grounded upon the Statute of Magna Charta concerning Free Trade which had been prejudiced by the rigour of the Conservators of the Truce against the Kings Subjects although what was by them done was done in their own defence And by which means the Foreigners were become bold to transgress and the English fearful in their own Charge and many laid aside their Trade by Sea and thereby the strength of the Kingdom was much impaired Nor is the equity of this Law to be questioned for if the Magistrate upon complaint made grants not relief the offence becomes publick and the Nation chargeable in nature of an Accessory after the Fact and so the next man liable to give satisfaction and to seek for relief at home The King then hath a power to grant Letters of Marque by Sea or Land and this power is granted by Parliament and this power is a limited power onely in particular cases in regard that many times these prove in nature of the first light skirmishes of a general War. Two other instances yet remain concerning the Order and Government of the Souldiers in the Army the one concerning the Souldiers pay Viz. That Captains shall not abate the Souldiers Wages but for their Clothing under peril of Fine to the King. The other concerning the Souldiers service That they shall not depart from their Colours without leave before the time of their service be expired unless in case of sickness or other good cause testified and allowed by the Captain and such as shall do otherwise shall suffer as Felons Which Laws could not have holden in force had they not been made by Parliament in respect that the penalties concern the Estates and Lives of men which are not to be invaded but by the Law of the Land. So as both Captains and Souldiers as touching the Legislative power are not under the King in his personal capacity but under the Law of the Parliament Lastly As the rule of War was under the Legislative power of the Parliament so was the rule of
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
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
seized till Conviction and Attainder first be had And because Escheators grew no less burthensome in their way it was therefore ordered that no man shall be allowed in such Office unless he hath Lands to the value of Twenty pounds per Annum and that he shall be responsible for such wrong done by himself or by his Deputy and Farmer Thus Edward the Fourth quitted himself like a King in many regards but soon ran himself out of breath gave his Lamp to his Son that was too weak to hold it a Third snatches it away and for two years carrying it exceeding well yielded up all encroached Royalty to the people and his Crown and Life to his Successor CHAP. XXV The condition of the Clergie IF any gains were had in these uncertain times the Church-men might seem to have them having now this advantage that the Commonalty was distracted with uncertain interests of the Succession of the Crown And themselves onely united under the Popedom now freed from all Schism and the Popedom managed by Sixtus the Fourth who had the hap to be accounted more virtuous than any of his Predecessors had been and to have all the Christian Princes wholly at his devotion And lastly Both the Clergie and the Kings were now joyntly engaged against the rising power of Religion then called Heresie in order whereunto the Clergie leading the way had the applause of them that followed upon an implicite Faith that whatsoever was done was exceeding well done Nor was it wisdom for Kings that sate loose in their Thrones to stumble the good Opinions of so considerable a party towards them And therefore Edward the Fourth in his first entrance granted to the Clergie that which could never be by them obtained from any of the foregoing Kings Viz. Free liberty of Process in all Cases Ecclesiastical and in Tythes of Wood above twenty years growth and in case they were troubled upon the Statutes of Provisors they should have their remedy in the Chancery against those Judges and their Proceedings in such Cases there to be cancelled This was done by Charter and was sufficient to shew what the desire of the Clergie and the intention of the King was Viz. At once to favour the Church and under colour of favour done to the Clergie to cancel both Common and Statute-Laws of the Kingdom by the power of the Chancellor's Decree Nevertheless all this was but the King's breath the policy changed never a whit the more For the Common Law held on its course not onely in Cases depending before the Holy Chair but also even before the Bishop of the Diocess at home so as neither the King was concluded from his Suit nor the party endamaged from his Action by any such Charter And so far were the Judges of the Common Law from being bound by the Chancery in such Cases that they professed they would not delay to grant the Habeas Corpus to deliver any Prisoner by Decree of the Chancellour in any Case triable at the Common Law. Much less did the Parliament favour these men so far as to give them any countenance in any way of gain upon themselves but rather made bold with what the Church-men in former times challenged as their own and upon this account whereas formerly it had inhibited Fairs and Markets upon the Lord's Day Now it inhibited the sale of Boots Shoes c. upon that day though done never so privately which they did at the first onely within the City of London and three miles thereof I suppose it was made onely by way of Trial it being dangerous in such times to give a stop to all England at once otherwise it might be wondered why God's Honour should be better regarded in London than in all the Realm besides Of this encroachment we find no complaint made by the Church-men another touched them to the quick although it befel onely the Arch-bishoprick of York that hitherto held ordinary Jurisdiction over all the Bishops of Scotland as being their Provincial Now it is disclaimed by them all and they are backed therein by their King under pretence of great inconvenience to his Bishops in their so far Travels but in truth not unlike to Jeroboam though he pretended it was too much for them yet he thought it unsafe for himself that his Bishops should owe Canonical obedience to the Subject of another Prince and upon this ground prevailed with Pope Sixtus the Fourth to make the Divorce and left it to future Ages to try the validity thereof if they would This is all that I shall observe of the Government of these three Kings whose Reigns in the whole exceeded not Twenty six years and their compleat power therein not much above half so many CHAP. XXVI A short sum of the Reigns of Henry the Seventh and Henry the Eighth THe course of English policie hitherto wandring in the different Currents springing from the double head of Monarchie and Democracie and in them likewise often tossed up and down partly by the blasts of windy Titles and pretensions and partly by the raging Tides from the Roman See now begin to come to anchor within view of Shore Happy England if the same prove good Harbourage for a fainting Nation Two Kings now undertake the Steerage the work of the first was to still the Winds the other the Seas and so to bring the Adventure safe home Henry the Seventh hapned upon a good preparative for this work in that he delivered the Kingdom from a Tyrant whose irregular and bloody way was so odious to the people that it set a foil upon his Successor's Government and made his Wisdom Valour and Justice appear greater than possibly it was His Valour made way for the other two he had enough thereof to serve a wise man in case of extremity at other times he made more use of his Majesty than Manhood being confident that the people knew not where to mend themselves but would be at his Devotion so long as he was better than his Predecessor though he cared not how little His Wisdom was his greatest part of which upon all occasions he made the greatest improvement he could without reflecting upon Conscience or Religion whereof he had tasted no more than would render him a civil man whereunto his Education did lead the way Thus though his Valour brought him to the Crown yet it was his Wisdom that setled him in the Throne For though he loved himself so well that he was loth to pretend allowance of any access of Foreign help to his own atchievement in his Title or that he was guilty in the least manner in his entry upon the Throne yet to keep danger far off he provided one guard for his Person and many for his Title That of his Person he onely pretended as a ceremony of State brought from the French Court and yet it is strange that it went so well down with a Free people For
to be trusted And it is his unhappiness to meet with Clergy-men to serve a turn and a Pope to give his Benediction to all Nor was this Gratis for there were as many mutual engagements between the Clergie and him as any of his Predecessors of the House of Lancaster besides Lastly It may well be supposed however wise this King seemed to be that many saw through him which procured him a troublesome Reign though many times occasioned by his own interposing in Foreign Interests wherein he suffered more from others than they from him Amongst the rest the Dutchess of Burgundy though a Woman she were mated him with Phantomes and Apparitions of dead Bodies of the House of York the scare whereof put the King and all his people in alarm and striking at idle shadows slew one another All which together with the appearances of Collections Taxes and other accoutrements to furnish such employments were enough to disturb that ease and rest that the King aimed to enjoy make him burthensome to his people and both himself and them weary of each other And so he went down to the Grave with but a dry Funeral leaving no better testimonie behind him than that he was a cunning man rather than a wise English King. And though he died rich yet is he since grown into debt to the Pen-men of his story that by their own excellencie have rendred him a better King than he was Henry the Eighth was a Conception in whom the two Bloods both of York and Lancaster did meet both of them unconquered both of them predominant and therefore no wonder if he was a man beyond the ordinary proportion of other men in stature of Body and in qualities of Mind not disproportionable It is regularly true that great Bodies move slowly but it holds not where much Spirit is and it was the condition of this Prince to have a Spirit of the largest size that acted him into motion with no less speed than mighty power This himself understood right well and therefore might be haughty upon a double Title both of Purchase and Inheritance Nor did he fail of expectation herein for he could not endure that man that would own his right in competition with King's aims and therefore would have his Kingdom be like his Doublet to keep him warm and yet sit loose about him that he might have elbow-room Suitable hereunto were his undertakings invited thereunto by the inordinate motions or rather commotions of his neighbouring Princes For it was now full Sea in all Countries and though England was inferiour to some of them yet the King held it dishonourable for him not to adventure as far as the bravest of them and in the end out-went them all What he wanted in number he supplied in courage wherein he so exceeded that he avoided dangers rather out of Judgement than Fear His thoughts Resolutions Endeavours and Actions were all the birth of Occasion and of each other as if he had obtained a general Pass from Providence with warranty against all Counter-guards whatsoever His Wisdom served him to espie present opportunities rather than to foresee them and therefore was not so crafty as his Father in preventing occasions yet more dexterous in giving them the rout For he could manage his hand and foot better than his Father strike downright blows and rather than he would fail of his ends would make one as many times he did Another advantage he had of his Father for considering the times he was a learned King which made his Actions carry more Majestie and like a well-feathered Arrow from a strong had drive through the wind steadily to the mark Whenas his Father like a weak Archer must raise his compass and crave aid of the Wind to help him to be right in the end It is affirmed by some that Henry the Eighth was courteous and debonair if so he must thank his Education but it may be rather supposed that upon occasion he used the art of Insinuation which he might learn both from the Father-side and Mother-side but he neither practised it much nor did he rely upon that skill for his resolution led him to cut the knot that he could not untie His Learning led him most to Divinity and therein shewed him light enough to see much into the Mystery of Iniquity which he did explain to the World passing well but as touching Devotion he left that to the care of the Church-men He was very well accommodated with Money First from the full Coffers left by his Father much whereof he spent in Pastimes and Gallantry as he was Heir to Edward the Fourth and much also in his Devotion to the Pope as he was Heir to Henry the Seventh in lieu of all which he was rewarded with a Title Defender of the Faith and so of much ill gotten was much ill spent But a better supply he had when Rome and he parted asunder and the Current of the Riches of the Clergie was stopped from running at waste and returned into the Kings own Treasury and so might have died the richest Prince in the World but that he wanted the main Clause in the Conveyance To have and to hold The Wisdom of God so ordered it for these felicities were too great and many for any moderate spirit to bear gently much more for the King's Spirit that was ever on the Pinacle and grown to that height that like an embossed Stag none must cope with him he must run and out-run all none must cross him under extream peril no good is to be done but by following afar off Nor is it a full wonder if in this his heat he knows neither faithful Servant Counsellor nor Wife but strikes at all that stands in his way Nevertheless in his cool temper and when he was entangled with some perplexed occasion he could use the advantage of good Counsel and the wits of others that were more crafty than himself Wherein it was his good hap to have some ever nigh him that were for his turn and unto them committed much that himself might be at ease to hear good news of successful dispatches In his youth he was served by the wise Counsellors trained up by his Father and he then willingly enough for his pleasure was contented by their advice to serve his people for a time that they might be his Servants for ever The two great Conduit-Pipes of this Treasury which he had from his Father he cut off at his peoples request as if he loved his People above all his Riches And after that he laid aside his pleasures and youthful company to apply himself more closely to the affairs of his Kingdom as if he loved that above all pleasure which nevertheless stuck to him so long as he lived and swayed too much in the greatest Affairs of his Government Thus the first heat of his course was run well so long as the Privy Council continued moderately poised But no sooner began one of
them to put up beyond his place and to bid adieu to the advice of all the rest but he gets the uppermost seat in the King's Head makes a Foot-stool of the King's Heart and then it is two to one that the people in such cases must bear the greater burthen For whoever first said it he said most true That Prerogative in the hand of a King is a Scepter of Gold but in the hand of a Subject it is a Rod of Iron The Reign of this King Henry the Eighth serves us with much experience of this kind for if the consideration of the Affairs of this Government should be divided the same would be double the one under the Regiment of Cardinal Wolsey the other of the King by Cromwel Cranmer Gardiner and others interchangeably I call that of Wolsey a Regiment for he was in the nature or condition of a Pro-Rex during the Kings Juvenility This fortune thus super-induced upon a Cardinal raised from mean degree to be Legate à Latere courted by Foreign Princes slattered by the Emperour with Titles of Son and Cousin made him lead a dance that the King however active he was is put to his career to hold him company which the King perceiving tripped up his heels and left the Archbishop the Chancellour the Cardinal the Legate and many more with him lying on the ground No pride like to that of the Clergie whose parts are more sublime and apprehensions clear If God addeth not a superiour Work to rule over all a little honour will blow up all with powder The King having thus matched the Cardinal forgot his former natural pace and once in a heat could cool no more till death cooled him He knew by experience that the Cardinal could over-awe the people why should not the King do as much if the Lords stooped to the Cardinal why not much rather to the King The Cardinal pulled down reared up turned square to round why should he be less than his Subjects Such conceits as these soon wound up the Kings mind to that height that it is death to him to stoop one inch lower to more moderate advice though he loved their persons never so well but all must be content with the weight of his arm though it were no small one and yet in point of Religion affairs tended to a kind of Reformation all this while CHAP. XXVII Of the State of the Crown THat the Crown of England now abounded more in Flowers than Crosses the Face of Story doth hold forth to ordinary Observation and yet few are satisfied either in the true nature of the particular advantages or in the manner how they were obtained or in the continuance I must therefore make a little stop upon them because in the true discerning of them the discovery of the nature of the Government in latter days doth much depend Hitherto the Crown came short of absolute power over the people upon two grounds in observation one relating to the Clergie the other to the