beyond all which was the purchase of the Union between the two Houses of Yorke 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 Queenes 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 avoyded 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 beneficiall for the Kingdome then to marry a Stranger But Edward the fourth did not long lye underneath upon the next faire Gale he comes from beyond the Sea and like his first predecessor of the House of Lancaster claimes only his Dutchy which no man could in reason deny to be his right and therfore were the sooner ingaged 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 ingage then slack to disingage 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 Crowne to save his Dutchy His Government was not sutable for he came in by the People but indeavored to uphold himself by forrain dependences as if he desired to spread his roots rather wide then deep how ill this choise was the event shewed for plants that root wide may be strong enough against an outward storme but they soon grow old barren and roâ—t irrecoverably from beneath Such was the end of this mans Government himselfe 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 then a bare title Nor was the Government of Edward the fourth so secured by these ingagements of Forrainers for as he sought to delude so he was deluded both by Burgundy and Scotland to the prejudice of all three Towards his owne 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 himselfe dissatisfie others and yet never was called to account What was done by intreaty 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 tyred by Warrs scared by his successe and loath to adventure much for the House of Lancaster in which no courage was left to adventure for it selfe 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 minde generally led the way thereto so as its the lesse wonder if he called more for accommodations then the Ordinary Treasury of the Crowne could supply Hereto therefore he used expedients which in his former times were more moderate for whiles Henry the sixth lived he did but borrow by privy Seale and take tonnage and poundage by way of hire Afterwards when no Starr appeared but what was inlightned from his own Sun he was more plaine and tried a new trick called Benevolence unwelcome it was not onely in regard of its owne nature but much more in the end for it was to serve the Duke of Burgundy in raising a Warr against France in the first view but in the conclusion to serve his own purse both from freinds and foes And yet this also passed without much controll for when displeasure was like to ensue he could speak faire and feast and if need was kisse away all discontent Towards his end as stale drinke he grew sowre For as in the first part of his reigne he had beene supplyed by good will against Law so in his later times he had gotten a trick of supply by Law against good will This was by penall Laws which are a remedy if they be used Ad terrorem but if strained beyond that the remedy proveth worse then the disease in their first institution they are formes of courtesie from the People to the King but in the rigorous execution of them are trialls of mastery of the King over the People and are usually laid up against dayes of reckoning between the Prince and them Those penall Laws are best contrived that with the greatest terrour to the Delinquent bring the least profit to the Kings Coffers Once for all this Kings Acts were many his enterprises more but seldome attaining that end which they faced He was a man of Warr and did more by his Fame then his Sword was no sooner resolved in good earnest but he died left a Kingdome unassured his Children young and many freinds in shew but in truth very few Now if ever was the Kingdome in a trance Edward the fourth left a Son the Prima materia of a King and who lived long enough to be inrolled amongst English Kings yet served the place no further then to be an occasion to fill up the measure of the wickednesse of the Duke of Glocester 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 Unkle the Duke of Glocester little other then as an Overseer to an Executor that might see and complaine 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 honor before he ascended the Throne so no man ever entred and sate theron with lesse his proceeds were from a Protector to an Usurper and thence to a Tyrant a scourg to the whol 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 loath 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 hee makes whole by recompence takes a way 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
their work is to lead the Kings Conscience in dark wayes or rather into them commonly he hath a devout outside and that is the Kings Idol but if while his eye be towards Jerusalem his minde be towards the dead Sea the King is his and then the blinde leads the blinde Like some Ignis fatuus to such as know it not No man is so well knowne by his company as Kings are by these men and these men by their Actions Although some have bin so witty as to cheat the whole generation of Mankinde by entertaining holy men to be their Chaplains themselves the mean time without any sparke of that holy Fire Yet this King was not so cunning he had a Confessor of his own choice and according to his owne heart who was complained of as a grievance and the Parliament removed him So nigh they adventured even to invade the Kings owne conscience if it may be called conscience that will acknowledge no Law but that of its owne minde Thirdly The Kings Revenue was under the check and controll of the Parliment for it befalls some Princes as other men to be somtimes poore in abundance by riatous flooding treasure out in the lesser currents and leaving the greater channells dry This is an insupportible evill because it is destructive to the very being of affaires whether for Warr or Peace For the Kings treasure is of a mixt nature much of it being intended for publique service as himselfe is a publique person And for this cause he hath Officers of severall natures attending upon this treasury Some for land some for Sea some for the generall treasure of the Kingdome some for that of the houshold and some for the privy purse the common end of all being to maintaine state in time of peace and strength against time of Warr because it s no easie matter to maintaine the just proportions for each of the said ends it is the lesse wonder that such a brave Prince as Edward the Third should Labour under want for maintenance of the Warrs and so lavish a Spendthrift as Richard the Second should Labour under more want to maintaine his port and countenance in peace And therefore though it be true that the publique treasure is committed to the King as the cheife Steward of the Realme yet it is as true that he is but a Steward and that the supreame survey of the Treasure resteth in the Parliment who are to see that the treasure be not irregularly wasted to reduce the same into order and for that end to call the Treasurers and Receivers to account to see to the punishing of such as are unfaithfull and encouraging of others that are faithfull for when by extravagant courses the Treasure is wasted by extraordinary courses it must be supplied which ever is out of the Subjects purses And in such cases it is great reason that they should observe which way the course lies of such expenses If then in such cases sometimes the Parliament hath stayed the issuing out of the Kings Revenue for some time or otherwise viewed and examined the same charged it with conditions 22 E. 3. n. 29.14 R. 2. n. 15. limitted it to certaine uses and in case of misuser refused to levy or make payments the case will be without dispute that the Parliament ordered the publique treasure as they saw most need But much more if wee consider how the greatest part of this treasure was raised Viz. Not from the old Revenues of the Crowne but by new impositions levies and assesments layd upon the people even what they pleased and in what manner they thought meet and not otherwise Aydes are lawfull if they be legally given by common consent of Parliament Taxes if legally given by Parliament are no lesse lawfull yet they must be collected in such manner and by such means as the Parliaments Order doth direct Loans of monys 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 mony he got and it was repaied by the order of the Parliament But of all the rest nothing shewed more absolute authority in the publique Revenue then the care that was had of the Demesnes of the Crown for whereas the expenses of Kings grew so vast that neither the yeerly Revenue could suffice nor aides assesments and taxes could satisfie however ordinary they in these times were become rather then Kings would contiane themselves they would invade their own Demesnes by pauning selling and giving them a way either for love or mony and thus was poverty treasured up against the future both for King and Crown The Parliament espying this leake that was like to undoe all applyed a speedy remedy undoing what was done and undoing some by an act of Resumption and thereby taught Kings to looke to their honor better for the future and people also to take heed of medling with such considerated matters and to know that he that hath such in his possession hath them by a cract title that cannot bee 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 judgement 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 diverse rules One of a man w ch many times reacheth no higher then the Affections and if the man be weak they deserve little better name then Lusts The rule of a King is Law or Councells of these in place and unto these in all prudentialls he must submit his judgement and will as he is a King nor can he doe otherwise unlesse he will presume to be wiser then his Councell Sutable hereunto doth that clause in one of the Statutes of these times conclude Viz. That the King is bound by his Oath to passe all Lawes that are for the good of the Kingdome 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 Kings dissent to judge of the convenience or inconvenience of Proposalls made for the good of the whole body according to that power which it exercised in these times Nor is it irrationall to inferre here from that if Law and Councell be the rule of a King then the obedience of the people unto this King must be in order to Law and Councell otherwise the disobedience cannot be
feminine Spirit which they sent over into England to be their Queen and in one Civill Warre shedding more English blood by the English Sword then they could formerly doe 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 Kingdome is never more befooled then in the Marriage of their King if the Lady be great she is good enough though as Jezabell she will not either reverence her Husband obey her Lord and King nor regard his People And thus was this Kingdome scourged by a marriage for the sinne of the Wise men that building upon a false Foundation advised the King in the breach of Contract with the Earle of Arminiacks Daughter And thus the King also for that hearkning to such Councell he murthered the Duke of Glocester that had been to him a Father yeilded up his Power to his Queen A Masterlesse 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 owne Issue to the Line of Yorke then renewing the Warre at his Queens beck lost what he had left of his Kingdome Countrey and Liberty and like the King that forgot the kindnesse of Jehojada lost his life by the hand of his Servant CHAP. XIV Of the Parliament during the Reignes of these Kings THe interest of the Parliament of England is never more Predominant then 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 claimes by devising their Crowne in their last Will but the successe 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 himselfe Not much unlike hereunto is the Case of Henry the Fourth who like a Bud putting up in the place of a fading Leafe dismounts his Predecessor First from the Peoples regard and after from his Throne which being empty some times he pretending 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 worke But when he comes to plead his Title to Forrain 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 speciall Cases as a sufficient barr 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 unlesse his next Successors follow the dance upon the same foote to this end an Act of Parliament leades the tune whereby the Crowne is granted or confirmed to Henry the Fourth for life and intailed upon his Sonnes Thomas John and Humphrey by a Petition presented 5. Hen. 4. Thus Henry the Fourth to save his owne stake brought his Posterity into the like capacity with himselfe that they must be Kings or not subsist in the World if the House of Yorke prevailes and so he becomes secured against the House of Yorke treading on his heeles unlesse the Parliament of England shall eat their owne word However for the present the House of Lancaster hath the Crown intailed and the Inheritance is left in the Clouds to be revealed in due time For though this was the first president of this kinde 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 lesse strange For the Parliament according to occasion as the Supreame power of this Kingdome exercised Supreame Jurisdiction in order to the safety of the Kingdome as if no King had beene to be found in issuing forth Writs under the great Seale concluding of matters without the Royall assent treating of Peace with Forrain Nations and of other matters and determining their Resolves before discovery made to the King of their Councells 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 Ambassadours with power to ingage for the Kingdome making Generals of the Army Admiralls at Sea Chancellors Barons and Privy Councellors and giving them instructions 8 H. 4. n. 73. 76. 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 overwayed by Factions but by the course of a Series of Parliaments that mightily laboured against Faction and unworthy ends and aimes that man shal determin the same to be unjust or indiscreet should himself first be determined to be very just and exceeding wise Nor was the Parliament partiall in all this but being in a way of Reformation it set upon the work of reforming it selfe Some that are very zealous in the point of Arbitrary and absolute Government of Kings in this Nation and all in 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 shal 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 doe They may call Parliaments but neither as often or seldome as they please if the Statute-Laws of this Realme 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 publique Affaires and therefore can discern when the generall Conventions are most necessary As touching the dissolving of Parliaments against the wills of
to yeares 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 appeare by any Author or Record Nor if such had been yet had it been an irrationall thing in the Parliament to determine the same upon the Princes discretion and acceptance of the Charge upon himselfe 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 Kingdome by a moderate Expression of a Generall incapacity in his Person The Conclusion of all that hath beene 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 Cheife although it may in truth seem to be but a tricke of State like some pretty carved Cherubims in the Roofe of a building that doe seeme to beare it up when as in truth it is the Pillers that supporteth both it and them CHAP. XVI Concerning the Privy Councell NAtions doe meet with their Exigencies as well as Persons and in such condition Resolutions taken up by sudden Conceit are many times more effectuall then 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 wayes of debate in the Grand Representative of the Kingdome Add hereunto that in putting the Lawes in execution greater discretion is required then can enter into the head of any one man and greater speed then can stand with debate amongst many And therefore it is beyond all doubt that the Conventicles of Councell are no lesse necessary in their Degree then 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 Hipocrite one way abroade another way at home neither comfortable to it selfe nor confiding to others and therefore cannot these privater Councells by any proportion of Reason be better Constituted then by the Representative it selfe that it may be a Creature made in its owne Image one and the same with the Image of the maker This was the wisedome and the practise of these times more ordinarily then in the former for the Parliament was no lesse jealous of the power of Henry the Fourth then of the infirmities of Henry the Sixth nor more assured in the aimes of any of them all then themselves were in their own title to the Crown Neither was this sufficient for the Parliament looked upon themselves as a body that somtimes must retire to rest and upon the privy Councel as watch-men subject to change and therefore they not onely give them instructions but ingage them unto observance Their instructions were somtimes occasionall but some more generall 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 Councell table or at the privy Councell nor before any of them unlesse as Judges in the Chancery Exchequer or Benches at Westminster so as whatsoever miscarriages were had by the privy Councell 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 Councell table of any matters there agitated but by generall consent Unity gives life to action carrying therewith both Authority and Power and when all is done must derive its originall from without and in all good ends from above And therefore as a seale to all the rest it was wisely done by the Parliament to draw the minds of the Privy Councell together and to present them joyntly before God by an oath oblieging themselves to a solemn and constant observance of their instructons and to persevere therein for the unchangeable God can onely stamp a lasting Image upon the minde 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 Righteousnesse and Peace The privy Councell thus settled dressed and girt becomes of high esteeme both for trust and honorable imployment in great matters The Mint is the very Liver of the Nation and was wont to be the cheife care of the Parliament it selfe in all the dimensions thereof now the Mint is two wayes considered Viz either in the vallue of the Mettall and Mony or in the coynage The first of these things most immediatly concurring therewith the Parliament still retaines to its owne immediate Survey such as are the inhibiting of exportation of Gold and Silver and of melting of Coyne into Plate or Bullion the regulating of the currant of Forraine Coyne the reducing of Money both Eorrain and Domestick imbased by Counterfeiture 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 shal be holden which with some other matters of inferiour Nature were left to the Order of the Privy Councell either with the King or alone in Case of the Kings absence or disability A second power given to the Privy Councell was in point of Trade and Merchandize formerly they had somewhat to doe therein but still the Parliament set out their bounds in Richard the Seconds time the people had liberty of trade in some Commodities by way of Exportation but the Privy Councell might restrain them upon inconvenience to the Publique Now the same is confirmed and though it concerned Corne onely yet it was a President that led the way to a much larger power in the Trade of the Staple Commodities of this Iland to inlarge or straiten it as they thought meet and so they became in a fair way to have a principall power over the Revenues and Riches of this Nation But this lasted not long for within ten yeares these Licences of Transportation cost the Merchant so much as he could make little gaines of all his care and paines and therefore a rule is set to a generall allowance of all Transportation of Corn till the price of Wheat came to a Noble and Barly at three shillings and no longer This being first made Temporary was afterwards made
his ends Thus in one Parliament for he could hold no more he gave such content as even to wonderment he could as soone finde an army in the feild to fight for him as the most meritorious of his Predecessors His ill title made him very jealous and thereby tought his best freinds to keep at a distance after which time few escaped that came within his reach and so he served Gods judgement against his adjutants though he understeod it not Amongst the rest the Duke of Buckingham his great Associate both in the Butchery of the two young Princes and usurpation of the Royall 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 owne wombe The Kings minde delivered from feare of the Sonnes of Edward the Fourth now dead torments himselfe with thoughts of his Daughter alive ashamed he is of Butchery of a Girle he chooseth a conceit of Basterdizing the Children of Elizabeth Graye 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 Graye is now undoubted Wife of Edward the Fourth and her eldest Daughter as undoubted Heire 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 Kingdome which he good King was bound in Conscience to maintain though with the perill of his owne Soule and in this zeale of his Conscience his Queen soon went out of the way and so Love is made to the young Lady But Henry Earle 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 loosing both the Lady his Crowne and owne life together put an end to much wickednesse and had the end thereof in Bosworth-Feild CHAP. XXIV Of the Government in relation to the Parliament THe seasons now in Tract were of short continuance lives passed away more speedily then years and it may seem uselesse to inquire what is the nature of the Government in such a time when as 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 Yorke was never so clear against that of Lancaster yet it had been so long darkned with a continuall Succession of Kings of the Red-Rose that either by their merit had gained a Throne in the Peoples hearts or by their facility had yeilded their Throne up to the Peoples will as it proved not easie to Convince them that liked well their present Lot and were doubtfull 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 triall 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 Prince On the other side Edward the Fourth newly sprung up out of a Root watered with blood himself also a Man for the Feild This might well put the minds of the People to a stand what to think of this Man whose nature and ends are so doubtfull 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 lesse Add hereunto that Divine Providence did not so clearly nor suddenly determine his secret purpose concerning this change by any constant successe to either part by means whereof the one half of Edward the Fourths reign was spent while as yet Henry the Sixth was in veiw 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 Armes 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 perill of Attainder and the Parliament assured unto him once more For immediately upon the departure of Edward the Fourth beyond Sea after tenne yeares 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 at Westminster determined the same thing as may appear by the Law Reports of those times in Print wherein Re-attachments were often granted by them upon discontinuance of processe by this Demise of Edward the Fourth And thus Henry the Sixth is once more King for six moneths Viz. from October to Aprill 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 then to spend much time upon fruitless Orders and Votes that will peirce no Armour and therefore like the times must needs be subject to fits of distemper at the comming in of every Tide and did build and pull down Enact and disenact turn and return the English Crown from Yorke to Lancaster and back again and in conclusion for some time did do little but undo Nor can they be justly censured herein for Councells 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 Publique 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 Councells is somewhat like the Notion that Batchelours conceit of Wives they would have but they do not know what other then an Idea of their own Fancy Now if it be inquired which course prevailed in order either to the Kings Royalty or the Peoples Liberty I shall answer neither of these but the House of Yorke prevailed to hold the Crown and might have advanced the Authority thereof had they not falne out amongst themselves for the spoyle and Edward the Fourth was not altogether disposed thereto The successe that he had in the Feild and his Souldiery made him look big like a King of the greater size but Kings sleep not securely upon such pillowes when the Militia is on hors-back 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 Common-wealth And
