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
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
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
sore People yet many times Lawes are said to be many when as they are but one branched into many Particulars for the clearing of the Peoples understanding who usually are not excellent in distinguishing and so becomes as new Plaisters made of an old Salve for sores that never brake out before Such sore times were these whereof we now Treate wherein every touch made a wound and every wound went to the heart and made the Category of Treason swell to that bignesse that it became an individuum vagum beyond all rule but the present sence of timerous Judges and a touchy King Thus were many of the ignorant and wel meaning people in an hideous danger of the gulfe of forfeiture before they found themselves nigh the brimme All men do agree that treason is a wound of Majesty but all the doubt is where this Majesty resteth originally and what is that legiance which is due therto the breach whereof amounteth to so high a censure for some men place all Majesty in one man whom they call an absolute Monarch Others in the great men and others in the people and some in the concurrence of the King and body of the people and it is a wild way to determine all in one conclusion when as the same dependeth wholy upon the constitution of the body looke then upon England in the last posture as the rigider sort of monarchiall polititians do and Majesty will never be in glory but in the concurrence of the King and Parliament or convention of Estates so upon the whol account it wil be upon the people whose welfare is the supream Law Rome had Kings Consuls Dictators Decemviri and Tribunes long before the Orators time and he saw the foundation of an Empire or perpetuall Dictatorship in the person of the first of the Caesars any of all which might have challenged the supremacy of Majesty above the people and yet the often change of Government shewed plainly that it rested upon another pinne and the Orator in expresse words no lesse when speaking of the Majesty of that Government he allotteth it not to those in cheife command but defineth it to be magnitudo populi Romani afterwards when the pride of the Emperors was come to its ful pitch in the times of Augustus Tiberius an Historian of those times in the life of Tiberius tels us that he declared the bounds of Treason to be determined in three particular instances of treachery against the Army Sedition amongst the people and violating the Majesty of the People of Rome in al which men were not punishable for words but actions and indeavors I do not herein propound the Government of the Roman Empire as a modell for England but à majori may conclude that if the proper seat of Majesty was in the people of Rome when Emperours were in their fullest glory it s no defacing of Majesty in England to seat it upon the whole body from whom the same is contracted in the representative and so much thereof divided unto the person of the King as any one member is capable of according to the work allotted unto him These severall seats of Majesty making also so many degrees do also imply as many degrees of wounding for it s writen in nature that the offence tending to the immediate destruction of the whol body is greater then that which destroyeth any one member only and when the written Law maketh it treason to compasse the destruction of the Kings Person it leaveth it obvious to common sense that its a higher degree of Treason to compasse the destruction of the representative and above all to destroy the whole body of the People crimes that never entred into the conceit of wickednesse it selfe in those more innocent times much lesse saw they any cause to mention the penalty by any written Law Neverthelesse because many sadd examples had accurred within the memory of this present age of the danger of the person and honor of Kings and yet on the otherside they saw that in such cases of Treason the Kings honor was made of retching leather and might easily be strained within the compasse of a wound of Majesty therefore Edward the third imitating Tiberius reduced the crime of wound of Majesty in the Person of the King into certaine particular instances out of the compasse whereof the Judges of the Law in ordinary course must not determine Treason These concerne either the safety of the Person of the King or of the succession in the Royall Throne or lastly the safegard of the publique right by the board and privy seale the vallue of Mony and by persons in matters of judicature judicially presiding all of them reflecting upon the King considered in his politick capacity for otherwise many crimes might have beene mentioned more fatally reflecting upon the King in his naturall capacity which nevertheless are omitted as not worthy of so high a censure Other Treasons are left to the determination of the Parliament as occasion should offer it selfe whereof divers examples of a new stamp accurred within forty yeares next ensuing which were of a temporary regard and lived and died with the times To these two notions of Majesty and treason I must add a third called Legiance for it is that which maketh Majesty to be such indeed and lifteth it into the Throne and whereof the highest breach makes Treason and because that which hath been already sayd reflecteth upon an opinion or rather a knot of opinions for I find them not punctually adjudged in Calvins case I must a little demur to them because as their sense is commonly taken it alters the fundamental nature of the Government of this nation from a commonweal to a pure Monarchy In handling of this case the ho. Reporter took leave to range into a generall discourse of legiance although not directly within the conclusion of the case and therin first sets down the general nature therof that it is a mutual bond between an English King and his people and then more particularly sets forth the nature of this bond in the severall duties of obedience and fealty fo 5. a. and those also in their severall properties Viz. naturall absolute fo 7. a. due to the King omni soli semper fo 12. a. in his naturall and not politick capacity fo 10. a. whereas he saith this bond is natural he meaneth that its due by birth fo 7. a. By absolute if I mistake him not he meaneth that it is indefinite fo 5. b. Viz. not circumscribed by Law but above Law and before Law fo 13. a. and that Laws were after made to inforce the same by penalties fo 13. b. and therefore he concludeth that this legiance is immutable fo 13. b. and fo 14. a. Thus having stated the point as truely as I can both for the nature of legiance and the object thereof Viz. the King and not the people otherwise then in order to the safety
and honor of the Kings Person considered in his naturall capacity as he is a man I shall in the next place examine the grounds as they are severally set down and therein shall lead the Reader no further then the Reporters owne concessions Not troubling the Reader with any doubt whether this bond consists in obedience only or in that fealty and in all shall ever be mindfull of the honour of that Pen with which I have to deale First whereas it is said that English legiance is naturall and grounded upon the birth of each party within the Kings dominions and protection it needeth no debate so as the same be taken sano sensu Viz. for a qualified legiance beared of those sublimities of absolute indefinite immutable c. for otherwise if such a high strain of legiance be due from every English man by birth then all the Magna carta or laws concerning the liberties of the People come too late to qualifie the same because they cannot take away the Law of nature f. 14. a. and thus the party once born English must for ever remain absolutely obleiged to the King of England although haply he lives not two Months under his protection all his ensuing life time Secondly the legiance of an English man to his King ariseth from that civil relation between the two callings of King and subject and therefore it is not a naturall bond which cannot be taken away The first is true by the Reporters owne concessions Protectio trahit subjectionem subjecti oprotectionem so he saith fo 5. a. fo 9. b. and therefore though it be granted that Magistracy in general is from nature as he saith fo 13. a. yet of weak birth is that inference which he maketh Viz. That English allegiance is a principle in nature Unlesse it be also admitted that all men on earth that submit not to English legiance do sinne against nature The difference then will stand thus Magistracy is founded in nature therefore legiance also But English Magistracy is from civil constitution therefore is English legiance of the like nature In the next place the Reporter saith that before any municiple Law was made Kings did dare jura and he mounts as high for an example as the Trojans age by the testimony of Virgil but I beleeve he intended not much strength in this seeing its wel known by any that knows the scriptures that there were municipal laws given and that concerning the office of a King by Moses which was more ancient then those of Troy and long before the time of Virgil who neither tels us in what manner those Trojan Laws were made though the Kings gave them nor if al were according to the Reporters sense is the testimony of a Poet who somtimes useth his poetica licentia to be taken in terminis in the next place the Reporter vouches the testimony of Fortescue c. 12 13. which is as absolutely opposite to the maine point in hand as any Penn can declare for he tels us of divers sorts of Kingdomes some gotten by conquest as those of Nimrod and Belus c. But saith he there is a Kingdome politick which is by the association oâ— men by consent of Law making one cheife who is made for defence of Law and of his subjects bodies and Estates and he cannot govern by any other power and of this nature saith he the Kingdome of England is fo 30.31.32 A second peice of the foundation of this opinion of the Reporter is taken ab inane it is a vaine thing saith he to prescribe Laws but where by legiance foregoing people are bound to obey but this compared with the words of Fortescue formerly mentioned falls of it selfe to dust and therefore I shall not further inlarge concerning it Thirdly The Reporter brings in to helpe the matter the consent of the Law in elder times by certaine cases vouched to that purpose the first concerning the Legiance of Children to Parents which commeth not to this case because it is a legiance of nature and this legiance whereof we speake is yet under a litigious title And I suppose will in the conclusion be found to rest only upon a civil constitution therefore I leave that The second is that a man attainted and outlawed is neverthelesse within the Kings protection for this saith the Reporter is a Law of nature Indelibilis immutabilis and the Parliament nor Statute can take this power away fol. 13. b. 14. a. and therefore the Reporter concludes that as well the Legiance of the subject as the protection of him by the King are both of them from the Law of nature An opinion that speakes much mercy yet it seemes strange considering the penne for if it be a Law of nature and immutable for the King to protect Persons attainted then must no such Person suffer for if he be under the Kings protection that being by a Law of nature cannot be changed by any positive Law as the Reporter saith nor can the King be so bound by any such Statute but by a nonobstante he can set himselfe at liberty when he pleaseth then the issue will be this the King hath a naturall power to protect the Persons of Law-breakers from the power of the Law therefore much more their Estates and then farewell all Law but this of the Kings naturall protection I say that these are of a high straine considering what the Reporter speaketh elsewhere But to persue his instance he saith that the King hath power to protect an attainted person that if any man kill him without warrant he is a manslayer and yet this Person attainted hath lost the legall Protection It s true yet not to all intents for by the sentence of the Law his life is bound up under the Law of that Sentence Viz. That he must not suffer in other manner then the Sentence determineth nor before warrant of Execution issue forth to that end And notwithstanding the Sentence yet the Law leaveth him a liberty of Purchase or Inheritance though to the use of the Crowne and therefore in some respects the Law protects his Person so long as he lives and the Kings Naturall Protection is in vaine in such Cases Lastly suppose the King hath a power of Nonobstante if the same be allowed to him in a limited way by the Law it is no argument to prove the Kings naturall Power which is driven at under naturall Legiance much lesse if it cannot be made forth that the Law doth allow any such power of Nonobstante at all but by the iniquity of the times permitteth the same to subsist onely to avoyd Contention as it came into this Kingdome by way of Usurpation And thus I have onely discovered the Foundation of this first qualification which I shall onely leave naked supposing that no man seeing it will build at all thereupon The second property that commeth to be considered is That English Legiance is absolute fol. 5.