Laity The Church-men were heretofore under a Foreign power and a Foreign Law against which Kings durst not deeply engage either not being assured of their own Title or employed in pursuit of other game or being of a weak Spirit were scared with the Thunder-bolt of the Pope's Curse But the Laity were under another Law and such an one as by clear and unquestionable Custom had established bounds between the way of Kings and the Rights of the People Neither did Kings directly invade those Borders either led thereto by a kind of Conscience in such of them as were morally enclined or in others by a kind of fear of raising up Earthquakes from beneath which commonly do overthrow high Towers sooner than Winds from above But now such interests are laid aside fast asleep by two Kings Whereof one cared not much for Fear and neither of them for Conscience For Henry the Seventh having leisure to study the Nature and contemplate the Fashion of the English Crown dislikes the Model in some particulars It was not rich enough nor well poised to his mind which ever was not to be poor but towards his latter time to be exceeding rich as supposing that to be the onely way to be more desirable to Friends formidable to Enemies and absolute over his People And this opinion of his missed in the main end though it attained his immediate desire For by mistaking the right way it made a rich King but not a rich Crown He delighted more in the riches of his People than in a rich People And this bred no good blood because the People thought that the Law was not on his side in that matter They suffered him to visit their Purses but are loth it should prove customary lest they should lose their Common Right They therefore chose rather to give him power by Act of Parliament to revoke Letters-Patents and Grants and make resumptions of Offices Fees Annuities and the like that he might rather repossess his own than possess theirs Many Penal Laws likewise of a limited and Temporary regard are made and as Cheese after a full Dinner they close up all with Subsidies For it was evident to all men that the Royal mind of the King served no further than to take what was given provided that the People would give what else would be taken By this means Henry the Seventh left rich Coffers to descend to Henry the Eighth but the Crown was still the same in price In this Act of the Play the People carry away the plaudite The second Act was the point of Allegiance wherein both parts carry themselves so cunningly as it is hard to adjudge the Garland yet it may be thought the King observed it rather because he offered all the play whilst the People did onely lie at their close guard The whole project consisted in this to gain a more absolute Allegiance from the English to their King. And because this is exemplified partly in War and partly in Peace that part which concerneth War will more properly fall under the consideration of the Militia and therefore I shall refer the same to that head in the 32 Chapter ensuing and will come to the second consideration of Allegiance in relation to Peace and therein touch upon the Kings power in making of Laws and of Judicature according to those Laws As touching the making of Laws the ingenuity of Henry the Seventh could not suffer him to make any claim thereto in any positive way yet his actions declare that his heart was that way For being beset with troubles he could often fancy dangers and arm himself then call a Parliament who were wise enough to grant as readily as he asked rather than to be compelled thereto So he had Laws made according to his own Will though he made them not The matter of Judicature comes next and therein he made his Judges appear and not himself though they did not onely represent his person but his mind
be said that the whole lump thereof did belong to the King because much thereof was not so ancient but De novo raised by the Pope's extortion and therefore the true and real profits are by particular Acts of Parliaments ensuing in special words devolved upon him The nature of this power is laid down in this Statute under a threefold expression First It is a visitatory or a reforming power which is executed by enquiry of Offences against Laws established and by executing such Laws Secondly It is an ordinary Jurisdiction for it is such as by any Spiritual Authority may be acted against Irregularities And thus the Title of Supream Ordinary is confirmed Thirdly It is such a power as must be regulated by Law and in such manner as by any Spiritual Authority may lawfully be reformed It is not therefore any absolute Arbitrary Power for that belongs onely to the Supream Head in Heaven Nor is it any Legislative Power for so the Law should be the birth of this power and his power could not then be regulated by the Law nor could every Ordinary execute such a power nor did Henry the Eighth ever make claim to any such power though he loved to be much trusted Lastly This Power was such a Power as was gained formerly from the King by Forein Usurpation which must be intended De rebus licitis and once in possession of the Crown or in right thereto belonging according to the Law. For the King hath no power thereby to confer Church-livings by Provisorship or to carry the Keys and turn the infallible Chair into an infallible Throne In brief this power was such as the King hath in the Commonwealth Neither Legislative nor Absolute in the executive but in order to the Unity and Peace of the Kingdom This was the Right of the Crown which was ever claimed but not enjoyed further than the English Scepter was able to match the Romish Keys And now the same being restored by Act of Parliament is also confirmed by an Oath enjoyned to be taken by the people binding them to acknowledge the King under God supream head on earth of the Church of England Ireland and the Kings Dominions in opposition to all forein Jurisdiction And lastly by a Law which bound all the people to maintain the Kings Title of Defender of the Faith and of the Church of England and Ireland in Earth the supream Head under the peril of Treason in every one that shall attempt to deprive the Crown of that Title We must descend to particulars for by this it will appear that these general Laws concerning the Kings refined Title contained little more than matters of Notion otherwise than a general bar to the Popes future interests And therefore the Wisdom of the State as if nothing had been already done did by degrees parcel out by several Acts of Parliament the particular interests of the Popes usurped Authority in such manner as to them seemed best And first concerning the Legislative Power in Church-Government It cannot be denied but the Pope De facto had the power of a Negative vote in all Councils and unto that had also a binding power in making Laws Decrees and Decretals out of his own breast but this was gotten by plunder he never had any right to headship of the Church nor to any such Power in right of such preferment nor was this given to the King as Head of the Church but with such limitation and qualifications that it is evident it never was in the Crown or rightly belonging thereto First Nigh three years after this Recognition by the Clergy in their Convocation it is urged upon them and they pass their promise In verbo Sacerdotii And lastly It is confirmed by Act of Parliament That they shall never make publish or execute any new Canon or Constitution Provincial or other unless the Kings Assent and License be first had thereto and the offences against this Law made punishable by Fine and Imprisonment So as the Clergy are now holden under a double Bond one the honour of their Priesthood which binds their Wills and Consciences the other the Act of Parliament which binds their powers so as they now neither will nor can start Nevertheless there is nothing in this Law nor in the future practice of this King that doth either give or assert any power to the King and Convocation to bind or conclude the Clergy or the People without an Act of Parliament concurring and inforcing the same And yet what is already done is more than any of the Kings Predecessors ever had in their possession A second Prerogative was a definite power in point of Doctrine and Worship For it is enacted that all Determinations Declarations Decrees Definitions Resolutions and Ordinations according to Gods Word and Christs Gospel by the Kings Advice and Confirmation by Letters-patent under the Great Seal at any time hereafter made and published by the Archbishops Bishops and Doctors now appointed by the King or the whole Clergie of England in matters of the Christian Faith and lawful Rites and Ceremonies of the Same shall be by the People fully believed and obeyed under penalties therein comprised Provided that nothing be done contrary to the Laws and Statutes of this Realm A Law of a new birth and not an old Law newly revived or restored This the present occasion and the natural constitution of the Law do fully manifest The occasion was the present perplexity of the people for instead of the Statute Ex officio which was now taken away the Six Articles commonly called the Six-Stringed Whip were gotten into power by a more legal and effectual Original The Parliament had heard the cries of the People concerning this and having two things to eye at once one to provide for the Peoples Liberty and further security against Foreign pretensions the other which was more difficult for the liberties of the Consciences of multitudes of men of several Opinions which could not agree in one judgement and by discord might make way for the Romish party to recover its first ground And finding it impossible for them to hunt both games at once partly because themselves were divided in opinion and the bone once cast amongst them might put their own co-existence to the question and partly because the work would be long require much debate and retard all other affairs of the Commonwealth which were now both many and weighty In this troubled wave they therefore wisely determine to hold on their course in that work which was most properly theirs and lay before them And as touching this matter concerning Doctrine they agreed in that wherein they could agree viz. To refer the matter to the King and persons of skill in that mystery of Religion to settle the same for the present till the Parliament had better leisure the people more light and the minds of the people more perswaded of the way Thus the Estates and Consciences of
which followed and made way for the King without shame to ask what no King before him suffered ever to enter into conceit I mean a Legislative power to this effect That Proclamations made by the greater part of the King for the time being and his Council whose names hereafter follow with such penalties as by them shall be thought meet shall be of equal force by an Act of Parliament provided it shall not extend to the forfeiture of Estates or Priviledges nor to loss of Life but in cases particularly mentioned in the Law Provided no Proclamation shall cross any Statute or lawful or laudable Custom of this Realm All which at length comes to be demanded by a formal Bill with as ill-favoured a Preface as the matter it self which was much worse e're it was well liked in the House of Commons and when all was done proved a Bare still Whatever it was it passed in manner abovesaid neither much to the desire of the Commons that so much was given nor to the good liking of the King that there was no more For instead of a Legislative power which he grasped at for himself he received it in common with his Council and so becomes engaged neither to alter nor destroy that Brotherhood if he intended to reap any fruit of this Law leaving the point in doubt whether his Gain or Loss was the greater For this Law thus made for this King these Counsellors and these times and occasions can be no Precedent to the future unless to inform Kings that the Parliament hath a power to give more Authority and Prerogative to Kings than they or the Crown have by common Right and to give it with such limitations and qualifications as seemeth good to them And secondly That even Henry the Eighth acknowledged that the Legislative power was not in the Crown nor was the Crown capable thereof otherwise than it was conferred by the Parliament Onely Steven Gardiner might glory in this Atchievement having for the present obtained much of his ends by perswading the King that Forein Princes estranged from him not so much for his departure from the Pope as for some apprehensions they had of his departure from that way of Religion and Worship which they apprehend every Christian ought to maintain And therefore if he meaned to gain better correspondency amongst these Princes he must engage more resolvedly to the Fundamentals of the Worship though he shook off some slighter Ceremonies with the Romish Supremacy for he knew that they were willing enough with the latter though the other could not go down with them Thus did Forein Correspondency float above whenas the Church as then it stood was underneath and gave the tincture to every Wave And it was holden more safe by the Romish party to trust the King thus attempered with the Legislative power in the Church-matters than the rough Parliament whose course steered quite wide from the Roman shore as if they never meant to look that way any more though Cranmer and the chief Officers of State and of the Houshold were by the Law Judges of the matter in fact as well as the King yet in the conclusion the King onely was of the Quorum All this yet further appears in the penalty for by a Proviso it is moderated as to all forfeitures of Life Limb or Estate and in the conclusion extended onely to Fine and Imprisonment unless in some cases mentioned and excepting offences against Proclamations made by the King or his Successors concerning Crimes of Heresie For it is the first Clause of any positive Law that ever intimated any power in the King of such Cognizance and punishment of Heresie Too weak a principle it is to settle a Prerogative in the King and his Successors as Supream Head of the Church thus by a side-wind to carry the Keys of Life and Death at their Girdle and yet a better ground cannot I find for the Martyrdom of divers brave Christians in those times than this touch of a Law glancing by All which passing Sub silentio and the Parliament taking no notice thereof made way for the Statute 38 H. 8. c. 26. formerly mentioned to come more boldly upon the Stage This was one wound to the Legislative power of the Parliament thus to divide the same Another ensues that in its consequences was no less fatal to that power which remained and it was wrought by some Engine that well saw that the Disease then so called grew to be epidemical amongst the more considerable party in the Kingdom that the Lady Jane Seymor now Queen was no friend to the Romanists that she was now with Child which if a Son as it proved to be was like to be Successor in the Throne and be of his Mothers Religion and so undo all as in the issue all came so to pass To prevent this nevertheless they fancy a new conceit that Laws made by English Kings in their minority are less considerately done than being made in riper years And so by that one opinion countenanced a worse which was that the Legislative Power depended more upon the judgement of the King than the debates and results of the Parliament a notion that would down exceeding well with Kings especially with such an all-sufficient Prince as Henry the Eighth conceived himself to be Upon this ground a Law is made to enable such of the Kings Successors by him appointed as shall be under the age of Twenty and four years when Laws by him are made to adnul the same by Letters-patents after such Prince shall attain the said age of Twenty four years Thus the Arms of the Parliament are bound from setling any Reformation let them intend it never so much a Muse is left open for the Romish Religion still to get in when the Season proves more fair The Parliament was now in its minority and gives occasion to the Reader to bewail the infirmities of the excellencie of England A fourth advance of Prerogative concerned the Executive Power in Government of the Church This had formerly much rested in the Prelacy and that upon the chief Praelatissimo at Rome now there is found in England a greater Prelate than he the Pope was already beheaded and his head set upon the Kings shoulders To him it is given to nominate all Bishops and Archbishops within his Dominions by Conge d'eslire and that the party once elected shall swear Fealty and then shall be consecrated by Commission and invested but if upon the Conge d'eslire no Election be certified within Twelve days the King shall by Commission cause his own Clerk to be consecrated and Invested The occasion that first brought in this President was the access of Cranmer to the See at Canterbury for though the Headship had been already by the space of Two years translated from Rome to England yet the course of Episcopizing continued the same as formerly it had been I mean as touching the point of Election For though