full wherein we have a Childe 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 Custome of the Nation yet this fals 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 Councel if occasion do provoke to Arms but if the same befall the Parlaiment 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 sixths 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 publique 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 publique safety but more upon the dishonor of the same In none of these did either of the Supreme Powers array or raise men by Prerogative but onely such as were Volunteir in that Work And because the People were ill principled in Edward the sixths time in regard of the change of Religion he was induced to hire forrain 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 Volunteirs nor did any Commission give power of impresting men to serve against their wils 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 reflexions in Government to be succesfull and honorable and that all was done by Councel and a Woman popularly affected and therefore less feared invasion upon their Liberties or otherwise they are to be imputed to the condition of those places being Members of the Common-wealth as the cautionary Townes in the Low Countries and the Irish Plantations were and so befall under another consideration of a defensive War in case of invasion and common danger therby or by intestine broils during which condition as it is the Kings duty to levy and array men so is it the duty of the People to be ready to assist one another in all such exegencies and to defend the publique Liberty nevertheless these Arrays are not left wholly at the Will of the King but to discretion of the Councell how far the same shall extend For never were generall Arrayes made where but one Coast was in danger and where no conquest is in pretence but only piracy or plunder But if the disease were generall as it was in the yeare 88. the Array was generall and yet it was of none but those that were of the Trained bands besides such as were Volunteir Secondly The arming of these men was also diversly there was no generall rule or Law for the arming of men since the times 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 armes But for such men as passed the Seas for forrain Service as they were Volunteirs or sent over by the Parliament these were armed acccording to speciall contract But Queen Mary having gotten a safe reserve from Spaine upon all adventures and a strong Interest amongst the People by upholding the Catholique party made no bones to innovate in the point of arming of the Militia although it cost the People much more then was imposed upon their Ancestors The pattern hereof was taken from the Spanish Cabinet the Q. being loth to be inferior to her own Husband in bringing as much strength to him as he to her and both of them willing enough to appeare potent in the eyes of France that then stood in competition with them both A yoke it was yet neither the King nor Queens Will but the Parliament put it on and ere an age expired was cast off again For the better understanding see it in this Scheme Per Annum Lances Light Horse Corslets Bowes Hacquebuts Bills 1000. l. 6. 10. 40. 30. 20. 20. 1000. marks 4. 6. 30. 20. 10. 10. 400. l. 2. 4. 20. 15. 6.  200. l. 1. 2. 10. 8. 3.  100. l.  2. 3. 3. 2.  100. marks  1. 2. 2. 1.  40. l.   2. 1. 2.  20. l.   1. 1. 1.  10. l.   A Coate of Plate 1. 1.  5. l.   A Coate of Plate 1.  1. Goods 1000. marks 1. 1. 2. 4. 3.  400. l.  1. 1. 2. 1.  200. l.   1. 2. 1.  100. l.   1. 2.   40. l.   Two Coats of Plate 1.  1. 20. l.   One Coate of Plate 2.  1. 10. l.    1.  1. The Lances were to be compleatly harnised or the one half of them the Corcellets furnished with Coates of Maile and Pikes the Bowes with an Iron Cap and a sheaf of Arrowes The Hackbuts with Sallets all which was to be over and besides such Armes as men were bound unto by Tenure or Covenant with the Landlord or by vertue of the Statute 33 H. 8. ca. 5. besides town-ships which were charged with joint Armes Annuities and Coppy-holds were charged as goods If the Armes were lost in the Service the owner must make them good again The defaults were punishable with fine by the Justices of the Peace who had the view and might present them at the Sessions to be procceded upon as in other Cases Here is provision enough yet not as the Armes of the Militia of the Kingdom but as a Magazine in the hands of every particular man and as his proper goods to be imployed for the publique Service either upon sudden invasion in a defensive Warr or when the Parliament shall send them abroad And yet it is also a rule unto the Crown against arbitrary Assessments upon discretion from which it cannot recede if it mean to do right It might now very well stand with the
betweene party and party should be determined in a more private way then to trouble the whole Representative of the Kingdome with matters of so meane concernment If then those Councils mentioned by the Author which concerne the Kings Grants and Infeodations and matters of Judicature be taken from the rest of the Presidents brought by him to maintaine 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 Booke And yet I deny not but where such occasions have befalne 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 Clergy onely and they might thinke it sufficient for them to honour their Writings with the great Titles of Men of Dignity in the Church and Common-wealth omitting the Commons as not worthy of mention and yet they might be there then present as it will appeare they were in some of the particular instances ensuing to which we come now in a more punctuall consideration The first of these by his owne words appeare to be a Church-mote or Synod it was in the yeare 673. called by the Arch-Bishop who had no more power to summon a Parliament then the Author himselfe hath And the severall conclusions made therein doe all shew that the people had no worke there as may appeare in the severall relations thereof made by Matthew Westminster and Sir Henry Spelman an Author that he maketh 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 Councill was it s the lesse materiall seeing the same Author recites a president of King Aâ—thelbert within six yeares after Austins entry into this Island which was long before this Councill which bringeth on the Vann of all the rest of the Opponents instances which King called a Councill styled 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 its evident that in those times there were Councils holden by the People as well as the Magnates or Optimates His next instance is in the yeare 694. which is of a Councill 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 minde him that the same Author reciteth a Councill holden by King Ina Suasu omnium Aldermannorum Seniorum Sapientum Regni and is very probable that all the Wise men of the Kingdome were not concluded within the Lordly dignity The third instance can have no better successe unlesse he will have the Pope to be allowed power to call a Parliament or allow the Arch-Bishop power to doe that service by the Popes command for by that authority this what ever it be was called if we give credit to the relation of Sir Henry Spelman who also reciteth another Councell within three leaves foregoing this called by Withered at Barkhamstead unto which the Clergy 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 Councels as well as other Great Men. In the next place he bringeth in a Councill holden in the yeare 747. which if the Arch-Bishop were then therein President as it s sayd in the presence of the King was no Parliament but a Church-mote and all the conclusions in the same doe testifie no lesse they being every one concerning Ecclesiasticall matters And furthermore before this time the Author out of whom he citeth this Councill mentioneth another Councill holden by Ina the Saxon King in the presence of the Bishops Princes Lords Earles and all the wise old Men and People of the Kingdome 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 Monastry of Glastenbury was made not onely in the presence of the Great Men but Cum praesentia populationis and he saith that Omnes confirmaverunt which I doe not mention as a worke necessary to be done by the Parliament yet such an one as was holden expedient as the case then stood Forty yeares after hee meeteth with another Councill which he supposeth to be a Parliament also but was none unlesse he will allow the Popes Legate power to summon a Parliament It was holden in the yeare 787. and had he duely considered the returne made by the Popes Legate of the Acts of that Councill which is also published by the same Author hee might have found that the Legate saith that they were propounded in publike Councill before the King Arch-Bishop and all the Bishops and Abbots of the Kingdome Senators Dukes or Captaines and people of the Land and they all consented to keep the same Then he brings in a Councill holden in the year 793. which he would never have set downe 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 s sayd to be holden Anno 974. before nine Kings fifteene Bishops twenty Dukes c. which for ought appeares may comprehend all England and Scotland and is no Parliament of one Nation but a party of many Nations for some great matter no doubt yet nothing in particular mentioned but the solemne laying the foundation of the Monastry of Saint-Albans What manner of Councill the next was appeareth not and therefore nothing can be concluded therefrom but that it was holden in the yeare 796. That Councill which is next produced was in the yeare 800. and is called in great letters Concilium Provinciale which he cannot Gramatically construe to be a Parliament yet in the Preface it is sayd that there were Viri cujuscunque dignitatis and the King in his Letter 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 Witagen-mote to Judge and conclude them There can be no question but the next three Presidents brought by the Opponent were all of
of Matthew Paris Matthew Westminster and Hoveden although he pleaseth to mention the severall rankes of Great Men and those in blacke Letters of a greater size and saith That not one Commoner appeares yet Master Seldens 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 Lawes made by Richard the First in his twenty fourth page and hee setteth downe the severall ranks of Great Men and amongst the rest ingeniously mentioneth Milites but it is with a Glosse of his owne that they were Barons that were made Knights when as formerly Barons were mentioned in the generall and therefore how proper this Glosse is let others judge especially seeing that not onely Milites and Milites Gregorij but even Ministri were present in such conventions even in the Saxon times And Master Selden in the former knowne place mentioneth an Observation that Vniversi personae qui de Rege tenent in Capite sicut ceteri Barones debent interesse judicijs curiae Domini Regis cum Baronibus Fourthly He citeth in his twenty fifth page another instance in King Johns time in which after the assent of Earles and Barons the words Et omnium fidelium nostrorum are also annexed but with this conceit of the Opponents 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 Kingdome were specially summoned and were there so as the conclusion will be the same In the fifth place hee citeth a strange President as he calls it of a Writt of Summons in King Johns time in his twenty seventh page wherein Omnes miletes were summoned Cum armis suis and he concludes therefore the same was a Councell of Warr. First Because they were to come armed it s very true and so they did unto the Councills in the ancient Saxon times and so the Knights of the Counties ought to doe in these dayes if they obey the Writte Duos Milites gladijs cinctas c. Secondly He saith That the Knights were not to come to Councill that is his opinion yet the Writt speakes that the Discreti Milites were to come Ad loquendum cum Rege ad negotijs regni Its true saith hee but not Ad tractandum faciendum consentiendum Its true it s not so sayd 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 Arch-Bishops Bishops Abbots Earles and the greater Barons unto such Conventions by speciall Writts and that the Sheriffe shall summon promiscuously all others which hold in Capite and thence hee 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 Councills were called of such persons as suited to the matter to be debated upon If for matters purely Ecclesiasticall the King and his Councell of Lords and the Church-men made up the Councill If for advice in immergencies 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 Councill to ascertaine the sum which was otherwise uncertaine If for matters that concerned the common liberty all sorts were present as may appeare 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 saith he Ex quo Rex Henricus tertius ex tanta multitudine quae seditiosa ac turbulenta fuit optimos quosque ad Commitia 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 when as himselfe 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 generall 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 demurr upon the whole matter and leave it to judgement upon the premises which might have beene much better reduced to the maine conclusion if the Opponent in the first place had defined the word PARLIAMENT For if 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 Steven And if sometimes a Parliament of Lords onely may be against the King and so without King or People as in the Case betweene Steven and Maud the Empresse and the case likewise concerning King John both which also were formerly mentioned possibly it may be thought as rationall for the Commons in after Ages to hold a Parliament without King or House of Lords and then all the Opponents labour is to little purpose THE CONTINUATION OF AN Historicall Discourse of the Government of ENGLAND THE former times since the Norman entry like a rugged Sea by crosse windes of arbitrary vapours in and about the Crowne and by Forraine ingagements from the holy Chaire made the true face of affaires cloudy and troublesome both for the Writer and the Reader Hence forward for the space of three hundred yeares next ensuing Kings by experience and observation finding themselves unequall to the double chace of absolute Supremacy over the Sturdy Laity and incroaching Clergy you will observe to lay aside their pretentions against the peoples Liberties and more intentively to trench upon the Spiritualty now growne to defie all Government but that of Covetousnesse Nor would these times allow further advantage to Kings in this worke they being either fainted by the tickle Title of the Crowne hovering between the two Houses of Yorke and Lancaster or drawne off to Forraine imployments as matters of greater concernment for the present well being of the Kingdome or for the spreading of the fame of such as desired to be renouned for valiant Men. It will be superfluous to recount the particular atchievements formerly attained by these Ecclesiasticall men the former Treatise hath already sayd what was thought needfull concerning that For the future I shall even premise this That the insuing times being thus blessed with a truce or stricter League between Kings and Commons the errours in
Government more readily doe appeare the corruptions in natures of men more frequently discover themselves and thereby the body of the Statute-Lawes begin to swell so bigg that I must be inforced to contract my account of them into a narrower compasse and render the same unto the Reader so farr forth onely as they shall concerne the generall streame of Government leaving those of privater regard unto every mans particular consideration as occasion shall lead him For what ever 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 Kingdome is onely manifested by ancient Customes and publique Acts of Parliament And because I have undertaken a generall Survey of the Reignes of thirteene severall Kings and Queenes 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 Wildernesse of particulars hard to comprehend in the generall summ 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 Yorke And because Edward the Third and his Grandchilde Richard the Second doe come under none of these Interests I shall consider them joyntly as in way of Exordium to the rest although the course of the later was as different from the former as Lust falls short of a generous Spirit CHAP. I. A summ of the severall Reignes of Edward the Third and Richard the Second SEverall I may well call them because they are the most different in their wayes 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 yeares of age to take it up he knowing whose it was and feeling it too heavy for him was willing enough it should returne but being overswayed by Councels 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 himselfe rather then to adventure it in another hand but that is not all for as its never seene that the Crowne doth thrive after Divorce from the Scepter but like a blasted blossome falls off at the next gale of adversity such was the issue to Edward the Second his Power once gone his Honour followed soon after he had ceased to be King and within a small time did cease to be Edward His Son thus made compleate by his Fathers spoyle had the honour to be the Repairer of the ruines that his Father had made and was a Prince which you might thinke by his story to be seldome at home and by his Lawes seldome abroad nor can it be reconciled without wonder that Providence should at once bestow upon England a couragious People brave Captaines wise Councell and a King that had the endowments of them all Otherwise it had out-reached conceit it selfe that this small Island wasted by the Barons Warrs the people beaten out of heart by all Enemies in the time of the Father should neverthelesse in the time of the Son with honour wade through so many difficulties of mighty Warrs on every side abroad and devouring Pestilence at home and yet lay a platforme of an Epulent wise and peaceable Government for future Generations Yet hee had his failings and misfortunes a great part whereof may be attributed to infirmity of Age which in the first part of his Reigne was too little and in the later part too much True it is that Governours of the Persons of Kings may in some measure supply defects of Non-age but seldome where the Governours are many and never if they be ambitious And it was this Kings fate to miscarry in both for he had in his Youth twelve Governours by constitution and they two supreame by usurpation Viz. The Queen and Mortimer till they were both consumed in the flame which themselves had kindled And this disparity wrought somewhat unsuccessefully in the Kings first Warr For the generosity of his spirit himselfe being young and active minded his Councell to advise him imployment in a Forraine Warr rather then they would adventure its motion at home least it might prove circular which is most dangerous for Government if the Prince be not under command of himselfe This first Warr was with Scotland whose power was inferiour to that of France the King young and the danger neerer and therefore though the last affront was from France that more fresh in memory and more peinant yet the King was advised to give place and speake faire till he had tryed masteries with Scotland and thereby secured his Rere This he wisely hearkened unto and met with such a successefull turne of Providence that like an O Yes before a Proclamation gives warning to Scotland that the Wheele is turned upon them and that there is somewhat more then 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 foyled his Father and also put himselfe already once to the Retreat And yet there did concurr a kinde of necessity of second Causes for the King found the Crowne ingaged and the minds of the Scots so elate as the English mans case was not to live to Fight but to Fight to live and so imbittered against one another by the fierce Warrs under the Barrons that nothing could quench the fire but the withdrawing of the Brands into Forraine action like some angry spirits that spoyle their owne bodyes unlesse 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 renues the Warr prevailes and after ten yeares stirr wherein hee became a trained Souldier against the Scots hee wann the Crosse and then goes to play his Prize in France to compleat his Crowne with the Flower De lis Which was the great worke of the rest of his Reigne in which foure parts of five was Victorious the fifth and last was declining like some Gamesters that winn at the first and for want of observation of the turning of the Dice come off loosers at the end For the King being rather satiated then satisfied with Victory and Honour returned home to enjoy what he had leaving his Son the Black Prince to pursue the Warr and to act the Souldiers alone who
now began to honour his Valour above his Fathers But the Tyde is spent the Prince of Chivalry dyes the brave Commanders wasted and the French too fickle to continue subject to the English longer then needs must tack about for another Adventure and make it plaine that France is too bigg to be Garrison'd by England and that it will cost England more to hold it then to have it His Religion was more to the purpose then of any of his Predecessors since the Norman times he reflected upon God in common events more ordinarily then the generall streame of the Clergy did in those dayes He loved if not adored devout men and their prayers and yet intentively disclaimed opinion of merits in the Creature Hee saw the Pope through and through loved him but little feared him lesse and yet lost neither Honour nor Power thereby His cheife 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 Wisedome For he that shall preferr his owne wisedome above that of the Parliament must needs thinke himselfe extreamly Wise and so much the more to know himselfe to be such But the worst of his fate was to live to his Winter age and after fifty yeares Reigne or more to dye in his minority under the rule of a Woman of none of the best fame after hee had so long enjoyed the honour of greatest note in the Christian World in his dayes Such was not Richard the Second though the onely Son of that famous Cheiftaine the Black Prince of Wales a renouned Son of a renouned Father but as a Plant transplanted into a Savage soyle in degree and disposition wholly degenerate retained a tincture of the light inconstancy of his Mother and the luxuriousnesse of his Great Grandfather Edward the Second and running his course came to his end His entrance however by colour of Inheritance yet was a greater adventure then 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 Kingdome new wrapped up in a double Warr abroad and which is worse flooded with distractions at home contracted partly by his Predecessors weaknesses in his decrepit estate partly by a new interest of Religion sprung up against the Papall Tyranny from the Doctrine of Wickleiff all which required a very wise Man and a brave Commander in both which the King fayled Religion now began to dawne through the foggs of Romish usurpations and superstitions ayded thereto by a Scisme in the triple Crowne that continued forty yeares with much virulency 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 eyther of the Names in their proper signification The Laity though lookers on yet were not quiet For though Liberty be a hopefull thing yet its dangerous to them that are not a Law to themselves especially in matter of Opinion for that arraines the rule and layes the way open to licentiousnesse And now that the Liberty from the Keyes began to be taught as a duty of Religion the inferiour sort meet with Doctrines of licentiousnesse 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 and Masters under Cade and Strawe that might have brought the Common wealth into a hideous Chaos had not the Lords and Great Men betimes bestirred themselves and the King shewed an extraordinary spirit or rather a kinde of rage that put it selfe forth beyond the ordinary temper of his minde Much of this mischeife was imputed to Wickleiffs Doctrine for it is an ordinary thing to proclaime all evills concurring with the very joynt of Reformation to be the proper fruits thereof but I looke upon it as a fruit of corruption that indeavours to stopp 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 Cupp of England to be thus troubled but France and other places had their portion sutable The Kings minority rendred him unequall unto these contrary motions he was in his eleventh yeare when he entred the Throne and which was worse his yeares came on faster then his Parts but his worke posted before them all The common helpe of Protectors left him yet more unhappy for they were prepossessed with strong ingagements of particular Interests and so were eyther not wise enough or not good enough for all This brought forth a third inconvenience the change of Protectorship and that change of Affaires and Interests an uncertaine good that brings forth a certaine evill for variety of Instruments and Interests move severall wayes 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 Kings Unkles had the first essay any one of them was bigg enough for one Kingdome 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 that work alone but he being somewhat ingaged with the Wickleiffists and so intangled with the Clergy and other restlesse spirits and drawne off by his private ayme at the Crowne of Castile saw this worke too much and so he warily withdrew himselfe leaving the Directory to a Committee of Lords a soveraine Plaister questionlesse where the times are whole but not for these distractions wherein even the Committee it selfe 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 Earle of Warwick acquitted himselfe well for he was wise enough to observe such as the people most honoured And thus passed over the two first yeares of the Kings Reigne The remainder of the Kings minority was rather in common repute then in true account For the King however young took little more from the Protector then he saw meet to collour his own commands with opinion of Regularity and so his will came to full strength before his wisdome budded Thus lifted up he sets himself above all interests of Parliament Protectors Councellors Unkles wise Men and Law leaving them all to be rules for those below And so long as the Kings 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 untill his two and twentieth year Some might thinke him very moderate had hee been moderate but he forbears suing out his
Livery so long as he may live without care and spend without controll For by this time the humour of his great Grand-father budded in him he pawned his heart to young men of vast desires and some say so inordinately as he prostituted his chastitie unto them And it s no wonder if the Revenues of the Crowne are insufficient for such Masters Thiâ— the people soon felt and feared their own Free-holds for they are bound saith he not to see the Crowne deflowred for want of maintenance it s very true nor to see the Crowne deflowred of its maintenance A Parliament therefore is called in which diverse Lords associate and prepare Physick for the Kings lavish humour which being administred wrought for ten yeares after till it had purged him of his life and the Kingdome 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 Crowne and to doe Justice to the People this was to continue for one whole yeare The Parasites no sooner found the effect hereof to their Cost but the King growes sicke of it and findes an Antidote to over-rule Acts of Parliament by Acts of Privy Councell declares this ill-favoured Commission voide and the Contrivers Advisers and Inforcers Traytors To make it more Majesticall he causeth the Judges to Subscribe this Order and so it becomes Law in repute This foundation thus laid he buildeth in hast an Impeachment of these Commissioners of high Treason and supposing that they would not readily stoope himselfe stoopes lower for he would put his Right to triall by battell which was already his owne 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 himselfe 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 chiefe Judges with their Law judged by another Law The King not medled with thinks it high time to come out of his Minority and assumes the Government of the Kingdome and himselfe to himself being now three and twenty yeares of age old enough to have done well if he had cared for it But resolving to follow the way of his owne will at length it led him to his owne ruine onely for the present two things delayed it Viz. The Authority Wisedome and Moderation of his Unckles 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 owne advantage but for the Publick quiet procured many Parlies and interviewes between the King and People and many Lawes for the upholding of the Court and Government although both Warre Lawes Justice and Councells all are faint as all is faint in that man that hath once dismanned himself This he perceives well enough and therefore Peace he must have by any means The Queen dies himselfe being nigh eight and twenty yeares old takes a Creature like a Wife but in truth a Childe of eight yeares old and this is to get Peace with France It s no wonder if now he hunts after unlawfull game and that being ill taken brings all things out of order For abused Marriage never wants woe Civill men are now looked upon as severe Cators and his Unckles especially the Duke of Glocester with a jealous eye which accomplished his death in the conclusion The Dukes of Lancaster and Yorke forsake the Court Favorites step into their roomes The old way of the eleventh yeare is re-assumed Belknap and others are pardoned and made of the Cabinet The Pardon of the Earle of Arundell is adnulled contrary to the advise of the major part and the Arch Bishop the Earles brother is banished The Lords forsake the wilfull King still the Kings jealousie swells The Duke of Hertford is banished or rather by a hidden Providence sent out of the way for a further worke 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 Kingdome in correspondency And he was ill requited for all his Estate is seised 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 downe goes all the worke of the tenth and eleventh yeares Parliament which had never bin if that Parliament had continued by adjournment The King raiseth a Power which he calleth his Cuard of Cheshire men under the terror of this displaying rod the Parliament Kingdom are brought to Confession Cheshire for this service is made a Principality thus goes Counties up and Kingdoms down The Kings Conscience whispers a sad Message of dethroning and well it might be for he knew he had deserved it Against this danger he intrenches himself in an Act of Parliament That made it Treason To purpose and endeavor 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 Ingagement from the Parliament but he missed the right Conclusion for want of Logique For if the Parliament it self shall depose him it cannot be made a Traytor or attaint it selfe and then hath the King gain'd no more then a fals 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 Kings assent thereto and hinderers of the Kings proceedings are adjudged Traitors 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 its 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 Kings Justices for offences by them committed in Parliament without the Kings consent and all gainsayers are Traitors These and the like Aphorismes once Voted by the Cheshire men assented unto by the Parliament with the Kings Fiat must passe for currant to the Judges and if by them confirmed or allowed will in the Kings opinion make it a Law for ever That the King and all Parliaments is Dominus fac primum and Dominus fac totum But the Judges remembred the tenth yeare and Belknaps intertainment and so dealt warily their opinion is thus