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
Henry the Third of whom they who listed might be perswaded but few beleived the thing nor did himself but thence takes his flight up to a Jus Divinum or some hidden Fate that called him to the worke but even there his wings failed him and so he falls flat upon the Peoples Election De bene esse Some of these or all together might make Title enough for a great man that resolved to hold by hooke what he had got by crooke and therefore trussing them up all together he enters his claime to the Crown As comming from the blood Royall from King Henry and through the Right that God his grace hath sent me with the help of my Kinne and Freinds to recover the same which was in point to be undone for want of good Governance and due Justice The extract of all is that he was chosen by the People and Parliament then sitting And allbeit that by the Resignation of Richard the Second the Parliament might seem in strict construction of Law to be expired together with the Kings power who called them together yet did not that Parliament so apprehend the matter but proceeded not onely to definitive Sentence of Deposing him but declared themselves by their Commissaries to be the three States and Representative of the People of England maintaining thereby their subsistency by the Consistence of the Members together although their Cheif was for the present like a head in a trance till they had chosen Henry the Fourth to succeed in the Throne by this means preventing the conceit of discontinuance in the very Bud of the Notion Much like his entry was his continuance a continuall tide of Forraine and Domesticke Warre and Conspiracy enough to exercise his great Courage although he was more Wise then Warlike being loath to take up Armes for well he knew that a sick Title never sleeps but in a Bed of Peace and more loth to lay them down for besides Victory whereby he gained upon his Enemies in time of Warre he knew how to make advantage of them in time of Peace to secure his Freinds to keep others in awe to inforce such Lawes as stood with reason of State and the present posture of Affaires and where Lawes failed to fill up the period with Dictates of his owne will And upon this Account the Product was a government full of Ulcers of Blood-shed without regard of Persons whether of the Lay or Religious Order without Legall triall or priviledge of Clerke So was Arch Bishop Walden Dethroned Arch Bishop Scroope put to death and Dukes were dismounted without Conviction or Imputation saving of the Kings displeasure Taxes multiplied although begotten they were upon the Parliament like some monstrous Births shewne to the World to let it know what could be done but concealed by Historians to let it know what may not be done Yea the priviledges of Parliament invaded in point of Election A thing that none of his Predecessors ever Exemplyfied to him nor none of his Successors ever Imitated him in nor had he purposed it but that he was loath the People should know more of the Government then needs must To keep off Forrain troubles he made Peace with France for longer time then he lived yet was ever infested with the Sword of Saint Paul in behalf of Richard the Seconds Queene and with the Factions betweene the Houses of Orleance and Burgundy in which he had interested himselfe to preserve the Forraine Neighbour-hood in Parties one against another that himselfe might attend his owne Security at home He would have moved the Scots but they were already under English Banners nor could he reach so farre having so many Enemies even in his owne bosome The Welsh were big with Antiquity and Mountains of Defence they beginne to bethinke themselves of their Ancient Principality hold the Kings Armes at hard Duty till by Lawes enacted in Parliament they lost their Liberties of bearing Office Ministeriall or of Judicature of holding Castle of Convention without the Kings Licence yea of Purchase and so by degrees were brought downe from the height of a Free Principality to be starved in their Power and inferiour to a Free People And thus the Welsh on the one side the discontented Lords on the other and Mortimars Title in all so busied the King as though he lopped off the tops as they sprang up yet they sprang forth as they were lopped nor was it the Kings lot all this while to finde out the Root of All or to strike at that Lastly when time had made all troublers weary yet he stil sits upon thornes he was jealous of his Subjects jealous of his Son yea jealous of himself It being ever the first and last of his thoughts how to keep his Crowne For the most part of his Reigne he was troubled with the walking Ghosts of Richard the second ever and anon he was alive he was here he was there and so the Peoples mindes were alwayes kept at random but when all these Spirits are conjured downe Richard the seconds Ghoste is yet within Henries owne breast So ruled Henry the fourth an unhappy confident man that durst undertake more then he would did more then he ought was successfull in what he did yet never attained his end to be sure of his Crowne and quiet of minde For a plaister to this sore he turned somewhat towards Religion but shewed it more in Zeale to Church-men then workes of Piety and therefore may be thought to regard them rather as his best freinds in right of Arch Bishop Arundell then as in relation to Religion yet as if he overlooked that he desires their prayers becomes a strict observer of superstitious rights is fiery Zealous against the Lollards intends a journey into the holy Land and Warr against the Infidels the common Physick of guilty Kings in those dayes Breifly he did will to do any thing but undoe what he had done and had done more had his journey to the holy Land succeeded but whither hastned or delayed by a prophesie of the ending of his dayes falls not within my Penn to censure entring upon the worke he died in the beginning of his purposes in the midst of his feares never came to the holy Land and yet yeilded up his last breath in Jerusalem THe Parliament was then sitting and was witnesse of the death of Henry the fourth as it had beene of his entrance upon the Throne as if purposed to see to the cours of the Crowne in the doubtfull currant betweene the two Houses of Lancaster and Yorke and to maintaine their own honor in directing the Scepter according to their warranty upon a late intaile by act of Parliament yet did not all rest upon this for the Heire of Henry the fourth was a man every inch of him and meant not to Moote upon the point His Father died a King and he his Heire had the Crowne and was resolved to hold it A rough young man he
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
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
by Law The first served as a scare for though it were but by Proclamation men might justly fear that he that was so stout against the Pope would not stick to scourge his owne Subjects out of his way in the time of his heat The King thus entered the Lists both against Pope and Cardinall now under Praemuniri whereof he died meets the English Clergy thus loosing their top-gallant standing up in the reare against him and talking at large Neverthelesse the King stops not his carreere puts them to the rout for maintaining the power Legatine They soon submit crave pardon give a summe of money and perfume their Sacrifice with that sweet Incense of Supreame Head of the Church of England This was done not by way of Donation for the Convocation had no such power but by way of acknowledgement in flat opposition to the Jurisdiction of the Pope It became the common subject of discourse amongst all sorts but of wonderment to the Pope Yet for fear of worse he speaks faire for he was not in Posture to contest but all would do no good the Queen had appealed to Rome the Pope by Woolsies advice makes delayes The Parliament espying the advantage at once tooke all appeales to Rome away and established all sentences made or to be made within this Land notwithstanding any Act from Rome and enjoyned the English Clergy to administer the severall acts of publique worship notwithstanding any inhibition or excommunication from any forrain pretended Power The grounds upon the preamble of the Law will appeare to be two First that the King of England is supream head in rendring Justice within the Nation in all causes therein arising which is more then the recognisance of the Clergy two yeares before this Act did hold forth yet this acknowledgment is not absolute but in opposition to Forraine pretentions Secondly that the Clergy in England having Power may in matters spirituall determine all doubts without forrain help and administer such duties as to their place do belong not hereby determining that the Church-men ever had such Power by Law nor that they ought originally to have such Power They never had it for no sooner were they disjoyned from the Laity in these affaires but immediately they were under the Pope and received their Power from him And De jure they cannot challenge such power but by a positive Law such as this Law of Henry the eighth which also giveth but a restrictive and limited power Viz In matters testamentary of divorce matrimony tithes oblations and obventions So as if they will challenge such power they must thanke the Parliament for it and use the same accordingly as persons deputed therunto and not in their owne right or right of their places In all this the Kings supremacy is but obscurely asserted and rather by implication shewing what in reason may be holden then by declaration of what was making way thereby First into the opinions of men before they were enjoyned to determine their actions but within two yeares ensuing or thereabout the Law is made positive The King shall be taken and accepted the onely supreame head on earth of the Church of England and have power to visite correct represse redresse reforme restraine order and amend all such errours heresies abuses offenses contempts and enormities as by any manner of spirituall authority or jurisdiction ought or may lawfully be reformed Which in the preamble is saide to be made to confirm what the Clergy in their Convocation formerly had recognized The corps of his Act is to secure the Kings Title the Kings Power and the Kings Profit As touching the Kings Title it is sayde that in right it did formerly belong to him which is to be granted by all so far as the Power is rightly understood But as touching the Kings Profit it cannot be saide that the whole lump thereof did belong to the King because much thereof was not so ancient but De novo raised by the Popes extortion and therefore the true and reall Profits are by particular Acts of Parliament ensuing in speciall words devolved upon him The nature of this power is layd downe in this Statute under a three fold expression First it is a visitatory or a reforming Power which is executed by inquiry of offences against Lawes established and by executing such Lawes Secondly it is an ordinary jurisdiction for it is such as by any Spirituall authority maybe acted against irregularities and thus the Title of supreame Ordinary is confirmed Thirdly it is such a Power as must be regulatd by Law and in such manner as by any spirituall Authority may lawfully be reformed It is not therefore any absolute arbitrary Power for that belongs onely to the supreame Head in Heaven Nor is it any legislative Power for so the Law should be the birth of this Power and his Power could not then be regulated by the Law nor could ever Ordinary execute such a Power nor did Henry the eighth ever make claime to any such Power though he loved to be much trusted Lastly this Power was such a Power as was gained formerly from the King by forraine Usurpation which must be intended De rebus licitis and once in possession of the Crown or in right thereto belonging according to the Law for the King hath no Power thereby to confer Church-livings by Provisorship or to carry the Keyes and turn the infallible Chaire into an infallible Throne In breife this Power was such as the King hath in the Common-wealth neither legislative nor absolute in the executive but in order to the Unity and Peace of the Kingdome This was the right of the Crowne which was ever claimed but not enjoyed further then the English Scepter was able to match the Romish Keyes And now the same being restored by Act of Parliament is also confirmed by an Oath enjoyned to be taken by the People binding them to acknowledge the King under God supreame head on earth of the Church of England Ireland and the Kings Dominions in opposition to all Forraine jurisdiction And lastly by a Law which bound all the People to maintaine the Kings Title of Defender of the faith and of the Church of England and Ireland in earth the supream head under the perill of Treason in every one that shall attempt to deprive the Crowne of that title We must descend to particulars for by this it will appeare that these generall Lawes concerning the Kings refined title contained little more then matters of Notion otherwise then a generall barr to the Popes future interests And therefore the Wisdome of the State as if nothing had been already done did by degrees parcell out by severall Acts of Parliament the particular interests of the Popes usurped Authority in such manner as to them seemed best And First concerning the Legislative Power in Church government It cannot be denied but the Pope De facto had the Power of a negative vote in all
Councels and unto that had also a binding Power in making Lawes Decrees and Decretalls out of his own breast but this was gotten by plunder he never had any right to headship of the Church nor to any such Power in right of such preferment nor was this given to the King as head of the Church but with such limitations and qualifications that its evident it never was in the Crowne or rightly belonging thereto First nigh three yeares after this recognition by the Clergy in their Convocation it is urged upon them and they passe their promise In verbo sacerdotii And lastly it is confirmed by Act of Parliament that they shall never make publish or execute any new Canon or constitution provinciall or other unlesse the Kings Assent and License be first had thereto and the offences against this Law made punishable by fine and imprisonment So as the Clergy are now holden under a double bond one the honor of their Preisthood which binds their Wills and Consciences the other the Act of Parliament which bindes their Powers so as they now neither will nor can start Neverthelesse there is nothing in this Law nor in the future practise of this King that doth either give or assert any power to the King and Convocation to binde or conclude the Clergy or the People without an Act of Parliament concurring and inforcing the same And yet what is already done is more then any of the Kings Predecessors ever had in their possession A second Prerogative was a definitive power in point of doctrine and worship For it is enacted that all Determinations Declarations Decrees Definitions Resolutions and Ordinances according to Gods word and Christs Gospell by the Kings advise and confirmation by Letters Patents under the great Seale at any time hereafter made and published by the Arch-Bishops Bishops and Doctors now appointed by the King or the whole Clergy of England in matters of the Christian faith and lawfull rights and ceremonies of the same shall be by the People fully beleeved and obeyed under penalties therein comprized Provided that nothing be done contrary to the Lawes and Statutes of this Realme A Law of a new birth and not an old Law newly revived or restored This the present occasion and the naturall constitution of the Law do fully manifest The occasion was the present Perplexity of the People for in stead of the Statute Ex officio which was now taken away the six articles commonly called the six stringed whip was gotten into power by a more legall and effectuall originall The Parliament had heard the cries of the People concerning this and having two things to eye at once one to provide for the Peoples liberty and further security against forrain pretentions the other which was more difficult for the liberties of the consciences of multitudes of men of severall opinions which could not agree in one judgement and by discord might make way for the Romish party to recover its first ground and finding it impossible for them to hunt both games at once partly because themselves were divided in opinion and the bone once cast amongst them might put their own co-existence to the question and partly because the worke would be long require much debate and retard all other affaires of the Common-wealth which were now both many and weighty In this troubled wave they therefore wisely determine to hold on their course in that worke which was most properly theirs and lay before them And as touching this matter concerning doctrine they agreed in that wherein they could agree Viz. To refer the matter to the King and Persons of skill in that mistery of Religion to settle the same for the present till the Parliament had better leisure the People more light and the mindes of the People more perswaded of the way Thus the Estates and Consciences of the People for the present must indure In deposito of the King and other Persons that a kind of Interim might be composed and the Church for the present might enjoy a kind of twilight rather then lye under continuall darknesse and by waiting for the Sun rising be in a better preparation thereunto For the words of the Statute are that all must be done without any partiall respect or affection to the Papisticall sort or any other sect or sects whatsoever Unto this agreement both parties were inclined by diverse regards For the Romanists though having the possession yet being doubtfull of their strength to hold the same if it came to the push of the Pike in regard that the House of Commons wanted faith as the Bishop of Rochester was pleased to say in the House of Lords and that liberty of conscience was then a pleasing Theame as wel as libertie of Estates to all the People These men might therefore trust the King with their interests having had long experience of his Principles And therefore as supream Head they held him most meete to have the care of this matter for still this title brings on the Vann of all these Acts of Parliament On the other side that party that stood for reformation though they began to put up head yet not assured of their owne Power and being so exceedingly oppressed with the six Articles as they could not expect a worse condition but in probabililty might finde a better they therefore also cast themselves upon the King who had already been well baited by the German Princes and Divines and the outcries of his owne People and possibly might entertain some prejudice at length at that manner of woship that had its originall from that Arch enemy of his Head-ship of the Church of England Nor did the issue fall out altogether unsutable to these expectations For the King did somewhat to unsettle what was already done and abated in some measure the flame and heat of the Statute although nothing was established in the opposite thereto but the whole rested much upon the disposition of a King subject to change As touching the constitution of this Law that also shewes that this was not derived from the ancient right of the Crowne now restored but by the positive concession of the People in their representative in regard it is not absolute but qualified and limited diversly First this power is given to this King not to his successors for they are left out of the act so as they trusted not the King but Henry the eighth and what they did was for his owne sake Secondly they trusted the King but he must be advised by Councell of men of Skill Thirdly they must not respect any sect or those of the Papisticall sort Fourthly all must be according to Gods Word and Christs Gospel And Lastly nothing must be done contrary to the Laws and Statutes of this Realm And thus though they trusted much yet not all nor over long For it was but a temporary Law and during the present condition of affaires Nor did the King or People