in their Original Bishops were meerly Donatives from the Crown being invested by delivery of the Ring and Pastoral Staff and until King John's time the Canonical way of Election was disallowed yet King John by his Charter De communi consensu Baronum granted that they should be eligible which also was confirmed by divers publick Acts of Parliament in after-times and now by this Law last recited and with this way the King was contented for the space of Six years for the Reformation intended by the King was not done at once but by degrees and therefore though this course of Conge d'eslire was brought into use yet the Parliament being of Six years continuance a necessary thing in times of so great change of Policy began this course of Election by giving the King power to nominate and allowing of the Pope power to grant to such his Bulls or Pall at his own will otherwise they should be Consecrated by Commission without his consent And thus at the first the Pope's Concurrence was not excluded though his Negative was In this posture of affairs comes Cranmer to be consecrated Archbishop And being nominated thereunto by the King the wily Pope knowing the Kings aim meaned not to withstand lest he should lose all but granted the Pall as readily as it was desired so as Cranmer is thus far Archbishop of Canterbury without all exception yet he must go one step farther and take the old Oath to the Pope which the King allowed him to do Pro more and which he did renitente Conscientia say some and with a Salvo say others and all affirm it was done Perfunctorie like some worn Ceremonie or civil Complement Nevertheless it was not so soon turned over the Archbishop loved not the Office the King loved not Partnership in this matter and it was evident to all that no man could serve these two Masters any longer an agreement is soon concluded in Parliament to exclude the Popes Power quite out of this game and all is left to be done by the King and his Commissioners by the Law formerly propounded In all this the Pope is loser the English Clergie the savers for the Pall cost Cranmer Nine hundred Marks And the Crown is the great gainer for hereby the King got the men sure to him not onely by their own acknowledgement and submission but also by a Statute-Law And lastly by Oath which to make sure was treble twined once upon their first submission in the Kings Twentie second year when they had been under Praemuniri Secondly Soon after the decease of Queen Katherine Dowager in the Twentie sixth year which Oath was more compleat than the former containing First A Renunciation of all Fealty to the Pope or any Foreign Power Secondly An Obligation to adhere to the Cause of the King and his Successors Thirdly A Disavowing of the Pope otherwise than as another Bishop or fellow hrother Fourthly An Engagement to observe all Laws already established against the Pope's power Fifthly A Disavowing of all appeals to Rome Sixthly An Engagement to inform the King of all Messages or Bulls sent from Rome into England Seventhly An Engagement not to send or be privy to the sending of any Message to Rome for any such purpose The third Oath was that of Fealty which anciently was due to Kings and now revived to be taken by all Bishops upon their admission And thus the English Prelacie having been sworn Slaves to the Papacie ever since Becket's time are now preferred to a more Royal Service and the pursuit by Kings after their right being laid aside by the space of 300 Years is now renewed and the prey seized upon by the Lion who found it upon a better Title and in better condition by much than when at the first it was lost For it was upon some semblance of Reason that the Archbishop and Clergie gained it but being afterwards dispossessed thereof by the Pope and yet without any other shadow of Title but the power of his own gripe for the present he is the Occupant and becomes Proprietor by prescription till now the Felon being apprehended the stolen Goods are the Kings in Right and by Remitter whereunto the Parliament by the Statute adding their Conveyance establishes the same by an unquestionable Title Nevertheless their service is no less servile to this Crown than it had been to the Romish Miter formerly they asserted the Pope's Infallibility now the King's Supremacy They are now called by the King made by the King sent by the King maintained by the King whatsoever they are whatsoever they have all is the King 's He makes Bishops he makes new Bishopricks and divides or compounds the old as he pleaseth by a power given to Henry the Eighth by Parliament Which Oath was never in any Prince before or after him that I can find so as the Crown had it not but the man and it died with him The King thus loaden with Power and Honour above all his Predecessors if without proportionable Maintenance to support the one and act the other must needs consume himself as one in a Tympanie by growing great For though he was left rich by his Father's Treasure yet his Zeal to Rome in its now poor captivated condition under the Imperial power stirring up in him great undertakings abroad besides his own Pleasures and Gallantry at home exhausted that and doubtless had starved these his grand designs had he not found the hidden Treasures of the Cells and Monasteries the sight whereof so rouzed up his Spirits that he adventured upon the purchase though he knew difficulties enough to have stopped his undertakings if he had not resolved both against fear and flattery It was not done without deliberation for the thing was felt as a grievance before the Norman times and complained of in Parliament above a hundred and forty years ago and divers times since but Kings either understood not or believed not or durst not give remedy or had much else to do But now the King is beyond all his Predecessors he knows much dares do more and is at leisure He will go as far as Emperour or French King and beyond them also but would not try masteries with either for they were all Cocks of the game The first occasion that discovered the work feasible was a president made by Cardinal Wolsey whose power was enough to dissolve some petty Cells and no opposition made The King might well expect the work would be as lawful for him and not much more difficult or if any Storms ensued the people that had so long complained and felt the burthen of these excrescences of the Clergie would soon find out a way to calm them the King need do no more than speak and the people will do This opened the door but that which brought the King in was the hold the Pope had in this Kingdom by these Cloistered people who were persons dead in Law and dead to all Law but the
first submission even unto Edward the First they were summoned unto Parliament and had vote there but onely in order to the Interests of their own Country now and henceforth they possess one and the same vote as English men Secondly as Courts and Judicatories multiplied so some also of those that were ancient enlarged their Jurisdiction especially such of them as most nighly related to Prerogative Amongst others the Privy Council leads the way who now began to have too much to do in a double capacity one at the Council-Table the other at the Star Chamber For now their power began to be diversly considered In their first capacity they had too much of the affairs of the Common-Pleas in the latter they had too much of the Crown-Pleas both of them serving rather to scare men from doing wrong than to do any man right And therefore though some men might seem to have some recompence yet the greatest gain fell to the King and his Courtiers and thus became Majesty or State or Prerogative to be more feared than beloved What the power of the Council was formerly hath already been manifested that which both these Kings conspired in and whereby they gained more power over the people than all their Predecessors was this that other Kings stood too much upon their own Legs these leaned much upon the Lords and gained the Lords to stick close to them and in this they had both the Kings Love and the Peoples Leave who now disjoynted upon several Interests especially that of Religion must be contented to let go that which they had no heart to hold And thus they obtained a Judicatory power over the people like that of great men whose censures are commonly above capacity and not like to that of the Peers This was begun in Henry the Seventh's time who taking occasion to complain of corruption and neglect in ordinary Trials of the Common Law gets the people to yield to the Council or some of them a power of Oyer and Terminer by examination upon Bill or information in matters concerning Maintenance Liveries Retainders Embraceries corruption in Sheriffs and Juries Riots and unlawful Assemblies crimes all of them of the same bloud with Rebellion which the King as much hated as the thought of his Title to the Crown and therefore would have it feared as much as the punishment by such a mighty power and a Trial of a dreadful nature could effect A Trial I say wherein both the guilty and the guiltless adventure their whole Estates against the edge of the arbitrary wills of great men of unknown Interests in an unknown way at unknown places having no other assurance how or when to come off but a Proclamation to tell the people that the King above all things delighted in Justice A bitter Pill this was for the people to swallow yet it was so artificially composed that at the first taste it gave a pretty rellish the King delights in Justice the Chancellour hath his Conscience the Archbishop brings Religion the Judges bring Law so as it is probable nothing will be done but according to Justice Conscience Religion and Law a very fair mixture but that there was a Treasurer in the case Yet the success answered not expectation the persons offended were many times inferiour and their Estates not great the Offenders more mean and of desperate fortunes for great men were too wise to try this new way or to taste of their entertainment Therefore within nine years the Judges of Assize are betrusted with all and that Court so continued for as many years more and then the King marked out one crime amongst the rest for his own tooth belonging to the great men onely for they are onely to commit the crime and to give recompence suitable to the King's Appetite It is giving of Liveries and Retainders a sore evil in the eyes of a jealous King tending to draw the inferiour sort to honour and admire and be of the suit of those of the greater sort and then beware the Crown These therefore must be tried before the King himself and his Council that he may know whom he is to fear and of whom to take heed And hereupon is a strange power given to summon upon a meer Suspicion To proceed without Information To examine the Defendant upon Oath and make him his own accuser To punish according to discretion by Fine and Imprisonment And thus the King and his Council have gotten a power under colour of Liveries and Retainders to bring the whole Kingdom to be of their Livery or else they can suspect whom they please apprehend whom they suspect put him presently to the rack of confession and so into Prison till he hath satisfied both displeasure and jealousie and covetousness it self Never was England before now in so low a degree of thraldom bound under a double knot of self-accusing and arbitrary censure and this out-reached not onely in matters meerly Civil tending to the common Peace but was intruded also into matters Ecclesiastical in order to the peace of the Church All bound unto the good Behaviour both in Body and Soul under peril of loss of all that a man hath dear to him in this world The plot of all this was laid by Henry the Seventh and was followed by Henry the Eighth who put that into practice which his Father had in design being led thereto by such a skilful Guide as Cardinal Wolsey was who though of mean Birth yet of a Spirit above a King and equal to the Popedom strained the string of Prerogative to its utmost height and then taught the King to play thereon which he did after his blunt manner till his dying day And thus though the Clergie are brought a peg lower and the Nobility advanced higher yet was it the policy of these Kings to make them all of their own Livery and Retaindership to keep them in an upper region looking on the poor Commons at a distance far below and well it was for the Commons thus to be till the influence of these blazing Stars grew cooler CHAP. XXXII Of the Militia IT may fall within the verge of Opinion that the guilty Title of Henry the Seventh to the Crown of England gauled his mind with jealousie the greatest part of his Reign Whether it were that he had not declared himself so fully upon his Title by his Wife or that as yet he feared some unknown Plantagenet would arise and put his Crown to the question This made him skilful in the point of Fortification wherein he likewise spent the greatest part of his Reign not so much by force of Arms for he cared not much for that noise well knowing that Peace is the safer condition for a King that comes in by power but principally by way of gaining Concessions and acknowledgement from the Subjects a Musick that he much delighted to hear well knowing it would conclude those amongst them that knew too much
and instruct them that knew too little and so in time he should pass for currant amongst them all It was no hard matter for the King to accomplish this the greater part of the Kindom being pre-ingaged unto his Title and of them many depending upon him for livelihood if he failed they must look to lose all But the present occasion urged more importantly the Title to the Crown was already put to the question by the pretentions of one that named himself Duke of York And it is now high time for the Law to declare it self to direct the people in such a Case What shall the people do where Might overcomes Right or if days come like those of Henry the Sixth wherein the Subjects should be between Two Mill-stones of one King in Title and another King in possession for whom must they take up Arms If for Edward the Fourth then are they Traitors to Henry the Sixth If for Henry the Sixth then are they Traitors to Edward the Fourth And so now if for Henry the Seventh then they may be Traitors to the Duke of York If for the Duke of York then are they Traitors to Henry the Seventh For though the Duke of York was said to be but a contrivance of the House of Burgundy yet a great part both of the great men and others were of another opinion and the King himself was not very certain of his condition for the space of six years thereby This puts the Title of Allegiance and that power of the Militia to the touch at length both King and Parliament come to one conclusion consisting of three particulars First That the King for the time being whether by right or wrong ought to have the Subjects Allegiance like to that of the wise Counsellor of that brave King of Israel Whom the Lord and his People and all the men of Israel chuse his will I be And this is not onely declared by the express words in the Preface of the Law but also by the Kings own practice For he discharged such as aided him against Richard the Third then King by pardon by Parliament but such as aided him being King by declaration of the Law. Secondly That this Allegiance draweth therewith ingagement for the defence of that King and Kingdom Thirdly That the discharge of this Service whereto the Subjects are bound by Allegiance ought not to be imputed unto them as Treason Nor shall any person be impeached or attained therefore The first and the last of these need no dispute The Second is more worthy of consideration in the particular words set down in the Statute viz. That the Subjects are to serve their Prince in his Wars for the defence of him and the Land against every Rebellion Power and Might reared against him and with him to enter and abide in Service in Battle Wherein two things are to be considered the Service and the time or occasion The Service is to serve the Prince in his Wars and with him to enter and abide in service in Battel which is the less to be stood upon because there is a condition annexed if the case so require which must be determined by some Authority not particularly mentioned Albeit that whatsoever is therein set down is onely by way of supposal in a Preface annexed to the Law by the King and permitted by the Commons that were as willing the same should be allowed as the King himself both of them being weary of Wars and willing to admit this Conclusion for the better security of them both in these doubtful times But to lay all these aside for the Case is not stated till the Cause be considered all this must be onely when and where the King's Person and Kingdom is endangered by Rebellion Power or Might reared against him So as the King's Person must be present in the War for the defence of the Kingdom or no man is bound by his Allegiance to hazard his own life And then this point of Allegiance consisteth onely in defending the King in the defence of the Land or more particularly in defending the King's Person he being then in the defence of the Land and defending him in order to the defence of the Land. So as no man can rationally infer from hence that the King hath an universal power of Array when he pleases because the King when he pleases may not levy War nor make other War than a defensive War when the Land is endangered or when need shall require as another Statute hath it But who shall determine this need or danger neither in these or any other Laws is mentioned either out of want of occasion or by reason of the tenderness of the times wherein both Prince and People were willing to decline the Question Secondly the persons that are to do this service are to be considered of and although they are indefinitely set down under the word Subjects it may be supposed that the word is not to be taken in so large a sence as to comprehend all of all Ages Sexes Callings and Conditions in regard that even by the Common-Law some of each of these sorts are discharged from such service But it may seem the King was neither satisfied with the expressions of this first Law concerning the occasion or time of this service nor did he see sufficient ground under the notion of bare Allegiance to desire more New ways are by him found out his Patentees were not a few and although few or none could ever boast much of any cheap Purchases gained from him for he was wont to be well paid beforehand for his Patents either by Money or that which was as beneficial to him yet he was resolved that their holding should be no less advantageous to him than their having And therefore in plain words he lets them know that notwithstanding former consideration upon which they had their Patents at the first they must fight for him if they will live upon him and either adventure their Lives or their Benefit chuse they which and if they find fault with their condition he touches them with the Law of their Allegiance And thus he makes way to intimate a claim of a more absolute Allegiance for being to shew the Equity of the Law in regard of their Allegiance he tells them That every Subject is bound by his Allegiance to serve and assist his Prince and Soveraign Lord at all seasons when need shall require General words that affirm nothing in certainty yet do glance shrewdly upon an absolute and universal assistance Then coming to drive the Nail home it is said that the Patentees are bound to give their attendance upon his Royal Person to defend the same when he shall fortune to go in his person to Wars for the defence of the Realm or against his Rebels and Enemies And as another Statute addeth Within the same Realm or without and according to their Allegiance and not to depart without especial License or