set down It belongeth to the Parliament to declare Treason yet if I were a Peere 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 Kings Bench the first chief Justice of the Common-Pleas and the second another Judge of the same Bench. The summe in plainer sense is that if they were Peeres they would agree but as Judges they will be silent And thus the Parliament of England by the first of these foure last mentioned conclusions attainted themselves by the second yeilded up their liberties by the third their lives and by the last would have done more or been lesse 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 indeavor to repeal any of their determinations The Common-wealth 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 Farme subject to strip and waste by mean men and crosses the Irish Seas with an Army This was one of Englands Climactericall 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 ere the winde of affaires changed the King now in Ireland another steps into the Throne the noise hereof makes him return afarr of inraged but the nigher he comes the cooler he growes his conscience revives his courage decayes and leaving his Army his Lordship Kingdome and Libertie behinde as a naked man submits himself to release all homage and fealtie to resigne his Crown and Dignitie his Titles and Authoritie to acknowledge himself unworthy and insufficient to reign to swear never to repent of his Resignation thus if he will have any quiet this wilfull man he must be content for the future neither to will nor desire And poore England must for a time bee contented with a dolefull condition in which the King cannot rule and the Parliament will not and the whole body like a Chäos 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 excellencie of Dignitie and the excellencie 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 Thornes 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 Kingdome in generall The King though higher then all the people by the head and so hath the Prerogative of Honour as the most worthy yet his strength and abilities originally doe rise from beneath otherwise he is but like a Generall without an Army the Title big but aiery and many times his person subject to so much danger that in stead 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 respect he may be said to be lesse his own man and more the Kingdomes then any of the inferiour sort This befell in both these Kings in a speciall manner each entering upon the grand government of a Kingdome before they were able to understand the work or govern themselves and therefore were under power of Protectors for the guard of their Persons and their Education and of the Parliament for Councell and Direction in Cases relating to the Kingdome The chide of a mean man when its Parents are dead is Filus Amici but of a King is Filius Populi to be by them trained up in such manner that he may be Pater populi when he is come to age In the mean time though he be a King yet his Person like a precious Jem must not out of the ring but must be directed by Councell though under some kind of restraint the Councellors all the while no Offenders in such Cases against the Prerogative Royall And therefore though it be true that Kings grow faster then other men and sooner come to full age then they yet Edward the third now in his sixteenth yeare might not passe over Sea into France though it were for restoring of Peace but by direction of the Parliament nor is it meet in such Cases that Kings should stand upon the Prerogative of a Negative Secondly it may likewise be said that his Family is lesse his owne as he is a man then another mans For private Families are no further under the publique Law then in relation to the publique Peace to punish after breach made But the Families of Kings are looked upon by all in relation to the honour and profit of the Publique not onely because the Kings servants have by their nigh attendance upon his Person a more powerfull influence into his actions which may reflect a malevolent aspect upon the whole course of affaires if they be not better ordered that are so nigh him But more especially in regard that the government and order of the Royall Family trencheth deep upon the Honor of the Kingdome and purses of the People who are concerned to see the same accommodated sutable to the State and Port which the Nation would bear forth to the World And therefore for the Parliament to intermeddle in the Kings Family is not forrain nor new Alice Piers was a Familier if not of the Family of Edward the third yet both her selfe and others of that Family were complained of as a grievance Richard the second was once a young man and ever a young King and what Edward the third wanted onely in his youth and in his infirme old age this man ever wanted for he that knew not how to govern himselfe how much lesse could he govern his Family And if in this condition the Parliament become his Stewards to set a yearely Survey and Check upon his Servants and Family in order to good order of the same and Kingdome otherwise men must conclude it did that which was just though Richard the second and those of his minde thinke not so But this is not all Kings have not onely such as serve the outward man but some that serve their Consciences of old time called Confessors in those dayes without name for feare of Superstition yet the thing remaineth still in some well favored Chaplain and
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 illegall or unjust The Parliament in these times held forth this Doctrine plainly to the World that it is their proper work in Cases needfull to doe 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 authenticall under the Broad-Seale it can take no mans 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 beene antiently betrusted to the King as to 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 Narion had learned to read the Bible Murder hath been excepted from mercy nor did the Law ever allow any King any Prerogative to pardon that Edward the Third did not challenge any such not onely bound thereto by his Coronation Oath but by publique Acts of State declaring the same yet because the Parliament was not alwayes sitting and Kings were ever subject to this Temptation to favour Servants by granting mercy to Malefactors a generall rule of Inhibition is made against all pardon to be granted by the King in Case of Fellony but onely in Cases allowed by advise of the Councel It s 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 shamelesse as to hold forth such a power till Richard the Seconds Law countenanced it But why doe I call it a Law which is onely a Declaration by consent of the Lords such as then were the Commons would never owne such an opinion and therefore it soone proved abortive for within three or foure yeares by publique Act of Parliament it s peremptorily declared that the Kings Pardon shall not extend to murther So as upon the whole matter its plain that it is not the Kings will though supported by the Councell of Lords and backed by the opinion of the Judges that must be a rule for the government of this Kingdome nor doth any Allegience binde 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 presidents of Dukes Marquesses and Earles made in Parliament and possibly it may be apparent that the first motion of any such Title of Honour did first fetch its Originall thence if not in the field But it s not worthy of the labour The second is more considerable Viz. The power of conferring places of Publique Trust This Kings have pretended unto although in course of Congruity it will be thought more meet that it belongeth rather to that cheife and grand Trust of the whole Kingdome 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 Privie-Councell whose advise in course toucheth first upon the Kings Person but by reflexion worketh strong impressions upon the People so far as the influence of the Kings power extends And therefore it s not beyond the Sphear of the Parliament to interpose and qualifie that influence so as it may be for the generall good of the whole Kingdome For many times Kings are either above or beneath themselves and in such Cases if the Councell be of the Kings suite he is of the deeper die 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 boote they think the fault is in the privy Councell and an Inquisition set upon it So also they doe in his fiftieth yeare when he growes downward And the like in the beginning of Richard the Seconds Reigne 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 judgement or Resolution or inordinate in his Affections But more especially where they observe the Major or more considerable part of the Councell to draw towards a designe in such Cases as these the Parliament as its own duty undertooke to settle a good Councell about the Kings Person that might advise him during their Recesse For the Privy Councell is never more it selfe then when it is an Epitome of the Common Councell of the Kingdome In like manner such Officers as concern Execution of Law and Councell are as narrowly to be inquired into for if their motion be irregular it s lesse materiall what the rule be the Parliament therefore held it their duty to interpose in the Election of grand Officers of the Kingdome such as are the Chancellors Judges and Justices or to confirm or displace them or binde 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 mutuall 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 its 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 Kings 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 Kings wisedome care or fidelity yet even these have passed with the Royall 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 rendering account to the People And it is as evident that where the Kings Person is
disabled to understand as in Case of Infancy there the Royall Assent can bear litle weight with it but most of all in the Kings absence where either the Assent is put thereto by Commissioners that know not the Kings particular minde or the Act is done onely by the Houses in nature of Ordinances and yet these of force to binde all Parties but the King But nothing more debased the Royall Assent in these times then a trick that Edward the Third plaid in the middest 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 advise in laying out nor of equity in levying and collecting money for the nerves of War This forward Warrier in the heat of his Atchievements findes his strength benummed for want of money he leaves off comes home rages against his A. Bishop to whom he had committed the care of Provision for his War and the A. Bishop as hotly falls upon some of the Treasury in the Army on the one side and upon others in the Countrey whose oppressions saith he in stead 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 calme After the Parliament ended the King repeats the matter it makes his heart sick he disgorgeth himself by a Proclamation made by advise 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 minde 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 indeavoured 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 3. his dissembling assent makes a Law Lastly Whether by a Proclamation by advise of Nobles and Wise men he can Declare that he dissembled with his Parliament and therein not dissemble the Royall Assent so as to bring all the Lawes made in any Kings time into question at least during his life However the result may be its evident the Royall Assent gets no honor hereby and the Statute as little that hath suffered this Proclamation all this time to passe among the number of the Statutes in Print as a Law when as many Statutes that are Lawes of note are left out as uselesse Although in the generall the two Houses joyned in every Act Ad extra yet Ad intra and in relation one to another they had their severall 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 mutuall 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 judgment by the Law the matter shall be determined in Parliament and the King shall command execution to be done according to the judgment of the Peeres Which Lawes seeme to bee but declarative of the former Lawe and in the nature of reviving that power into Act which was formerly layd asleep and doth strongly implye that the ultimate act 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 appeare not to be so supreame 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 particuler person where the Law was not formerly known Let others judge of the value of this Negative Vote in giving Law to the whole Kingdome It s 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 Error and delayes the Appeale 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 1 Bishop 2 Earls 2 Barrons 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 bin 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 Lawes in the making whereof themselves challenge a Vote do establish appoint I will conclude this Chapter with the Constitution of the Parliament in these times For the difficulties that befell 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 exspected and when it assembled as great a propensity in the Members to decline their attendance by means whereof as the Historians tell us the Parliament was somtimes inforced 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 zeale in the people The first of these was fatall and destructive to good Government for though in distempered Parliaments its good to withdraw yet in distempered times its necessary to meete and gain a right understanding of all parties and therefore these times were so happy as to binde themselves by publique Acts of State to recontinue 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 s
therefore safe if not necessary that every eye should be open and Counsells ready for every Occasion A law at length is agreed upon that A Parliament shall be holden once every yeare or more if need be But in thirty yeares the power of this Law is wasted out of minde and the evill reviving revives also the Statute and yet they had thirteen or fourteen Parliaments in thirty yeares space and not above three or but once foure yeares distance of time between any two of them in Succession This was the sense of the Members of the Houses in their meeting but at home they had homely conceits and it s found no lesse difficult to bring them to the meeting then to continue the meeting according to the Law being either loath to adventure their thoughts into the troublesome affaires of the Publique or their Persons to expence and hazard But the Publique 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 Sheriffes 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 difused or a Custome now out of Custome 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 keepes the same warme and as a Sheild is first in all dangers and meets with many a knock which the body feels not This is their worke and reward It s true that in the wearing it is felt heavy but it is the easier born if it be duely considered that it is better to be so clothed then to be naked CHAP. III. Of the Privy Councell and condition of the Lords THe later must make way for the former for according to their Personall esteeme in their own Countries such is their Authority at the Board in joynt Councells And it was one point of happinesse in a sad time of Warre that all men looked one way The Lords were much addicted to the Feild and could doe much with Edward the Third who was a brave Leader and more with the People who had bin 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 s no wonder if Domestick designes seemed meaner or more dangerous Thus did God doe England a good turn although it was made for the present thereby neither so rich or populous as it might have bin in a time of Peace This French Heate wasted many a tumultuous Spirit and Innobled the Fame of the King and Lords not onely abroade but won them much Honour and Repute of those that remained at home and so by congregating Homogenealls and severing Heterogenealls rendered the body of the People more Univecall which tended much to the settling of the joynts of this distracted Nation A timely birth hereof doubtlesse was the peaceable entry of Richard the Second upon the Throne and quiet sitting there whiles as yet he was but a Childe the Princes of the blood many and they of generous Active and daring Spirits yet doe we not meete with a whisper in Story of any turbulent or aspiring humor in them or the People during those tenderer times of that Kings reigne But after that he came to know more in himselfe then was to be found and to outreare his abilities having some of the Lords ready at his elbow to help him these changed the Kings course although the generall 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 Kings Friends though the others were Richards Favorites so as he was fain to stoop to occasion and submit to be a King that would have otherwise beene more or lesse 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 minde in their King who seeing them so united and indeavouring to break them into parties to obtain his desire lost both it and himselfe It is a degree of cleanly modesty to impute the miscarriages of unruly Kings to their Councell For however during their minority Councellors are more rightly Officers of State yet when Kings will be their owne Men their Councellors are no other then the breath of the Kings owne breast and by which a King may be more truely discerned then any man by his bosome Friends Edward the Third was a man of a publique Spirit and had a Councell suitable to his aime Richard the Second a man that desired what him pleased would have what he desired and a Councell 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 Councell It must be granted that the Privy Councell of Kings hath been an old ginne of State that at a sudden lift could doe much to the furthering of the present Estate of publique Affaires Neverthelesse through the Riot of Kings their Designes generally tended to make more worke for the Parliament then to dispatch to doe much rather then well like workes for sale rather then for Master-peice and sometimes to undermine yea to outface the Parliament it selfe like some unruly servants that will put away their owne Masters Nor can it otherwise be expected unlesse the Kings elected ones be turned into the Parliaments Committee or that constant annuall Inquisition by Parliament be made into their Actions for occasionall 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 naturall and originall power of the Privy Councell is very obscure because there are severall Degrees of them that occasionally have beene used all of whom may deserve the name of Privy Councell in regard of the Parliament which is the most publique Councell of all the rest and alwayes hath a generall interest in all Causes in the Kingdome The first of these is that which was called The Grand Councell of the King which as I thinke 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 owne retinue and of this it seems
there was a constant body framed that were sworn to that service for some in these times were sworne both of the Grand Councell and the Privy Councell and so entered upon Record The second of these Councells was also a great Councell and probably greater then 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 Earles Lords and great Men of the Kingdome one out of every County Citty and Burrough called together for that end their results were but as in point of triall for sixe moneths space and then were turned into Statute-Law by the Parliament These two are Magna Concilia yet without power further then as for advise because they had no ancient foundation nor constant continuance Another Councell remaineth more private then the other of more continuall use though not so Legally founded and this is called the Kings Privy Councell not taking up a whole House but onely a Chamber or a Table signifying rather communication of Advice then power of Judicature which more properly is in Banco And yet the power of this grew as virile and royall as it would acknowledge no Peere but the Parliament and usurped the representative of it as that had bin of the whole Kingdome The ambition thereof hath ever bin great and in this most notoriously evident that as it had swallowed up the grand Councell of Lords it seldome can endure the mention of a Parliament but when Kings or Affairs are too rugged for their owne touch The platform of their power you may behold in this their Oath 1. That well and lawfully they shall councell the King according to their best care and power and keep well and lawfully his Councels 2. That none of them shall accuse each other of any thing which he had spoken in councell 3. And that their lawfull Power Aid and Councell they shall with their utmost diligence apply to the Kings rights 4. And the Crowne to guard and maintaine save and to keepe off from it where they can without doing wrong 5. And where they shall know of the things belonging to the Crowne or the rights of the King to be concealed intruded upon or substracted they shall reveale the same to the King 6. And they shall enlarge the Crowne so far as lawfully they may and shall not accouncell the King in decreasing the rights of the Crowne so farre as they lawfully may 7. And they shall let for no man neither for love nor hate nor for peace nor strife to doe their utmost as far as they can or doe 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 Kings leave unlesse meat or drinke in their journey 9. And if they be bound by Oath formerly taken so as they cannot performe this without breaking that they shall informe the King and hereafter shall take no such Oathes without the Kings consent first had All which in a shorter summe sounds in effect that they must be faithfull Councellors to the Kings Person and also to his Crowne not to decrease the true Rights but to inlarge them yet all must be done lawfully And secondly that they shall doe right in Judgement to take no Fees nor any other Oath in prejudice of this The first of these concerne the Publique onely at a distance and yet the point of increasing and diminishing of the Crowne in the sixth Section is captious and may sound as if there is a Legall enlarging of the Crowne whereof he that takes the Oath is to judge A matter which onely and properly concerns the Parliament to order and determine or else farewell all liberty of the People of England The second concerneth immediately the King in his politique capacity but trencheth upon all the Laws of the Kingdome in the executive power and all the motions in the whole Kingdome either of Peace or Warre following in the reare either immediately or mediately are under this notion interested into the transaction of the Privy Councell to debate and determine the Kings judgement therein unlesse 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 Neverthelesse these times wherein Parliaments were every moment upon the wing and kept this Noble Band in awe by taking them into their Cognisance 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 plentifull I say these times thus constituted added yet further incouragement to them by giving them powers by Statute-Law over and beyond what by ancient Custome they had obtained The King and Councell of Lords had anciently a power of Jurisdiction that hath bin in the first part of this discourse already observed yet it s very probable that it was not any select company of Lords but the whole Association for it s granted by all that they had originally a Principall hand in the jurisdiction And its hard to conceive how any private number should catch such a power if not by usurpation But the manner of acquiring is lesse materiall the principall consideration resteth upon the quality of this Jurisdiction For it is evident that much difference hath bin both concerning the place and manner of exercising this Authority In generall 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 Consilio whose meeting was in the Councell Chamber in those dayes called the Star-Chamber For other returns of Writs in the Star-Chamber doe not we finde but such as were in Camera nor Prohibitions from thence but under the notion of the Kings Councell and this Camera as I said was the place of the joynt meeting of the Councell 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 Crowne although even these also properly were determinable in the Kings Bench nor can I observe any rule to bound the powers of these two Judicatories but this that the Councell Table