the People However unequall it may seem yet both that and other advantages were gained by the House of Lords after the seperation was once made as many of the ancient Statutes by them only made do sufficiently hold forth which although in the generall do concern matters of Judicature wherin the Lords originally had the greatest share yet other things also escaped the Commons Vote which in after ages they recovered into their consideration again And the condition of the People in those times did principally conduce hereunto For untill the Norman times were somwhat settled the former ages had ever been uncertain in the changes between War and Peace which maintained the distance between the Lords and their Tenants and the Authority of the one over the other savouring of the more absolute command in War And after that the Sword was turned into the plough-share the distance is established by compact of Tenure by Service under perill of default although in a different degree for the Service of a Knight as more eminent in War so in Peace it raised the minde to regard of publique Peace but the Service of the plough supporting all is underneath all yet still under the common Condition of free men equally as the Knight Peace now had scarcely exceeded its minority before it brought forth the unhappy birth of Ambition Kings would be more absolute and Lords more Lordly the Commons left far behinde seldom come into mention amongst the publique Acts of State and as uselesse set aside this was the lowest ebb that ever the Commonage of England indured which continued till Ambition brought on contention amongst the great men and thence the Barons Warrs wherein the Commons parting asunder some holding for the King who promised them Liberty from their Lords others siding with the Lords who promisied them Liberty from the King they became so minded of their Liberties that in the conclusion they come off upon better advantage for their Liberties then either King or Lords who all were Loosers before their reckoning was fully made These Wars had by experience made the King sensible of the smart of the Lords great Interest with the People and pointed him to the pin upon which the same did hang to take which away a Designe is contrived to advance the value of the Commoners and to levell the Peerage that they both may draw in one equall yoke the Chariot of Prerogative The power of the Commons in publique Councells was of some efficacy but not much Honour for their meetings were tumultuary time brought forth a cure hereof the flowers of the People are by Election sent to the Representative and so the Lords are matched if not over-matched the People lesse admiring the Lords and more regarding themselves This was but a dazle an eclips ensues for Kings having duely eyed the Nature of Tenures between the Lords and Commons look upon it as an out-work or block-house in their way of approach Their next endeavour is therefore to gain the Knighthood of England within the compass of their own Fee and so by priority to have their Service as often as need should require by a trick in Law as well for their own safety in time of War as for their benefit in time of Peace This was a work of a continuing Nature and commended to Successors to accomplish by degrees that the whole Knighthood of England is become no more the Lords till Kings be first served and thus the power of the People is wholly devolved into the Kings Command and the Lords must now stand alone having no other foundation then the affections of the People gained by beneficense of Neighbourhood and ordinary society which commonly ingratiates the inferiour rank of men to those of higher degree especially such of them as affect to be popular Henry the seventh found out this sore and taught his Successors the way to avoid that occasion of jealousy by calling up such considerable men to attend the Court without other wage but fruitlesse hopes or under colour of Honour to be had by Kings from the presence of such great men in their great Traines or of other Service of speciall note to be done onely by men of so high accomplishment And by this meanes Lordship once bringing therewith both Authority and Power unto Kings before Kings grew jealous of their greatness in these later dayes is become a meer jelly and neither able to serve the Interest of Kings if the People should bestir themselves nor their own any longer henceforth the Commons of England are no mean Persons and their representative of such concernment as if Kings will have them to observe him he must serve them with their Liberties and Lawes and every one the publique good of the People No mans work is beneath no mans above it the best Honour of the Kings work is to be Nobilis servitus as Antigonus said to his Son or in plain English supreame Service above all and to the whole I now conclude as I found this Nation a Common-Wealth so I leave it and so may it be for ever and so will it be if we may attain the happinesse of our Fore-Fathers the ancient Saxons Quilibet contentus sorte propria A Table of the Principall Matters conteined in this Book A A Betting of Felony made Felony 299 Administration granted to the next of the Kindred 51 Admirals power from the Parliament 41. formerly under many brought into one 42. once gained jurisdiction to the high water-mark 44. and his Power regulated by Law ibid. over Sea-men Ports and Ships 44 Allegiance according to Law 18. vide Supremacy the nature thereof in general 79. its not natural 79 89. not absolute or indefinite 82. not to the King in his natural capacity 86. it obligeth not the People to serve in forrain War 10â— it is due to the person of the King for the time being 246 279. what it is in time of War and relation thereunto 247. Henry the seventh and Henry the eighth indeavoured to advance it in relation to the Crown but effected it not 204. Appeals in cases Ecclesiastical restrained from Rome and given in the Kings case to the Convocation and in the cases of the People the Archbishop afterwards to the Delegates and were never setled in the Crown 227 233. vide Archbishop Archbishop hath the lawfull power of the Pope in Appeals and Dispensations Licenses and Faculties 233. the Archbishop of York looseth his jurisdiction over the Scottish Bishops 193 Arrays Commission of Array 178 vide War Assent of the King to Acts of Parliament serveth onely to the execution of the Law and not to the making thereof 21 Association of the People for the common safety before the Statute inabling the same 298 B. BAstardy not to be determined by the Ordinary before Summons to the Pretendors of Title to be heard 156 Bench the Kings Bench at Westminster abated in power by the Commissions of Oyer and Terminer and Gaol delivery
92 165 Benevolence first used by Edward the fourth 184. taken away by Richard the third 185. taken up again by Henry the seventh 196 Bishops not impeachable before the civil Magistrate 49. their Temporalties to be neither seised nor wasted in the vacancy 50. vide Ordinary Buggery made Felony 299 C. CAnons their power anciently in debate 61. such as are not according to the Law are taken away 236 Castles and Gaols restored to the County 113. vide Forts and Fortifications Chancery once an Office afterwards a Court 35. the power grows by Act of Parliament 36 162. the manner of the Proceedings 38. Keeper of the great Seal increaseth in power 162 Chancellor elected by the Parliament 39 Cheshire made a Principality 11 Children carried into Cloisters remedied 163 Clergy priviledged from Arrest 52. discharged of purveyance and free quarter 52. their Temporalties in question 63. the Commons love not their persons 147. their first declining from Rome in the matter of Provisors 150. they gain free process in matters Ecclesiastical 192. their defection from Rome and submission to the Crown 206 Clergy upon Triall but once allowed 257. in some cases disallowed 250 298 Commissioners Ecclsiastical 288. High Commission ibid. Conjuration vide Witchcraft Conservators of the Truce 162 Constables Court vid. Marshals Court Convocation established by Parliament 151. it then undertook great matters but much more after the Clergies forsaking the Pope 229 Councels the Privy Councel ordered by Parliament 21 33 141. of use for suddain motions 27. their Oath 29. and jurisdiction 31. and power 142 Magnum Concilium or the grand Councel of Lords 28 Crown intitled not by Discent 128 277. but intailed 128. vide 188. Womanhood 270. Coverture 273 Custos Regni a formality of State under the Parliaments Order 134. many times conferred upon Children 137. and upon a Woman 252 D. DElegates though named by the King yet by Authority of the Parliament 227 Defender of the Faith 213 Dispensations Licenses and Faculties never in the Crown but by the Parliament given to the Archbishop under Limitations 234 238 Duels ordered by the Martiall as Subservient to the Common Law 108 E. EDward the third his Reign 3. his Title upon Entry by Election ibid. Edward the fourth his Reign though had Title of Inheritance yet entred by Election 181 Edward the fifth approached the Crown by Inheritance but never put it on 184 Edward the sixth his Reign his Title and Possession did meet though he was a Childe and his Sister Mary grown in age 259 Ecclesiastical power vide Prelacy and Prelates Elizabeth Queen her Reign 264. her Title by Election 278 Englishire taken away 95 Episcopacy vide Prelates and Prelacy Errors vide Heresie Exchange ordered by the statute 75 Excommunication 271. the Writ de excommunicato capiendo ordered 289. vide Parliament exportation 72 F. FAlse News punished 112 Felony by riding in armed Troops 95 113 172 257 299 First-fruits regulated 153. taken away from Rome 222 Forcible Entries 173 Forts Fortificacations and Castles ordered by Parliament 252 295 G. GAol-delivery by the Judges of the Benches 92 165. vide Judges Gaols regulated 113 254 Guard for the Kings Person brought in by Henry the seventh 195 Gipsies made Felons 299 H. HEnry the fourth his Reign doubtfull in his Title but rested upon Election chosen by Parliament sitting when there was no King 116 c. Henry the fifth his Reign his Title by an Intail by the Parliament 119 c. Henry the sixth his Reign his Title by the Intail last mentioned though a Childe he is admitted to the Crown 123 c. Henry the seventh first settled a constant Guard his sixfold Right to the Crown and his gaining Prerogative in the Person and Estates of the People ibid. 194 c. Henry the eighth his natural Endowments 199 c. his power in the matters Ecclesiastical 206 c. in Tempoporals 213 c. H. HEresie and Error in Doctrine under the cognisance of the Civil Magistrate 62 156. not punishable by death by Law till Henry the eighths time 216 236. the Writ De Heretico comburendo hath no legal ground in any of those former Times 63 158 161 216 236. Honors vide Parliament Hospitals visited by the Prelacy 154 I. IMportation 70 Judges of Assize 165 244 Jurisdiction Ecclesiastical not originally in the Prelacy nor absolutely 235 Justices of the Peace their residency and quality their number various their work also 109 171. one Justice 112. and the settling of their Sessions ibid. their power to take Bail 254 K. KIngs vide Parliament Allegiance Supremacy Militia L. LAbourers their Work and Wages 70. ordered by the Justices of the Peace 110 Lancaster the Princes of that House freinds to the Clergy in policy 146 Laws made by the Successors of Henry the eighth during their minority annulled 217. Ecclesiastical Laws vide Parliament Leiges by Birth though not born within the Allegiance of England 97 Liveries and Tokens inhibited to the Lords 112 177. and limited in the Kings person 177. means of jealousie between the King and his People 244 Libels in the Spiritual Court to be delivered in Copies upon demand 154 Licenses vide Dispensations Lords their power and jurisdiction in the Parliament 23. in Councel 29 242 Lunacy no impediment in Triall of Treason 258 M. MAry Queen her Reign 261. her Title by Election 278. she prejudiced her Supremacy by Marriage 275 Marque and Reprisal 279 Martials Court 107 Matrimonial Causes after the Reformation by Henry the eighth in the Cognisance of the Clergie by leave 238 Militia 98 175 245 290 vide War Mint 74 142. vide Parliament Monastries dissolved 220 maintained by Henry the fourth 147 Money out of England to Rome stopped 54 N. NAvy Royall as Forts for the publique safety maintained at the publique charge 253 Nisi prius 167 Non-residency 238 Noble Ladies Triall 174 O. OYer Terminer 92 165 Ordinary not to be questioned in the Civil Courts for things under Ecclesiastical jurisdiction 47 49. hath Cognisances of Vsury 47. of Avoidances Bigamy and Bastardy 48. grant Administration 51. visit Hospitals and call Executors to account 154. hath power to fine and imprison 157 239. to keep Courts but the Authority doubtfull 235. have Cognisance of the Heresie 156 236. Matrimony Non-residency 236. In Queen Elizabeths time their jurisdiction left in doubt 286 c. Oath ex Officio first brought in by the Church-men in matters Ecclesiastical 157. afterwards by the Parliament into the Star-chamber in cases criminal 244 P. PArdon of Crimes not absolutely in the King 19 Parliament without the King consisting of three States 117. without the Clergie 58 Parliaments power in ordering of the Crown 127 228 277 In ordering the Kings Person by Protectors 14. vide Protector In ordering their children In ordering their Family 15 129 In ordering their Revenues 16 129 115 In ordering their Councel 141 In the Militia vide Militia and War In conferring places of Honor and Trust
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
the power that made them I shall leave the particulars to be inquired into by them that shal minde it elsewhere and only touch so much as shall reflect upon the maine Government This power was executed by Deputies diversly according as the times and opportunities were for Warr or peace and either transitu or partu What was done in time of Warr or whiles this Shipp is out of the English Seas comes not to our purpose and therefore I shall not meddle with that further then this that in the first times Kings were wont to divide the worke of judicature and of Warr into severall hands The power of Warr and Peace they committed unto men of approved courage and Skill in that service and therefore generally not to the men of highest ranke who had neither minde nor Skil for a worke of such labour dyet and danger this power passed under divers names sometimes by grant of the custody of the Sea coasts somtimes of the parts and Sea coasts somtimes by being made Captain of the Sea men and Marriners and somtimes Admiral of the Ships It was a great power and had bin much greater but that it suffered a double diminution the one in the time for three or four years commonly made an end of the command of one man and at the best it was quam diu Regi placuerit the other diminution was in circuit of the power for all the Maritine coasts were not ordinarily under the power of one man but of many each having his proper precinct upon the South or North East or Western shotes and under the title of Admirall in the times of Ed. the first and forwards who brought that title from the holy Land neverthelesse about the end of the times whereof we now treat the custody of the whol Sea began to settle in one hand under the title of Admirall of the English Seas and the place was conferred upon men of the greatest ranke and so continued ever afterward The power of jurisdicton or judicature all this while remained distinct and it seemes was settled in part in the power of the Sheriffe and Justices For by the Law the Sheriff and Justices had cognisance of matters betweene the high water and the low water marke and what was done Super altum mare was within the directory of the Admirall these were but few things and of small considerablenesse the principall of them being concerning Warr or peace and those only within the English Seas But after Edward the third had beaten both the French and Spaniards at Sea the people grew much more towards the Sea and became so famous that the greatest Lords thought the Regiment of Sea affaires worthy of the best of their ranke and were willing with the title of Admirall whiles they left the worke to others and so the Admirall became a person of more honour and lesse worke then he had been formerly The greatnesse of the honour of this place thus growing soone also began to contract greatnesse of power beyond what it had formerly and this was principally in matter of jurisdiction For not contented with the power of a cheife Justice of Warr and Peace within the Seas which was his proper dominion the Lord Admirall gained the same within the low water marke and in the maine streames below the next Bridge to the Sea and in all places where Ridells were set and yet these places were within the body of the County Nor did he indeavour lesse to gaine in matters of distributive justice for although he had a legal jurisdiction in things done upon the open Sea so farr as to defend order determine and cause restitution to be made in cases of damage done unjustly yet was it no lesse difficult to keep this power within its own bounds then the watry Element upon which it floated but it made continual waves upon the franchise of the Land and for this cause no sooner had these great men savored of the honour and authority of that dignity but comes a Statute to restrain their Authority in the Cognisance of Cases onely unto such matters as are done upon the main Sea as formerly was wont to be and within two yeares after that Act of Parliament is backed by another Act to the same purpose in more full expressions saving that for Man-slaughter the Admiralls power extended even to the high water marke and into the main streams And this leadeth on the next consideration Viz. What is the subject matter of this Jurisdiction and Authority I shall not enter into the depth of particulars but shall reduce all to the two heads of Peace and Justice The Lord Admirall is as I formerly said a Justice of Peace at Sea maintaining the Peace by Power and restoring the Peace by setting an Order unto matters of Difference as well between Forrainers as between the English and Forrainers as may appeare by that Plea in the fourth Institutes formerly mentioned Secondly That point of Justice principally concerneth matters of Contract and Complaints for breach of Contract of these the Admirall is the Judge to determine according to Law and Custome Now as subservient unto both these he hath authority of command over Sea men and Ships that belong to the State and over all Sea men and Ships in order to the service of the State to arrest and order them for the great voyages of the King and the Realme and during the said voyage but this he cannot doe without expresse Order because the determining of a voyage Royall is not wholly in his power Lastly the Lord Admirall hath power not onely over the Sea men serving in the Ships of State but over all other Sea men to arrest them for the service of the State and if any of them run away without leave from the Admirall or power deputed from him he hath power by inquiry to make a Record thereof and certifie the same to the Sheriffs Maiors Bayliffs c. who shall cause them to be apprehended and imprisoned By all which and divers other Lawes not onely the power of the Admirall is declared but the originall from whence it is derived namely from the Legislative power of the Parliament and not from the single Person of the King or any other Councell whatsoever But enough hath been already said of these Courts of State in their particular Precincts One generall interest befalls them all that as they are led by a Law much different from the Courts of Common Law so are they thereby the more indeared to Kings as being subservient to their Prerogative no lesse then the Common Law is to the Peoples liberty in which condidition being looked upon as Corrivalls this principall Maxime of Government will thence arise That the bounds of these severall Lawes are so to be regarded that not the least gap of intrenchment be laid open each to other least the fence once broken Prerogative or Liberty should become boundlesse and bring in