Labour or other Contribution none of which ought to be done but by publick Law. And therefore when the Inhabitants of the County of Cornwal were to make defence against Invasion and Piracy from the Coast of Little Britain in regard they were a long slender County and upon sudden surprizals People could not so readily flock together for their joynt defence they obtained an Act of Parliament to give them power to fortifie the Sea-coasts according to the direction of the Sheriff and Justices of the Peace Lastly Wars once begun must be maintained at the charge of the undertakers If they be the Kings own Wars he must maintain them out of his own Treasury till the benefit of them do prove to the common good and in such cases the charges have been sometimes provided before the work by Act of Parliament and sometimes after Henry the Seventh and Henry the Eighth both of them at their several times went to Boloigne with their Armies Henry the Seventh with an intent to gain profit to himself by an advantagious peace and had his ends therein and was ashamed to ask aid of the people towards the charges of that War. Henry the Eighth went upon his own charge also with his Army trusting to the Parliament for consideration to be had of his employment wherein his expectation did not fail and in his absence made Queen Katherine General of all the Forces of England in his absence and gave her power with other five Noble Personages to take up Money upon Loan as occasion should require and to give security of the same for the maintaining and raising of Forces if need should require as is more particularly set forth in the Patent-rolls of these times Nevertheless the War at Sea Infra quatuor Maria was ever reputed defensive as to the Nation and under the publick charge because no War could be there but an Enemy must be at hand and so the Nation in imminent danger and therefore the maintenance of the Navy-Royal in such cases was from the publick Treasury To conclude therefore if the Parliament and Common Law in all these Cases of Levies of men for War payment of Souldiers and their deportment in cases of Fortifications and of maintenance of Wars at Sea and the deportment of such as are employed therein I say if they give the Law and carry the Supream Directory then certainly the Law rules in that which seems most lawless and though Kings may be chief Commanders yet they are not the chief Rulers CHAP. XXXIII Of the Peace PEace and War originally depend upon the same power because they relate each to other as the end to the means and receive motion from one and the same Fountain of Law that ruleth both in Peace and War. It is very true that several Ages hitherto have been troubled with arbitrary Exhalations and these very times whereof we now treat are not altogether clear from such an air Two Kings we have at once in view both of them of an elate spirit one working more closely by cunning the other more openly by Command yet neither of them pretending so high as to do all or be all in all Peace suited more with Henry the Seventh than with his Son who delighted to be accounted terrible rather than good yet both of them were glad enough to be at peace at home and were industrious to that end though by several means Henry the Seventh pretended Justice and Peace a welcome news to a people that formerly accounted nothing theirs but by the leave of the Souldier and therefore sets upon the Reformation of the Sheriffs Courts in the entring of Plaints and making of Juries suitable to that present time wherein men of Estates were very scarce and much of the Riches of the Nation evaporated into the Wars both Civil and Foreign Although the continuance of that order concerning Juries in the succeeding times of opulency hath brought these Courts into contempt and made way thereby for the Kings Courts to swell in Glory and to advance Prerogative even above it self Secondly he reforms Goals as well in their number as their use During the Civil Wars every small party of men that could get a strong place made the same not onely a Castle but a Goal and usually imprisoned and ransomed at their own pleasure For remedy whereof Henry the Seventh restores all Goals to the Sheriffs saving such as hold by Inheritance and gives power to two Justices of the Peace one being of the Quorum to take Bail in cases bailable and Recognizances of the Peace to be certified at the next Sessions or Goal-delivery Thirdly both Kings concur in providing against such disorders as more immediately did trench upon the publick Peace and reached at the Crown it self by labouring to prevent by severe punishing and lastly by regulating the proceedings of Judicature in such cases These disorders were two inordinate wearing of Liveries and unlawful Assemblies The first being in nature of unlawful assembly of minds and spirits of men the second of their bodies and persons Both these had formerly been provided against but the Judges of the Common Law unto whose Cognizance these Crimâ— were holden did restrain their punishments to the rule of the Common Law then thought to be too facile and mean for disorders that did flie at so high a pitch and therefore they are reduced before a higher Tribunal as matter of State as hath been already mentioned The severity of punishment consisted not so much in aggravating the Pain as the Crime matters of injury being made Felonies and those Treasons This Crime of Treason at first it concerned matters acted against the Nation afterwards it reached to matters acted against the King now it reacheth even to the very thoughts and imaginations of the heart not onely of bodily harm to the King but of the Queen or their Heirs apparent or tending to deprive them of their Title of Name of Royal Estate This Crime was formerly made but Felony by Henry the Seventh and then onely extended to such offence committed by one of the Kings Houshold against the Person of the King or a Lord or any of the Council Steward Treasurer or Controller so as the Person of the Queen was not then in the case and yet then newly Crowned and at that instant bearing in her Womb the Royal Seed which was then the onely earnest of the stability and glory of England and therefore it is a subject of wonderment unless it were out of extremity of Jealousie lest he should seem to make too great account of her Title and thereby disparage his own And then is it a piece of wit but not without weakness for he that is jealous of the slightings of other men shews himself unresolved in his own pretensions Now Henry the Eighth not onely raised the price but added to the thing and not onely putteth the Queen but the Prince or Heir
affection or now much less finding his Body diseased and his Mind lingering after unlawful game On the other side the King not finding that content in her Person especially after her supposed Conception that he expected looked to his own Interest apart from hers and thereby taught her to do the like And this she thought cost England the loss of Callis and he Spain the loss of many advantages that might have been obtained and was expected from this Conjunction Thus by the several Interests between the King Regnant and the Queen Regent the Government of England became like a Knot dissolving neither fast nor loose Towards the People she might well be reserved if not rigid for she knew her entry was not very acceptable though accepted and that her Design was contrary to her Engagements and therefore it was vain to think to please her self and pleasure them Nor did she much busie her thoughts therewith that abominated trick of Impost upon Merchandize she brought into fashion which had by many publick Acts been damned for the space of two hundred years This was done without either shame or fear for if the People turned head she knew she had a good reserve from Spain and the People might very well consider of that though for her part she desired not much to improve that Foreign Interest because she might well see that Spain designed to keep England so far beneath that France might not get above And that Philip neither loved the double Crown of England no nor the Triple Crown at Rome otherwise than in order to that of Spain This distance between her and her King wrought her to a more nigh dependency upon her Council and English Nobility and so became less discerned in her Government although questionless she did much and wanted not Wisdom or Courage to have done more but that she was not wholly her own Woman All men do agree that she was devout in her kind of Profession and therein as deeply engaged as her Brother Edward had been in his though it may be he out of tenderness of Conscience but she out of a Spanish kind of gravity that endures not change and whereunto she was well aided by her Clergie who were her beloved for her Mothers sake and now also so much the more sowre by how much the nigher to the bottom It is the less wonder therefore if the Zeal of these times burnt into a flame that at length consumed even those that kindled it In one thing more above all the rest she acted the part of her Sex rather than that of her Place and the same contrary to the advice of her Ghostly Fathers and all Rules of Policy and the Agreement between her King and self upon Marriage which was the engaging of England in the War at St. Quintins against the French contrary to the National League formerly made Nevertheless the Issue was but suitable for though the English obtained their part of the Honour of that day yet in the consequence they lost Callis the last foot that the English had in France henceforth England must be content with a bare Title As this was deserved so was it also reserved by the Queen to make the world believe that she died for grief therefore as a Mother of her Country although her bodily Disease contracted by a Conception wherein she beguiled both her self and the world concurred thereto In sum the worst that can be said of her is this That she was ill-principled and the best That she acted according to her Principles And so lived an uncomfortable Life shaped a bloudy Reign and had but a dim Conclusion The Night was now spent and Queen Elizabeth like the Morning-Star rising into the Throne sent forth the benignant Influence of both her Predecessors and many ways excelled them both She was begotten in a heat against Rome wherein also she was born and trained up by her Father and Brother Edward's Order and saw enough in her Sisters course to confirm her therein for Queen Mary was not very Catholick in her Throne though she was in her Oratory Nevertheless Queen Elizabeth's course hereunto was very strange and might seem in outward respects to lead her quite wide for her youth was under a continual yoke her Mother dead whiles she was at the breast her Father owning her no further than as his Child born of a rebellious woman never intending her for the Crown so long as any hope was left of any other With her age the Yoke grew more heavy her Brother Edward being but of the half-bloud except in point of Religion might respect her at a distance beyond his Mothers Family But this lasted not long her Sister Mary comes next of a stranger bloud to her than her Brother was looking ever back upon her as one too nigh her heel and more ready to tread upon her Train than support it The difference in Religion between them two added yet further Leven and this occasioned from her Sister to her many sowre reflections bitter words harsh usage concluding with Imprisonment and not without danger of Death All which Queen Elizabeth saw well made the less noise in Religion walked warily and resolved with patience to endure the brunt For she might perceive by her Father's Will that her way to the Crown if ever she arrived at the end must be through a Field of Bloud and though she knew her change of Religion might make the way more plain yet God kept her in a patient waiting until the set time was come Thus passing over her Minority with little experience of youthful Pleasures she had the happiness to have the less sense of youthful Lusts which meeting with natural Endowments of the larger size rendred her the goodliest Mirrour of a Queen Regent that ever the Sun shone upon God adding thereto both Honour and Continuance above all that ever sate in that Throne Her entrance was with more joy to others than her self for she kept her pace as treading amongst Thorns and was still somewhat reserved even in matters of Religion though she was known to be devout She had observed that the hasty pace both of her Brother and Sister brought early Troubles before either of them were well setled in their Throne And therefore whereas her Sister first set up the Mass and then endeavoured to settle it by Disputes she contrarily first caused the point to be debated and thereby gained liking to lay it aside It is true the Moderatorship in that Dispute was imposed upon a Lay-man as their term is but his work being to hold the Disputants to order in debate and not to determine the point in Controversie which thing was left to the Auditory might therefore more rationally be done by him than censured by an Historian that shall undertake to judge them all The first step thus made one made way for another till the whole became levened Her proceedings against Opposers were with much lenity rather overlooking than
irregularity of her proceedings Before ever she called Parliament she setled the great work of Reformation or rather Deformation in the Worship of God by single Proclamation and not onely took away the Partition-wall of Doctrine by the like power but gave way and power to Persecution thereupon to arise before any 〈◊〉 Order from the Holy See then so called enabled her thereun◠〈◊〉 And â—â—ter that she declared her self convinced that she ought not 〈◊〉 Ecclesiastical Jurisdiction and by her Instructions forbad the 〈…〉 in their Process that Clause of Regia Autoritate fulcitus yet even these Instructions had no other Authority than her own And nevertheless she still inforced the Execution of all matters concerning the publick Worship of God and Government of the Church when as yet the Pope had no admittance unto his ancient claim It is very true that the Pope long ere now had made a fair offer and the Queen had lent her ear but her Train was too great to move as fast as was pretended so as no meeting could be had till the Queens Marriage with Spain was past and such as were disaffected found it was bootless to stop the Current of two such mighty Streams of Power now joyned into one and so that unclean spirit returned seven times worse than when he went out and took Seisin meerly upon Repeal of the Laws made by Henry the Eighth in the Negative without farther Grant or Livery For though an express Embassage was sent to Rome to perform the solemnity of the submission yet the Pope died before the arrival of the Embassie and the solemnity failing left the Title of the Crown much blemished yet was it not wholly defaced For if the Statutes in Henry the Eighth and Edward the Sixth's time did but confirm the possession it is evident that the repealing of those Statutes took away no Right from the Crown nor gave legal possession to the Pope that had formerly neither Possession nor Right but left him to his Remitter as in his ancient right or rather in his ancient wrong Yet right or wrong de facto he both did win and wear the Keys so long as the Queen lived and so far as she pleased for her devotion would not allow of absolute obedience in that kind nor all for Gospel that the Pope said or did but by her self and Council executed the powers of Supremacy of Jurisdiction in Church-matters not onely in pursuance of the Papal Authority but in crossing the same where the Popes way crossed her opinion as in the cases of the War between her Husband and France and the Power Legatine of Cardinal Pool her condemning of Doctrines and Books to be Heretical by Proclamation establishing both Prayers and Dirges and other Orders of publick Worship whereof more fully in the publick Histories of those times and the Queens Injunctions upon occasion of the death of Pope Julio is to be seen Lastly she was no good Queen not onely because she gave up the peoples Liberties in Ecclesiastical matters to the Foreign Jurisdiction of Rome but undertook too much therein by far upon her own account and in Civil affairs though de jure she was not inferiour to any of her Progenitors yet she would have it declared by the Parliament as if the consideration of her Sex or Birth had made some hesitation in her mind and when she had made all clear she commending her self thereby to the Prince of Spain with her self indangered likewise that trust of the Nation which she had received and cast such a shadow upon her own Supremacy as in many things it is hard to be discerned Lastly in her whole course uneven sometimes appearing like the eldest Daughter of Henry the Eighth at other times like a Fee-covert led by the will of her Lord aud Husband that wanting Supremacy himself rendred her thereby beneath her self For first she married by Act of Parliament as if she were not at her own disposing