shall be imprisoned untill he shall satisfie the Defendant of his damages And furthermore shall make Fine and Ransome to the King But because that the Defendant many times held his advantage even to extremity this course lasted not long but a new Law was made which put the power of awarding damages in such cases into the Chancellor to doe according to his discretion And thus the Chancery obtained power to award damages which they never had formerly and the Chancellor a Precedency both in the Chancery and of the Councell in the Court of Starre-Chamber and in many cases in the Exchequer by the first he had a power in matters of meum and tuum by the last in matters Mei and Regis and by the other in matters Mei and Regni A considerable man certainly he was in the motions of Government but how much more if he be made Arch Bishop of Canterbury Cardinall and Legate è Latere or Arch Bishop Lord Treasurer and Legate è Latere as these dayes had divers times seen Extraordinary advancements bestowed upon the Nobility brings Honour to the Throne but if they be not men of noted worth and uprightnesse they make the Scepter stoope by stirring up of envy in the Nobility and indignation from the People For seldome is it seene that Advancements are fed from the Crowne though they be bred from thence but either maintained by new supplies from the Peoples purses or the ruine or decay of some Offices more ancient then themselves or both And such was the condition of the Chancellor he sucked fat from beneath and blood and Spirits from the Grand chiefe Justiciar of England and so reduced that Honourable Potentate unto the Degree of chiefe Justice of the Kings Bench leaving scarcely unto him the name or title of Lord. One thing more remaineth touching the election or nomination of this Great man At the first he was no better then a Register or the Kings remembrancer or Secretary having also the Honour to advise the King in such matters as came within the circuite of the Writings in his custody and questionlesse Eo usque its sutable to all the reason in the World that he should be of the Kings sole Nomination and Election But when it befalls that in stead of advising the King his word is taken to be the rule and a Judicatory power put upon that and unto this is superadded that Honourable trust of keeping and governing the great Seale of the Kingdome with the continuall growing power occasionally conferred upon him by the Parliament He is now become no more the Kings Remembrancer but the Lord Chancellor of England and Supreame Officer of State And it seemes but reasonable that he should hold his place by publique Election as well as the Grand Justiciar whose Plumes he borrowed and other Grand Officers of State did before him For he that will have his Servant to worke for another must give the other that Honour of Electing him thereto nor was this laid aside or forgotten by these times but a claim was put in for the Election or allowance of this principall Officer amongst others the Parliament obtaining a judgement in the case by the Kings Confession and so the thing is left to the judgement of future Ages Viz. Whether a King that can do no man wrong can dissemble the Royall Assent in Parliament or declare himselfe Legally in that manner by Proclamation CHAP. V. Of Admiralls Court. THis is a third Court that maintained the Kings judicatory power in a different way from that which is commonly called the Common law and by many is therefore supposed to advance the Kings Prerogative but upon mistaken grounds It is very true that the way is different from the common rode both in its originall and in the course of proceedings nor could it other be considering the condition of the Nations and the People of the same interested in common traffique The people thus interested as much differed from the other sort of dry men if they may be so called as Sea from Land and are in nature but as march men of severall Nations that must consenter in some third way for the maintenance of commerce for peace sake and to the end that no Nation may be under any other Law then its owne The condition of the Nations in the times when civillized government began to settle amongst them was to be under the Roman Emperours who having setled one Law in the generall grounds throughout all Nations made the Sea likewise to serve under one rule which should float up and downe with it that men might know upon what tearmes they held their owne wheresoever they went and upon what tearmes to part with it for their best advantage in its originall therefore this Law may be called Imperial and likewise in the process because it was directed in one way of triall and by one law which had its first birth from the Imperiall power and probably it had not been for the common benefit of Europe to have been otherwise at other time or by other directories formed Neverthelesse this became no Gemm of Prerogative to the English Crowne for if England did comply with forraine Natives for its owne benefit it being an Iland full of the Sea and in the common rode from the most parts of Europe that border upon the Sea and of delight in Merchandise it is but sutable to it selfe and it did so comply as it saved the maine Stake by voluntary entertaining those Laws without being imposed upon by Imperiall power for the Saxons came into this Kingdome a free People and so for ought yet appeareth to me continueth to this day I say that in those first times they did take into the consideration of Parliament the regulating of the fluctuating motions of Sea-laws nor were they then or after properly imposed by the Kings Edict For though it were granted that Richard the first reduced the Sea-laws in the Isle of Oleron yet that the same should be done without advise of Parliament in his returne from the holy Land is to me a riddle considering what Histories doe hold forth concerning of his returne through Germany nor can that be good evidence to intitle Kings of England to a power to make and alter Laws according to their private pleasure and interest Nor doth that Record mentioned in the Institutes warrant any such matter but rather on the contrary groundeth the complaint upon laws statutes Franchises and Customes Estabilished and that this Estabilishment was by the King and the Councell This Law was of a double nature according to the Law of the Land one part concerning the Pleas of the Crowne and the other between party and party for properly the Kings authority in the Admiralty is but an authority of Judicature according to Laws established which both for processe and sentence are different from the Common Law as much as the two Elements do differ yet not different in
confusion in stead of Law CAHP. VI. Of the Churchmens Interest BUt the Churchmens interest was yet more tarte standing in need of no lesse a lay then that of the Kings Authority for that the King is no lesse concerned therein then the People and the rather because it was now growne to that pitch that it is become the Darling of Kings and continually henceforth courted by them either to gaine them from the Papall Jurisdiction to be more ingaged to the Crowne or by their means to gaine the Papall Jurisdiction to be more favourable and complying with the Prerogative Royall The former times were tumultuous and the Pope is gained to joyne with the Crowne to keep the people under though by that means what the Crowne saved to it selfe from the people it lost to Rome Henceforth the course of Affairs grew more civill or if you will graced with a blush of Religion and it was the pollicy of these times whereof we now Treat to carry a benigne aspect to the Pope so farre onely as to stave him off from being an enemy whiles Kings drove on a new designe to ingratiate and ingage the Churchmen of their owne Nation unto its owne Crowne This they did by distinguishing the Office or Dignity of Episcopacy into the Ministeriall and Honourable parts the later they called Prelacy and was superadded for incouragement of the former and to make their work more acceptable 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 Originall 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 doe belong and not unto the Pope nor could he gain other Title unto such power but by usurpation and incroachment upon the right of others But these Great men were not to be wonne by Syllogismes Ordinarily they are begotten between Ambition and Covetousnesse nourished by Riches and Honour and like the Needle in the Compass turn ever after that way Edward the Third therefore labours to winne these men heaped Honour and Priviledges upon them that they might see the gleanings of the Crowne of England to be better then the vintage of the triple Crown Doubtlesse he was a Prince that knew how to set a full value upon Churchmen especially such as were devout and it may be did somewhat outreach in that course For though he saw God in outward events more then any of his Predecessors and disclaiming all humane merits reflected much upon Gods mercy even in smaller blessings yet we finde his Letters reflect very much upon the Prayers of his Clergy and loved to have their Persons nigh unto him put them into places of greatest Trust for Honour and Power in Judicature that not altogether without cause he had thereby purchased unto his Kingdome the name and repute of being a Kingdome of Preists But all this is but Personall and may give some liking to the present Incumbents but not to the Expectants and therefore the Royall Favor 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 Kingdome 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 Kings Court for Commatation Testamentory Matters or Matrimoniall Causes nor other things touching Jurisdiction of Holy Church Things formerly bred by the Canon nourished by continuall practise allowed by Ordinance of Parliament or Grant from Kings in Parliament are now confirmed by solemne concurrence of the whole representative Body of the Kingdome to have and to hold with Warranty And yet the sense is not so generall as the words nor doth it seeme much other then a Confection made for the Arch Bishops appetite to cure a distemper between him and the King for the Civill Judge lost nothing hereby nor would the Crowne as may appear by a Law of equall Authority with the former for though an Executor or Administrator may cheat yet it tells us that Ordinaries onely can oppresse and extort from dead men and therefore in such cases doth provide remedy by inquiry and Indictment before the Kings Justices They shall have Cognisance of Vsury during the Delinquents life and the King after the Delinquents death The difference ariseth from the different end the first being to reforme the Person by Church-censures and to urge him to restitution the latter is for the Kings Fine or Forfeiture For as touching the Usurers estate the offence was in the nature of Felony forfeiting both Lands and goods to the King after the Delinquents death And it seemeth the manner was to Indict the Delinquent during his life and that stuck to him as a deadly arrow in his side till he died Nor did it lye in the power of the Ordinary by Ecclesiasticall censure so to reforme the Offender as to cleare him to the King unlesse the party offending made his peace with the King by Composition and thus the Law continued for ought appeareth to mee till the time of Henry the Eighth They shall have Cognisance of avoydance of Benefices of Right They shall certifie Bigamy and Bastardy had beyond the Sea and whether a Prior be perpetuall or dative The first of these concerning avoydance of Churches it seemeth was somewhat doubtfull in point of Practice for that the Civill Judge used to determine all manner of avoydances as well in Fact as of right but by this Statute they are restrained onely unto avoydances in Fact so as after this Statute it is holden that avoydances by death shall be tried by the Countrey but if the avoydance be by Deprivation Resignation Creation or otherwayes it shall be tried by the Ordinary because by common intendment he is more connusant of the thing then Countrey people But as touching the point of Bigamy the matter is more doubtfull in regard that commonly the marriage of a second Wife or Widow is a matter in Fact done in the face of the People and of which they take notice especially where the life of man is concerned which rather requireth the judgement of his Peires then where the outward maintenance onely is ingaged Neverthelesse because the main point is whether the Party be a Clerk or not and the same anciently rested upon the Certificate of the Ordinary It s by this Law again allowed to him to try and certifie this point of Bigamy also although the Statute of Bigamists might seeme to Intitle the civill Magistrate thereto as the Law
he made the penalty of Praemuniri to extend to all Farmores 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 Romane Horse-leach 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 Clergy their own Countrey men if not Friends and Abbettors yet are but faint and feigned Enemies to the Popes 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 show of forming blowes at the Pope but then alwayes at a distance or when without the Popes Guard and thus the Lawes begin to stammer and cannot speake so plain English as they were wont The people hereat offended resolve to put the Clergy into the Van and to try their mettle to the full At the last Parliament that Richard the Second did hold both the Lords Temporall and Spirituall are opposed one by one The Lords Temporall like themselves resolve and enter their Resolutions to defend the right of the Crowne in the Cases of Provisors although even amongst these great men all were not equally resolute for Sir William Brian had purchased the Popes 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 principall reason why the Popes power held so long in England in an usurping way yet Kings also much conduced thereto by seeking too much their Personall ease above the Honour of their Place and the Popes blessings and opinion of his Favour more then their owne good or the Peoples liberty for there was no other balme for a distracted minde then that which dropped from the Popes lips In like manner Richard the Second being already at least in purpose estranged from his People sought to get freinds at Rome to hold by the Spirituall Sword what he was in danger to loose by laying aside the Sword of Justice which is the surest Tenure for Kings to hold by And though the Popedome was now under a Schisme between two Popes Clement and Vrban yet he was so farre won for Vrban that he not onely ingaged himselfe 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 faire but soon vanished away Neverthelesse these two Comrades whiles they were together resolved to make the most of each other that they could and therefore though the Popedome liked not the King yet the Pope had his love so farre as he could deny himselfe for he had already denied his Kingdome 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 Arch Bishop Arundell he trusted the Pope with that Complement of making Walden Arch Bishop of Canterbury in Arundells stead which the Pope tooke so kindly as he made it a President for Provisors for the future Nor did the King stick in this one Singular but made it his Custome in passing of Lawes especially such as the King was most devoted unto to put more Confidence in the Popes Amen then in all the Prayers of his Commons with his owne Soit fait to boot The summe then will be that the Prize was now well begun concerning the Popes power in England Edward the Third made a fair blow and drew blood 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 Clergy for though the times were not so cleare as to espy the Root of a Pope in Prelacy yet experience had taught them that they were so nigh ingaged that they would not part And therefore first they let these men know that Prelacy was no Essentiall Member to the Government of the Kingdome but as there was a Government established before that ranke was known so there may be the like when it is gone For Edward the Third being troubled with a quarrell between the two Arch Bishops of Canterbury and Yorke concerning Superiority in bearing the Crosse and the important Affaires of Scotland so urging Summoned a Parliament at Yorke which was fain to be delaied and adjourned for want of appearance and more effectuall 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 president was made for men to be bold with the Kings Summons in such Cases as liked not them and thereupon a Statute was made to inforce Obedience upon Citizens and Burgesses and such Ecclesiasticks as held per Baroniam Neverthelesse when the matters concerning Provisors began to come upon the Stage which was within two yeares after that Law was made the Clergy found that matter too warme for them and either did not obey the Summons or come to the Parliament or if they came kept aloofe or if not so would not Vote or if that yet order their tongues so as nothing was certainly to be gathered but their doubtfull or rather double minde These Prelates thus discovered the Parliament depended no more upon them further then they saw meet At sixe or seven Parliaments determined matters without their Advice and such as crossed the Principles of these men and therefore in a rationall way might require their Sense above all the rest had they not beene prepossessed with prejudice and 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 somtimes fewer and at a Parliament in his fourty and seventh yeare he Summoned onely foure Bishops and five Abbots And thus the matter in Fact passed in these times albeit the Clergy still made their claim of Vote and desired the same to be entered upon Record And
also left to an indefinite Construction For they are not onely Preachers in publique which might be an Order of Men within the Church Cognisance as things then stood in regard it was permitted to the Church to Authorize Men to preach but also their Factors and Abbettors words that might comprehend any other person whatsoever according to the passion or discretion of the Church-men Thirdly the manner of this Inquisition must be according to the Canon and then the people are at the Church-mens mercy to returne Complaints against whom they please upon such Grounds as they shall thinke meet The Persons that must make this Inquisition by this Law are the Ordinaries or any one of them and for ought appeares the same might be done by Pope Councell generall Nationall Provinciall Diocessan or their Delegates according to the Canon Although the last president that I met with was executed by a Grand Councell of Lords and Prelates in the time of Henry the Second But now the Clergy finding the Laity began to swell against the Canon they thought it high time to get the Civill Sword to joyne in the worke to be as their Hands to apprehend and Goalers to hold in Custody such as they should complain of without any other Legall Conviction although hereby they not onely disclaimed the exercising of their owne power of Imprisoning which they by the Canon formerly claimed to have in such Cases but also acknowledged to receive their power Judicatory in such Cases from the Parliament Thus was this Ordinance levelled as I said but the shot fell short For this Law attained no further perfection then a meere shape and was complained of by the Parliament within few moneths after its first noise that it was made and published without the Commons consent or knowledge and that the Nature thereof was directly contrary to the Liberties of the people and therefore they prayed that it might be repealed and the same was done accordingly although the times have been such as would not suffer the same to come into the publique Booke of Statutes in Print But whether Statute or no Statute they tell the King plainly that they will not further be bound or justified by the Prelates then they or their Ancestours were anciently used to be and besides that they thought somewhat more which they laid up against future times nor was it long ere they discovered it For a Subsidy being offered to the King by the Laity under a Proviso that the Clergy would grant a tenth the Clergy tooke this Articulating of the Commons in snuffe and protested that the Laity should not charge them The Commons hereat begin to bid battell to the Temporalties of the Clergy and had not the King been a fast freind in good earnest unto the Clergy the Laity had won the Feild Thus were these times like the motion of the Ballance unto the Churchmen sometimes up sometimes down getting somewhat which they formerly had not with lesse assurance in what they had CAHP. VII Concerning Trade KINGS hitherto had lived upon the main stocke improving the same to the utmost penny few of them laid up for the future much lesse indevoured to advance the principall for their successors There had now beene ten Kings of this Nation since the Conquest all of them spending what they had or could get from the people in the maintenance of their Patrimony or their own Lusts if any overplus was either gained by or saved from the game their Executors might be the better for it their Heires were not but Edward the third had a new game to play he must gaine his right by his Sword or he must loose it his Spirit was too big to sit still and bear blows and yet pre-advising himselfe about the poverty of the people and that their patience would be spent soone after their supplies if they continually saw much going out and nothing comming in he had a rule upon his private expences a good glosse upon the publique and a platforme for the augmenting of the treasure of the Kingdome as well for the benefit of the people as of the Crowne In order to the first it is considerable that the Royal family was great and numerous above all his predecessors that besides the King and Queene who were of a gallant and accomplisht deportment they had a son a Prince of as great renoune as ever Prince had and he also family sutable to his generosity that they had other children every on like their Father both for Warr and Peace and that for the maintenance of all these the expences must be in reason larger then formerly they were wont to be neverthelesse because purveyance for the King had already swelled so big that all other oppressions seemed to be swallowed up into that one the King to moderate the rigor thereof made nigh twenty Statutes first excluding all servants at wages and Horses and Dogs which were put to board with the Sheriffs then reducing the purveyance only to the families of himselfe his wife and children then to the families of himselfe the Queen and Prince and in the levy hereof some mens estates were absolutely priviledged and some kind of goods as sheep before shearing and trees about the dwelling house Nor is the settling of the manner lesse considerable It must be levied by authority in writing under the seale and it must not be taken against the owners will or upon malice nor must be spared for reward the price must be the same with the true Market price the measure according to the common measure stricked and the payment must be immediatly if the price be under twenty Shillings if above it must be made in a quarter of a year and no man must charge more carrige then is necessary and thus was this wild Ivie of purveyance that like some kinds of plants spreads over all by rooting up and cutting downe brought into some kind of fashion that if did no good it might do the lesse hurt unto the People Secondly although it be true that Edward the third was a King of many taxes above all his predecessors yet cannot this be imputed as a blot to the honour of the Law or liberty of the people for the King was not so unwise as either to desire it without evident cause or to spend it in secret or upon his owne private interests nor so weak and irresolved as not to imploy himselfe and his Souldiers to the utmost to bring to passe his pretentions nor so unhappy as to faile of the desirable issue of what he took in hand so as though the people parted with much money yet the Kingdome gained much honour and renoune and becomming a terror to their neighboures injoyed what they had in fuller security and so were no loosers by the bargaine in the conclusion Secondly although they parted with much yet nothing to Prerogative but in a Parliamentary way and so it was not taken but given Thirdly though