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
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
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
the most part grounded upon self respects and private prudence laboured to conceale that which could not be made whole by revealing and by after consent skind over the sore as to themselves which corrupted inwardly and indangered the whole body to cure which a Law is made to restrain such late connivance in the Woman by depriving her both of her Joyncture and Inheritance which otherwise had been saved to her by such compliance as after consent unto such violations CHAP. X. Of the Course of Civill Justice during these Times HOwever the course of the Law concerning matters of the Crown passed in a troubled wave yet in matters of Common Pleas it passed in a calme and full Channell as the Reports in Print doe sufficiently witnesse nor was their any change of Principles but onely some alteration tending to a clearer manifestation of the same I will not touch upon every particular but onely upon two which reflect somewhat upon the Publique pollicy the one touching the course of Inheritance in some particular Cases the other touching pleading in the Courts of Civill Justice The first of these was occasioned from Conjuncture of Affaires the Case being such that Edward the Third had now gotten himselfe a new Kingdome unto that of England and must looke to maintaine that by Power which he obtained by force and conducing thereunto must have continuall imployment of the English in that Service as being most trusty to his Cause And that it is un reasonable that such English as had devoted themselves to his Service in this Cause and in order thereunto had transported themselves and their Families into those Forrain parts should thereby loose the benefit of Leiges in the Birth-right of their Children borne in those Forraine parts Upon consideration had hereof and of a former leading Opinion of the Lawyers and Parliament a Declarative Law was made That all Children borne without the Kings Legiance whose Father and Mother at the time of their Birth shall be under the Faith and Legiance of the King of England shall have the benefit of Inheritance within the same Legiance as other Inheritors have These are the words of the Statute and doe occasion a double observation one from the matter the other from the manner of the Expression The Subject matter is so delivered not as an Introduction of a new Law but as a Declarative of the old that lay more obscurely hidden for want of occasion to reveale it and the substance thereof resteth onely in this to enable the Children of English Natives borne beyond the Seas not the Children of those that are of Forraine birth though within the Kings Teritories in those parts as the opinion hath beene nor doth any ancient President or Case warrant the same as might be at large manifested if it might conduce to the end of this discourse and for the same cause after this Statute when as the Commons would have had a generall Naturalizing of all Infants borne beyond the Sea within the Kings Segniories the same would not be granted otherwise then according to the former Statute and the Common Law That which in the next place concerneth the manner of expression is this That a Childe is said to be borne out of the Kings Legiance and yet the Father and Mother at the same time to be of the Faith and Legiance of the King of England It seemeth to me that it intendeth onely those Children of English Parents borne within the Kings Teritories beyond the Seas because the words insuing concerning Certification of Bastardy of such Children are that the same shall be made by the Bishop of such place upon the Kings Writ directed to him which could never have passed into those places that are not of the Kings Teritories and so the Issue will be that the Legiance of those born in those parts though they are Leiges to the King yet they are not of the Legiance of the King of England but as Lord of that Teritory The other matter to be observed concerning pleading in the Courts of Civill Justice is this That whereas anciently from the Normans time till these times the pleadings were in the Norman tongue they shall be henceforth in English out of an inconvenience I beleive rather supposed then felt for though some kinde of knowledge of Law-termes may be increased thereby yet unlesse that shall be professedly studied it will breed nothing but Notions and they an overweening conceit which many times sets men to suites in Law to their owne losse like some weake influence of the Celestiall bodies that are strong enough to stirre up humours but not to expell them or draw them out However even thus in part is the reproach of Normandy rolled away like that of Egypt from the Israelites at Mount Gilgall CHAP. XI Of the Militia in these Times WArre is ever terrible but if just and well governed majesticall the one may excite resistance and defence but the other Conquers before blow given because it convinceth the judgement and so prevails upon the Conscience For that heart can never be resolute in its own defence that is at Warre with its own understanding nor can such a heart consider such a Warre otherwise then as Divine and bearing the face of an Ordinance of God and then how can the Issue be unsuccessfull It is no strange thing for Kings to miscarry in their Warres because it s rarely seen that they are under good Councell but if a Christian Councell miscarry we may conclude it extraordinary in the efficient Cause and no lesse wonderful in the issue and end Upon this ground it concerneth a Christian Nation not onely in point of Honour but of safety and continuance to settle fundamentall Lawes for War against time of War as of Peace in time of Peace Neither was England deficient herein saving that ancient times were more obscure in the particulars and these dayes revealed them at such a time wherein we may say that Edward the Third approved himself not onely King of England but of himself above the ordinary strain of expectation for being now become a famous Commander and Conquerour having also an Army inured to fight and overcome and so might have given a Law he neverthelesse received the same submitting both it and himself to the Directory of the Parliament in making a Warre with France which was three to one against him in every respect but in the Title besides the disadvantage from Scotland that lay continually beating upon his reare The like may be observed of his Warre with Scotland in both which he evidently telleth the World that he held it unreasonable to enter upon the managing of an offensive Forraine Warre without the concurrence of the common consent of the people and that not onely for the thing it selfe but also for his owne personall ingagement in the Service For a King though he be the Generalissimo yet is he so from the people and his person being of that
high value is not to be exposed to every occasion that may provoke Warre without due advice first had with the publique Councell because in his person the people adventureth as well as himself And in this manner were the Warres in France by Edward the Third and in Scotland concluded upon debate In the next place as touching the arraies of Men for Warre I finde no foot-steps of any power which was claimed as peculiar to the King therein and acknowledged by the Parliament but many instances do I meet with in the opposite all which do plainly tell us that the old shifts of Jurati and obligati ad arma could do little either in the calling of men forth or arming them for the Warr. But in case of publique defence against forrainers men were summoned upon their Legiance as anciently was used And this was by both King and Parliament fully declared and all such obligations by writing called in and damned as dishonorable to the King In forraine service the course was no lesse regular if the Warr was by especiall direction of the Parliament they likewise ordered the manner of the raising of Souldiers Viz. So many out of a County and so many out of a Burrough all which are by the expresse words of the Statute said to be granted by the Knights and Burgesses But if it was only upon the Kings particular instigation and not by order or consent of the Parliament the King in such cases being Volunteir all the Souldiers were in like manner unlesse some particular Law or Tenure otherwise obleiged them As touching the arming of Souldiers the Law was yet more certaine and particular If the Souldiers were men of estate they were armed according to the ancient rule asserted by the Statute at Winton or otherwise were especially assessed by the Parliament or by vertue of their Tenures the first of these is confirmed by Edward the third in Parliament wherein he willeth that no man shal be urged to arme himselfe otherwise then hee was wont in the times of his Ancestors Kings of England The two later were likewise confirmed by another Law made in the same Kings time whereby it was ordained that no manshall be constrained to find men of armes Hoblers nor Archers other then those which hold by such services if it be not by common consent and grant made in Parliament By men of Armes meaning those which we now call Curiasseires or compleat armed by Hoblers meaning those now called light horse-men The Archers served on foot and were Principally armed with Bowes although they had also Swords or other such offensive portable Weapons The first of these concerneth only the arming of a mans owne person the other the finding of Souldiers and arming of them and both together sufficient for the safegard of the rights and liberties of the people invaded in those times by Commissions of array and such other expressions of Prerogative Royall for as touching the arming of a mans owne Person the Statute of 1. Ed. 3. formerly mentioned is cleare in the point And though the Statute of 25. Edw. 3. doth not in the letter direct as touching the finding armes for others as is urged in his Majesties answer to the Declaration of the Parliament concerning the Commission of Array July 4. 1642. yet is it therein granted that a compleate Souldier is within the Letter of the Statute and seeing the person of the Souldier is not in the power of any private Person in such cases to command him to the service it seemeth cleare to me that the Statute must intend the arming of him with compleat armes and not the armed person of the man The souldery thus arrayed they are in the next place to be called by their Rendezvouz the Knights by summons sent to the Sheriff but the rest by Proclamation If the Knights appeare not a fine is let upon them if others runne a way from their conduct a Writt issued to the Serjeant at armes to apprehend them if they were not arrayed then the recognisances of such as undertooke the worke are estreated All plunder or spoile committed by the Soudiers in their conduct was to be satisfied by the Conductor or Commander that received their Pay or Charges for their conduct And although the charges for conduct had formerly De facto been defraied somtimes by the County by vertue of Commissions that issued forth both for the raising and conducting of them yet was this no rule nor did Edward the third claime any such duty but disclaimed it and ordained by Act of Parliament that both the pay and conduct Money should be disbursed by the King from the time of their departure from their severall Counties For to this end and for the safegard of the Realme And for the maintenance of the Warrs of Scotland France and Gascoigne The King had supply from Aids Releifs Wardships Marriages Customes and Escheats nor did the Parliament grant any particular Aide by assessment or publique Taxe but when they evidently saw the burden of Warr to be extraordinary as it befell in the Conquest of so great and potent a Realme as France was Wherein although the Taxes were many yet so well ordered were they and with that compliance from the King that the people indured them with much patience so long as the King lived Lastly in all these Cases of forraine Warrs for of such Cases onely these Laws are to be understood it was especially provided that no man should be distrained or urged against his will to goe out of his County But in Case of defensive Warr the course was otherwise for all men in such Cases are bound by the Law of Nature to defend their owne Countrey from Invasion in order to the safety of their owne Estates and habitations They were arrayed or gathered together by Commission of Array from the King armed according to the Laws formerly mentioned and not by arbitrary order of the Commissioners And by vertue of such Commissions they were drawne forth and led to places where need required Sometimes to one Coast sometimes to another yet not altogether at the Kings pleasure for the Parliament upon occasion set rules of restriction and generally exempted the North parts beyond Humber from being drawn Southward and left them as a reserve for the defence of the Marches bordering upon Scotland and sometimes ordered the Array should be executed onely in some particular Counties and other times wholy exempted the Countrey adjacent within six miles of the Sea Coast And because the King might under colour of a defence Array the People where no such occasion led the way and command them out of their Countyes a Statute is made that states the Case wherein such Array shall be the words whereof are variously set forth in the Bookes in Print whether determinatively or carelesly I cannot tell but all of them doe differ in sence one from another and
the Houses its true that sad Presidents have beene of later times in that kinde and so for want of due attendance Parliaments have been inforced to adjourn to prevent a worse inconvenience but these are infirmities better buried in silence then produced as Arguments of power seeing its evident that Kings themselves were no greater gainers thereby then an Angry man is by his passions It is true also that Kings may make Lords and Corporations that may send their Burgesses to the Parliament and thus the King may make as many as he will as the Pope did with the Bishops in the Councill of Trent yet cannot he unmake them when he pleases nor take the Members from the Parliament without attainder and forfeiture according to the knowne Law Neither can all these Instances prove that the Kings of England have the sole and supreame Power over the Parliament Nor did the Parliament in these times allow of any such Authority and therefore proceeded for the reforming of themselves by themselves in many particulars as the Statutes do hold forth And first in the point of Elections for an error in that is like an error in the first Concoction that spoiles the whole Nutriment they ordained that the Election of Knights shall be at the next County Court after the Writ delivered to the Sheriffe That in full Court betweene the houres of eight and nine in the morning Proclamation shall be made of the day and place of the Parliament That the Suters duely summoned and others there Present shall then proceed to the Election notwithstanding any Prayer or Commandement to the contrary That the names of the Persons elected whether present or absent they be shall be returned by Indenture betweene the Sheriffe and the Elizors and that a Clause to that end shall be added to the Writ of Summons This was enough to make the Sheriffe understand but not to obey till a penalty of one hundred pound is by other Lawes imposed upon him and a yeares imprisonment without Baile or Mainprise besides damages for false return in such Cases and the party so unduely returned Fined and deprived of all the wages for his service Thus the manner of Election is reduced but the Persons are more considerable For hitherto any man of English blood promiscuously had right to give or receive a Vote although his residency were over the wide World But the Parliament in the time of Henry the Fifth reduced these also whether they were such as did chuse or were chosen unto their proper Counties or else rendered them uncapable to Vote or serve for any County And the like Order was made for the Burroughs Viz. That no Person must serve for any City or Burrough nor give Vote in Electing such as shall serve for that Towne unlesse they be both Free and Resiants within that City or Burrough A Law no lesse wholsome then seasonable For the times of Henry the Fourth had taught men to know by experience That a King that hath Souldiers scattered over the Kingdome can easily sway the County-Courts and make Parliaments for their owne tooth Yet this was not enough For all Elizors though of the meanest sort yet are still able to doe as much hurt with their Vote as those of the best sort both for wisedome and publique minde can doe good by theirs This made Elections much subject to parties and confusions and rendered the Parliament much lesse considerable A remedy hereunto is provided in the minority of Henry the Sixth Viz. That no man should give his Vote in Elections in the County unlesse he hath forty shillings yearely in Free Lands or Tenements and this is to be testified upon Oath of the Party And more plainly it is ordered within two yeares after that each Elizor shall have Frank Tenement of that vallue within the same County And thus the Freemen