professing as much in her speech to the Londoners upon the Kentish Rebellion So a difference was made between the two Sisters the Marriage of the one being by advice of Parliament and the abstinence of the other against the same Nor is the same altogether irrational for by the one the Government of the Nation is endangered and by the other otherwise Secondly by her Marriage she became doubly married one way relating to her Person unto her King the other relating to her Trust unto her Council For where a Foreign mighty King is so nigh the Helm it is dangerous to trust the same to his Wife without the joynt concurrence of the Lords The matter in fact declared no less for many times she had steered quite wide had not the Lords been more stiff to their Principles than she The first year of her Marriage was Honey-moon with her she thought nothing too dear for the King and that her self was but meanly married unless her Husband were as compleat a King in her Nation as any of her Predecessors although contrarily the higher he was advanced the meaner she became Thirdly by her Marriage she adventured her Title of Supremacy of Jurisdiction For Philip as King had the Honour Stile and Kingly name and so had the precedency He had to do also with the Jurisdiction for by the Articles of the Marriage he was to aid the Queen in her Administration of the Kingdom and maintenance of the Laws Writs and Commissions passed under his name He also sate in Parliament voted therein and joyned in the Royal Assent Lastly joyned in the publication and execution of all Laws To him also was Allegiance due and therefore the Crime of Treason was equally against his as the Queens Crown and Dignity saving that it was reserved to be as against him onely during the time of Coverture And yet had the Queen left Issue by him it would have been a hard adventure for the Lawyers to have given their Opinion in that case seeing the King had been Guardian to his Children during their Minority Lastly the whole power and jurisdiction resting in them both joyntly could not enable them to make or dissolve Courts at will nor conclude Orders and Directions in cases of Plea and Conveyance nor Process concerning the same I shall sum up all in this one conclusion If neither of these three had an absolute Legislative Power either in matters concerning the Church or Commonwealth if no absolute Jurisdiction in case either of Life Member or Estate If they neither can create unite or alter any Court either concerning the Trial and determining the Estates of the People or their own Revenue If not alter or make any new Process in the Courts of Law If not order common Assurances of Lands or Estates And lastly if they have no power in determining the last Appeal and definitive Sentence in matters of Controversie but all must rest upon the Sentence by Parliament there must certainly be found out a further
sense of that grand Title of Supremacy of Jurisdiction Power Superiority Pre-eminence and Authority than by the common Vogue hath been made The Title of Supremacy was first formed in the behalf of Henry the Eighth's Claim in matters Ecclesiastical which by the Statute is explained under these words of power To visit correct repress redress Offences and Enormities This Power and no other did Queen Elizabeth claim witness the words of the Statute in her own time But in the framing of the Oath of Supremacy in her time not onely in Causes Ecclesiastical but Temporal which never came within the Statutes and publick Acts in Henry the Seventh's time are inserted and if any thing more was intended it must come under the word Things which also was inserted in the said Oath and yet if the words of the Statute of Queen Elizabeth formerly mentioned be credited the word Things ought to comprehend no more than the word Causes and then the power of Queen Elizabeth in the Commonwealth will be comprehended in these words of Supremacy to visit correct repress redress Offences and Enormities for the Supremacy in the Church and Commonwealth is the same in Measure and what more than this I cannot understand out of any publick Act of this Nation Now in regard Offences and Enormities are properly against Laws the power to visit and correct must also be regulated according to Laws either of War or Peace Nor do these five words Jurisdiction Power Superiority Pre-eminence and Authority contain any more Supremacy or other sence for two of them speak onely the Rank or Degree of the Queen in Government viz. Superiority and Pre-eminence belongeth onely to her and not to any other Foreign Power And two other words do note her Right and Title thereto by Power and Authority committed to her And the other word denotes the thing wherein she hath Superiority and Power viz. in Jurisdiction the nature of which word Vlpian speaking of the nature of a mixt Government explaineth thus Quando servata dictione juris judiciorum fit animadversio So as this Supreme Authority in Jurisdiction is no other than Supreme Power to visit correct redress Offences or determine matters in doubt by deputing fit persons to that end and purpose according to the Law and this is all the Supremacy that appeareth to me belonging to the Crown in these times CHAP. XXXVI Of the Power of the Parliament during these times WHen the Throne is full of a King and he is as full of opinion of his own sufficiency and power a Parliament is looked upon as an old fashion out of fashion and serves for little other than for present shift when Kings have run themselves over Head and Ears A Condition that those of that high degree are extremely subject unto but where the Crown is too heavy for the wearer by reason of infirmity the Parliament is looked upon as the chief Supporters in the maintaining both the Honour and Power of that Authority that otherwise would fall under contempt A Work that must be done with a curious touch and a clear hand or they must look for the like Censure to that of a King to a great Lord that crowned him My Lord I like your work very well but you have left the print of your fingers upon my Crown Such was the condition of these times wherein a Child and two Women are the chief but ever under the correction and direction of the Common Council in matters of common concernment Two things declare the point the course of the Title of the Crown and the Order of the powers thereof The Title ever had a Law which was at the Helm although diversly expounded Kings ever loved the Rule of Inheritance and therefore usually strained their Pedegree hard to make both ends meet though in truth they were guilty oftentimes to themselves that they were not within the degrees The People ever loved the Title of Election and though ever they joyned it to the Royal bloud and many times to the right Heir to make the same pass more currant without interruption of the first love between them and their Princes yet more often had they Kings that could not boast much of their Birthright in their first entry into their Throne Of three and twenty Kings from the Saxons time four of the former had no Title by Inheritance the two Williams Henry the First and King Steven Two others viz. Henry the Second and Richard the first had right of Birth yet came in by Compact The Seventh which was King John had no Title but Election The Eighth viz. Henry the Third came in a Child and contrary to Compact between the Nobility and the French Lewis The Ninth and Tenth succeeded as by unquestionable Title of Descent yet the Nobles were pre-engaged The Eleventh which was Edward the Third in his entry eldest Son but not Heir for his Father was alive but his Successour was his Heir It is true there were other Children of Edward the Third alive that were more worthy of the Crown but they were too many to agree in any but a Child that might be ruled by themselves Three next of the ensuing Kings were of a collateral line Their two Successours viz. Edward the Fourth and Edward the Fifth were of the Line yet Edward the Fourth came in by disseisin and Edward the Fifth by permission Richard the Third and Henry the Sevâ—nth were collateral to one another and to the right Bloud Henry the Eighth though when he was King might claim from his Mother yet came in as Heir to his Father And if Edward the Sixth was right Heir to the House of York by his Grandmother yet cannot the Crown be said to descend upon the two Sisters neither as Heirs to him nor Henry the Eighth nor to one another so long as the Statute of their Illegitimation remained which as touching Queen Mary was till three months after her entry upon the Throne and as touching Queen Elizabeth for ever for that Virago provided for her self not by way of Repeal as her Sister had done but more tenderly regarding the Honour of her Father and the Parliament than to mention their blemishes in Government by doing and undoing She over-looked that Act of Henry the Eighth and the Notion of Inheritance and contented her self with her Title by the Statute made by her Father in his Thirty fifth year which to her was a meer purchase and was not ashamed to declare to all the world that she did have and hold thereby and that it was High Treason for any Subject to deny that the course of the Crown of England is to be ordered by Act of Parliament And this power did the Parliament exercise not onely in ordering the course of the Crown to Queen Mary and Queen Elizabeth but during the Reign of Queen Elizabeth so far as to disinherit and disable any person who should pretend Right to the Crown in opposition to the
Right of Queen Elizabeth And upon this point onely did the whole proceedings against Mary Queen of Scots depend who claimed to be and doubtless was Heir unto Henry the Eighth after the determination of his Right Line and yet she was put to death for pretending Right by the Common Law in opposition to the Act of Parliament True it is that this Doctrine doth not down well with those that do pretend to Prerogative aided as they say by the Act of Recognition made to King James and the Oaths of Supremacy and Allegiance which do make much parly concerning Inheritance and Heirs Nevertheless it is as true that the Act of Recognition made no Law for the future nor doth the same cross the Statute of 13 Eliz. Nor doth it take away the power of the Parliament from over-ruling the course of the Common Law for after-Ages Nor do the Oaths of Supremacy and Allegiance hold forth any such Obligation unto Heirs otherwise than as supposing them to be Successors and in that relation onely And therefore was no such Allegiance due to Edward the Sixth Queen Mary or Queen Elizabeth until they were actually possessed of the Crown as may appear by the Oath formed by the Statute of Henry the Eighth touching their Succession Nor did the Law suppose any Treason could be acted against the Heirs of Edward the Sixth Queen Mary or Queen Elizabeth until those Heirs were actually possessed of the Crown and so were Kings and Queens as by express words in the several Statutes do appear Nor did the Recognition by the Parliament made to Queen Elizabeth declare any engagement of the People to assist and defend her and the Heirs of her Body otherwise than with this Limitation Being Kings and Queens of this Realm as by the Statute in that behalf made doth appear And lastly had those Oaths been otherwise understood the Crown had by the virtue of them been pre-engaged so as it could never have descended to Queen Mary Queen Elizabeth or King James but must have remained to the Heirs of Edward the Sixth for ever Secondly the same power that the Parliament exercised in ordering the course of Succession in the Crown they exercised likewise in determining and distributing the Powers and Priviledges belonging to the same for these times were full of Novelties The Crown had formerly sitted a Childs head more than once but it never tried to fit a Womans head since the Saxons times till now that it must make trial of two France might afford us a trick of the Salique Law if it might find acceptance And the unsetled state of the People especially in matter of Religion might require the wisest man living to sit at the Helm and yet himself not sufficient to steer a right course to the Harbour Nevertheless the Parliament having the Statute of Henry the Eighth to lead the way chose rather to pursue a Rule than to make one and soon determined the point viz. That the Crown of England with all the Priviledges thereof equally belong to a Woman in possession as to a Man or Child A bold Adventure I say it was but that Henry the Eighth was a bold Leader and yet the bolder it was if the consequence be considered For Queen Mary as a Woman brought in one new Precedent but in her Marriage a worse for she aimed not onely at a Foreign Bloud but at a Prince in Power and Majesty exceeding her own and thereby seeking advancement both to her self and her Realm endangered both The matter was long in debate between the Spanish and English and now had busied their Wits about ten years at length a Supremacy is formed suitable to the Lord and Husband of Queen Mary that could not be content to be one inch lower than her self Philip had the name of a King and Precedency and in many cases not without the Allegiance of the English. Their offences against his person equally Treason with those against the Queens own person and Indictments run Contra pacem Coronam D. Regis Reginae That in some cases he participated in the Regal Power may appear in that by the Articles he was to aid the Queen in the Administration of the Kingdom he joyned with the Queen in the Royal Assent and in Commission Letters patents and in Writs of Summons of Parliament as well as others yet in the words the Crown is reserved onely to the Queen and she must Reign as sole Queen Now if the King had broken this Agreement either the Parliament must over-rule the whole or all that is done must be undone and England must bear the burthen A Queen Regent is doubtless a dangerous condition for England above that of an infant-Infant-King unless she be married onely to her people This was observed by Queen Elizabeth who therefore kept her self unmarried nor did the people otherwise desire her Marriage than in relation to Posterity Few of them liking any one of their own Nation so well as to prefer him so highly above themselves and fewer any Foreigner This was soon espied by Foreign Princes and the Queen her self perceiving that she was like to receive prejudice hereby in her interest amongst them signified by her Embassadors that she never meaned to stoop so low as to match with any of her Subjects but intended to make her choice of some Foreign Prince who neither by Power or Riches should be able to prejudice the interest of any of her Neighbouring Princes A pretty Complement this was to gain expectation from those abroad and better correspondency thereunto Upon this ground divers Princes conceived hopes of more interest than by trial they could find And the Arch-Duke of Austria began a Treaty which seemingly was entertained by her but her Proposals were such as silenced all those of the Austrian Interest for ever after viz. 1. That the Romish Religion should never be admitted into England 2. That no man that she married should ever wear the Title of King. 3. That no Foreigner should ever intermeddle in the Rule and Government of the Church or Commonwealth nor in the Ministry of the Church 4. That if he survived the Queen he should never challenge any Title or Interest in the Government or any Possession in England 5. She would never marry any one that she might not first see So as either she aimed at some inferiour Prince that durst not look so high or else she did but make semblance till she was nigh Forty years old and in all declared that she liked not her Sister Maries choice To these two Powers of Determining and Distributing I shall adde a third of Deputing which the Parliament exercised as formerly it had done Henry the Eighth had in Ecclesiastical matters exercised a power beyond the Law and yet by Parliament had provided positive Laws by which the same ought to have been ordered these were also confirmed in Edward the Sixth's time with some Additionals By