these times to more Sobriety Some delight in Forrain Commodities and Manufactures is doubtlesse profitable both for Trade and Shipping so as what is Imported exceeds not what is Exported for too much of that makes the Domestick Commodity contemptible the Nation poore and the People want work because its a noted vanity of this Nation That they love things far fetcht and dear bought As a cure therefore to this disease English Cloath by Law is injoyned to be worn by all Persons under the Degree of a Lord and so the former Inhibition of Importation of Forrain Cloathes was strengthened thereby And because the English Clothiers should not take advantage hereby to rais the price of their Cloathes to their own covetous pin Therefore the Law also settled a certain price and measure the same before sale was to be allowed upon view and for the goodnesse of the Cloathes and perfect working thereof Lawes were likewise made against Exportation of all such as were not perfectly made A fourth step in the advancement of Trade was the compelling men to work for when publique imployment calls men forth for service in the Feild their minds once in Commotion or upon the Wing can hardly settle any where or stoop to the Perke again unlesse upon hope of prey or gain to be gotton thereby Such were the times of Edward the Third wherein partly for that cause and partly for the scarcity of men left from the Sword and Pestilence not onely work-men were scarce and deare but even the Masse it self was grown stately the private delights of Kings and great Men and scarce vouchsafeing to be seen by common gaze but at a great distance The Priests had little Charity and the Poore had as little money so as no penny no Pater Noster A sick and very crazy time questionlesse was it when the Clergy were stately and the Poore idle The Preists wages for this cause are now settled and they that would get much must get many littles and doe much but the greater sore was amongst the poorer sort either they would not serve or at such wages as could not consist with the price of the Cloaths and the subsistance of the Clothier Lawes therefore are made to compell them to work and to settle their wages so as now it s as beneficiall to them to serve the meaner sort of Clothiers as the richer sort For the Master must give no more nor the Servant take more and thus became labour currant in all places A fifth means to advance Trade was the setling of a Rule upon Exportation and Importation this wrought a double effect Viz. The inriching of this Kingdome with Forrain Commodities and the maintaining of Shipping which was and is a principall means not onely of riches but of strength unto all Sea bordering Countries especially regard being had to these three Considerations First that Importation do bring in more profit then Exportation disburseth Secondly that both Exportation and Importation be made by Shipping belonging to this Nation fo farre as may consist with the benefit of this Nation Thirdly that the Exportation be regulated to the overplus saving the main stock at home The truth of the first will be evident from this ground That no Nation can be rich that receives more dead Commodities from abroad then it can spend at home or vend into Forrain parts especially if it be vended in its proper kinde and not in money and therefore the Lawes provided that no Merchant should Export more money then he Importeth and what he doth Export must be of the new stamp which it seemeth was inferiour in vallue to the old yet the times may prove so penurious that this rule may be waved for a season The second is no lesse beneficiall for as it is in Warre so in all Trades the greater the number is that is imployed the more effectuall the issue will be and therefore though it in the generall be more beneficiall that all Exportation and Importation might be by our own shipping yet in regard times may be such as now they were that the shipping of this Nation is more then ordinarily imployed for the service of the State And that every Nation striveth to have the benefit of Exportation by Vessels of their owne And lastly in regard the case may be such as Importation may be at a cheaper rate by Forrain Vessels and Exportation likewise may for the time be more prejudiciall to this Nation if done by our own shipping then those of other Nations Therefore the course must be changed so far forth as will stand with the occasions of the State and common profit of this Nation And for these causes and such like in the times whereof we now Treat the Lawes often varied sometimes no Staple Commoditie must be Exported in English bottomes sometimes all must be done by them and within a yeare again that liberty was restrained and after that liberty given to Forrainers to Export as formerly The third and last Consideration is as necessary as any of the former for if Trade be maintained out of the maine Stock the Kingdome in time must needs be brought to penury because it is their Magazine and for this cause it was provided that all Wooll should remaine at the Staple 15 dayes to the end it might be for the Kingdomes use if any one would buy they must doe it within that time otherwise it might be Exported The sixth means of advancement of Trade was the settling of the Staple for as it was an incouragement to the first establishing of the Manufacture that the Staples were let loose so when the Manufactures had taken roote the Staple especially now fixed to places within this Kingdome brought much more incouragement thereto First for preserving a full Market for whiles the Commodity lies scattered in all places the Market must needs be the leaner partly in regard the Commodity lies in obscurity and partly because when it is known where yet it s not easily discovered whether it be vendible or not and besides small parcells are not for every mans labour and the greater are not for every mans money Secondly Staples are convenient for the stating of the generall price of the Commodities in regard the quantity of the Commodity is thereby the more easily discovered which commonly maketh the price And the quantity of the Commodity thus discovered will not onely settle the price to it selfe but also ballance the price of the Manufacture Thirdly the Staple having thus discovered the quantity of the Commodity will be a ready way to settle the quantity of the main Stock that must be preserved and regulate Exportation as touching the overplus But it cannot be denied that the first and principall mover of the making of the Staple was the benefit of the Crown for when the Commodity was gone beyond the Sea it importeth not to the Subjects in England whether the same be sold at one place
or more or in what place the same be settled untill the Manufacture was grown to some stature and then the place became Litigious The benefit of Exportation pretended much interest in the settling thereof beyond the Sea but in truth it was another matter of State for when it was beyond sea it was a moveable Engine to Convey the Kings pleasure or displeasure as the King pleased for it was a great benefit to the Countrey or place where ever it settled or else it moved or stayed according to the inclination of the people where it was either for Warre or Peace But on the contrary the Interest of the People began to interpose strongly and for these Causes the Parliament likewise intermedâ—ed in the place and thus the Scene is altered some times it s beyond the Seas in one place or in another sometimes in England In Edward the Thirds time we finde it sometimes at Calis sometimes in England In Richard the Seconds time we finde it again beyond the Seas at Middleburgh thence removed to Calis and after into England where at length the People understood themselves so well that the Parliament settled the same it being found to burdensome for the Manufactures to travell tâ— the Staple beyond the Seas for the Commodity that grew at their owne doores besides the inhancing of the price by reason of the carriage which falling also upon the Manufactures must needs tend to the damage of the whole Kingdome This was one way indeed and yet possibly another might have been found for if a Computation had been made of the main Stock and a Staple settled within the Kingdom for that and the overplus exported to a Staple beyond the Sea it might have proved no lesse commodious and more complying It is very true that there are many that call for the liberty of the People that every man may sell his own Commodity as he pleases and it were well that men would consider themselves as well in their Relations as in their own Personall respects for if every man were independent his liberty would be in like manner independent but so long as any man is a Member of a Common-wealth his liberty must likewise depend upon the good of the Common-wealth and if it be not good for the Nation that every man should sell his owne Commodity as he pleaseth he may claim the liberty as a Free man but not as an English man nor is that liberty just so long as his Countrey hath an interest in his Commodity for its safety and welfare as in his own person I doe not assert the manner of buying the Staple Commodities by Merchants of the Staple to sell the same again in kinde for their private advantage divers limitations must concur to save it from an unlawfull ingrossing nor doth it appear to me that the Staplers in these times used such course or were other then meer Officers for the regulating of the Staple in nature of a Court of Piepouders belonging to some Faire or Market Neverthelesse I conjecture that it may well be made evident from Principles of State that Mart Markets and Staples of Commodities that are of the proper Ofspring of this Nation are as necessary to Trade as Conduits are to places that want water The seventh and last means that was set on foot in these times for the advance of Trade was the regulating of the Mint and the current of Money This is the life and soule of Trade for though exchange of Commodities may doe much yet it cannot be for all because it is not the lot of all to have exchangeable Commodities nor to work for Apparell and Victuall Now in the managing of this tricke of Money two things are principally looked unto First that the Money be good and currant Secondly that it should be plentifull As touching the excellency of the Money severall Rules were made as against imbasing of Money against Forrain Money not made currant against counterfeit and false Money For according to the goodnesse of the Money so will the Trade be more or lesse for the Merchant will rather loose in the price of his Commodity in Money then in exchange for other Commodity because the vallue thereof is lesse certain and the Transportation more chargeable Secondly as touching the plentie 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 Handy-crafts 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 incourage 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 liew 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 currence of the Money the Mint was established in severall parts of this Kingdome according to the ancient custome and this was advantageous both to the Mint and to the stocke of Money in the Kingdome This establishment was with this difference that though the Mint was settled by the Parliament yet the Exchange was left to the Directory of the King and his Councell because the Exchange is an uncertain thing subject to sudden alteration in other Nations and its necessary that in this Countrey it be as suddenly ballanced with the Exchange in other Countreyes or in a short time the Nation may receive extreame damage In regard whereof and many other sudden exigencies in Trade it seemeth to me convenient That a particular Councell were established for continuall 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 inlarging or shutting and straitning the Streame as occasion doth require And lastly to watch the course of the Exchange in Forrain Parts and to parallell the course thereof in this Land thereto For otherwise the Publique must necessarily suffer so long as Private men seeke their own particular interests onely in their course of Trade CHAP. VIII Of Legiance and Treason with some Considerations upon Calvins Case AS times change manners so doe manners change Lawes For it s the wisedome of a State when it cannot over-rule occasion to pursue and turn it to the best issue it can Multitude of Lawes therefore are not so much a sore to the People as a Symptome of a
b. fol. 7. a. which is a word of a vast extent serving rather to amaze mens apprehensions then to inlighten them and therefore the Reporter did well not to trouble himself or the Reader in the clearing or proof thereof but left the Point rather to be beleived then understood nor shall I in the Negative for God himself can have no other Legiance from an English man then 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 Universall and Immutable fol. 5. b. fol. 12. and neither defined by Time Place or Person As touching the Time and Person the Reporter inlarged 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 naturall Capacity as the Reporter would have it But as touching the Place it s 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 Dominion though otherwise Forrain as to the power of the Law of England yea saith the Reporter as farre 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 speake be absolute and omni soli semper then is it due to the King from an English man ubivis Gentium Neverthelesse to take the Reporter in a moderate sense it is worth consideration whether English Legiance in the dayes of Edward the Third extended as far as the Kings power of Protection when as he had the Crown of France in a Forrain 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 minde 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 Kings Dominions but concerning the ground it may be denied for though simply in it selfe considered as a notion Verity or Fidelity 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 modell which though not absolute and indefinite yet if according to the Lawes of the place wherein the man is he is truely said to be Verus Fidelis Secondly the Reporter argueth that the Kings Protection is not Locall 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 Syllogisme it had appeared lesse valuable for the Protection of an English King qua talis of an English man is locall and included within the bounds of the Kingdome But if the same King be also King of France or Duke of Aquitane and an English man shall travell into those parts he is still under the same Kings 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 unlimitted absolute Protection without regard had to the Customes or Lawes of the place yea contrary to them which I beleive the Reporter never intended to affirme Thirdly the Reporter falleth 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 Confines 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 Lawes of the place Nor doe any the Presidents vouched by the Reporter clear that the King of England did grant as King of England Protection to any English man in any parts of the Kings Dominion beyond the Seas which was not qualified according to the Lawes and Customes of that place especially it being apparent that an English King may hold Dominion in Forrain parts in Legiance under a Forrain 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 goe with him in his Warres as well without the Realm of England as within the same therefore the Legiance of an English man to his King is indefinite and not locall or circumscribed by place or within the Kingdome of England Although the first of these be granted yet will not the inference hold for possibly this may arise from the constitution of a Positive Law and not from naturall 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 Personall interest nor doe the authoritie 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 commeth 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 Plaintiffe 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 Plaintiffe is not of the Legiance of England nor of the Faith of the King And upon this Plea thus amended the Plaintiffe 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 comming 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
would have been discontented with the proceedings of the Lords in asserting the Prerogative of a King in that matter of the Scedule if he had perceived any such thing in their purposes Add hereunto that the Lords themselves justified the matter of the Scedule in their own proceedings all which tended to inforce the King to govern according to their Councells and otherwise then suited with his good pleasure By force they removed Gaveston from the Kings presence formerly and afterward the Spencers in the same manner So they removed the King from his Throne and not long after out of the World Last of all I shall make use of one or two Concessions which hath passed the Reporters own Penne in this discourse of his for the maintaining that the Legiance of an English man is neither Naturall nor Absolute nor Indefinite nor due to the Naturall Capacity but qualified according unto Rules The first is this English men doe owe to their Kings Legiance according to the Lawes therefore is it not Naturall or Absolute or Indefinite The inference is necessary for the later is boundlesse and naturall the former is limited and by civill constitution If any branch therefore of English Legiance be bounded by Lawes then the Legiance of an English man is circumscribed and not Absolute or Naturall The major Proposition is granted by the Reporter who saith that the Municipall Lawes of the Kingdome hath prescribed the order and form of Legall Legiance fol. 5. b. And therefore if by the Common Law the Service of the Kings Tenant as of his Mannor be limited how can that consist with the absolute Legiance formerly spoken of which bindeth the Tenant being the Kings Subject to an Absolute and Indefinite Service Or if the Statute-Lawes have settled a Rule according to which each Subject ought to goe to Warre in the Kings Service beyond the Sea as the Reporter granteth fol. 7. 8. Then cannot the Legiance be absolute to binde the Subject to goe to War according to the Kings own pleasure Secondly an English Kings Protection of his Subjects is not Naturall Absolute Indefinite nor Originally extendeth unto them in their Naturall Capacity therefore is not the Legiance of an English Subject to his King Naturall Absolute Indefinite nor Originally extendeth to the King in his Naturall Capacity The dependance of these two resteth upon the Reporters owne words who tells us that Protectio trahit Subjectionem Subjectio Protectionem Protection drawes with it Subjection and Subjection drawes with it Protection so as they are Relata and doe prove mutually one anothers Nature fol. 5. a. And in the same Page a few lines preceding he shewes why this Bond between King and Subject is called Legiance because there is a reciprocall and double Bond for as the Subject is bound in Obedience to the King so is the King bound to the Subject in Protection But the King is not Naturally bound to protect the People because this Bond begins not at his Birth but when the Crown settles upon him Thirdly this Protection is not absolute because the King must maintaine the Lawes fol. 5. a. and the Lawes doe not Protect absolutely any man that is a breaker of the Lawes Fourthly this Protection is not Indefinite because it can extend no further then his Power and his Power no further then his Dominions fol. 9. b. The like also may be instanced in continuance of time Lastly the Kings Protection extendeth not Originally to the Naturall Capacity but to the Politique Capacity therefore till a Forrainer commeth within the Kings Legiance he commeth not within his Protection And the usuall words of a Writ of Protection shewes that the party Protected must be in Obsequio nostro fol. 8. a. The summe then is that as Protection of an English King so neither is Legiance or Subjection of an English man Naturall Absolute Indefinite or terminated in the Naturall Capacity of the King And to make a full Period to the Point and make the same more cleare I shall instance in one President that these times of Edward the Third produced The former English Kings had Title to many Teritories in France but Edward the Third had Title to all the Kingdome And being possibly not so sensible of what he had in possession as of what he had not He enters France in such a way and with that successe that in a little time he gaines the highest Seate therein and so brought much Honour to the English Nation and more then stood with the safety of the Kingdome For in the union of two Kingdoms its dangerous for the smaller least it be swallowed up by the greater This was foreseen by the English who knew England did bear but a small proportion to France and complained of that inconvenience and thereupon a Law was made that the People of England should not be subject to the King or his Heires as Kings of France which manifestly importeth that an English King may put himselfe in such a Posture in which Legiance is not due to him and that this Posture is not onely in Case of Opposition but of diversity when he is King of another Nation and doth not de facto for that Time and Place rule as an English King which if so I suppose this notion of Naturall Absolute and Indefinite Legiance to the King in his Naturall Capacity is out of this Kingdome if not out of the World and then the foot of the whole Account will be that the Legiance of an English man is Originally according to the Lawes The summe of all being comprehended in the joynt safety of the People of England CAHP. IX Of Courts for Causes criminall with their Lawes THe great growth of Courts founded upon Prerogative derogated much in these times from the ancient Courts that formerly had attained the Soveraignty over the People and in the hearts of them all This was a hard Lesson for them to learn but especially of the Kings Bench that was wont to learn of none and yet must be content to part with many of their Plumes to deck the Chancellor much of their work to busie the Prerogative Courts holden Coram Rege and more to those holden Coram Populo I mean The Courts of Oier and Terminer Goale delivery and Juâ—tices of Peace Those of Oier and Terminer were now grown very common but lesse esteemed as being by men of mean regard nominated for the most part by the party that sued out the Commission which for the most part was done in behalfe of those that were in danger and meaned not to be justified by Works but by Grace These escapes though small in the particulars yet in the full summe made the matter so foul as it became a common greivance and a Rule thereupon set by the Parliament for the regulating both of the Judges of such Court and the Causes The Commissions for Goale delivery likewise grew more mean and ordinary The chief sort of men in
from the Truth some of the common Books have the words thus None shall be destrained to goe out of their Counties unlesse for cause of necessity and of sudden coming of Strangers or Enemies into the Kingdome Others reade it thus But where necessity requireth and the coming of strange Enemies into the Kingdome The Kings answer to the Parliaments Declaration concerning the Commission of Array would reade it thus Vnlesse 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 Reqaulme In English thus word for word And that none be destrained to goe out of the Counties if not for cause of Necessity of sudden coming of strange Enemies into or in the Kingdome 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 Kingdome so as probably the Invasion must be actuall before they be drawn out of their Counties and not onely feared and it must be a sudden Invasion and not of publique 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 Volunteires to that Service seeing every Invasion is not so fatall as to require a Commission for a Generall Array Against what hath been thus noted the judgement of Sir Edward Coke in Calvins Cafe lies yet in the way who affirmeth that the Subjects of England are bound by their Legiance to goe with the King in his Warres as well within the Realme as without and this Legiance he telleth us is that Naturall Legiance which he saith is absolute and Indefinite c. and not Locall 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 goe out of England by vertue of their Tenures particular Contract or else by speciall Act of Parliament and not by vertue of that Naturall Legiance which in Truth is no where 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 Sevenths time and the other in Edward the Sixths time I shall speake 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 lesse is the modern practice of these later dayes 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 doe 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 seeme 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 goe beyond the Sea for the King cannot compell a man to goe out of the Kingdome That is as the Reporter saith Not without Wages intimating thereby that if the King shall tender wages to any man he must goe 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 Reporters judgement in the main point For if an English man may refuse to goe without wages then is he not bound to goe by any naturall absolute Legiance as the Reporter would have it And as touching the second Case which is Bigots and Bohuns Case it cleareth the same thing for it was resolved that they ought to goe 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 Warres in France and hereunto he voucheth one Authority out of ancient Reports of Law in Edward the Thirds time one authority in the time of Henry the Fourth and three in the time of Henry the Sixth none of all which doe speake one word concerning impresting and that in Edward the hird doth imply the contrary for the Case is that in a Praecipe quod reddat a Protection was offered by the Defendant as appointed to goe beyond Sea with the Duke of Lancaster and the Plaintiffes Councell alledged that the Defendant had been beyond Sea with the Duke and was returned To this the Defendants Councell answered that the Duke was ready to return again and for this cause the Protection was allowed Yet a Quere is made upon this ground that it might be that the Defendant would not goe 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 Forrain Service and that seemerh to be Knight Service to be performed abroad But this falleth short of the Reporters intention in three respects First though it belongeth to the King yet not to him onely but to other cheif 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 naturall and absolute Legiance and so this Forrain Service arising meerly by compact and agreement between Lord and Tenant and not by the naturall duty of an English born Subject which is the thing that the Reporter driveth at in all this 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 Feild remaineth regular in the rule what ever hath been said against it notwithstanding that in the very instant of Action there may be some
tokens and liveries utterly inhibiting the meaner sort of the people from giving of Liveries to maintain quarrells upon pain of Fine and Imprisonment and the triall to be before the Justices of Assize which it seems was in affirmance of former Lawes as by the Preamble of the Statute doth appeare though the Lawes themselves are not extant About fifteen years after it was by sad experience found that the Lords maintained quarrells by multitude of Liveries and therefore another Law was made inhibiting the Lords to give Liveries to any but their meniall Servants and it s ordered that the Justices of the Peace shall make inquiry of such offences and punish them according to their discretion A third prevention was provided against gathering together of parties after they are sorted For the humors may so abound as nothing will keep them in they must either breake out into a sore or a long sicknes of State will certainly follow To this end therefore the Statute made at Northampton is again revived expresly forbidding all Persons to ride Armed unles in some particular Cases of executing Justice or guarding the Person of the King or his Justices and such like And if men will be so adventerous as to outdare Law by publique force Troopings together and Riotous ridings Another course is taken not by Commission of the Peace but rather of Warre directed unto valiant persons in every County and they have power thereby to apprehend such Offenders and imprison them untill the Goale-delivery though no Indictment be found thereof untill the Goale-delivery shall be By this Commission therefore power is given of Posse Comitatus in nature of a Commission of Array with an additionall power of fighting and destroying so as though the King granteth the Power by the Commission yet the Parliament giveth the power to the Commission and be it a Commission for Peace or Warre it is Originally from that power The fourth and last prevention was the taking away means of continuance and supporting such Riotous wayes Viz. Castles and Goales out of the Custody of private hands and restoring them to their Counties For Goales and Castles are taken promiscuously for places of security in times of Peace to keep ill persons from going out and in times of Warre from getting in Amongst these some belonged to the King and were committed to such as he favoured who commonly in such times of Oppression and Violence grew too big for Justice usurping a Gaole-delivery and making such places of strength many times even to the innocent a Prison to keep them from the Law but unto guilty persons an Assilum to defend them against the Law And these thus belonging to the King were under no Law but of Prerogative whereas other Castles of private persons were under the yoake of the Statute 13 E. 1. For remedy of all which the Kings Castles are once more returned to the Sheriffes Custody by Act of Parliament who questionlesse hath the power to dispose of all places of Strength whether in order to Peace or Warre and could not dispose them into a more fafe and indifferent hand then the Sheriffes who is as well the Kings Officer as the Kingdomes Servant and much intrusted by the Law in the execution of its owne power And thus is this Nation now prepared for a settled Peace a Condition that is long in ripening and soon rotten unlesse it be well fenced and over-awed by a good Conscience But Richard the Second was neither so good nor so happy his Heart affected to be high but his Head could not bear it he turns giddy and runs far wide Those that would reduce him he inforces into Forrain Countries and himselfe holds on his careere over hedge and ditch into Ireland where under pretention of holding Possession of that Kingdome he lost England and whiles he playes his game in that Country another playes King by your leave in this and steps into the Throne teaching the King thereby this lesson though too late That Nonresidency is dangerous for a Preist but unto a Prince fatall unlesse his Subjests be fast to him when he is loose to them CHAP. XIII A view of the summary Courses of Henry the Fourth Henry the Fifth and Henry the Sixth in their severall Reignes HE that played this pranke was the banished Duke of Hertford sonne of John of Gaunt and by his death now become Duke of Lancaster by Title and as the times then were it proved not hard to get more For in uncertain Common-wealths it is an easie thing for a man of opinion that hath lesse then his due to get more then he ought As sonne of John of Gaunt this Duke had the peoples good wishes he a wise and a brave man and under oppression gained the more upon the people by how much they love brave men and compassionate such as suffer wrong especially from such persons from whom they all found the like measure All these concurring with the Kings absence invited the Duke to adventure himself upon the influence of the peoples favour to gain his own right and what more the people would allow him and if no more yet his Honour is saved he came for his own and attained his end Thus then he comes over without Army or Forraine power or other help saving the advice and interest of Arch-Bishop Arundell who was his Companion in suffering Partner in the Cause and no lesse welcome to the Clergy then the Duke himself was to the people and so gained power to the Duke though he brought none Upon their Arivall the aspects of all are benigne the Dukedome waits for him and in that as in a mirrour he beholds the way fair and easie yet further it pities him to see the Kingdome so torne in peices and spoyled The People knew him able and hoped him willing to amend all they offer him their Service which he accepts and therewith the Crowne so hard a thing it is for to put a stop to a Conquerour in his careere By this time was the Duke of Hertford thus become Duke of Lancaster and King of England under the name of Henry the Fourth by a designe that in the proof was more easie then commendable and which being effected cost more skill to make that seem fair which was so foul then to accomplish the thing He therefore first heaps together Titles enough to have buried the clamour of Usurpation if it would have succeeded Conquest was a Title freest from dispute whiles Power holds but it lookes better from a Forrain Enemy then one sworn to the English Crowne and therefore after that had served his turne he disclaymed it as that which was though meet enough to have yet unmeet to hold His right by Designation from his Predecessour he glanced upon but durst not adventure it too deep into the Peoples consideration whose Ancestors had formerly over-ruled the Case against King John He then stayed upon a concealed Title from a concealed Sonne of