yeilded up their liberty of Election to the Free-holders possibly not knowing what they did Neverthelesse the Parliament well knew what they did this change was no lesse good then great For first these times were no times for any great measure of Civility The Preface of the Statute shewes that the meanest held himself as good a man as the greatest in the Countrey and this tended to parties tumults and bloodshed Secondly where the multitude prevaile the meaner sort are upon the upper hand and these generally ignorant cannot judge of Persons nor Times but being for the most part led by Faction or Affection rather then by right Understanding make their Elections and thereby the Generall Councell of this Nation lesse generous and noble Thirdly there is no lesse equity in the change then policy for what can be more reasonable then that those men onely should have their Votes in Election of the Common Councell of the Kingdome whose Estates are chargeable with the publique Taxes and Assessements and with the wages of those persons that are chosen for the publique Service But above all the rest this advancing of the Free-holders in this manner of Election was beneficiall to the Free-men of England although perchance they considered not thereof and this will more clearly appeare in the consideration of these three particulars First it abated the power of the Lords and great men who held the inferiour sort at their Devotion and much of what they had by their Vote Secondly it rendered the body of the people more brave for the advancing of the Free-holder above the Free-man raiseth the spirit of the meaner sort to publique regards and under a kinde of Ambition to aspire unto the degree of a Free-holder that they may be some what in the Common-wealth and thus leaving the meanest rank sifted to the very branne they become lesse considerable and more subject to Coercive power whiles in the mean time the Free-holder now advanced unto the degree of a Yeoman becomes no lesse carefull to maintain correspondency with the Lawes then he was industrious in the attaining of his degree Thirdly by this means now the Law makes a separation of the inferiour Clergy and Cloystered people from this service wherein they might serve particular ends much but Rome much more For nothing appeareth but that these dead Persons in Law were neverthelesse Fsee-men in Fact and lost not the liberty of their Birth-right by entering into Religion to become thereby either Bond or no Free-Members of the people of England Lastly as a binding plaister above the rest First a Negative Law is made that the Persons elected in the County must not be of the degree of a Yeoman but of the most noted Knights Esquires or Gentlemen of the Countrey which tacitely implies that it was too common to advance those of the meaner sort whether by reason of the former wasting times Knights and Esquires were grown scant in number or by reason of their rudenesse in account Or it may be the Yeomanry grew now to feel their strength and meant not to be further
had they might let to Farme And then wherein are the People the better for these Lawes Seeing its all one for them to be oppressed by the Sheriffe immediately and by the Proxie For preventing of this inconvenience another Law is made That the Sheriffe shall not let his Bailywicke to Farme nor be Nonresident and to this he must binde himselfe by Oathe So as now the Sheriffe is double girt and may be fairely ridden without danger to the King or People But men ride horses for ease and pleasure and he that must bend his minde alwayes to watch his horses motion will choose rather to goe on foote and therefore Henry the Fifth renewed the Law of Richard the Second that Sheriffs shall be but for one yeare and then not to be chosen again nor serve for three yeares next following This Order continued for the space of eight yeares within which time Warre and Pestilence had consumed so many of the richer sort of People that a Dispensation is granted that Sheriffs may continue in their places for foure yeares And it was above twenty yeares after ere the Stocke was recruted againe after which time the substance of the former Statutes of Edward the Third Richard the Second and 1. Henry the Fifth is revived againe with a penaltie upon the Sheriffe his Deputy or Clerke that shall execute that place above one yeare so the custome of holding that Office tenne or twelve yeares by occasion of the Dispensation for foure yeares was laid aside But the Cure would never be perfect so long as Sheriffs held by Inheritance For it was easie to finde new Deputies but not to lay downe old Customes nor could it be lasting unlesse the penalties also had beene annexed to the particular crimes For a Sheriffe before he is a yeare old by experience formerly had becomes too cunning for all these Lawes and therefore Lawes are made also against the ordinary corruption of these places such as are extorting of Fees false making of Juries false returnes of Writs c. and damages in such cases given to the party wronged and when all is done he is not trusted with taking of Indictments Thus with much adoe a Sheriffe is made a tollerable Officer and his place by Degrees so hedged in that what was in former times hard to plucke up is now become hard to sett CAHP. XXI Of Justices and Lawes concerning the Peace THe faint title of Henry the fourth to the Crowne made him ever tender of the Civill Peace without breach whereof he was sure to be quiet in the Throne he undertooke not this worke by any superlative power from and by himselfe but useth the help of the Parliament and Lawes wherein he was industrious pretending love of Unity amongst his People which neverthelesse he liked not unlesse in order to quiet between himselfe and them The former way of Justices of Peace he followed close reducing the Persons to their ancient qualifications The most sufficient Persons Inhabitants in the County worth at least twenty pound yearly unlesse they be Lawyers or such as are Justices in Corporations nor is the King troubled or trusted with the naming or electing of these men but the Chancellor or the Kings councell so as now by Law the King can neither be Justice nor make Justice Jure proprio but as his interest with the Councell is more or lesse prevalent and that power that first gave it to the Crowne the same power tooke it away or imparted and placed it elsewhere But as touching the Worke or Power of the Justices themselves it grew exceedingly much wheerof was onely of inquiry and to make Certificate as of Herisie Treason Falshood of Sheriffs c. But more of Oier and Terminer as in Case of Watches deceitfulnesse in Trades as of making arrow heads guilding of Mettall tanning of Leather inbasing of Silver selling of waxen Images and Pictures c. for the superstition of these times was such as these petty Gods were not set at so high a Price by the Seller but at a higher price by the Buyer the Parliament therefore set a truer vallue of them Viz. For the Wax so much as the Wax is worth by weight and but foure pence for the Godhead so as it seemes the Parliament was not very superstitious in their House what ever they were at Church Further-more the Justices of the Peace had power to punish deceit in Measures Weights forcible entries and Detainers In many of which Cases the Penalty being fine and imprsonment became a snare to many of the Justices especially such as were of the greater and higher ranke who having Castles of their owne under colour of justice imprisoned Delinquents in their owne Castles and ransomed them at their owne pleasure which proved a great oppression to the People and occasioned a Law that no Justice should commit any Delinquent to other then the County Goale saving Franchises to the Lords Those times are happy when justice waites not altogether at Court but growes up in the feilds and Justices of Peace as the Kings armes upon the Royall Mace are terrible onely to the bad and not as they are pictured before an Ale-house door to invite men to transgresse The Lawes for the preservation of the Peace concerne either punishment of Crimes committed or prevention of them from being committed There is a succession of Crimes as of men and ages because the Scripture tells us that the hearts of all are fashioned alike yet it is with generations as with men some incline to some Crimes more then other and that is the reason that the title Treason sometimes is set forth in Folio sometimes in a lesser Volume It s evident in Story that the violent times of Richard the second had raised the vallue of that amongst other offences above measure not long before his time his Father had reduced that wilde Notion of Treason to a certaine rule that formerly wandred in a Wildernesse of opinion But Henry the fourth either to save his own Stake or to take the People or both reduced it againe to the Statute rule of Edward the third and made void that Statute of his Predecessors which had made a former Act of Parliament and all the service thereby done Treason The dimensions of Treason thus clearly limmed and declared taught ill disposed mindes to keep out of the Letter and yet to be bold with the sense counterfeit Money they durst not yet to diminish the same they thought came not within the circle and so it became a common greivance till a Law was made that all purposed impairing of Mony shall be Treason And so the Parliament held forth to all men that they had a power to declare Treason without the bounds of the Statute of Edward the third The like power it held forth in the time of Henry the sixth for men knew that Burglary and robbery were mortall crimes they would no
wage so as none were then compelled to enter into Service by imprest or absolute command nor is there any authority amongst all those cited in Calvins Case that doth mention any such thing but contrarily that Opinion of Thirning is expresse That the King cannot send men beyond Seas to Warres without wages and therefore no man is bound to any such Service by any absolute Legiance as the Reporter would understand the point but if he receiveth wages thereto he by that Contract binds himselfe Secondly it seemeth also to be granted that such as went voluntarily in the Kings Service ever had the Kings pay after they were out of their Counties if the King ruled by his Lawes for by the Statute formerly mentioned the King did likewise confirm the Statute of 18 Ed. 3. Stat. 2. cap. 7. which is expresse in that point and the matter in Fact also is evident upon the Records Thirdly touching the Arming of those that were thus Levied as their was a certain Law by which all men were Assessed to certain Armes either by the Service and Tenure of their Lands or by Parliament for such as were not bound to finde sufficient Armes by their Tenure according as is contained in the Statute 25 Ed. 3. Stat. 5 cap. 8. So did Henry the Fourth by the Statute formerly mentioned to be made in his time Confirm that Law of Edward the Third In the Argument of Calvins Case it is much insisted upon to prove the Legiance of an English man to the King to be absolute because he hath power to send men to Warre at his pleasure and he hath onely power to make Warre and if so then hath he absolute power in the Militia As touching the power of sending men to Warre hath been already spoken but as touching the power to make Warre there is no doubt but where a King hath made a League with another King he onely can break that League and so make Warre and that Opinion of Brian must be agreed for good in that sense But if a League be made by Act of Parliament or if the King will have Warre and the Parliament will make a League without him no authority doth in such case avouch that it is the right of the King or that he hath a Legall Power to break that League as he pleaseth Neither in the next place hath the King any right or Legall power to make War with his own Subjects as he pleaseth but is bound to maintain the Peace not onely by his Oath at his Coronation but also by the Lawes whereto he is bound if he will reign in right of an English King For every man knoweth that the grounds of the Statutes of wearing of Liveries was for the maintaining of the Publique Peace And Henry the Fourth amongst other provisions made against that trick hath this That the King shall give onely his Honourable Livery to his Lords Temporall whom shall please him and to his Knights and Esquires meniall and to his Knights and Esquires which be of his retinue and take of him their yearely Fee for Terme of Life and that no Yeoman shall take or weare any Livery of the King nor of none other Lord. And another Law was made within one yeare ensuing confirming the former and providing the Prince may give Liveries to such Lords as he pleases and to his meniall Gentlemen and that they may weare the same as in the Kings Case By both which the King and Prince are both in one Case as touching the power of giving Liveries if the one hath absolute power then hath the other the like If one be under the Directory of Law in that point then is also the other For it is clear that the King is intended by the Statute to be bound from giving Liveries and the people from wearing them otherwise then in especiall Cases and then the Conclusion will be that if the King may not give Liveries to prejudice of the Peace then may he much lesse break the Peace at his pleasure or Levy Men Armes and Warre when he shall think most meet Take then away from the King absolute Power to compell men to take up Armes otherwise then in case of Forrain Invasion power to compell men to goe out of their Counties to War power to charge men for maintenance of the wars power to make them find Armes at his pleasure and lastly power to break the Peace or doe ought that may tend thereto Certainly the power of the Militia that remaineth though never so surely setled in the Kings hand can never bite this Nation Nor can the noise of the Commission of Array Intitle the King unto any such vast power as is pretended For though it be granted that the Commission of Array was amended by the Parliament in these times and secondly that being so amended it was to serve for a President or Rule for the future yet will it not follow that Henry the Fourth had or any Successours of his hath any power of Array originally from themselves absolutely in themselves or determinatively to such ends as he or they shall thinke meete First as touching the amendment of the Commission it was done upon complaint made by the Commons as a greivance that such Commissions had issued forth as had been greivous hurtfull and dangerous And the King agrees to the amendments upon advice had with the Lords and Judges and if it be true that the amendments were in the materiall Clauses as it is granted then it seemeth that formerly a greater power was exercised then by Law ought to have been and then hath not the King an absolute power of Array for the just power of a King can be no greivance to the Subject Secondly if the Commission of Array thus mended was to serve as a rule of Array for the future then there is a rule beyond which Henry the Fourth and his Successors may not goe and then it will also follow that the power of Array is not Originally nor absolutely in the King but from and under the Rule and Law of the Parliament which rule was not made by the Kings own directions but as we are told beyond expectation alterations were made in materiall parts of the Commission and the powers in execution there whereof no complaint of greivance had been made The issue then is if the King had an Universall Power in the Array the Parliament likewise had a generall Liberty without any restriction to correct that power Lastly suppose that this power of the Parliament is executed and concluded by the Commission thus amended and that thereby the Kings Power is established yet can it not be concluded that this Power is Originally or absolutely in the King It s not absolutely in him because it is limited in these particulars First it s not continuall because its onely in case of eminent danger Secondly It s not generall upon all occasions but onely in case of a
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
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
durst not deeply ingage either not being assured of their own Title or imployed in pursuit of other game or being of a weak Spirit were scared with the Thunder-bolt of the Popes Curse But the Laity were under another Law and such an one as by clear and unquestionable Custome had established bounds between the way of Kings and the rights of the People Neither did Kings directly invade those Borders either led thereto by a kind of Conscience in such of them as were Morally inclined or in others by a kind of fear of raising up Earth-quakes from beneath which commonly doth overthrow high Towers sooner then windes from above But now such interests are laid aside fast asleep by two Kings whereof one cared not much for fear and neither of them for Conscience For Henry the Seventh having leisure to study the Nature and contemplate the Fashion of the English Crown dislikes the Modell in some particulars It was not rich enough nor well poysed to his minde which ever was not to be poore but towards his later time to be exceeding rich as supposing that to be the onely way to be more desirable to Freinds formidable to Enemies and absolute over his People And this opinion of his missed in the main end though it attained his immediate desire for by mistaking the right way it made a rich King but not a rich Crown he delighted more in the riches of his People then in a rich People and this bred no good blood because the People thought that the Law was not on his side in that matter They suffered him to visit their purses but are loath it should prove Customary least they should loose their common right they therefore choose rather to give him power by Act of Parliament to revoke Letters Patents and Grants and make resumptions of Offices Fees Annuities and the like that he might rather repossesse his owne then possesse theirs many penall Lawes likewise of a limited and Temporary regard are made and as Cheese after a full dinner they close up all with Subsidies For it was evident to all men that the Royall mind of the King served no further then to take what was given provided that the people would give what else would be taken By this means Henry the Seventh left rich Coffers to descend to Henry the Eighth but the Crown was still the same in price In this Act of the Play the People carry away the plaudite The second Act was the Point of Allegiance wherein both parts carry themselves so cunningly as its hard to adjudge the Garland yet it may be thought the King observed it rather because he offered all the play whiles the People did onely lie at their close guard The whole Project consisted in this to gaine a more absolute Allegiance from the English to their King and because this is exemplified partly in Warre and partly in Peace that part which concerneth Warre will more properly fall under the consideration of the Militia and therefore I shall refer the same to that head in the 32. Chapter ensuing and will come to the second consideration of Allegiance in relation to Peace and therein touch upon