power of Excommunication it self notwithstanding that the Church held it by way of reservation or saving and not by donation from the Parliament by any express Act yet was that saving with such limitations as that it received but a lame power in comparison of what it claimed and exercised in former times For whereas formerly the Church-men had the Writ De Excommunicato Capiendo at their own beck now it will not come but upon Articles and certain Conditions 1. In cases of Heresie 2. Of deserting of the Sacrament 3. Deserting of publick Worship 4. Maintenance of Error 5. Incontinency 6. Vsury 7. Simony 8. Perjury 9. Idolatry In other matters the Spiritual Sword must find or make their own way or else be quiet Secondly The Church was now no less under the Chair and Throne than under power of the Parliament nor is it a wonder if it could not thrive when it was so over◠dropped for Prelacie by the King's arms is lifted up so high above the other Clergie that the rest of the Clergie are as much underlings to the Prelacie as the Prelates are to the King. They dare not offend the Crown lest they should lose their Honours nor the inferiour Clergie them lest they should lose their Livings and Liberties and so the Prelates speak the sense of the Clergie and make the Crown their Oracle Thus in the Church-matters the Crown is all in all CHAP. XXXVII Of the Militia in these latter Times IT cannot be denied but as in the sober Government of this 〈◊〉 there is a Supremacy of Command so also in the rudest times of War and wheresoever the same is setled there must the Militia also be The word Militia is a general notion sufficient enough for a name or title but not to define the thing I take it for nothing else but the Government of the Commonwealth when it is in danger or War or in order thereunto It consisteth in the raising arming ordering and paying of the Souldiery The title of the Supream Power in all this work hath been of late put to the question and brought us to this sad condition of trial by Battle and by Fighting to find out who had the chief power to fight A Lesson that might have been learned from former Generations foregoing at a far cheaper rate when England is well in its wits Where the Law of Peace is setled there also is the Law of War and in what condition the Crown standeth in relation to the Legislative power in time of Peace may be seen in the foregoing Discourse In War the King is the peoples General by his place yet if any impediment do befal either by natural disabilities or civil to render the person incapable of managing of the Service there is no question but the people may order the matter as they please With examples hereof these times are full wherein we have a Child a Virgin and a Married Woman to sway the Work all of them in a very unmeet condition for such a Trust and yet by the help they had they managed it well enough The power of him as King or General in the Army is all one but before it is imbodied as a King onely he may do some things in order thereto according to the Law and Custom of the Nation yet this falls under a double consideration of the time and occasion In the recess of the Parliament he is the first mover and ought to move by the advice of his Council if occasion do provoke to Arms but if the same befal the Parliament then sitting no History or Record do mention that ever he moved but by their concurrent advice and direction The occasion either provoketh offensive or defensive War with other Nations or with the people of his own Nation in the case of Insurrection Examples of War with other Nations that may be called offensive Wars we have but two one in Edward the Sixth's time with Scotland and which was but in pursuance of a War begun by his Father and wherein the Kingdom stood ingaged in a case that concerned the publick good and safety viz. The Marriage of their King refused after promise made The other was in the time of Queen Mary with the French which somewhat reflected also upon the publick safety but more upon the dishonour of the same I◠none of these did either of the Supream Powers array or raise men by Prerogative but onely such as were Voluntier in that work And because the people were ill principled in Edward the Sixth's time in regard of the change of Religion he was induced to hire Foreign aid out of Germany The Wars in the time of Queen Elizabeth were in order to the defence of this Nation being ever under a malignant Aspect from abroad especially from Spain in Ireland France and the Low Countries Yet were these Wars served onely by Voluntiers nor did any Commission give power of impresting men to serve against their wills in any Expedition made to any of those places as the Commissions upon Record do testifie If any Levies of men were otherwise made or compulsory means used for such ends they are to be reckoned up amongst the errata whereof the Parliament took no notice in regard it saw the ends and issues of such Reflections in Government to be successful and honourable and that all was done by Council and a Woman popularly affected and therefore they less feared Invasion upon their Liberties Or otherwise they are to be imputed to the condition of those places being Members of the Commonwealth as the cautionary Towns in the Low Countries and the Irish Plantations were and so befel under another consideration of a defensive War in case of Invasion and common danger thereby or by Intestine broils during which condition as it is the King's duty to levy and array men so is it the duty of the people to be ready to assist one another in all such exigencies and to defend the publick Liberty Nevertheless these Arrays are not left wholly at the Will of the King but to discretion of the Council how far the same shall extend For never were general Arrays made where but one Coast was in danger and where no Conquest is in pretence but onely Piracy or Plunder But if the disease were general as in the year 88 the Array was general and yet it was of none but those that were of the Trained-bands besides such as were Voluntier Secondly The arming of these men was also diversly there was no general Rule or Law for the arming of men since the time of Edward the First to the time of Queen Mary but the Statute at Winton the course of Tenures I mean of such men as were of the Militia of this Kingdom So as when they were raised they were raised in their own Arms. But for such men as passed the Seas for Foreign Service as they were Voluntiers or sent over by the Parliament these were armed according to special contract
the Opponents Instances which King called a Council stiled Commune Concilium tam Cleri quam Populi and in the conclusion of the same a Law is made upon the like occasion Si Rex Populum Convocaverit c. In both which it is evident that in those times there were Councils holden by the People as well as by the Magnates or Optimates His next instance is in the year 694 which is of a Council holden by the Great men but no mention of the Commons and this he will have to be a Parliament albeit that he might have found both Abbatesses or Women and Presbyters to be Members of that Assembly and for default of better attested the Conclusions of the same notwithstanding the Canon Nemo militans Deo c. But I must also mind him that the same Author reciteth a Council holden by King Ina Suasu omnium Aldermannorum Seniorum Sapientum Regni and it is very probable that all the Wise men of the Kingdom were not included within the Lordly Dignity The third instance can have no better success unless he will have the Pope to be allowed power to call a Parliament or allow the Archbishop power to do that service by the Pope's command for by that Authority this whatever it be was called if we give credit to the Relations of Sir Henry Spelman who also reciteth another Council within three leaves foregoing this called by Withered at Barkhamstead unto which the Clergie were summoned Qui cum viris utique militaribus communi omnium assensu has leges decrevere So as it seemeth in those times Souldiers or Knights were in the Common Councils as well as other Great Men. In the next place he bringeth in a Council holden in the year 747 which if the Archbishop were then therein President as it is said in the presence of the King was no Parliament but a Church-mote and all the Conclusions in the same do testifie no less they being every one concerning Ecclesiastical matters And furthermore before this time the Author out of whom he citeth this Council mentioneth another Council holden by Ina the saxon-Saxon-King in the presence of the Bishops Princes Lords Earls and all the wise old men and People of the Kingdom all of them concluding of the intermarriage between the Brittons Picts and Saxons which formerly as it seemeth was not allowed And the same King by his Charter mentioned by the same Penman noteth that his endowment of the Monastery of Glastenbury was made not onely in the presence of the Great Men but Cumpraesentia populationis and he saith that Omnes confirmaverunt which I do not mention as a work necessary to be done by the Parliament yet such an one as was holden expedient as the case then stood Forty years after he meeteth with another Council which he supposeth to be a Parliament also but was none unless he will allow the Pope's Legate power to summon a Parliament It was holden in the year 787 and had he duly considered the return made by the Pope's Legate of the Acts of that Council which is also published by the same Author he might have found that the Legate saith That they were propounded in publick Council before the King Archbishop and all the Bishops and Abbots of the Kingdom Senators Dukes or Captains and People of the Land and they all consented to keep the same Then he brings in a Council holden in the year 792. which he would never have set down in the List of Parliaments if he had considered how improper it is to construe Provinciale tenuit Concilium for a Parliament and therefore I shall need no further to trouble the Reader therewith The two next are supposed to be but one and the same and it is said to be holden Anno 974 before nine Kings fifteen Bishops twenty Dukes c. which for ought appears may comprehend all England and Scotland and is no Parliament of one Nation but a Party of some Nations for some great matter no doubt yet nothing in particular mentioned but the solemn laying the Foundation of the Monastery of Saint Albans What manner of Council the next was appeareth not and therefore nothing can be concluded therefrom but that it was holden in the year 797. That Council which is next produced and in the year 800 and is called in great Letters Concilium Provinciale which he cannot Grammatically construe to be a Parliament yet in the Preface it is said that there were Viri cujuscunque dignitatis and the King in his Letters to the Pope saith concerning it Visum est cunctis gentis Nostrae sapientibus so as it seemeth by this and other Examples of this nature that though the Church-motes invented the particular conclusions yet it was left to the Wittagenmote to judge and conclude them There can be no question but the next three Precedents brought by the Opponent were all of them Church-mates For the first of them which is said to be holden in the year 816 is called a Synod and both Priests and Deacons were there present which are no Members of Parliament consisting onely of the House of Lords and they all of them did Pariter tractare de necessariis utilitatibus Ecclesiarum The second of them is called a Synodal Council holden Anno 822 and yet there were then present Omnium dignitatum Optimates which cannot be understood onely of those of the House of Lords because they ought all to be personally present and therefore there is no Optimacy amongst them The last of these three is called Synodale Conciliabulum a petty Synod in great Letters and besides there were with the Bishops and Abbots many wise men and in all these respects it cannot be a Parliament onely of the great Lords The next Council said to be holden in the year 823 cannot also be called properly a Parliament but onely a Consultation between two Kings and their Council to prevent the invasion of the Danes and the attests of the Kings Chaplain and his Scribe do shew also that they were not all Members of the House of Lords The Council cited by the Opponent in the next place was holden Anno 838 being onely in nature of a Council for Law or Judicature to determine the validity of the King 's Grant made to the Church of Canterbury which is no proper work for a Parliament unless it befal during the sitting of the same The next is but a bare title of a Council supposed to be holden Anno 850 and not worth its room for it neither sheweth whether any thing was concluded nor what the Conclusions were The work of the next Council alleadged to be holden Anno 851 was to confirm the Charter of the Monastery of Croyland and to determine concerning affairs belonging to the Mercians and if it had been a Parliament for that people it might be worthy of enquiry how regularly the Archbishop of Canterbury and the
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
true and so they did unto the Councils in the ancient Saxon times and so the Knights of the Counties ought to do in these days if they obey the Writ Duos Milites gladiis cinctos c. Secondly he saith that the Knights were not to come to Council That is his opinion yet the Writ speaks that the Discreti Milites were to come Ad loquendum cum Rege de negotiis regni It is true saith he but not Ad tractandum faciendum consentiendum It is true it is not so said nor is it excluded and were it so yet the Opponents conclusion will not thence arise That none but the King and those who are of the House of Lords were there present The Sixth and last instance mentioned by the Opponent is in his Thirtieth page and concerneth Escuage granted to King John who by his Charter granted That in such cases he would summon Archbishops Bishops Abbots Earls and the greater Barons unto such Conventions by special Writs and that the Sheriff shall summon promiscuously all others which hold in Capite and thence he concludes That none but the Great Lords and the Tenants in Capite whom he calls the lesser Barons were present but no Knights Citizens or Burgesses all which being granted yet in full Parliament the Citizens and Burgesses might be there For Councils were called of such persons as suited to the matter to be debated upon If for matters purely Ecclesiastical the King and his Council of Lords and the Church-men made up the Council If for advice in emergencies the King and such Lords as were next at hand determined the conclusions If for Escuage the King and such as were to pay Escuage made up a Council to ascertain the sum which was otherwise uncertain If for matters that concerned the common Liberty all sorts were present as may appear out of the very Charter of King John noted in my former discourse page 258. and also from an Observation of Cambden concerning Henry the Third Ad summum honorem pertinet said he Ex quo Rex Henricus Tertius ex tanta multitudine quae seditiosa ac turbulentia fuit optimos quosque ad Comitia Parliamentaria evocaverit Secondly The Opponent takes that for granted that never will be viz. That all the Kings Tenants In Capite were of the House of Lords whenas himself acknowledgeth a difference page 28. viz. That the Barons are summoned by Writs sigillatim as all the Members of the House of Lords are but these are by general Summons their number great and hard it will be to understand how or when they came to be excluded from that Society I shall insist no further upon the particulars of this Tractate but demur upon the whole matter and leave it to Judgement upon the Premises which might have been much better reduced to the main Conclusion if the Opponent in the first place had defined the word PARLIAMENT For it was a Convention without the People and sometimes without the KING as in the Cases formerly mentioned of the Elections of William Rufus and of King Stephen And if sometimes a Parliament of Lords onely may be against the King and so without King or People as in the Case between Stephen and Maud the Empress and the Case likewise concerning King John both which also were formerly mentioned All this is no more to the Government than it would be should at any time the Commons hold a Parliament without a King or House of Lords and then all the Opponents labour is to little purpose A TABLE TO THE Second Part. A A Betting of Felony made Felony page 174 Administration granted to the next of the Kindred 30 Admirals power from the Parliament 24. formerly under many brought into one 25. once gained jurisdiction to the high-water-mark 26. and his Power regulated by Law ibid. over Sea-men Ports and Ships ibid. Allegiance according to Law 11. vide Supremacy the nature thereof in general 42. it is not natural ibid. 52. not absolute or indefinite 49. not to the King in his natural capacity 51. it obligeth not the people to serve in forein War 60. it is due to the person of the King for the time being 144 163. what it is in time of War and relation thereunto 144. Henry the Seventh and Henry the Eighth endeavoured to advance it in relation to the Crown but effected it not 61. Appeals in cases Ecclesiastical restrained from Rome and given in the Kings case to the Convocation and in the cases of the people the Archbishop afterwards to the Delegates and were never setled in the Crown 133 136. vide Archbishop Archbishop hath the lawful power of the Pope in Appeals and Dispensations Licenses and Faculties 136. the Archbishop of York loseth his jurisdiction over the Scotish Bishops 113 Arrays Commission of Array 104 vide War. Assent of the King to Acts of Parliament serveth onely to the execution of the Law and not to the making thereof 13 Association of the people for the common safety before the Statute enabling the same 173. B. BAstardy not to be determined by the Ordinary before Summons to the pretenders of Title to be heard 92 Bench the Kings Bench at Westminster abated in power by the Commissions of Oyer and Terminer and Goal-delivery 54 97 Benevolence first used by Edward the Fourth 108. taken away by Richard the Third ibid. taken up again by Henry the Seventh 114 Bishops not impeachable before the Civil Magistrate 29. their Temporalties to be neither seized nor wasted in the vacancy Vide Ordinary Buggery made Felony 173. C. CAnons their power anciently in debate 37. such as are not according to the Law are taken away 138 Castles and Goals restored to the Country 67. vide Forts and Fortifications Chancery once an Office afterwards a Court 21. the power grows by Act of Parliament 22 95. the manner of the proceedings 23. Keeper of the Great Seal increaseth in power 95 Chancellour elected by the Parliament 23 Cheshire made a Principality 7 Children carried into Cloisters remedied 96 Clergie priviledgea from Arrests 31. discharged of purveyance and free quarter ibid. their Temporalties in question 38. the Commons love not their persons 86. their first declining from Rome in the matter of Provisors 88. they gain free process in matters Ecclesiastical 112. their defection from Rome and submission to the Crown 120 Clergie upon Trial but once allowed 151. in some cases disallowed 147 173. Commissioners Ecclesiastical 167. High Commission ibid. Conjuration vide Witchcraft Conservators of the Truce 95 Constables Court vide Marshals Court Convocation established by Parliament 89. it then undertook great matters but much more after the Clergies forsaking the Pope 134 Councils the Privy Council ordered by Parliament 13 20 83. of use for sudden motions 16. their Oaths 17. and Jurisdictions 19. and power 83 Magnum Concilium or the grand Council of Lords 16 Crown entitled not by Descent 75 162. but intailed 75. vide 109.