had beene formerly and bold enough to outface small doubts in point of succession for he could for a need outface common civility it selfe This might have lien in his way for he that cannot govern himselfe can much lesse govern a Kingdome Yet a hidden Providence concluded quite contrary and rendred him a cleare testimony of a strange change by the annointing oyle 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 parallell in Government and superiour in successe Being seated in the Throne all men thought it dangerous to abide the adventure of the turne of this Kings Spirit The Clergy had but yesterday tryed the Mastery with the Laity and gained it but by one Vote there was no dealing with the Clergy while Arch Bishop Arundell lived nor with him whiles Henry the fourth lived or his merits were in memory but now they both are dead the Clergy and the Laity are upon even ground this might make the Clergy 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 quarrells and jumped in one that he that would be in action should act abroad where he might get renowne and a purchase big enough for his Spirit Scotland was a Kingdome yet incompetent to the Kings appetite France was the fairer marke and better game and though too big for the English gripe yet the Eagle stooped and sped himselfe so well as within six yeares he fastned upon the Sword and Scepter and a daughter of France and might have seised the Crowne but chose to suffer a blurr to lye upon his title derived from Edward the third rather then to incurr 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 into his lap by a better Law then that of the Sword otherwise it might be well conceited that he that hath both right and Power and will not seise disclaimes Besides the King was as well Inheritor to his Fathers Fate as Crowne still he had successe but the end was so farr distant that he died in the way thereto The brave Dauphine of France maintaining Warr after his Father the French King had yeilded up the Bucklers to Henry the fifth till Henry the fifth died and the English did foregoe what they had formerly gotten in France by the Sword of that great Commander Nor did the English gaine any thing in the conclusion of this Warr but an honorable windy repute of being one of the five cheif Nations of Christendome if honor it be to be reputed amongst the Nations a Conquerer of France the cheif 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 Popedome which had spent the bloud of two hundred thousand mens lives lost in that quarrell These forraine ingagements made the King lesse solicitous of point of Prerogative at home and the rather because he knew the way to conquer his private enemies armes and his Subjects hearts without losse of honor in the one or reverence in the other He loved justice above the ranke of his Predecessors and in some respects above himselfe for he advanced Gascoigne for doing justice though to the Kings owne shame He liked not to intrude himselfe into elections and therefore though requested by the Monks of Canterbury he would not nominate a Successor to Arch Bishop Arundell but left the whole worke 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 Uncle the Marquis of Dorcet Duke of Exceter and had given him a pention to maintaine that honor he asked the Lords consent thereto To the Clergy he was more then just if not indulgent led thereto by his Fathers example as being wrapped up in the same Interest as I conceive rather then out of any liking of their wayes now growing more bold upon usurpation then in former times Or it may be that having prevailed in that work in France which to any rationall man must needs appear above the power of the King and all the Realm of England he looked upon it as more then humane and himself as an instrument of Miracles and was stirred up in his zeal to God according to his understanding in those darke times to give the Clergy scope and to pleasure them with their liberty of the Canon Law that began now to thunder with fire and terror in such manner that neither greatnesse nor multitude could withstand the dint as was evidenced in that Penance inflicted upon the Lord Strange and his Lady in Case of bloodshed 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 rendered up his Spirit in the same I say in this he is to be looked upon as one misled for want of light rather then 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 Kingdome of England that God for his Goodnesse sake would Protect Visite and Defend them from Divisions Dissensions and from all manner of deceitfulnesse of Heretiques And thus Piety Justice and Moderation of Henry the Fifth Adorned and Crowned the honour of his Courage and Greatnesse with that honourable Title of Prince of Preists and had he been blessed with a clearer light he might as well under God have obtained the Title of Prince of Princes wanting nothing that might have rendered him a president of Fame BUt the time is now come that the Tide of Englands Glory must turn and the sudden Conquest in France by Henry the Fifth not unlike the Macedonian Monarchy must disgorge it selfe of what it had hastily devoured but never could digest Three things concurred hereunto one dangerous the other two fatall 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 entered 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 wombe then abroade A sad presage of what followed for many men thinke that he was in a lap all his dayes Nor are the cheife men to be
blamed herein for its a certain Truth that its much better that Election of a King should be grounded upon a rule that is known though it be by discent of Inheritance then upon none at all For if a Childe should succeed or a Lunaticke yet where the Principle of Government resteth upon the Representative of the People there is the lesse cause of complaint the Government being still the same both for Wisedome Strength and Uniformity though it may be the Nation not so active and brave For a Common-wealth 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 Protectour of the Kings Person the other Protectour of the Kingdome too many by one For let their Persons be never so eminent for Abilities if they be not as eminent for Humility and selfe-Command their hearts will soon over-rule their heads into a Faction And therefore though the Earle of Warwicke was a wise man and the Duke of Glocester a wise man yet the Earle of Warwicke with the Duke of Glocester were not wise On the other side the Protectorship of the Kings Person being in the Duke of Exceter and that of the Realm in the Duke of Glocester things succeeded passing well for they both had one publique aime and the Duke of Exceter could comply with the Spirit of the Duke of Glocester who otherwise was not so pliant But after five years the Duke of Exceter dying and the government of the Kings Person devolving to the Earle of Warwicke who sided with the proud Cardinall of Winchester against the Duke of Glocester and so not onely consumed the rest of the Kings Nonage in a restlesse disturbance of Affaires but also dispoyled Henry the Sixth of the spirit of a King for the future and so the Kingdome of a King For it was not the condition of Henry the Sixth to be indowed with a spirit of such height but might well have been led by advice and needed not the Earle of Warwicke rugged brow to overlooke 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 Kings owne hand and seale dated in the eleventh yeare of the Kings Reigne and so under colour of Curbing he killed that spirit in the King which otherwise doubt lesse had both spirit and pride enough to act himself above his due height and could not have been so long a Childe 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 Glocester was of such noble parts that they could hardly dilate in any work inferiour to the government of a Kingdome Neverthelesse to yeild much to the will of a diseased King in such Cases is as ill a President as the making of a King by Adoption and it had been better for the People to have adhered to the Duke of Glocester alone then by joyning him with another bring into president such a luxurient Complement of State as a Protectorship of a Kingdome which is of such little use to a Common-wealth 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 Realme 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 Glocester meet with better measure how wise soever he was and truely devoted to the good of the Realme For after foure and twenty years government so wisely and 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 darke because the Cause durst not indure the light Now is Henry the Sixth perswaded that he is of full age he had laid aside his Guardian the Duke of Glocester but forgetting to sue out his Livery he betakes himself from the Grace of God into the warm Sunne as the Proverb is changing the advice of a faithfull experienced wise Councellour for the government of an Imperious Woman his Queen who allowed him no more of a King then the very Name and that also she abused to outface the World and after she had removed the Duke of Glocester out of the way undertook the sway of the Kingdome in her own Person being a Forrainer neither knowing nor caring for other Law then the will of a Woman Thus the glory of the House of Lancaster goes down and now a Star of the House of Yorke appears in the rising and the People looke to it The Queene hereat becomes a Souldier and begins the Civill Warres between the two Houses wherein her English party growing wise and weary she prayes aide of Ireland a Nation that like unto Crowes ever wait to prey upon the infirmities of England The Warres continue about sixteen yeares by fits wherin the first losse fell to the English party the pretentions being yet onely for good Government Then the Feild is quiet for about foure yeares after which the clamor of ill Government revives and together therewith a claime to the Crown by the House of Yorke is avouched thereupon the Warres grew hot for about foure yeares more and then an ebbe of as long quiet ensues The Tide at last returnes and in two yeares Warre ends the quarrell with the death of fourescore Princes of the blood Royall and of this good man but unhappy King Unhappy King I say that to purchase his Kingdomes Freedome from a Forraine Warre sold himselfe to a Woman and yet lost his bargaine and left it to Observation That a Conscientious man that marries for by-regards never thrives For France espied their advantage they had maintained Warre with England from the death of Henry the Fifth with various successe The Duke of Bedford being Regent for the English for the space of fourteen yeares mightily sustained the fainting condition of the English affaires in those parts and having Crowned his Master Henry the Sixth in Paris in the ninth yeare died leaving behinde him an Honourable Witnesse even from his Enemies That he was a brave Commander a true Patriot and a faithfull Servant to his Lord and Brother Henry the Fifth and to his Sonne 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 blood and interest and what they could not effect by Armes in their own Feild they did upon English ground by a
underlings to the great men then they are to their Fethers to were them no longer then they will make them brave Secondly the Person thus agreed upon his intertainment 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 especiall manner for as their work is full of reflexion so formerly they had met with many sad influences for their labour And therefore a penall 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 uniforme Government in future times then England hitherto had seen CAHP. XV. Of the Custos or Protector Regni KIngs though they have vast dimensions yet are not infinite nor greater then the bounds of one Kingdome wherein if present they are in all places present if otherwise they are like the Sunn gone down and must rule by reflexion as the Moone in the night In a mixt common wealth they are integrall members and therefore regularly must act Per deputatum when their Persons are absent in another Ligialty and cannot act Per se Partly because their Lustre is somewhat eclipsed by another Horizon and partly because 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 Vicegerents in their absence ' giving them severall titles and severall powers according as the necessity of affaires required Sometimes they are called Lord Warden or Lord Keeper of the Kingdome and have therewith the generall power of a King as it was with John Warren Earle of Surry appointed therunto by Edw. 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 Forrainer had the like power given him by Edward the second over England to the reproach of the English Nobility which also they revenged afterward Somtimes these Vicegerents are called Lievtenants which seemeth to conferr onely the Kings power in the Militia as a Lievtenant Generall in an army And thus Richard the second made Edmund Duke of Yorke his Lievtenant of the Kingdome of England to oppose the entry of the Duke of Hertford Afterwards called Henry the fourth into England during the Kings absence in Ireland And in the mean while the other part of the Royalty which concerned the revenues of the Crowne was betrusted to the Earle of Wiltshire Sir John Bush Sir James Baggot and Sir Henry Green unto whom men say the King put his Kingdome to farme But more ordinarily the Kings power was delegated unto one under both the titles of Lord Gaurdian of the Kingdome and Lievtenant within the same such was the title of Henry Lacy Earle of Lincolne and of Gilbert De clare Earle of Glocester and of Audomar De valentia Earle of Pembroke all of them at severall times so constituted by Edward the second as by the Patent Roles appeareth So likewise did Edward the third make his Brother John of Eâ—tham twice and the black Prince thrice and Lionell Duke Clarence and his Brother Thomas each of them once in the severall passages of Edward the third beyond the Sea in the third fifth twelfth fourteenth sixteenth nineteenth and thirty third years of his reigne concerning which see the Patent Rolls of those yeares And Henry the fifth gave likewise the same title and authority to the Duke of Bedford upon the Kings voyage into France and afterward that Duke being sent over to second the King in the French Wars the Duke of Glocester obtained the same power and place But Henry the sixth added a further title of Protector and Defendor of the Kingdome 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 Glocester And towards the later time of Henry the sixth it was granted by him to Richard Duke of Yorke This title carried along with it a power different from that of a King onely in honor and the Person so adorned may be said to sway the Scepter but not to weare the Crowne And therefore in the minority of Henry the sixth when as the Government was ordered by the Parliament and to that end a Protector was made and he wel guarded with a Privy Councill and they provided with instructions one of them was that in all matters not to be transacted ordinarily but by the Kings expresse consent the Privy Councell should advise with the Prorector but this is not so needfull in regard that it concerneth the power of executing of Lawes 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 passe to the Legislative power wherein its evident that the Protectors power was no whit inferiour to the Kings power For first the Protector Ex officio by advice of the Councell did summon Parliaments by Writs even as the Kings themselves under their owne Teste and if not bear the Royall Assent yet did they direct the same and received Petitions in Parliament to them directed as to Kings and every way supplied the roome of a King in order to the perfecting publishing and inforcing of Law to Execution Secondly the Parliaments holden by Protectors and Lawes 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 Kingdome doth utterly vanish by the personall accesse of the King because in all Cases where the King is subservient to the Kingdome or the Common-wealth 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 Kingdome and it holdeth in equall force with all other Lawes 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 personall presence no more considerable then the presence of his shadow For the King spent three whole yeares in the French Warres and during that time never saw England where
neverthelesse in that interim three Parliaments had been holden one by the Duke of Bedford and two by the Duke of Glocester in the last of which this Law was made And in truth if wee looke upon this title of the Kingdomes Guardianship in its bare lineaments without lights and shadows it will appeare little better then a Crown of feathers worne 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 wel 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 yeares of age afterwards Edward the seconds Queen and the Lords of her party were wise enough in their way and yet they chose Edward the third to be the Custos regni then not fourteen yeares old his Father in the meane time being neither absent from the Kingdome nor deposed but onely dismissed from acting in the adminstration 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 yeares old afterwards when hee was about fourteene Then he made his Sonne the Black Prince upon severall occasions three times Lord Warden of the Kingdome once he being about nine yeares old and againe when he was eleven yeares old and once when about fourteen yeares old Lastly Edward the third appointed his son Lionell Duke Clarence unto this place of Custos regni when as he was scarce eight years old all which will appeare upon the comparing their ages with the severall Rolls of 25 E 1. and 3 5 12 14 16 19 E 3. If therefore the worke of a Custos regni be such as may be as wel done by the infants of Kings as by the wisest Councellor or most valiant man it is in my opinion manifest that the place is of little other use to this Common-wealth then to serve as attire to a comely Person to make it seeme more faire because it is in fashion nor doth it advance the vallue of a King one graine above what his personall endowments doe deserve Hitherto of the title and power the next consideration will be of the original Fountain from whence it is derived wherein the presidents are cleare and plaine that ordinarily they are the next and immediate ofspring of Kings if they be present whithin the foure 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 inlarged or abridged both it and them Thus was the Duke of Glocester made Lord Warden in the time of Henry the fifth he being then in France in the roome of the Duke of Bedford the like also in Henry the sixths 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 Dukes going over into France they committed that Service to the Duke of Glocester if I forget not the nature of the Roll during the Duke of Bedfords absence and with a Salvo of his right Nor 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 Kingdome by common intendment is to endure no longer then the King is absent from the helme either by voluntary deserting the worke or imployment in forrain parts though united they be under the Government of the same King together with this Nation such as are these parts of France and Ireland and Scotland then under the English fee This is apparent from the nature of that statute of Henry the fifth formerly mentioned for if there was need to provide by that Statute that the Kings Arrivall and Personall Presence should not dissolve the Parliament assembled by the authority of the Custos regni then doth it imply that the personall presence of the King by and upon his Arrivall had otherwise determined the Parliament and that authority whereby it sate But the presidents are more cleare 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 Kings will is many times subjoyned thereunto as if it were in him to displace them and place others in his absence yet doe I finde no president 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 unfaithfull in his Charge excluded him both from that place and Kingdome and made the Kings 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 Kings disability and therefore in the Case of Henry the Sixth it was determined that the Protectorship doth Ipso Facto cease at the Kings Coronation because thereby the King is supposed able to govern although in later times it hath not so beene holden For Kings have been capable of that Ceremony as soon 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 yeares old yet in the issue he proved scarce ripe for the Crowne at his two and twentieth yeare Neverthelesse the default of Age is not the onely incapacity of Kings they have infirmities as other men yea more dangerous then any other man which though an unpleasant tune it be to harp upon yet it is a Theame that Nations sometimes are inforced to ruminate upon when God will give them Kings in his wrath and 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 seldome it is that they can determine for how long When Henry the Sixth was above thirty yeares old Richard Duke of Yorke was made Protector and Defendor of the Realme and of the Church It was done if the Record saith true by the King himselfe Autoritate 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 Sonne Edward should come