the Kings power in making of Lawes and of Judicature according to those Lawes As touching the making of Lawes the ingenuity of Henry the Seventh could not suffer him to make any claim thereto in any Positive way yet his Actions declare that his heart was that way For being beset with troubles he could often fancy dangers and Arme himself then call a Parliament who were wise enough to grant as readily as he asked rather then to be compelled thereto so he had Lawes made according to his own will though he made them not The matter of Judicature comes next and therein he made his Judges appear and not himselfe though they did not onely represent his Person but his minde so things were done according to his minde though he did them not And thus his Excellency seemed more eminent in finding and making instruments fitting to do his work then in doing his own work Neverthelesse all this was but from hand to mouth no fundamentall Law is altered all this while if the Lawes were made by Parliament the King made them not if the Judges turned the Law to the Kings eare the Law was still the Crown though the King wore it But Henry the Eighth was no such man he had not this skill of undermining nor desired it he was tender of the least diminution of his Honour industrious in finding out the occasion and a most resolved man to remove it out of the way though it reached as high as the Triple Crown a man underneath many Passions but above fear What need â—he care for pretences his Father loved Riches he Power when he came to traverse his ground he found quickly where the Church-men trespassed upon him and began with them resting upon the wisdome of his Father and the infallibility of the Pope Henry the Eighth had taken to Wife Katherine his Brothers Dowager and continued in that condition eighteen years without wrinkle of Fame till the great successe of Charles the Fifth the Queens brother against the Pope and French scared the King into a jealousie of his greatnesse and the Emperours failing in courtesie to Cardinall Woolsy the Kings Achates stirred the Cardinals Spirit to revenge for the losse of his hopes in the Popedome For the Cardinall finding the Kings mind to linger after another Bed-fellow by whom he might have a Sonne he made the French Embassadour his instrument to mind the King of his unlawfull marriage with the Queen and to mention unto him Margaret D' Allanson a Princesse of France both in blood and beauty The King liked the Notion of Divorse but disliked the motion concerning the French Lady himself being prepossessed with a fair Object at Home the Lady Anne Bullen then attending upon the Queen and thus being moved entered into a scrutiny concerning the condition of his marriage wherein he had been formerly touched both by the French and Spaniards themselves upon severall motions made First between Charles the Fifth and afterwards between the Dauphine and the Lady Mary afterwards Queen Hereat the Cardinall winked all the while till the infallibility of the Chair at Rome came upon the Stage then bestirring his wits he lodged the Case upon appeale thither as he hoped beyond all further appeale and so held the King there fast till himself might accomplish his own ends But the wheele once set a running would not stay the King espies the Cardinall in his way and bears him down then finding the fallacy of the infallible Chair he hearkens after other Doctors followes their light and being loath to hear what he expected from Rome he stopped the way to all Importation of such Merchandize as might be any wayes prejudiciall to the Prerogative Royall with the penalty of losse of Land or Liberty and Fine the two later being formerly warranted
were by the Law Judges of the matter in fact as well as the King yet in the conclusion the King only was of the Quorum all this yet further appears in the penalty for by a Provisor it is moderated as to all forfeitures of Life Limb or Estate and in the conclusion extended only to Fine and Imprisonment unlesse in some cases mentioned and excepting offences against Proclamations made by the King or his Successors concerning Crimes of Heresie For it is the first clause of any positive Law that ever intimated any power in the King of such Cognisance and punishment of Heresie too weake a principle it is to settle a prerogative in the King and his Successors as supream head of the Church thus by a side winde to carry the keyes of Life and Death at their girdle and yet a better ground cannot I find for the martyrdome of diverse brave Christians in those times then this touch of a Law glancing by All which passing Sub silentio and the Parliament taking no notice thereof made way for the Statute 32. H. 8. ca. 26. Formerly mentioned to come more boldly upon the Stage This was one wound to the legislative power of the Parliament thus to divide the same Another ensues that in its consequence was no lesse fatall to that power which remained and it was wrought by some Engine that well saw that the disease then so called grew to be epidemicall amongst the more considerable party in the Kingdome that the Lady Jane Seymor now Queene was no freind to the Romanists that she was now with child which if a Sonn as it proved to be was like to be Successor in the Throne and be of his Mothers Religion and so undoe all as in the issue all came so to passe To prevent this neverthelesse they fancy a new conceit that Lawes made by English Kings in their minority are lesse considerately done then being made in riper yeares And so by that one opinion countenanced a worse which was that the Legislative power depended more upon the judgment of the King then the debates and results of the Parliament a notion that would down exceeding well with Kings especially with such an al-sufficient Prince as Henry the eight conceived himself to be upon this ground a Law is made to enable such of the Kings Successors by him appointed as shall be under the age of twenty and foure yeares when Lawes by him are made to adnull the same by Letters Patents after such Prince shall attaine the said age of twenty foure yeares Thus the Armes of the Parliament are bound from settling any Reformation let them intend it never so much a Muse is left open for the Romish Religion still to get in when the Season proves more faire The Parliament was now in its minority and gives occasion to the Reader to bewaile the infirmities of the excellency of England A fourth advance of Prerogative concerned the executive Power in the Government of the Church This had formerly much rested in the Prelacy and that upon the cheife Praelatissimo at Rome now there is found in England a Prelater then he the Pope was already heheaded and his head set upon the Kings shoulders To him it is given to nominate all Bishops and Arch-Bishops within his dominions by long desire and that the party once elected shall sweare fealty and then shall be consecrated by Commission and invested but if upon the long desire no election be certified within twelve dayes the King shal by Commission cause his own Clerke to be consecrated and invested The occasion that first brought in this President was the accesse of Cranmer to the See at Canterbury for though the head-ship had beene already by the space of two yeares translated from Rome to England and yet the course of Episcopizing continued the same as formerly it had beene I mean as touching the point of Election For though in their originall Bishops were meerely Donatives from the Crowne being invested by delivery of the Ring and pastoral staffe and untill King Johns time the Canonicall way of Election was disallowed yet King John by his Charter De communi consensu Baronum granted that they should be eligible which also was confirmed by diverse publique Acts of Parliament in after times and now by this Law last recited and with this way the King was contented for the space of six yeares for the Reformation intended by the King was not done at once but by degrees and therefore though this course of long desire was brought into use yet the Parliament being of six yeares continuance a necessary thing in times of so great change of policy began this course of Election by giving the King Power to nominate and allowing of the Pope Power to grant to such his Bulls or Pall at his owne will otherwise they should be consecrated by Commission without his consent this at the first the Popes concurrence was not excluded though his Negative was In this posture of Affaires comes Cranmer to be consecrated Arch-Bishop And being nominated therunto by the King the wily Pope knowing the Kings aime meaned not to withstand least he should loose all but granted the Pall as readily as it was desired so as Cranmer is thus far Arch-Bishop of Canterbury without all exception yet he must go one step further and take the old oath to the Pope which the King allowed him to do Pro more and which he did Renitente conscientia say some and with a salvo say others and all affirme it was done Perfunctoriè like some worne Ceremony or civill Complement Neverthelesse it was not so soone turned over the Arch-Bishop loved not the Office the King loved no partnorship in this matter and it was evident to all that no man could serve these two Masters any longer an agreement is soon concluded in Parliament to exclude the Popes Power quite out of this game and all is left to be done by the King and his Commissioners by the Law formerly propounded In all this the Pope is the looser the English Clergy the savers for the Pall cost Cranmer nine hundred markes And the Crown is the great gainer for hereby the King got the men sure to him not onely by their own acknowledgment and submission but also by a Statute Law And lastly by Oath which to make sure was treble twined once upon their first submmission in the Kings twenty second yeare when they had beene under Premuniri Secondly soone after the decease of Queene Katherine Dowager in the twenty sixth yeare which Oath was more compleat then the former containing First A Renunciation of all fealty to the Pope or any sorraine Power Secondly an obligation to adheare to the cause of the King and his Successors Thirdly a disavowing of the Pope otherwise then as another Bishop or fellow Brother Fourthly an ingagement to observe all Lawes already established against the Popes Power Fifthly A disavowing of all appeales to
As Riches increase so doe the mouths of them that eate he still stands in need of his Peoples Love Purses and Power so Divine providence orders the matter that Kings can never attaine further end of their undertakings without the aide of the people then their labour least they should be too big to be Christians and the people too mean CHAP. XXVIII Of the Condition of the Parliament in these Times THey are no good Expositors that consider their Text by peice-meale onely nor they good Historians that will tell you the bare journall of Action without the Series of occasion such as these will speak much of the Actions of Henry the Eighth what advancement he brought to the Crown and make it a compleat Monarchy wherein the King may Act what he resolveth resolve what he pleaseth and please what he lusteth when as in truth the thing is nothing so for though many of his actions in relation to particular Persons cannot be justified by any Law so in truth did they never proceed from any Law but meerly from the passion or will of the man and connivance of the people who could bear that from this King that their Ancestors would never endure under any other And yet in all the Grand concernments of the Nation the Law kept still upon the top nor did the King enter into any Competition therewith or lead the way thereunto other then by especiall allowance of the Parliament For first its evident though the King was Supream Head of the Church yet this was not like the head of a mad man led by phaney without the Law of reason or reason of Law But it was defined circumscribed and formed thereby with Qualifications and Limitations as hath been already expressed in the former Chapter Secondly it is no lesse cleare that the Legislative Power rested in the Parliament and not in the King when he was in his greatest height for as head of the Church he had no such power in Church matters or if he had such a right it was taken away by the Acts of Parliament nay when the Pope was yet possessed of this Headship the Parliament did determine the manner of the Worship of God in some particular cases as in the keeping of the Lords Day the Statute of Edward the Fourth to the honour of God did provide for the observing thereof and to the honour of God it was taken away by a Statute in the time of Henry the Eighth if the words of either Statute may be beleived But more especially after that this Headship was translated to the King the Parliament provided that the Canons should be examined and allowed by the King and thirty two Persons one part of the Clergy the other of the Temporalty chosen by the King And those that shall be assented unto and confirmed by the King and the thirty two Persons or the major part of them shall be obeyed and put in execution the residue shall be void Provided nothing shall be done contrary to the Kings Prerogative or the Lawes and Customes of this Realm So as the King had much but he had not all and what he had the Parliament gave him by a Law that was Executory all the dayes of Henry the Eighth by divers continuances and was not any power devolved to the Crowne under the Title of Supremacy nor by Vertue of the Act of Parliament concerning it but by the continuall influence from the Parliament upon the Crown as well before that Act as after derived upon it The King hath then this right of Law making but it is with the thirty two he hath it but not his Successors And lastly he hath it but by a derivative power from the Parliament and as a Committee for that service and in a word he hath the Power but the Parliament hath still the Law of that Power The second Priviledge of the Parliament hitherto concerneth onely Lawes concerning Church-government In the next place commeth to be considered the Legislative Power in point of Doctrine which doubtless issueth from the same principle of Power with the former For if the Church which as a pillar and ground holdeth forth the truth be the company of professing Beleevers then ought it not seem strange if these in their representative do intermeddle with this Power or rather duty and for the matter in fact neither did the King challenge this power nor did the Parliament make any difficulty of Conscience in executing the same and yet there were many Learned and Consciencious men of that number They therefore as touching the doctrine proceed in the same way with that formerly mentioned concerning the discipline And a Committee also is by them made of the King and Learned men to set down rules for Faith and obedience and for the order of the publique Worship of God according to the word of God and these rules are confirmed by a Statute so as the King hath a power in the point of Doctrine but it is a derivative power it is a limited power to himself and not to his Successors and to himself and others joyned with him And Lastly nothing must be done contrary to the Lawes of the Kingdome Secondly the Parliament hath not onely a right to grant and limit this power unto others but also to execute the same immediately by it self and therefore before they granted this power to this Committee whereas formerly the Pope usurped the power to be the Omega to the resolves of all Councills the Parliament intercepted that to their own jurisdiction in flat opposition to the infallibility of the Roman Chaire so farr as to Disherize some opinons which by the sentence of that infallible mouth had beene marked with that black brand of Heresie And what they did before this Act of Delegation to the King and other Committees for this worke they did afterwards as not concluding their own power by any thing that they had so don as may appear by their Censure of the translation of the Bible made by Tindall By their establishing another translation By their ordering and appointing what persons might read the same By their qualifying the six Articles and the like The Parliament then hath a power which they may grant and yet grant nothing away they may limit this power in others as they will and yet not conclude themselves And the King by accepting this limited power must disclaime both the originall and absolute right and cannot claime the same by right of head-ship or supremacy This was one great windfall which the Parliament had from the ruines of Rome not by way of usurpation but re-seisure for their possession was ancient and though they had beene dispossest yet that possession was ever under a continuall claime and so the right was saved A second that was no lesse fatall unto that See was the losse of all power over Ecclesiasticall persons in this Kingdome For whereas the Popedome had doubly rooted it self