the Ecclesiastical or Canonical way before this Lastly in their meeting as well at the Hundred as County-Court they retained their ancient way of coming Armed CHAP. XXVI Of the Division of the Hundreds into Decennaries THis was the last subdivision of the County and that rested upon the persons and it was either not at all or not so observable as to be worthy of the Roman story and therefore may rather be thought an extract from Moses Law introduced by Alfred or his direction I say this rested on the persons and not upon the place for though the Centeners were comprehended within certain bounds yet the Decenners were not limited but only within the limits of the Hundred And of these also it appeareth to me there were divers sorts for such matters of controversie that did arise amongst the Decenners if of greater moment were referred to the chiefer Justices which were appointed super decem decanes which I conceive were ten chief pledges and these might bear the names of the Centeners although they be not the Centgraven and the rather I incline thereto because in all probability there must needs be above one hundred Free-holders in Hundredo and all Free-men were Decenners that is ranked into several tens each one being pledge for others good abearing and in case of default to answer it before the Judge and in case of default of appearance his nine pledges should have one and thirty days to bring the Delinquent forth to justice If this failed then the chief of those Decenners by the votes of that and the Neighbour Decenners was to purge himself and his fellow-pledges both of the guilt of the fact and of being parties to the flight of the Delinquent And if they could not this do then were they by their own Oaths to acquit themselves and to bind themselves to bring the Delinquent to justice as soon as they could and in the mean time to pay the damage out of the Estate of the Delinquent and if that were not sufficient then out of their own Estate but if the Delinquents Estate was sufficient the surplussage thereof remained with the pledges And lastly the Master of the Family was a pledge for his whole Family This was the Law of Decenners and may seem to be somewhat a rigorous Law not only in case of Delinquency but also for their abode for none of them might depart from their dwelling without consent of his fellow-pledges nor out of the County without allowance of the Sheriff or other Governour of the same And if any controversie arose between the pledges the chief pledge by them chosen called also the Dean or Headburrough may determine the same but this held only in matters of lighter consequence CHAP. XXVII Of Francheses and first of the Church-Francheses WE have hitherto trod in the road-way of the Government of the Common-wealth but private regards have made by-paths which we must trace or else the footsteps in many particulars will remain unknown These are called Exemptions but more ordinarily Francheses from which scarce any part of the Kingdom remained free and are to be considered either in regard of the place or person In the latter I intend that of the Church-men whose Persons and Estates in many particulars were exempted from the civil power of this Kingdom Their persons devoted to a peculiar work they would have to be under a peculiar Law called the Canon-Law which at the first extended only to their own persons and that only pro reformatione morum for so an Archbishop tells us that it did teach quomodo Canonici id est regulares Clerici vivere debent but when it grew to its full charge it gave a louder report Quicunque aliquid tenuerit vel in fundo Ecclesiae mansionem habuerit extra curiam Ecclesiasticam non placitabit quamvis foris fecerit And thus as Church-ground increased by the blind charity of those times so long Church-men multiplied and the Canon inlarged from the persons of regulars to all Clergy-men and from them to their Tenants and Neighbours from thence to certain Spiritual or Ecclesiastical crimes or scandals wherever they were found and wherever it touched it took and bound by Excommunication and upon significavit being first delivered to Satan they delivered him over to the Sentence of the Law to be imprisoned If the offender be out of reach by the space of thirty and one days he is Outlawed so as there is no way left to escape the Church-fury CHAP. XXVIII Of the second Franchises called the Marches FRanchises of the place were such as were limited within precincts of place and annexed thereto and of this sort first were those of the borders of which those are the most ancient that bordered the Britons now called the Marches of Wales in which was a peculiar Government so far as concerned administration of justice for otherwise the subjects each of them submitted themselves to the service of their own Prince This was therefore a third different and mixt Government agreed upon joyntly between the Britons and Saxons who after a long and burdensome War wherein both peoples were well wearied by degrees became Friends entered Traffick and into the strictest Societies by Marriage Thus finding the sweetness of peace they provide against future occasions of strife that might arise in commerce by the justling of two Laws together and agree in one Law and upon a certain number of Judges elected by common consent who were to see to the execution of these Laws as joynt Assessors From these as I conceive arose those which are now called the Lords Marchers and were at the first twelve in number viz. six Saxons and six Britons It seemeth this form of Government was first instituted by Aetheldred and by way of prescription or custom continueth till this day and as it was the birth of truce so for the future became both Mother and Nurse of peace between those two peoples like the twi-light between the day and night until both were brought under one head and by divine providence setled in a lasting day CHAP. XXIX Of County-Palatines OF the same sort of Franchises were these which are called County-Palatines which were certain parcels of the Kingdom assigned to some particular person and their Successors with Royal power therein to execute all Laws established in nature of Province holden of the Imperial Crown and therefore the Kings Writ passed not within the precinct no more than in the Marches These were occasioned from the courage of the Inhabitants that stoutly defended their Liberties against the usurping power of those greater Kings that endeavoured to have the Dominion over the whole Heptarchy and not being easily overcome were admitted into composition of Tributaries and therefore are found very ancient for Alfred put one of his Judges to death for passing Sentence upon a Malefactor for an offence done in a place where the Kings Writ passed not and the same
marry at their own will without paying Fine or Composition to the Lord and yet must have the liking of the Lord so far as to declare whether the man intended were his Enemy or not and fit to perform Knight-service This Law was therefore grounded upon the present distress of affairs wherein the Nation was unsetled and common right having established a mutual trust between Lord and Tenant found out this means to preserve the same for if the marriages of those that are related to the Tenant in such manner as may inherit part of all his Lands or have joynture therein should be left altogether at the liberty of the Tenant or his Widow it must needs follow that the mutual trust between Lord and Tenant must fail and the publick receive damage And therefore if this custom were of Norman birth it was begotten upon a Saxon Law and might the rather be owned by the English. The Widow of the King's Tenant having Children shall have her Dower and Portion so long as she keeps unmarried The portion here is in the Latine word maritagium which I take to be the Marriage portion given by the Husband according to the Saxon custom whenas the Dower in Land was not in use whereof is spoken formerly in that Chapter of Dower And the Normans were necessitated to introduce this custom of theirs with themselves partly because it was a priviledge which was their own by birth and it could not be waved without an evident wrong done to the Wives of these men who had ventured their lives in that service but principally because it would not consist with the work in hand to disclaim that custom which must needs be of infinite consequence in the effecting of what was principally sought after viz. the union of the two peoples Normans and Saxons into one I say it was principally sought after by the Norman Conquerour if not led thereto by his own genius yet necessitated thereto by force of reason of State as shall appear hereafter And what could be imagined a more ready way to stay the effusion of bloud and all other unhappy events of enmity than by taking away enmity it self or a more speedy and certain course for union than to reduce the Men and Women of each people to mutual society and to seal up all by a lasting bond of Marriage or greater encouragement for the comfortable proceedings therein than the setling of the constant maintenance of the Wife in case of survivorship by the Law of Dower of the Lands and Tenements of the Husband which was so full of contingencies and uncertainties in the portion of Goods that was by the Saxon Law appointed to the Wife in such case Nor was this all for by Marriage thus made to the Normans they had a great hold not so much over the English as in the English and that not onely during coverture but by reason of this title of Dower the Women became Tenants and under the Lords wing so as they durst not willingly and illegally offend their Lord in their Widowhood nor by Law nor reason match themselves and their Dowry to any other that was not first allowed by the Lord to be in friendship with him and thus became the Tenants Widows to be at the liking of the Lord for their marriage And the like hereto may be said concerning the Husband in case of Tenant by the courtesie and however by the Norman former practice it was much disturbed yet by Henry the first it was again reduced to its former right rather than original arising from his grant as some hold and proved advantageous for the ends aforesaid Now as touching their marriage-portion of Goods because the Saxon Law had already endowed them thereof they could not be induced to lay down their known ancient right till they found the new Law of Dower to settle and so for some time both Laws were in force until the more ancient Saxon law had an honourable burial Nevertheless for the present the Law abridged that right so far as to limit it to the Widow during Widowhood according to the former Saxon-law Upon consideration of all which it may well be conceived that the power of the Lords in consenting or dissenting to the marriages of their Tenants Widows and Wards was not so much an usurpation upon the Common right of the English Subjects as a custom rationally and with great wisdom as the course of affairs then stood upholden and allowed amongst them principally for the speedy setling of a peaceable Government and consolidating of two Nations into one and wherein England was then so happy as to come to a conclusion in seven years which cost their Ancestors night Two hundred years experience with the Britains besides a world of bloud-shed that might have been spared e're they could find out the right way to a desired peace by mutual marriages had between them Such Widow shall have the custody of the Lands of such Children or otherwise such other person as by right ought to have the same This is the first news of Wardships that passed abroad cum privilegio of a received Law which together with the former declare the right custom of the Normans and thereby the injustas consuetudines quibus Anglioe regnum opprimebatur viz. Arbitrary Relief taken of the Tenant's Estate arbitrary Marriages made of their Peersons and arbitrary Grants of Guardianship of their Lands For as yet oppression was not so high-flown as to cast the government of the persons of their Wards out of the view of the Lords provisionary care upon adventure of the next in Law whether man or woman wise or unwise under pretence to train him up in military service fit for the Lord 's own safety and the Kingdoms lifeguard But it was the proper ground of the Lord 's own seisure and right of Wardship he being looked upon by the eye of common reason as the onely meet man that both could and would effect that work so as might be most advantageous to the publick which seemed to be chiefly concerned herein And upon the same general ground the survey of fools accompanied the former albeit it was not in practice till Henry the First brought it in as the Mirror of Justice saith fol. 258. yet it came upon an ancient foundation laid in the time of the Danes For my own part I will not dispute the point whether this custom of Wardship was purely Norman or whether it was derived from the Saxons anciently who possibly might have some respect to Orphans in such cases to train them up for the publick service in point of War especially being possessors of a known right of Relief as well as Alfred the Saxon King did undertake the work for the training of some such particular persons in Learning for the service of the Publick in time of peace and civil Government Yet thus much appeareth that Guardianship of Lands was a known Custom
by the access to the Crown of the services of such as held of those Lords that were attainted or disinherited And yet by a hidden providence the King was little the better when it came to the pinch For when Edward the second 's Queen came from beyond the Seas though with but a small force all forsake the King neither regarding the former terrour of the Army of a King nor the right or service nor Oath of Fealty nor Promises nor Laws nor other Engagements and so the King becomes a prey to an enraged woman or which is worse to a jealous Wife So little can the name of a King do when his person is despised and so vain for him to trust in his Militia that hath already disarmed himself of the hearts of his Subjects The sum then of all the labours of the Nobles during these times will rest in this that they won the day and yet lost the field although they lost their own blouds and Estates yet they saved all to the people and left Laws in force able to debate with Prerogative in the hand of any King that should succeed Thus stood the matter in fact upon such grounds as it had the validity whereof it is not my work to censure neither by the ballance of Law or Gospel but leave it as a sore time that scarce will endure touch nor bear a King further than he was good or brave CHAP. LXVI Of the state of the English Clergie until the time of Edward the Third And herein concerning the Statute of Circumspecte agatis Articuli Cleri and of general Councils and National Synods IT was a time of much action throughout the whole Christian State and Rome now having attained to its full glory began to be eyed on all parts as an irregular motion crossing all affairs that it may like the sole Empress command all and be controuled by none and this wrought some stirrings in France complainings in England and facing between the Emperour and the Pope How chargeable this was to the Pope's Treasury it is not material but it occasioned or was pretended to be the occasion of all the intolerable exactions ensuing there being scarce one year passed over without some extraordinary exaction levyed upon the Church-men either by Provisors Tenths Procurations Levies for the Holy War Quindizms Benevolences or other such like and where money was not to be had by levies of Ornaments or of rich Apparel by intimation begging perswading commanding threatning and in this course they continued till they had out-faced shame it self and that the whole Law of Rome became comprehended in this one Quicquid libet licet In general therefore the Church of Rome cannot be said to thrive during these extorting times although Rome did for if the Laity were pillaged by the King the Clergie much more both by Pope and King if the one complained the other cried the one sometimes found relief from the King but the other was helpless for the Pope had no Ears to hear nor the King Hands to help He neither durst nor would cross the Pope although the Clergie told him that by these exactions they were impoverished in such manner as they were disabled to do him service for their Lay-fees Thus Rome becomes a burthen to Rome and the Members weary of bearing their Head. Hereafter must the Pope beware of falling out with Kings for the English Clergie now though late see that all is not Gold that