have a Parliament wherein the People should have no more Religion then to beleive nor Learning then to understand his sense nor wisedome then to take heed of a Negative Vote But it befell otherwise for though it was called the Lack-learning Parliament yet had it well enough to discern the Clergies inside and Resolution enough to enter a second claime against the Clergies Temporalties and taught the King a Lesson That the least understanding Parliaments are not the best for his purpose For though the wisest Parliaments have the strongest sight and can see further then the King would have them yet they have also so much wisedome as to look to their own skins and commonly are not so venterous as to tell all the World what they know or to act too much of that which they doe understand But this Parliament whether wise or unwise spake loud of the Clergies superfluous Riches and the Kings wants are parallel'd therewith and that the Church-men may well spare enough to maintaine fifteen Earles fifteen hundred Knights six thousand two hundred Esquires and one hundred Hospitalls more then were in his Kingdome This was a strong temptation to a needy and couragious Prince but the Arch-Bishop was at his elbow the King tells the Commons that the Norman and French Cells were in his Predecessors time seized under this colour yet the Crowne was not the richer thereby he therefore resolves rather to add to then diminish any thing from the maintenance of the Clergy Thus as the King said he did though he made bold with the Keyes of Saint Peter for he could distinguish between his owne Clergy and the Romane The People are herewith put to silence yet harbour sad conceits of the Clergy against a future time which like a hidden fire are not onely preserved but increased by continuall occasions and more principally from the zeal of the Clergy now growing fiery hot against the Lollards For that not onely the People but the Nobles yea some of the Royall blood were not altogether estranged from this new old way whether it was sucked from their Grand-Father Duke John or from a Popular strain of which that House of Lancaster had much experience I determine not These were the Dukes of Bedford and Glocester Bedford was first at the Helme of Affaires at home whiles the King acted the Souldiers part in France as ill conceited of by the Clergy as they sleighted by him At a Convocation once assembled against the Lollards the Duke sent unto their Assembly his Dwarfe as a great Lollard though he was a little Man and he returned as he went even as Catholique as any of them all Non tam dispectus à Clero quam ipse Clerum despiciens atque eludens This and some other sleights the Clergy liked not they therefore finde a way to send him into France to be a Reserve to his Brother And in his roome steps forth Humphrey Duke of Glocester that was no lesse coole for the Romane way then he Henry the Fifth was not more hearty in Romes behalf for although he was loath to interrupt his Conquest abroad with contests at home yet he liked not of advancements from Rome insomuch as perceiving the Bishop of Winchester to aspire to a Cardinals Hat he said that he would as well lay aside his own Crowne as allow the Bishop to take the Hat Nor was he much trusted by the Clergy who were willing he should rather ingage in the Wars with France then minde the Proposalls of the Commons concerning the Clergies Temporalties which also was renued in the Parliament in his dayes Above all as the Lancastrian House loved to looke to its own so especially in relation to Rome they were the more jealous by how much it pretended upon them for its favour done to their House And therefore Henry the Fourth the most obleiged of all the rest looked to the Provisors more strictly then his Predecessors had and not only confirmed all the Statutes concerning the same already made but had also provided against Provisors of any annuall Office or Profit or of Bulls of Exemption from payment of Tythes or from Obedience Regular or Ordinary and made them all punishable within the Statute and further made all Licenses and Pardons contrary thereto granted by the King void against the Incumbent and gave damages to the Incumbent in such vexations for the former Lawes had saved the right to the true Patron both against Pope and King And thus the English Kings were Servants to the Church of England at the charges of Rome whiles the Popedome being now under a wasting and devouring Scisme was unable to help it selfe and so continued untill the time of Henry the Sixth at which time the Clergy of England got it selfe under the power and shadow of a Protector a kinde of Creature made up by a Pope and a King This was the Bishop of Winchester so great a Man both for Birth parts of Nature Riches Spirit and Place as none before him ever the like for he was both Cardinall Legate and Chancellour of England and had gotten to his aide the Bishop of Bathe to be Lord Treasurer of England Now comes the matter concerning Provisors once more to be revived First more craftily by collogueing with the Nobility who now had the sway in the Kings minority but they would none An answer is given by the King that he was too young to make alteration in matters of so high Concernment yet he promised moderation The Clergy are put to silence herewith and so continue till the King was six yeares elder and then with Money in one hand and a Petition in the other they renue their Suit but in a more subtill way For they would not pretend Roâ—e but the English Churches liberties they would not move against the Statutes of Praemuniri but to have them explained it was not much they complained of for it was but that one word Otherwhere which say they the Judges of the Common Law expound too largely not onely against the Jurisdiction of the Holy Sea but against the Jurisdiction of the English Prelacy which they never intended in the passing of those Lawes Their Conclusion is therefore a Prayer That the King will please to allow the Jurisdiction of their Ecclesiasticall Courts and that Prohibitions in such Cases may be stopped But the King either perceiving that the Authority of English Prelacy was wholly dependent on the Sea of Rome and acted either under the shadow Legatine or at the best sought an Independent power of their own Or else the King doubting that the calling of one word of that Statute into question that had continued so long might indanger the whole Law into uncertainty declined the matter saving in the moderation of Prohibitions Thus the English Clergy are put to a retreat from their reserve at Rome all which they now well saw yet it was hard to wean them The Cardinall of Winchester was a
great Man and loath to lay down his power but his own Tribe grew weary of him and his Power For the greater some Church-men are unlesse they be better then men the inferiour and better Church-men are worse then men at length therefore the Cardinall is Un-Legated and that Power conferred upon the Arch-Bishop of Canterbury a Man formerly well approved but by this very influence from Rome rendered suspected which he perceiving protested against the Exercise of the Jurisdiction Legatine without the Kings allowance and so mannerly crept into the Chaire The English Kings and Clergy 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 Popedome but the forme of Worship and Discipline but as touching Jurisdiction they held it a high point of wisedome 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 Forrainers from Church-livings under the Notion of Intelligencers to Enemies abroade So neither now will they allow any Provisions for English men and upon this ground the Deane and Chapter of Yorke refused to admit the Bishop of Lincolne to the Sea of Yorke although designed he was thereto by Pope Martin and he the Darling of Nations being by joynt consent advanced to the Triple Crowne that had been formerly tripled amongst three Popes and troubled all Europe And whereas during the Tripapalty much money had been Levied here in England to serve for the recovery of the Popedome to one of English Interest Now by joynt consent the same is seized upon and stopped as fewell from the fire and spent by Henry the Fifth in the recovery of a Kingdome in France that should have beene imployed in recovery of a Popedome at Rome these things concurred to give a wound to the Popedome that was never cured to this day Neverthelesse the English Clergy was no looser by all this but gained in the whole summe for as it made them more depending on the Crowne so it made the Crowne more fast to them from which they had received more reall immunities and power then the Pope ever did or was able to give them and might expect to receive many more What Personall 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 meete 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 worke and it is granted That the Clerkes of Convocation called by the Kings Writ and their Meniall Servants shall have such priviledge in comming tarrying 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 beene supposed nor is it that Court of the Ordinary called the Church Gemot mentioned in the Lawes of Henry the first as not only the work thereof therein set down doe sufficiently declare but also its evident that in Henry the seconds dayes the Grand Councells of this Kingdome were Joyntly mixed both of Clergy and Laity nor could the Clergy shut the Laity from their Councels till about the times of Richard the first or King John From which time forward the Laity were so far from protecting of them till these times now in hand that 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 been also cleared by another Penn. That their worke 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 Mony from the Churchmen and yet somtimes matters of great moment were debated therein as in a Convocation summoned by Henry the Fifth in his ninth year the pre-eminence of Pope Eugenius above the Councill of Bazill was debated and as much as they could determined the same the credit of their decisions in former times I beleeve was not much amongst the People because the men were looked upon with an evil eye Now that the Parliament seemeth to owne them in thier way and to protect them their determinations are somewhat The Churchmen espy their opportunity and whiles 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 to bestirr it selfe and men to study the Scriptures This was imputed to the idlenesse and carlesnesse of the Clergy who suffered the mindes of young Schollers to luxuriate into errors of Divinity for want of putting them on to other Learning and gave no incouragement to studyes of human Literature by preferring those that were deserving The Convocation taking this into consideration do decree that no person should excercise any jurisdiction in any Office as Vicar-generall Commissary or Officiall or otherwise unlesse he shall have first in the University taken degrees in the civill or canon Law A shrewd trick this was to stop the growth of the study of Divinity and Wickleifs way and to imbellish mens mindes with a kind of Learning that may gaine them preferment or at least an opinion of abilityes beyond the common straine and dangerous to be medled with like some Gallants that weare 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 mischeivously intended was this against the rugged common Law a rule so nigh allyed to the Gospel way as it favoreth liberty and so far estranged from the way of the civill and canon Law as there is no hope of accommodation till Christ and Antichrist have fought the feild Thus much of the Church of England in relation to the State now as it is absolutely considered in regard of the severall degrees of Persons therein Although these three Kings were much indeered to the English Clergy yet the difference between the Laity and them growing high the Kings principall 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 joints to the adventure First Henry the fourth granteth that no more shall be payed to Rome for the first fruits of Arch-Bishops and Bishops then hath been anciently used The occasion hereof was to prevent the horrible mischeif and damnable custome of Rome for such are the very words of that Statute unto which the
uncertain colour neither made by the Clergy nor Laity but spoyled between them both The intent thereof seemeth to be principally to draw on the House of Commons to passe the Law under hope of gain by the forfeitures for the penalty is like that of Fellony though the Crime be not expresly declared to be Fellony 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 s not enacted by any Law that such Person shall be delivered to the Seculer power c. Thirdly this Statute determining the forfeiture to be not till death and neither that nor any other Law of this Kingdome determining death then is no forfeiture determined Fourthly though this Law taketh it for granted That Heresie and Errors belong to Ecclesiasticall Cognisance yet the same allowes of no further proceedings then Ecclesiasticall 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 its evident that the Clergy could by this Law neither get fat nor blood and therefore at their Convocation in the next yeare following they tooke 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 farre as they can learn which puts me in minde of a Presentment that I have seene by some of Saint 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 Bookes we know not what they are This new course shewes plainly that the former held not force as they intended it So God blasted the practises of the Clergy at this time also rendering this Law immateriall that had the form as the other missed in the form and had the matter CHAP. XVIII Of the Court of Chancery IT often befalls in State Affaires 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 Councell in the Star-Chamber pretending default of the Common Law both in speed and severity in Cases whereby the State is indangered 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 kinde of Power to survay 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 Freinds and Neighbors and it may be they grew weary of imbroyling themselves one against another and of being Instruments of the violent counter-motions of Princes and great Men. Secondly it gained also upon the Admiralty which by former Lawes had Jurisdiction in all Cases incident upon the great Sea but now either through neglect of the Admirall or the evill of the times occasioning Piracies to grow Epidemicall 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 settled in every Port who had power committed to them to punish Delinquents against the Publick Truce both by Indictment at the Kings suite and according to the course of the Admiralty by complaint saving matters of death to the Cognisance of the Admirall But this was soon found defective for Justice done in the dark is many times more respective and lesse respected and therefore within a few yeares it is provided that Offenders against the Kings Truce upon the Sea or in any of the Ports shall be proceeded against in the Chancery before the Chancellour who hath power given him calling to his Assistance some of the Judges to execute the Statute of 2 H. 5. foregoing by a handsome contrivance For that Statute was once and again suspended for the rigour that was used by the former Conservators who being Borderers upon the Sea for their own peace spared as few as they could which had so discouraged the Sea-men that the Kingdome had been almost utterly bereaved of its strength at Sea Neverthelesse all this while these Lawes were but penall and not remediall for the Parties wronged And therefore another Law is made to give the Chancellour and Judges power to make restitution and reparation Thirdly the Chancery gained upon the Ecclesiasticall Court for whereas by the Canon the Church-men were to be judged by their Superiours according to Ecclesiasticall and Ordinary Jurisdiction and the iniquity of the times was again returned to that height that Parents could not enjoy their own Children but the little ones were allured stolne away and detained in Cloysters nor did the Church-men afford remedy in such Cases A Law was made that upon complaint hereof made to the Chancellor the Provinciall should be by him sent for and punished according to his discretion Lastly the Chancery incroached upon the Common Law For whereas the stirs between the two Houses of Yorke and Lancaster beganne to rise Men made their dwellings in places of security and strength Women likewise and other persons flying thither for refuge especially such of them as had most to lose these were contrary to the Law of common honesty urged to ingage their Estates unto the desires of such to whom they had fled for refuge and some times compelled to marry before they could gain their liberty It was now provided that all such complaints should be heard and determined by the Chancellor Secondly as touching the Ministeriall power of the Chancery this likewise was inlarged in making of Processe to compell appearance in cases of forcible Entries Murders Manslaughters Robberies Batteries Assemblies in nature of Insurrections Riots and Plunder committed by Servants upon their Masters goods before their Masters death and such like Offences now growne common and in need of sudden remedy Thus as the worke and power of the Chancery grew so did the Place and Person of the Chancellor grow more considerable raised now from being the Kings Secretary for no better was he in former times to be the Kingdomes Judge and of such Trust that although the King might make election of his owne Secretary yet the Parliament would first know and allow him that must be trusted with the power over the Estates of so
many of the People And therefore did in these times both place and displace him as they saw expedient In a word he is become the Kingdomes Darling and might be more bold with the Common Law then any of his Peeres CHAP. XIX Of the Courts of Crowne Pleas and Common Law AS the Chancery on the one side did swell and increase so was the Kings Bench in an Ebb the Councill Table in the Star-Chamber on the one side and the Itenerant Courts in the Countrey intercepted and drew away much to their own shares Making themselves fat the Kings Bench leane and the Rurall Courts for Crown Pleas almost to starve The Crown Pleas formerly had been determinable in the Kings-Bench Goale-Delivery Oier and Terminer and many of them by Justices of the Peace Coroners and Sheriffe The Goale-Delivery was afterwards united to the Judges of Assize and if one of them were a Clergy man then to the other and cheif men of the County This was usefull for the Publique but not beneficiall for some men and therefore they laboured for Commissions especially directed to parties that they thought would partake but these were found soone to be dangerous soone taken away and the Goale-Delivery restored to the Judges of Assize as formerly The Commissions of Oier and Terminer were sued forth upon extraordinary immergencies and offences wherein the State was much concerned for speedy Execution In former times both these and Goale-Deliveries were but rarely had and then granted unto some that perchance knew more of the Case then before hand was meete to be known Edward the Third amended this errour and ordered that no Commissions of Oier and Terminer should issue forth but unto Commissioners named by the Court and not by the party complaining But the Judges of Assize are now in the growing hand hoth for Honour Use and Power the rather because their Persons are of high repute in the Benches at Westminster which are the Master-peices of Judicature and their Iters are constant and ordinary Neverthelesse the Judges of Assize though they have the Goale-Delivery annexed to them yet have they not that absolute power of the Kings-Bench but are still under the rule of their Commission which is not alterable but by Parliament and which by it was altered by way of adding of new powers as new crimes arose that required the eye of the State to provide and so the Judges of Assize by degrees grew to be the ordinary Administrators of Justice throughout the Kingdome yet holding still forth to them a limited power to heare and determine in some Cases but in others onely to inquire and certifie as in the Case of false returns by the Sheriffe of persons elected for the Parliament And also in Cases concerning the Statutes of Labourers and unlawfull games and pastimes in which case the Certificate is to be made to the Chancellor And also in Cases concerning Liveries contrary to the Statutes wherein the Certificate is to be made to the Kings-Bench which power in this last Case continued in that manner by the space of thirty yeares and then by another Statute they had the power to determine such cases before themselves In like manner they had power to heare and determine cases of falshood in counterfeiting and corrupting of money by washing clipping c. And also defaults committed by Sheriffs Bayliffs and their Officers against the Statutes of forcible Entries and of wearing of Liveries as aforesaid These were signes of much confidence and trust in them and yet notwithstanding in these nor none of these were the Penalties by Fine left to the Arbitry of the Judges no nor to the Justices of the Kings-Bench but were by the very Letter of the Law determined Nor would the Parliament trust these men with doing Justice in the cases aforesaid in their own Counties where they dwelled nor did it think expedient to allow the cheif Justice of the Kings Bench unto that Service in any of them all but onely once in the County of Lancaster and then onely at the Kings pleasure otherwise it was to be as was used by the space of one hundered yeares foregoing possibly because his power was too great to be trusted amongst the People Lastly the Judges of Nisi prius were anciently made by Edward the First by whom also the Assizes were setled at certain times of the yeare and afterwards by the Statute at Yorke the Nisi prius in smaller cases was granted before one Justice of the Bench where the Plea dependeth and one substantiall man of the County but those of greater concernment were to be had before two Justices of that Bench or in case they were wanting then before Justices of the other Bench or in default of them before the cheif Baron if he were a man of Law and in default of that before the Judges of Assize Therefore in those dayes the Justices of the Benches in their Iters in the Counties divided in their power Some being for Assizes others for Nisi prius and in some times and cases some were for both For in those times of Edward the Third Judges of Assize had power to inquire in some matters that concerned the Crowne or to try Nisi prius nor were these powers united till in Henry the Sixths time Justices of Nisi prius had the power of Oier and Terminer annexed to them in all cases of Fellony and Treason What was formerly provided by Edward the Third and Richard the Second for Instruction to these Judges and to binde them thereto by solemne Oath I shall not particularly mention but shall leave the consideration of the Originall of the whole Judicature of this Nation unto the Readers observation upon the Premises CHAP. XX. Concerning Sheriffs HEnry the Fourth after a small rest in his Throne though he alwayes sate loose sought after the civill Peace as the corner Stone of his subsistence and that by a way of Justice which found more acceptance with the Vulgar then the common Education of the greater number in these times could promise for the worst of men cannot endure to suffer injustice though themselves will doe it Now because where Kings are reputed to be the Fountain and Life of Justice Sheriffs may be reputed to be the breath thereof and by their irregularities doe render the Government of the King as loathsome as unsavoury breath doth the Person whose it is Therefore Henry the Fourth chose rather to be a looser in his Farme-Rents of the Sheriffwicks then to occasion the Sheriffs to save their bargains by oppression And to this end he tooke away the course of forming of Sheriffwicks and made the Sheriffs bare accountants for the Annuall profits and as touching the casuall profits the Sheriffe discharged himselfe upon Oath This was a good security to the King but yet the People was not herewith satisfied For though the Sheriffs might not take to Farme yet what they
Forrain and sudden invasion and attempts Thirdly the powers are not undefined but circumscribed 1. To Array such as are Armed so as they cannot assesse Armes upon such 2. To compell those of able Bodies and Estates to be Armed and those of able Estates and not able bodies to Arme such as are of able Bodies and not Estates but this must be Juxta facultates and salvo Statu 3. Whereas they straine 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 remediall in particular cases yet doe 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 King 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 Reprisall granted to such of the People of this Nation as are pillaged by Sea by such as have the Kings Conduct or publique Truce And by this Law the Party pillaged had 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 Chancellor 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 Forrainers were become bold to transgress and the English fearfull in their own Charge and many laid aside their Trade by Sea and thereby the strength of the Kingdome was much impaired Nor is the Equity of this Law to be questioned for if the Magistrate upon complaint made grants not releif the offence becomes Publique 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 releif 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 generall 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 Cloathing 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 unlesse in case of sicknesse or other good cause testified and allowed by the Captain and such as shall doe otherwise shall suffer as Fellons Which Lawes 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 Personall 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 whiles Henry the Sixth was in France which was in his tenth yeare from Saint Georges day till February following The Scots propound tearmes of Peace to the Duke of Glocester 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 effectuall by both Kingdomes as if the King had been personally present in his full capacity CHAP. XXIII A Survey of the Reignes 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 later parts breaking out into a flame In the heat wherof 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 Sonne the Mark-grave 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 neverthelesse reserved himself to the Election of the Lords and was by them received and commended to the Commons in the Feild by which meanes he gaining the Possession had also incouragement 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 reigne Nor did he though he held many Parliaments scarce reach higher then at reforming of Trade which was a Theame 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 successfull yet as one loath to trust too far either the constancy of the People of his own dominion or the fortune of War with his neighbouring Princes he did much by brave countenance and discourse and yet gain'd repute to the English for valour after the dishonorable times of Henry the sixth He had much to do with a wise King of France that knew how to lay out three or foure calme words at any time to save the adventure of his Peoples blood and make a shew of Mony to purchase the peaceable holding of that which was his only by force untill the winde proved more faire to bring all that continent under one head In his Government at home he met with many crosse gales occasioned principally by his owne rashnesse and neglect of the Earl of Warwicks approved freindship which he had turned into professed enmity And so weakned his own cause thereby that he was once under Water his Kingdome disposed of by a new intaile upon the Heires of Duke Clarence and so the Earle of Warwick remained constant to the House of York though this particular King was set aside Nor did he in all this gaine 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 forraine Princes brought neverthelesse a Pearle which was