Chancellor hath his Conscience the Arch-Bishop brings Religion the Judges bring Law so as its probable nothing will be done but according to Justice Conscience Religion and Law a very faire mixture but that there was a Treasurer in the Case yet the successe answered not expectation the Persons offended were many times inferiour and their estates not great the Offenders more meane and of desperate fortunes for great men were too wise to try this new way or to tast of their entertainment Therefore within nine yeares the Judges of Assize are betrusted with all and that Court so continued for as many yeares more and then the King marked out one Crime amongst the rest for his owne tooth belonging to the great men onely for they onely are able to commit the Crime and to give recompence sutable to the Kings Appetite It is giving of Liveries and Retainders a sore evill in the eyes of a jealous King tending to draw the inferiour sort to honour and admire and be of the suit of those of the greater sort and then beware the Crown These therefore must be tried before the King himself and his Councell that he may know whom he is to feare and of whom to take heed And herewith is a strange power given to summon upon a meere Suspition To proceed without information To examine the Defendant upon Oath and make him his own Accuser To punish according to discretion by fine and Imprisonment and thus the King and his Councell have gotten a power under colour of Liveries and Retainders to bring the whole Kingdome to be of their Livery or else they can suspect whom they please apprehend whom they suspect put him presently to the rack of confession and so into prison till he hath satisfied both displeasure and jealousie and covetousnesse it self Never was England before now in so low a degree of thraldome bound under a double knot of self-accusing and arbitrary Censure and this out-reached not onely in matters meerly civill tending to the common Peace but was intruded also into matters Ecclesiasticall in order to the Peace of the Church All bound unto the good behaviour both in Body and Soul under perill of losse of all that a man hath deare to him in this World The plot of all this was first laid by Henry the seventh and was followed by Henry the eighth who put that into practise which his Father had in designe being led thereto by such a skilfull Guid as Cardinall Woolsie was who though of meane Birth yet of a Spirit above a King and equall to the Popedome strained the string of Prerogative to its utmost heighth and then taught the King to play thereon which he did after his blunt manner till his dying day And thus though the Clergy are brought a Peg lower and the Nobility advanced higher yet was it the pollicy of these Kings to make them all of their own Livery and Retaindership to keep them in an upper region looking on the poore Commons at a distance far below and well it was for the Commons thus to be till the influence of these blazing Stars grew cooler CHAP. XXXII Of the Militia IT may fall within the verge of opinion that the guilty Title of Henry the seventh to the Crowne of England galled his minde with jealousie the greatest part of his Reigne Whether it were that he had not declared himself so fully upon his Title by his Wife or that as yet he feared some unknown Plantagenet would arise and put his Crown to the question This made him skilfull in the point of Fortification wherein he likewise spent the greatest part of his Reigne not so much by force of Armes for he cared not much for that noise well knowing that Peace is the safer condition for a King that comes in by power but principally by way of gaining Concessions and acknowledgment from the Subjects a Musick that he much delighted to heare well knowing it would conclude those amongst them that knew too much and instruct them that knew too little and so in time he should passe for currant amongst them all It was no hard matter for the King to accomplish this the greater part of the Kingdome being pre-ingaged unto his Title and of them many depending upon him for livelyhood if he failed they must look to loose all But the present occasion urged more importantly the Title to the Crown was already put to the question by the pretentions of one that named himself Duke of Yorke And it s now high time for the Law to declare it self to direct the People in such a Case What shall the People do where Might overcomes Right or if dayes come like those of Henry the sixth wherein the Subjects should be between two millstones of one King in Title and another King in possession for whom must they take up Armes if for Edward the fourth then are they Traitors to Henry the sixth if for Henry the sixth then are they Traitors to Edward the fourth and so now if for Henry the seventh then they may be Traitors to the Duke of Yorke if for the Duke of Yorke then are they Traitors to Henry the seventh For though the Duke of Yorke was said to be but a contrivance of the House of Burgundy yet a great part both of the great men and others were of another opinion and the King himself was not very certaine of his condition for the space of six years thereby This puts the Title of allegiance and that power of the Militia to the touch at length both King and Parliament come to one Conclusion consisting of three particulars First that the King for the time being whether by right or wrong ought to have the Subjects Allegiance like to that of the wise Councellor of that brave King of Israell Whom the Lord and his People and all the men of Israell chuse his will I be And this is not onely declared by the expresse words in the Preface of the Law but also by the Kings own practise for he discharged such as aided him against Richard the third then King by pardon by Parliament but such as aided him being King by declaration of the Law Secondly that this Allegiance draweth therewith ingagement for the defence of that King and Kingdome Thirdly that the discharge of this Service whereto the Subjects are bound by allegiance ought not to be imputed unto them as Treason Nor shall any person be impeached or attainted therefore the first and the last of these need no dispute The second is more worthy of consideration in the particular words set downe in the Statute Viz. That the Subjects are to serve their Prince in his Warres for the defence of him and the Land against every rebellion Power and Might reared against him and with him to enter and abide in Service in Battell Wherein two things are to be considered the Service and the time or occasion The Service is to serve the Prince
Parliament is looked upon as the cheif supporters in the maintaining both the Honour and Power of that Authority that otherwise would fall under contempt A work that must be done with a curious touch or a cleare hand or they must look for the like Censure to that of a King to a great Lord that Crowned him My Lord I like your work very well but you have left the print of your fingers upon my Crown Such was the condition of these times wherein a Child and two Women are the cheifs but ever under the correction and direction of the Common Councel in matters of common concernment Two things declare the point the course of the Title of the Crown and the order of the powers thereof The Title ever had a Law which was at the Helm although diversly expounded Kings ever loved the rule of inheritance and therefore usually strained their Pedegree hard to make both ends meet though in truth they were guilty oftentimes to themselves that they were not within the degrees The People ever loved the Title of Election and though ever they joyned it to the Royall blood and many times to the right Heire to make the same pass more currant without interruption of the first love between them and their Princes yet more often had they Kings that could not boast much of their birth-right in their first entry into their Throne Of three and twenty Kings from the Saxons time foure of the former had no Title by inheritance the two Willams Henry the first and King Steven of two others Viz. Henry the second and Richard the first had right of birth yet came in by compact The seventh which was King John had no title but election The eight Viz. Henry the third came in a Child and contrary to compact between the Nobility and the French Lewes the ninth and tenth succeeded as by unquestionable Title of discent yet the Nobles were preingaged The eleventh which was Edward the third in his entry eldest Son but not Heire for his Father was alive but his Successor was his Heire its true there were other Children of Edward the third alive that were more worthy of the Crown but they were too many to agree in any but a Child that might be ruled by themselves Three next of the ensuing Kings were of a collatterall line Their two Successors Viz. Edward the fourth and Edward the fifth were of the right line yet Edward the fourth came in by dissesin and Edward the fifth by permission Richard the third and Henry the seventh were collatterall to one another and to the right blood Henry the eighth though when he was King might claime from his Mother yet came in as Heire to his Father And if Edward the sixth was right Heire to the House of Yorke by his Grand-Mother yet cannot the Crown be said to descend upon the two Sisters neither as Heires to him nor Henry the eighth nor to one another so long as the Statute of their illigittimation remained which as touching Queen Mary was till three Months after her entry upon the Throne and as touching Queen Elizabeth for ever for that Virago provided for her self not by way of repeale as her Sister had done but more tenderly regarding the Honour of her Father and the Parliament then to mention their blemishes in Government by doing and undoing She overlooked that Act of Henry the Eighth and the Notion of Inheritance and contented her self with her Title by the Statute made by her Father in his thirty fifth yeare which to her was a meere purchase and was not ashamed to declare to all the World that She did have and hold therby and that it was high Treason for any Subject to deny that the course of the Crown of England is to be ordered by Act of Parliament And this power did the Parliament exercise not onely in ordering the course of the Crown to Queen Mary and Queen Elizabeth but during the Reign of Queen Elizabeth so far as to dis-inherit and dis-able any person who should pretend Right to the Crown in opposition to the Right of Queen Elizabeth and upon this point onely did the whole proceedings against Mary Queen of Scots depend who claimed to be and doubtless was Heir unto Henry the eighth after the determination of his right Line and yet She was put to death for pretending Right by the Common Law in opposition to the Act of Parliament True it is that this Doctrine doth not down well with those that do pretend to Prerogative aided as they say by the Act of Recognition made to King James and the Oaths of Supremacy and Allegiance which do make much parly concerning Inheritance and Heirs nevertheless it is as true that the Act of Recognition made no Law for the future nor doth the same cross the Statute of 13 Eliz. nor doth it take away the power of the Parliament from over-ruling the course of the Common Law for after Ages Nor do the Oaths of Supremacy and Allegiance hold forth any such Obligation unto Heirs otherwise then as supposing them to be Successors and in that relation onely And therefore was no such Allegiance due to Edward the sixth Queen Mary or Queen Elizabeth untill they were actually possessed of the Crown as may appear by the Oath formed by the Statute of Henry the eighth touching their Succession Nor did the Law suppose any Treason could be acted against the Heirs of Edward the sixth Queen Mary or Queen Elizabeth untill those Heirs were actually possessed of the Crown and so were Kings and Queens as by express words in the severall Statutes do appear Nor did the Recognition by the Parliament made to Queen Elizabeth declare any ingagement of the People to assist and defend her and the Heirs of her Body otherwise then with this Limitation Being Kings and Queens of this Realm as by the Statute in that behalf made doth appear And lastly had these Oaths bin otherwise understood the Crown had by the vertue of them been pre-ingaged so as it could never have descended to Queen Mary Queen Elizabeth or King James but must have remained to the Heirs of Edward the sixth for ever Secondly the same power that the Parliament exercised in ordering the course of succession in the Crown they exercised likewise in determining and distributing the Powers and Priviledges belonging to the same for these Times were full of Novelties The Crown had formerly fitted a childes head more then once but it never tried to fit a Womans head since the Saxon Times till now that it must make triall of two France might afford us a trick of the Salique Law if it might finde acceptance And the unsettled estate of the People especially in matter of Religion might require the wisest man living to sit at the Helm and yet himself not sufficient to steer a right course to the Harbour Nevertheless the Parliament having the Statute of Henry the
that the foundation of their jurisdiction had been altered twice and so it will be difficult for it to hold by prescription or custome or any other way then by a kinde of Divine right which began to be pretended yet to this day could never be made evident to the World Whatever the ground was the thing is plain that Prelacy in Queen Elizabeths time had this Honour allowed thereunto that it was upholden by Election from Ecclesiasticall men and held its jurisdiction as from it self and in the name of the Bishop as Ordinary and the power of Excommunication by a saving in the Statute-Law and not by express donation notwithstanding the late President in the time of Edward the sixth to the contrary Secondly The rule of this jurisdiction was no lesse at large for the Canon Law was determined by Henry the eighth and Edward the sixth and was not revived by any Act of Parliament by Queen Mary or Queen Elizabeth who neither pursued the Medium of the thirty two Commissioners nor setled other rule but a few Canons which after some time by Queen Elizabeth and her Clergy were agreed upon but never confirmed by Act of Parliament And so could never bind the Subject and which in generall set forth a kind of forme of Church policy yet no fashion of jurisdiction or rule of proceedings in the Ecclesiastical Courts but in such Cases left them to the Canon Law which was hidden in their own breasts and could be made strait or wide as they pleased Thirdly their Censures now grew more sharp for whereas at the utmost formerly they could do no more but imprison or deliver over to the Secular power and that onely in case of Heresie and yet had scarce ground of Law for what they did now they have an additional power to fine and imprison in cases of inferior nature and so can reach all that a man hath even to his skin nevertheless this was not annexed unto the ordinary Jurisdiction but given by extraordinary Commission called the High Commission wherein though many others were named yet the Clergy and Canonists did the work the rest being but in nature of a reserve to them in case they were put to the Rout. The power of these Commissioners was to execute the Queens Jurisdiction in Causes Ecclesiastical so as the Bishops are doubly interested in this work one way by supposed Commission from God as Ordinaries within their own Diocess onely and so may proceed to Excommunication or Deprivation the other way by Commission from the Queen as Members of the High Commission for so many of them were such as the Crown would please and so they might fine and imprison They might and did I say by their Commission but not by the Statute that gives Authority thereto and therefore cannot be said to be done legally Fourthly besides the contracted power of making Canons in the Convocation by the power of the Royall Assent the Queen had a power of making Laws by their consent in matters of the criminal part of the Worship of God This might be tolerable for the Life of one Queen who might be presumed would if she lived a few years settle all things but to subject the consciences of all the people to the opinion of one Metropolitan that might opinionate strange things and that the Successors of the Queen should usurp this as a flower of the Crown to determine what is for Gods glory in such cases and to be always altering and patching up a Form as he and his Metropolitan or one of them alone shall think meet is neither commendable upon any grounds of Divinity or humane Policy Now amidst the flourishing Estate of Prelacy it s no wonder if the Churches be no Gainers but like Plants spending their Natures in luxurient branches either are over-turned by the next blast of winde or do wither upon the least change of Sky That the whole ordering of the Church Affairs rested originally in the Parliament no man can question considering what ever the Queen did or had therein was from the power of Acts of Parliament And that the power of Excommunication it self notwithstanding that the Church held it by way of reservation or saving and not by donation from the Parliament by any express Act yet was that saving with such Limitations as that it releived but a lame power in comparison of what it claimed and exercised in former Times for whereas formerly the Church-men had the Writ De Excommunicato Capiendo at their own beck now it will not come but upon Articles and certain Conditions 1. In cases of Heresie 2. Of deserting of the Sacrament 3. Deserting of publique Worship 4. Maintenance of Error 5. Incontinency 6. Usury 7. Simony 8. Perjury 9. Idolatry In other matters the Spirtual Sword must finde or make their own way or else be quiet Secondly the Church was now no less under the Chair and Throne then under power of the Parliament nor is it a wonder if it could not thrive when it was so over-dropped for Prelacy by the Kings arms is lifted up so high above the other Clergy that the rest of the Clergy are as much underlings to the Prelacy as the Prelates are to the King they dare not offend the Crown least they should loose their honors nor the inferiour Clergy them least they should loose their Livings and Liberties and so the Prelates speak the sense of the Clergy and make the Crown their Oracle Thus in the Church matters the Crown is all in all CHAP. XXXVIII Of the Militia in these later Times IT cannot be denied but as in the sober Government of this Nation there is a Supremacy of Command so also in the rudest Times of War and wheresoever the same is settled there must the Militia also be The word Militia is a general notion sufficient enough for a name or title but not to define the thing I take it for nothing else but the Government of the Common-wealth when it is in anger or War or in order thereunto It consisteth in the raising arming ordering and paying of the Souldiery The Title of the Supreme Power in all this work hath been of late put to the question and brought us to this sad condition of triall by Battail and by fighting to finde out who hath the chief power to fight a Lesson that might have been learned from former Generations foregoing at a far cheaper rate when England is well in its wits Where the Law of Peace is settled there also is the Law of War and in what condition the Crown standeth in relation to the Legislative power in time of Peace may be seen in the foregoing Discourse In war he is the Peoples General by his place yet if any impediment do befall either by natural Disabilities or civil to render the person incapable of the managing of the Service there is no question but the People may order the matter as they please Examples hereof these Times are