glitters nor is it any great priviledge to be the Pope's men further than the Pope will be a good Master but this was not to be expected Popes were grown so excellent as they could not amend and England so enamoured of them as it is become their verè hortus deliciarum as the Pope called it when he saw the rich vestments of the English Church-men and therefore they must now be contented to be the Pope's viands as often as his hungry maw doth call or otherwise they must fall out An excellent posture of affairs and brave preparative to dispose the hearts of all sorts for entertainment of the easie yoke of Christ's government which was now at the door and ready to be revealed Nevertheless poor and mean as the Clergie was they had courage enough not onely to stickle both with King and people for their own liberties but also to invade the liberties both of the Crown and Commons having this advantage that they had to do with a King and people that were two and themselves well seconded by the Pope that had no less power in those times of publick distraction and was bound to serve the Cattle well that yielded him so much milk The particular matters of debate may appear in their Paper of Grievances composed in Henry the third's time and their Resolutions thereupon their Complaints were renewed again in the time of Edward the first if we may give credit to Baronius after the Statute of Circumspecte agatis To the end therefore that the whole may lie before us I shall set down the matter or substance of both these Papers severally in regard they sound much alike and note the difference all which I shall do to the end that it may more plainly appear what the Church-mens Idaea was and how far the common Law and King's Prerogative would agree thereto The Complaints are of this nature 1. That the Church-possessions in their vacancies are wasted and that Escheators do not onely seize the personal Estate of the Abbot or Prior deceased but such Corn in the Barn and other Goods belonging to the houses for their maintenance as also the profits of Churches impropriate 3 4 5. Elections are either disturbed by the King's Letters preceding or by delay of the Royal assent subsequent to the said Elections 6. The Lay-power without the advice of the Clergie do put in eject or restore Incumbents to Benefices void 7. Prelates are summoned to answer to the Lay-power in the Writs Quare excommunicavit and Quare non admisit 8. Clerks are distrained in their Lay-fees to answer before the Lay-power in Action of Debts Trespass or other personal Actions and in case they have no Lay-fees the Ordinary is distrained by his Barony to cause the Clerk to appear 9. The Laity are forbidden to take Oath or to inform upon Oath before the Prelates and to obey the Prelates commands in such cases 10. Persons taken and imprisoned upon Excommunication are ordinarily dismist without satisfaction to the Prelate and sometimes are not taken by the Sheriff notwithstanding the King 's Writ And as well the King as his Officers do ordinarily communicate with such as are excommunicated and likewise command others to communicate with them 14. Clerks imprisoned for Felony are refused to be delivered to the Ordinary unless upon security to appear before the Justices in Oyer and sometimes are hanged before their Ordinary can demand them and sometimes their heads are all shaven
from the gripe of the Clergie on the other who hitherto held the Cognizance of the Markets in Weights and Measures to themselves This model so pleased all men that Richard the Second that was pleased with nothing but his own pleasure gave unto the Justices of Peace yet further power to execute the Statute at Northampton against riotous ridings and to settle the Wages of Labourers and Servants to punish unlawful Huntings by the meaner sort of people and regrators of Wool false Weights in the Staple unlawful wearing of Liveries and unlawful Fishings contrary to the Statute at Westminster 2. Thus was the power of Justices of Peace grown to that heighth in these and other things that it undermined not onely the Council-Table and Kings Bench but the Commissions of Gaol-delivery and of Oyer and Terminer so far forth as their work was much less than formerly For Neighbours in cases of crime are better trusted with the Lives and Estates of men than Strangers so as in all this the people are still the gainers The manner of Judicature by these Justices of the Peace still remains nothing appears by any Statute in these times that one Justice of the Peace might do alone but record a forcible Detainer although questionless in point of present security of the Peace and good Behaviour by the intent of the Statutes he might do many things but in Cases of Oyer and Terminer all must be done in publick Sessions which the Justices of the Peace had power to hold by Commission onely until the Thirty sixth year of Edward the Third and ever after that they held their Sessions by vertue of the Statutes and had power to determine divers things in their Sessions according to discretion These were remedies after the Fact now see what preventing Physick these times afforded One thing that much irritated the spirits of men into discontents was false News or slanderous reports raised and spread amongst the great men For in these Times the Lords were of such a considerable power as the vexation of one Lord proved the vexation of a multitude of the meaner sort And though the Statute of Westminster the 1. formerly had provided against such Tales yet it touched onely such as concerned discord between the King and people although by implication also it might be construed to extend further But Richard the Second willing to live in quiet that he might enjoy his pleasure would have the people know their duties in plain words and agreed to a Law That all such as published such false News tending to sow strife between the Great men should be imprisoned until the first mover was found and if he were not found then the Relator should be punished by advice of the Council So much power was then given to the Council whatever it was Thus the seed was choked or was so intended to be though every passion was not thus suppressed For some angers conquer all fear and will hold possession come what will. In the next place therefore provision is made against the first Actings in sorting of parties by Tokens and Liveries utterly inhibiting the meaner sort of the people from giving of Liveries to maintain quarrels upon pain of Fine and Imprisonment and the Trial to be before the Justices of Assize which it seems was in affirmance of former Laws as by the Preamble of the Statute doth appear though the Laws themselves are not extant About Fifteen years after it was by sad experience found that the Lords maintained quarrels by multitude of Liveries and therefore another Law was made inhibiting the Lords to give Liveries to any but their menial Servants and it is ordered that the Justices of the Peace shall make enquiry of such offences and punish them according to their discretion A third prevention was provided against gathering together of Parties after they are sorted For the humours may so abound as nothing will keep them in they must either break out into a sore or a long sickness of State will certainly follow To this end therefore the Statute made at Northampton is again revived expresly forbidding all persons to ride armed unless in some particular cases of executing Justice or guarding the person of the King or his Justices and suchlike And if men will be so adventurous as to outâ—dare Law by publick force Troopings together and riotous Ridings another course is taken not by Commission of the Peace but rather of War directed unto valiant persons in every County and they have power thereby to apprehend such Offenders and imprison them until the Gaol-delivery though no Indictment be found thereof until the Gaol-delivery shall be By this Commission therefore power is given of Posse Comitatus in nature of a Commission of Array with an additional power of fighting and destroying so as though the King granteth the Power by the Commission yet the Parliament giveth the Power to the Commission and be it a Commission for Peace or War it is originally from that power The fourth and last prevention was the taking away means of continuance and supporting such Riotous ways Viz. Castles and Gaols out of the Custody of private hands and restoring them to their Counties For Gaols and Castles are taken promiscuously for places of security in times of Peace to keep ill persons from going out and in times of War from getting in Amongst these some belonged to the King and were committed to such as he favoured who commonly in such times of Oppression and Violence grew too big for Justice usurping a Gaol delivery and making such places of strength many times even to the innocent a Prison to keep them from the Law but unto guilty persons an Asylum to defend them against the Law. And these thus belonging to the King were under no Law but of Prerogative whereas other Castles of private persons were under the yoke of the Statute 13 E. 1. For remedy of all which the Kings Castles are once more returned to the Sheriff's Custody by Act of Parliament who questionless have the power to dispose of all places of strength whether in order to Peace or War and could not dispose them into a more safe and indifferent hand than the Sheriff's who is as well the King's Officer as the Kingdoms Servant and much intrusted by the Law in the execution of its own power And thus is this Nation now prepared for a setled Peace a condition that is long in ripening and soon rotten unless it be well fenced and over-awed by a good Conscience But Richard the Second was neither so good nor so happy his Heart affected to be high but his Head could not bear it he turns giddy and runs far wide Those that would reduce him he enforces into Foreign Countries and himself holds on his career over Hedge and Ditch into Ireland where under pretension of holding possession of that Kingdom he lost England and whilst he plays
his game in that Country another plays King by your leave in this and steps into the Throne teaching the King thereby this Lesson though too late That Non-residency is dangerous for a Priest but unto a Prince fatal unless his Subjects be fast to him when he is loose to them CHAP. XIII A View of the Summary Courses of Henry the Fourth Henry the Fifth and Henry the Sixth in their several Reigns HE that played this prank was the banished Duke of Hertford Son of John of Gaunt and by his death now become Duke of Lancaster by Title and as the Times then were it proved not hard to get more For in uncertain Commonwealths it is an easie thing for a man of opinion that hath less than his due to get more than he ought As Son of John of Gaunt this Duke had the peoples good wishes he a wise and a brave man and under oppression gained the more upon the people by how much they love brave men and compassionate such as suffer wrong especially from such persons from whom they all found the like measure All these concurring with the King's absence invited the Duke to adventure himself upon the influence of the peoples favour to gain his own right and what more the people would allow him and if no more yet his Honour is saved he came for his own and attained his end Thus then he comes over without Army or Foreign Power or other help saving the advice and interest of Archbishop Arundel who was his Companion in suffering Partner in the Cause and no less welcome to the Clergie than the Duke himself was to the people and so gained power to the Duke though he brought none Upon their arrival the Aspects of all are benign the Dukedom waits for him and in that as in a Mirrour he beholds the way fair and easie yet further it pities him to see the Kingdom so torn in pieces and spoiled The people knew him able and hoped him willing to amend all they offered him their Service which he accepts and therewith the Crown So hard a thing it is for to put a stop to a Conquerour in his career By this time was the Duke of Hertford thus become Duke of Lancaster and King of England under the name of Henry the Fourth by a design that in the proof was more easie than commendable and which being effected cost more skill to make that seem fair which was so foul than to accomplish the thing He therefore first heaps together Titles enough to have buried the clamour of Usurpation if it would have succeeded Conquest was a Title freest from Dispute whilst Power holds but it looks better from a Foreign Enemy than one sworn to the English Crown and therefore after that had served his turn he disclaimed it as that which was though meet enough to have yet unmeet to hold His right by Designation from his Predecessor he glanced upon but durst not adventure it too deep into the peoples consideration whose Ancestors had formerly over-ruled the Case against King John. He then stayed upon a concealed Title from a concealed Son of Henry the Third of whom they who listed might be perswaded but few believed the thing nor did himself but thence takes his slight up to a Jus Divinum or some hidden Fate that called him to the work but even there his Wings failed him and so he falls flat upon the Peoples Election De bene esse Some of these or all together might make Title enough for a great Man that resolved to hold by hook what he had got by crook and therefore trussing them up all together he enters his claim to the Crown As coming from the Bloud Royal from King Henry and through the Right that God his Grace hath sent me with the help of my Kin and Friends to recover the same which was in point to be undone for want of good Governance and due Justice The extract of all is that he was chosen by the People and Parliament then sitting And albeit that by the Resignation of Richard the Second the Parliament might seem in strict construction of Law to be expired together with the Kings power who called them together yet did not that Parliament so apprehend the matter but proceeded not onely to definitive Sentence of deposing him but declared themselves by their Commissaries to be the Three States and Representative of the People of England maintaining thereby their subsistency by the consistence of the Members together although their Chief was for the present like a head in a Trance till they had chosen Henry the Fourth to succeed in the Throne by this means preventing the conceit of discontinuance in the very Bud of the Notion Much like his entry was his continuance a continual tide of Foreign and Domestick War and Conspiracy enough to exercise his great Courage although he was more wise than warlike being loth to take up Arms for well he knew that a sick Title never sleeps but in a Bed of Peace and more loth to lay them down For besides Victory whereby he gained upon his Enemies in time of War he knew how to make advantage of them in time of Peace to secure his Friends to keep others in awe to enforce such Laws as stood with reason of State and the present posture of Affairs and where Laws failed to fill up the period with Dictates of his own Will. And upon this account the Product was a Government full of Ulcers of Bloudshed without regard of persons whether of the Lay or Religious Order without Legal Trial or priviledge of Clerk. So was Archbishop Walden dethroned Archbishop Scroop put to death and Dukes were dismounted without Conviction or Imputation saving of the Kings displeasure Taxes multiplied although begotten they were upon the Parliament like some monstrous Births shewn to the World to let it know what could be done but concealed by Historians to let it know what may not be done Yea the Priviledges of Parliament invaded in point of Election A thing that none of his Predecessors ever exemplified to him nor none of his Successors ever imitated him in Nor had he purposed it but that he was loth the People should know more of the Government than needs must To keep off Foreign Troubles he made Peace with France for longer time than he lived yet was ever infested with the Sword of St. Paul in behalf of Richard the Second's Queen and with the Factions between the Houses of Orleans and Burgundy in which he had interested himself to preserve the Foreign Neighbourhood in Parties one against another that himself might attend his own security at home He would have moved the Scots but they were already under English Banners nor could he reach so far having so many Enemies even in his own bosom The Welsh were big with Antiquity and Mountains of Defence they begin to bethink themselves of their Antient Principality hold the Kings Arms at hard duty