therefore Edward the Fourth now in Armes though he found it a hard Notion to maintain the Peoples Liberty where no man is free from the Souldier yet he inclined thereto we reade of 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 prayes aid of the Parliament by the way of Tonnage and Poundage which was in demand nine yeares 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 knowes 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 in the conferring of them and resuming of the same Thirdly the course of Trade was now more especially looked to not by the King and Privy Councell but by the Parliament and because it was much decayed partly by reason of the ill Government thereof and partly by the excessive lavishnesse of these times many Lawes are made for remedy of both And first the Staple was settled sometimes at Callis alone sometimes at it and Middleburrough and by this means England gained Trade from both Nations but the principall 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 Forrain Manufactures of such kinds Then against transporting of English Coyn and Importing of Forrain Coyn other then Bullion And as touching the second greivance it seems gallantry or vanity of Apparrel 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 Lawes that the People should be lesse brave assessing a sort of Apparrell for every degree and therein stooped so low as to define the fashions of their very shooes Fourthly the Parliament retained their ancient right of reducing the course of Judicature for whereas Sheriffs had hitherto holden their course of triall of the meaner sort of Fellonies and Trespasses and Offences determinable onely by Imprisonment or Fines and Amerciaments whereby mens Estates did lie under the continuall pillage of these covetous and extorting Officers It was established by the Parliament that these men should have for the future onely power of inquiry and to certifie at the next Sessions and there the Triall to be and Fines and Amerciaments to be set taxed and estreated unto the Exchequor and from thence to be levied and thereof the Sheriff to give account this was a great security to the Peoples estates but gave them not a full remedy for though the Triall was now more fair yet these Officers were Judges of suspition and had still power upon suspition 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 Cases of light Suspition and it is further declared that no mans Estate shall be first seized till Conviction and Attainder first be had And because Estheators grew no lesse burdensome in their way it was therefore Ordered that no man shall be allowed in such Office unlesse he hath Lands to the vallue of twenty pounds per annum and that he shall be responsable 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 Sonne that was too weake to hold it a Third snatches it away and for two yeares carrying it exceeding well yeilded up all incroached Royalty to the People and his Crown and Life to his Successor CHAP. XXV The Condition of the Clergy 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 Popedome now freed from all Schisme and the Popedome mannaged by Sixtus the Fourth who had the hap to be accounted more vertuous then any of his Predecessors had been and to have all the Christian Princes wholly at his Devotion And lastly both the Clergy and the Kings were now joyntly ingaged against the rising power of Religion then called Heresie in order whereunto the Clergy 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 wisdome for Kings that sate loose in their Thrones to stumble the good Opinions of so considerable party towards them And therefore Edward the Fourth in his first entrance granted to the Clergy that which could never be by them obtained from any of the foregoing Kings Viz. Free liberty of Process in all Cases Ecclesiasticall and in Tythes of Wood above twenty yeares 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 to be there Cancelled This was done by Charter and was sufficient to shew what the desire of the Clergy and the intention of the King was Viz. At once to favour the Church and under colour of favour done to the Clergy â—o cancell both Common and Statute Lawes of the Kingdome by the power of the Chancellors Decree neverthelesse all this was but the Kings breath the policie 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 endammaged from his Action by any such Charter And so far was 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 Chancellor in any Case triable at the Common Law Much lesse 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 Lords Day Now it inhibited the sale of Boots Shooes 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 Triall it being dangerous in such times to give a stop to all England at once otherwise it might be wondered why Gods Honour should be better regarded in London then all the Realm besides Of this Inchroachment we finde no complaint made by the Church-men another touched them to the quick although it befell onely the Archbishopricke of Yorke Hitherto that so held ordinary Jurisdiction over all the Bishops of Scotland as being their Provinciall 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 travells 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 Canonicall obedience to the Subject of another Prince and upon this ground prevailed with Pope Sixtus the Fourth to make the Divorse 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 yeares and their compleat power therein not much above half so many CHAP. XXVI A short summ of the Reignes of Henry the Seventh and Henry the Eighth THe course of English policy hitherto wandering in the different Currents springing from the double head of Monarchy and Democracy and in them likewise often tossed up and down partly by the blasts of windy Titles and Pretentions and partly by the raging Tides from the Roman Sea now begin to come to Anchor within veiw of Shore Happy England if the same prove good Harbarage for a fainting Nation Two Kings now undertake the Stearage the worke 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 Successors Government and made his Wisdom Vallour and Justice appear greater then possibly it was His Vallour made way for the other two he had enough thereof to serve a wise Man in case of Extremitie at other times he made more use of his Majesty then Manhood being confident that the People knew not where to mend themselves but would be at his Devotion so long as he was better then his Predecessor though he cared not how little His Wisdome 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 then would render him a civill man whereunto his Education did lead the way thus though his Vallour brought him to the Crown yet it was his wisdome that settled him in the Throne For though he loved himself so well that he was loath to pretend allowance of any access of Forrain help to his own atcheivement 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 pretended onely as a Ceremony of State brought from the French Court and yet its strange that it went so well down with a Free People For 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 fearfull and so turn the Royall power of Law into force of Armes but it was the French Fashion and the Kings good hope to have all taken in the best sense His Title setting aside the saying of Phillip the hardy That Kingdomes onely belong to them that can get them would hardly endure the touch till Pope Inocent by his Bull confirmed the Crown to him to hold by a sixfold right Viz. Of Inheritance of Warre of Espousals of Election of gift by Parliament and lastly of Pontificiall Benediction which the King liked marvellous well and the rather because his Title by marriage was buried up in the middle and so made the lesse noyse For though it was his best guard yet he liked not that it should be so reputed least his Title should seem rather conferred upon him then 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 English King diminished His Title by Inheritance is much disputable if the right Heires of John of Gaunt be inquired after and much more that of Warre for although that brought the Possession yet no right or Title but by wrong which may indeed be plaistred over by Election or Act of Parliament but then he must be Tenant to the People As touching the Pontificiall Benediction himselfe tooke that but as a redundancy that might sway with the Clergy and do his Title no hurt Neverthelesse 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 greatnesse that he lost the repute of his goodnesse 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 whiles 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 then all his Predecessors had done nor did the People perceive it til they were over their shoos and then they clearly saw their condition and that it was in vaine 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 also he did by degrees first by light Skermishes of borrowing smaller sums of
rest upon this Law for within three yeares following another Law is made to confirme what was then already done by the King and a larger power granted to the King to change and alter as to his Wisdome shall seeme convenient Thus the Kings injunctions already set forth were established all opposall to them inhibited and the King hath a power of Lawing and Unlawing in Christs Kingdome 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 gain-say it as Cranmer said the King loves his Queene well but his own opinion better for new things meeting with new love if it be once interrupted in the first heat turnes 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 then any of his Predecessors ever attained was neverthelesse not enough till his Title was as compleat The Pope had fashioned him one now above twenty yeares 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 Royallizing of that of Ireland amongst the rest A third Prerogative concerned the Kings Power in temporall matters and now must England look to it selfe 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 then all his Predecessors A King that feared nothing but the falling of the Heavens the People contrarily weary of civill Wars enamored with the first tastes of Peace and Pleasure whiles as yet it was but in the blushing child-hood overawed by a strange Giant a King with a Pope in his belly having the temporall Sword in his Hand the spirituall Sword at his command Of a mercilesse 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 wil be soon swallowed up into the hungry maw of Prerogative To set all on work comes Steven Gardiner from his Embassage to the Emperor sad apprehensions are scattered that the motions abroad are exceeding violent and sudden that the Emperor 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 affaires 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 suddaine exegencies and for some small time during the juncture of these importent affaires that seeing likewise at home the point concerning Religion is comming to the Test the mindes of men are at a gaze their affections and passions are on their tiptoes It s reason the King should steare with a shorter Rudder that this care might meete with every turne of providence which otherwise might suddainly blow up the Peace and good Government of this Nation These and the like represented a faire face to that which followed and made way for the King without shame to ask what no King before him suffered ever to enter into conceit I meane a Legislative power to this effect That Proclamations made by the greater part of the King for the time being and his Councell whose names hereafter follow with such penalties as by them shall be thought meet shall be of equall force to an Act of Parliament provided it shall not extend to forfeiture of Estates or Priviledges nor to losse of Life but in cases particularly mentioned in the Law provided no Proclamation shall crosse any Statute or lawfull or laudable Custome of this Realme All which at length comes to be demanded by a formall Bill with as ill favored a preface as the matter it self which was much worse ere it was well licked in the House of Commons and when all was done proved a Bare still Whatever it was it passed in manner above said 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 in stead of a Legislative power which he grasped at for himself he received it in common with his Councell and so becomes ingaged neither to alter nor destroy that Brother-hood if he intended to reape any fruit of this Law leaving the point in doubt whither his gaine or losse was the greater For this Law thus made for this King these Councellors and these times and occasions can be no president to the future unlesse to informe Kings that the Parliament hath a power to give more Authority and prerogative to Kings then they or the Crowne 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 Crowne capable thereof otherwise then it was conferred by the Parliament Onely Steven Gardiner might glory in this atcheivement having for the present obtained much of his ends by perswading the King that forrain 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 maintaine And therefore if he meaned to gaine better correspondency amongst these Princes he must ingage more resolvedly to the fundamentalls of the Worship though he shook of some sleighter ceremonies with the Romish supremacy for he knew that they were willing enough with the later though the other could not go downe with them thus did forraine correspondency float above when as 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 then 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 cheif Officers of State and of the Houshold
Rome Sixthly an ingagement to informe the King of all Messages or Bulls sent from Rome into England Seventhly An ingagement 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 Prelacy having beene sworn slaves to the Papacy ever since Beckets time are now preferred to a more Royall service and the persuit by Kings after their right being laid a side by the space of 300. yeares is now renued and the prey seised upon by the Lion we found it upon a better title and in better condition by much then when at the first it was lost for it was upon som semblance of reason that the Arch-Bishop and Clergy 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 apprehended the stolne goods are the Kings in right and by Remitter whereunto the Parliament were by the Statute adding their conveiance establishes the same by an unquestionable Title neverthelesse their service is no lesse servile to this Crown then it had beene to the Romish Miter formerly they asserted the Popes infallibility now the Kings 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 Kings He makes Bishops he makes new Bishop-ricks 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 finde 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 Tympany by growing great For though he was left rich by his Fathers Treasure yet his Zeale to Rome in its now Poor captived condition under the Imperiall power stirring up in him great underrakings abroad besides his own pleasures and gallantry at home exhausted that and doubtlesse had starved these his grand designes had he not found the hidden Treasures of the Cells and Monastries 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 feare and flattery It was not done without deliberation for the thing was felt as a greivance before the Norman times and complained of in Parliament above a hundred and forty years ago and diverse times since but Kings either understood not or beleeved not or durst not give remedy or had much else to do But now the King is beyond all his Predecessors he knowes 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 wroke feasible was a president made by Cardinall Woolsie whose Power was enough to dissolve some petty Cells and no opposition made The King might well expect the worke would be as lawfull for him and not much more difficult or if any stormes ensued the People that had so long complained and felt the burthen of these excrescences of the Clergy would soon find out a way to Calme them the King need do no more then speake and the people will do This opened the doore but that which brought the King in was the hold the Pope had in this Kingdome by these Cloystered People who were persons dead in Law and dead to all Law but the Canon and upon this account the Kings Ancestors had possessed themselves of the Cells in the hands of Forrainers in times of War and now a deadly feud is stirred betweene Henry the eighth and the Pope their holy Father the Children cannot expect to thrive when as their Father is cast out of doores and so all must out together yet the manner is observable they must not be cast out but must go out the inferiour and greater part are dead persons have learnt obedience they can neither bark nor bite and therefore they may sleep and what is don must be don with such of them as are alive Upon a Visitation these are brought under the Test and found in such a condition that they had better give way and voluntarily surrender then abide the triall Once more the smallest are picked out whiles the greater stand by and wonder but either do not foresee or in dispaire of altering the Kings resolution do nothing but expect the sad hour which within four yeares comes upon them all every one of them choosing rather to surrender and expect the Kings mercy for maintenance during life then adventure against the dint of his Justice and Power and so loose all for they were ill befreinded amongst all sorts of the People Thus came the personall Estate and Stock of these Houses to the Kings immediate Treasury and their yearly maintenance to the disposing of the Crowne which might have advanced the same well nigh to the value of two hundred thousand pounds yearly but that the King intended to let the People enjoy the fat as well as he that they might be mutually engaged to maintain hold of the prey that they had joyntly gotten Out of all which neverthelesse the Crowne had a small rent or service annuall for the acknowledgement of their tenure besides the first fruits of the spirituall dignities and the tenths both which he formerly had already obtained The first whereof was but casuall and occasionall in the payment arising onely at the entrance of the party into his promotion and which was gained by the Pope from Edward the first although at his Parliament at Carleile in his thirty fourth yeare he withstood the same This was above three hundred and twenty thousand pounds in the whole summ The later was annuall and amounted to above thirty thousand pounds And thus the Popes Usurpaons are turned into duties to the Crowne but were much lessened in regard that these Cells and Monastries were accounted amongst these Ecclesiasticall promotions which by their dissolution fell off in that account Neverthelesse the advancement that might by a parcimonious King have beene made of the fall of this Ceder was such that the Crowne might have been rendred of it self absolute and al-sufficient But Henry the eighth was not thus minded the affairs of Europe were gotten into a high pitch Princes generally over active Henry the eight inferior to none of them what comes in goes out and he is a rare example of that Divine proverb
in his Warrs and with him to enter and abide in Service in Battell which is the lesse 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 therin set down is only 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 warrs and willing to admit this Conclusion for the better security of them both in these doubtfull 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 Kings Person and Kingdome is indangered by Rebellion Power or might reared against him So as the Kings Person must be present in the Warr for the defence of the Kingdome or no man is bound by his allegiance to hazzard 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 Kings 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 inferr from hence that the King hath an universall power of Array when he pleases because the King when he pleases may not levy Warr nor make other Warr then a defensive Warr when the Land is indangered 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 tendernesse 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 sense 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 oppressions of this first Law concer-cerning the occasion or time of this Service nor did he see sufficient ground under the Notion of bare allegiance to desire more New wayes 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 payed before hand for his Patents either by Money or that which was as beneficiall to him yet he was resolved that their holding should be no lesse advantagious to him then their having and therefore in plaine 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 choose they which and if they finde 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 Soveraigne Lord at all seasons when need shall require generall words that affirm nothing in certainty yet do glance shrewdly upon an absolute and universal assistance Then comming to drive the naile home it is said that the Patentees are bound to give their attendance upon his Royall Person to defend the same when he shall fortune to go in his person in Warrs for the defence of the Realme or against his Rebells and Enemies and as another Statute addeth within the same Realme or without and according to their Allegiance and not to depart without especiall license or untill general Proclamation of dismission In shew therefore here is a new Militia as touching the Kings Patentees they must attend the Kings Person whither ever the King will lead them either within the Realme or without whether against such as he will suppose to be his Enemies abroad or if he will mistake his Subjects for his Enemies at home And this under the colour of Allegiance published in doubtfull expressions as if it were not meet that Henry the seventh that loved not to yoke himself to the Law should yoke his Lawes under the Lawes of plaine language Or rather that he held it a point of policy to publish his Laws in a doubtfull stile that such as durst question his Lawes might have no positive charge against them and such as dared not to enter into the lists with him might not be bold to come nigh the breach of them Nevertheless neither doth the glance of allegiance in the Preface of the former nor in the body of the later Statute any whit confirm that what is in them enacted is done upon the ground of Allegiance but contrarily when as the first Statute commeth to the point it Startles from the ground of Allegiance and flies to the ground of a kinde of Equity or reason And the second resorteth to the first as its proper ground as being a suppliment thereunto in cases forgotten and so omitted though it may be rather thought that the King creeping up into his heighth by degrees made the former onely as an essay to prepare the way for the later like the point of the Wedge that maketh way for the bulk and body thereof The truth of this assertion will be more manifest from the nature of both these Lawes being limited both in regard of time and person In regard of time for both these Lawes are but temporary and to continue onely during the Life of Henry the seventh in regard the advancements therein mentioned as the moving cause are onely the advancements made by himself In regard of the person for all persons that received advancements from him are not bound thereby namely those that come in to such advancement by purchase for Money Neither are Judges and other Officers excepted persons in the saide Statutes If therefore Allegiance had been the ground of these Lawes it had equally bound all who are under that Bond and no Equity could have given a generall rule of discharge unto such condition of men It had likewise bound as well formerly and afterward as during this Kings Reigne and therefore what ever semblance is made therein concerning Allegiance there had bin no need of such Law if Allegiance could have done the Deed or if the power of Array had been of that large extent as it hath lately been taken In my conceit therefore these two Lawes do hold forth nothing that is new but a minde that Henry the seventh had to fill his Coffers though his minde would
eighth to lead the way chose rather to pursue a Rule then 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 Childe 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 President but in her Marriage a worse for she aimed not onely at a forrain blood but at a Prince in Power and Majesty exceeding her own and thereby seeking advancement both to her self and her Realm indangered both The matter was long in debate between the Spanish and English and now had busied their wits above ten years at length a Supremacy is formed sutable to the Lord and Husband of Queen Mary that could not be content to be one inch lower then 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 royall Assent and in Commissions 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 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 then 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 Forrainer This was soon espied by forrain Princes and the Queen her self perceiving that she was like to receive prejudice hereby in her interest amongst them signified by her Embassadours that she never meaned to stoop so low as to match with any of her Subjects but intended to make her choise of some forrain 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 then by triall they could finde 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 Forrainer should ever intermeddle in the Rule and Government of the Church or Common-wealth 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 inferior Prince that durst not look so high or else she did but make semblance till she was nigh fourty years old and in all declared that she liked not her Sister Maries choise To these two Powers of Determining and Distributing I shall add 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 reach of 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 sixths time with some Additionals By these particular Commissioners were appointed for the making of Ecclesiastical Constitutions and the King himself had a power Episcofactory without Conge deslire They likewise limited the power of Ecclesiastical Courts altered their Process reformed their Censures even that grand Censure of Excommunication it self The like or much more may be said of their deputing power in Civil Affairs as well inlarging the Kings power as in abridging the same for whereas some of the Successors of Henry the 8. had power by vertue of his Letters Patents after 24 years of age to annull any Act of Parliament by them made before that Age. In the time of Edward the sixth notwithstanding the Proviso in that Law and although Edward the sixth was not then twelve years old yet the Parliament repealed all and restored to Edward the sixth onely that power for the time to come but not to any of his Successors and whereas Henry 8. had gained to himself his Successors a Legislative Power by Proclamation the Parliament in Edward the sixths time took the fame quite away and reduced Proclamations into their former sober posture The like may be observed of the power of the Parliament in ordering the Lives Members and Estates of the People in matters criminal and in making and altering Courts of Justice and bounding their power altering their Process abridging their Terms for Judicature reforming Errors in pleading amending common Conveyances and Assurance as in passing Fines with Proclamations their course in the County Palatine Limitations of Prescription fraudulent Deeds Recoveries by Collusion c. in all which the Crown had no power but in and by the Parliament Many particulars more might be added if the matter so required for the Statutes are more full in these later Times then formerly and may soon lead us beyond a just Period in so clear a matter CHAP. XXXVII Of Jurisdiction Ecclesiastical in these last Times IN the general and in relation to the forrain Jurisdiction of Rome it was like a Childe in an Ague under Fits of Heat and Cold but in it self under the Prelacy still growing in stature though not in strength Edward the sixth came in like a storm that tore up Episcopacy by the Roots yet a Top-Root remained intire with the stock bearing shew of a kinde of Divinity that though bared of the old Soile of the Papacy yet transplanted into the new Mould of Royalty soon conveyed a new life which made the stock still flourish and grow into a better condition then formerly it had Their Legislative power in matters concerning their own interest though in outward view seeming their own yet was doubly disturbed from the Pope and the King who though many times opposed one another yet evermore were both of them in opposition to the Church with the greater bitterness by their