Justice of Queen Elizabeth to grant Commissions of Array Secundum formam Statutorum and do hurt to no man its true her Commissions of Lord Lievtenancy wanted that limitation in words yet they carried the sense for if the Crown were bound by the Law the Lord Leivtenants were much rather but the danger arose after the death of Queen Elizabeth for when King James came to the Crown under colour of pleasing the People and easing them of a burthen he pleased himself more and made the yoke upon the People much more heavy in the conclusion for where no declared Law is there the discretion of them that have the care lying upon them must be the rule thus came the Scottish blood to have pretentions to a greater Prerogative then all their Predecessors had upon this supposal that the Statute of Queen Mary took away all former Lawes of that kinde and then the taking away of the Statute of Q. Mary takes away all declared Law as to that point But more truly it may be inferred that if all Statute-Laws be taken away then the rule of Tenures at the Common Law must remain in force and no other Nevertheless this Statute of Queen Mary though in force for the present was not a generall rule for Armes in all places of this Nation for the Marches of Scotland were a peculier jurisdiction as to this point They stood in more constant need of Armes then any other part of this Nation in regard of their uncertain condition in relation to their Neighbouring jurisdiction and therfore were the Farmes of these parts generally contracted for upon a speciall reservation of Armes for each particular which being now decaied are again reduced by Queen Elizabeth to their ancient condition in the time of Henry the eighth A second thing which may come under this generall consideration of arming is the arming of places by making of Forts and Castles which was not in the immediate determinate will of the Crown to order as it pleased for though they may seem to be meanes of Peace and present safety yet they are Symptomes of Warr and in the best times are looked upon with a jealous eye especially such as are not bordering upon the Coasts Because that Prince that buildeth Castles within the Land is supposed to feare the Neighbourhood This was more especially regarded in the dayes of Phillip and Mary For when that marriage was to be solemnized it was one of the Articles to provide for the safety of such Forts and Castles as then were maintained to the end they might be preserved free from usurpation for the Use Profit Strength and Defence of the Realme onely by the naturall borne of the same And afterwards when occasion was offered for the building of more of that nature a new power is given to King Phillip and Queen Mary to re-edifie or make Forts and Castles which must be executed by Commission to the Legies for ten years and only within the Counties bordering upon Scotland and these perticularly named in the Statute so as the Crown had not power to build in all places nor to any end they pleased nor to place therein or betrust the same to whom it would Nor yet had Edward the sixth that absolute power although not ingaged in forrain interests as his sister Mary was and therefore whereas Castellanes had been made for life by Patent and so the absolute power of the Crown was barred in the free disposal of the same during such time The Parliament gave the King power to remove such as were not liked or thought faithfull to the publique interest although they gave no cause of Seisure by any disloyal act The like also may be observed of the Ships and Ordnance for they also do belong to the State as the Jewels of the Crown and therefore upon the Marriage of Queen Mary they also are by Articles preserved and saved for the use profit strength and defence of the Realm by the natural born of the same Thirdly as touching the ordering of the Souldiery the matter is not much to be insisted upon for little doubt is to be made but that power that raiseth them also ordereth them to the same ends that they are raised and therefore as the sole power of the Crown doth not the one so neither doth it the other but in cases formerly mentioned and yet in no case though the War b be never so absolutely defensive and the Souldiers raised by the Kings own and onely power yet hath not the King absolute Authority and arbitrary power in the ordering of them when they are raised but he must so behave himself to them as to Free-men according to Laws made by themselves in their Representative in Parliament and therefore are particular Laws made to that end against undue levying and discharging of Souldiers and Defaults in paying of them as also against the Souldiers departing from their Service without Licence or wasting their Arms and such as wilfully absent themselves from Musters as also for the preserving the Castles Forts Ships and Munition for War from being with-holden from their due use or from burning or destroying Lastly as touching the charge of the War and pay of the Souldies It s evident that in all offensive Wars the Souldier was paid by the Crown although they might be said in some manner to be in order to the Defence and Safety of the Nation nevertheless where the same was so apparent to the people it was the common course in these Times to have often Parliaments and often Subsidies which were no less in a good measure satisfactory to the Crown for the Charges of the War then Testimonies of the Peoples good Acceptance of the Government of Affairs and so accepted at their hands The particular Records will warrant all this For of all the Wars in these Times that of 88. excepted not any of them were ever managed at the Peoples charge by Contribution but by Retribution So happy were these Times wherein the People looking upon the Crown as under a kinde of infirmity of Childhood or Womanhood did therefore bear a kinde of compassionate regard thereunto without jealousie at Prerogative could condiscend and allow the Crown its full Grains and somewhat more yea more then was meet for some other Princes to desire or the People to give up and yet more happy were they wherein the Crown knew no interest but in dependence upon the People good and so understanding were rightly understood CHAP. XXXIX Of the Peace IT is but little that can be said of Peace in these Times wherein so little freedom was found from forrain pretentions and intestine irregularities or both and yet the People were never more resolved against the former nor secure against the later and had God to Friend in all But most apparently was this observable in the Times of Queen Elizabeth whose Government took up four parts of five of these Times whereof we
upon them but if too close girt they will break all or cast their load or dy And therfore Q. Elizabeth gained much to the Crown by faire carriage good words and cleanly conveyance which was not soon discoverd nor easily parted with But Henry the eighth by heighth of Spirit and great noise and therefore was no sooner off the stage but what was gotten by the snatch was lost by the catch and things soon returned into their ancient posture again The first Government of the People before their departure out of Germany was in the two States of Lords and Commons The Clergy came not into pomp and power till Austins time and soon came to the heighth of a third state appendent to the former and so continued till Henry the eighths time then they began to decay in power and in Queen Elizabeths time utterly lost the same and so they can no longer be called a State although they still keep state The two States of Lords and Commons in their transmigration being then in the nature of an army of Souldiers had a Generall by their Election under whom after they had obtained a Peaceable setling they named anew by the name of Konning or the Wise man for then was Wisdome more necessary then Valour But after the Clergy had won the day and this Konning had submitted himself and his people to their Ghostly Father they baptized him by a new name of Rex and so he is stiled in all written Monuments which we owe only to Ecclesiasticks although the vulgar held their appellation still which by contraction or rather corruption did at length arive into the word King a notion which as often changeth the sense as the aire some making the person all in all others some in all and some nothing at al but a complement of State The Clergy gave him his Title in the first sense and are willing he should have a power over the Estates in order to their designe which then was to rule the King and by him all his People he doing what be listeth with them and the Clergy the like with him The Saxons take the word in the second sense for though they had put upon the Common-Wealth one Head and on that Head one Crown yet unto that Head did belong many eyes and many braines and nothing being done but by the common sense a power is left to him much like to that of the outward Members Executory In time of War how unruly soever the humors be yet must the Law be his rule he cannot ingage the People either to make continue or determin any offensive War without their consent nor compell them to arme themselves nor command them out of their Counties for War nor impose Military charge upon them against their free consent or contrary to the known Law In calmer times much rather he can neither make new Law nor alter the old form new Judicatories Writs Process Judgments or new executions nor inable or disable any conveyances of Estates He may seem possessed of more power in Church government yet De jure can neither make nor alter Doctrine or Worship or Government in the Church nor grant dispensations or Licences Ecclesiastical nor Commissions of jurisdiction other then according to the Law And as a close to all by one oath taken at the Coronation he not onely giveth to the People security of the Peace and good behaviour but beareth witness that he oweth Allegiance both to the Law and the people different from that of the Peoples in this that the Kings Allegiance is due to the Law that is originally from the Peoples Election but the peoples to the King under a Law of their own framing This leadeth on the consideration of a higher degree of power then that of Kings For though Law as touching morallity in the generall be of Heavenly birth yet the positive Lawes arising from common Prudence concerning the Honour Peace and profit of every Nation are formed by humane constitution and are therefore called Honesta or justa because by common vote they are so esteemed and not because any one man supposeth them to be such The words of the Summons to the Parliament doth hold for this Quae de communi consilio ordinari contigerint and the words in the Coronation Oath Quos vulgus elegerit do speak no less whether they be taken in the Preterperfect tence or Future tence the conclusion will be the same True it is that in all Kings are supposed as present yet is not that valuable in the point of Councell which is the foundation of the positive Law For as the best things under Heaven are subject to infirmity so Kings either short or beyond in Age or Wit or possibly given over to their lusts or sick or absent in all which the name of a King adds little more to the Law then a sound yet all the while the Government is maintained with as much Honour and Power as under the most wise and well disposed King that ever blessed the Throne This is done in the convention of States which in the first times consisted rather of Individuals rather then Specificalls The great men doubtless did many things even before they saw the English shore that Tacitus noteth yet in the publike convention of all did nothing alone til of one House they became two The particular time of the seperation is uncertain and the occasion more It may be the great Lords thought the mysteries of State too sacred to be debated before the vulgar least they should grow into curiosity Possibly also might the Commons in their debates wish the great men absent that themselves might more freely vote without angering their great Lords Nevertheless the Royall assent is ever given in the joynt convention of all but how a double negative should rest in the House of Lords one originally in themselves the other in the sole Person of the King when as in no case is any negative found upon Record but a modest waving to answer of such things as the King likes not is to me a mystery if it be not cleared by usurpation For it is beyond reach why that which is once by the representative of the People determined to be Honestum should de dis-determined by one or a few whose Councells are for the most part but Notionary and grounded upon private inconveniences and not upon experimentalls of most publique concernment or that the vent or Soit fait which formerly held the roome onely of a Manifesto of the regall will to execute the Law then made as his Coronation Oath to execute all Lawes formerly established should now be taken to be a determination of the justnesse or honesty of the thing When as this Royall assent is many times given by a King that knowes no difference between good and evill and is never competent Judge in matters that in his opinion do fall into contradistinction between his own private interest and the benefit of
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
them Church-motes For the first of them which is sayd to be holden in the yeare 816. is called a Synod and both Preists and Deacons were there present which are no Members of Parliament consisting onely of the House of Lords and they all of them did Pariter tractare de necessarijs utilitatibus Ecclesiarum The second of them is called a Synodall Councill holden Anno 822. and yet there were then present Omnium dignitatum optimates which cannot be understood onely of those of the House of Lords because they ought all to be personally present and therefore there is no Optimacy amongst them The last of these three is called Synodale Conciliabulum a petty Synod in great letters and besides there were with the Bishops and Abbots many Wise men and in all these respects it cannot be a Parliament onely of the great Lords The next Councill said to be holden in the yeare 823. cannot also be called properly a Parliament but onely a consultation between two Kings and their Councill to prevent the invasion of the Danes and the attests of the Kings Chapplain and his Scribe doe shew also that they were not all Members of the House of Lords The Councill cited by the Opponent in the next place was holden An 838. being onely in nature of a Councill for Law or Judicature to determine the validity of the Kings Grant made to the Church of Canterbury which is no proper worke for a Parliament unlesse it befall during the fitting of the same The next is but a bare title of a Councill supposed to be holden An. 850. And not worth its room for it neither sheweth whether any thing was concluded nor what the conclusions were The worke of the next Councill alleadged to be holden An. 851. was to confirme the Charter of the Monastry of Croyland and to determine concerning affaires belonging to the Mercinies and if it had beene a Parliament for that people it might be worthy of inquiry how regularly the Arch-Bishop of Canterbury and the Bishop of London and the Ambassadors from the West Saxons could sit amongst them and attest the conclusions therein made as wel as the proper members of that Nation He commeth in the next place to a Councill holden in the yeare 855. which is more likely to be a Parliament then most of them formerly mentioned if the Tithes of all England were therein given to the Church but hereof I have set downe my opinion in the former part of the discourse And though it be true that no Knights and Burgesses are therein mentioned as the Opponent observeth out of the Title yet if the body of the Lawes be duly considered towards the conclusion thereof it will appeare that there was present Fidelium infinita multitudo qui omnes regium Chirographum Laudaverunt Dignitates vero sua nomina subscripserunt And yet the Witagen-motes in these times began to be rare being continually inrerrupted by the invasions of the Danes The three next Councills alleaged to be in the yeares 930. 944. 948. Were doubtlesse of inferiour value as the matters therin concluded were of inferiour regard being such as concerne the passing of the Kings Grants Infeodations and confirmations The Councill mentioned to be in the yeare 965. is supposed to be one and the same with the next foregoing by Sir Henry Spelman which calls it selfe a generall Councill not by reason of the generall confluence of the Lords and Laity but because all the Bishops of England did then meet The Primi and Primates were there who these were is not mentioned but its evident that the King of Scots was there and that both he and diverse that are called Ministri Regis attested the conclusions It will be difficult to make out how these should be Members of the House of Lords and more difficult to shew a reason why in the attesting of the acts of these Councills which the Opponent calls Parliaments we finde so few of the Laity that scarce twelve are mentioned in any one of them and those to descend so low as the Ministri Regis to make up the number Five more of these instances remaine before the comming in of the Normans The first of which was in the yeare 975. and in a time when no Parliament according to the Opponents principles could sit for it was an Inter regnum The two next were onely Synods to determine the difference between the Regulers and the Seculers in the Kings absence by reason that he was under age and they are sayd to be in the yeares 977 and 1009. But it s not within the compasse of my matter to debate their dates The last two were Meetings or Courts for Judicature to determine the crime of Treason which every one knowes is determinable by inferiour Courts before the high Steward or Judges and therefore not so peculiar to a Parliament as to be made an argument of its existence And thus are we at an end of all the instances brought by the Opponent to prove that Parliaments before the Norman times consisted of those whom we now call the House of Lords All which I shall shut up with two other notes taken out of the Book of Councils published by Sir Henry Spelman The first of which concerneth a Grant made by Canutus of an exemption to the Abby of Bury Saint Edmonds in a Councill wherein were present Arch-Bishops Bishops Abbots Dukes Earles Cum quamplurimis gregariis militibus cum populi multitudine copiosa votis regiis unanimiter consentientes The other taken out of the confessors Lawes which tells us that Tithes were granted to the Church A Rege Baronibus populo And thus shall leave these testimonies to debate with one another whiles the Reader may judge as seemeth most equall to himselfe Being thus come to the Norman times and those ensuing I shall more summarily proceed with the particulars concerning them because they were times of force and can give little or no evidence against the customes rightly setled in the Saxon times which I have more particularly insisted upon that the originall constitution of this government may the better appeare Now for the more speedy manifesting of the truth in the particulars following I shall pre-advise the Reader in three particulars First that the Church-motes grew more in power and honor by the aide of the Normans Law refusing the concurrence and personall presence of Kings whom at length they excluded from their Councils with all his Nobles and therefore it is the lesse wonder if we heare but little of the Commons joyning with them Secondly that the Norman way of government grew more Aristocraticall then the Saxon making the Lords the cheif Instruments of keeping Kings above and people underneath thus we meet with much noise of meetings betweene the King and Lords and little concerning the grand meetings of the Kings and the representative of the people although some footsteps wee finde even of them
also For Kings were mistaken in the Lords who meaned nothing lesse then to serve them with the peoples liberties together with their owne which they saw wrapped up in the grosse Thirdly by this meanes the Councils of the King and Lords grew potent not onely for advise in particular occasions but in matters of judicature and declaring of Law ordering of processe in Courts of Plees which in the first framing were the workes of Wise and Learned men but being once setled become part of the liberties of every Free-man And it is not to be doubted but these Councills of Lords did outreach into things two great for them to mannage and kept the Commons out of possession of their right during the present heat of their ruffling condition yet all this while could not take absolute possession of the legislative power I now come to the remainder of the particular instances produced by the Opponent which I shall reduce into severall Categories for the more cleere satisfaction to the Reader with lesse tediousnesse First it cannot be denied but the Councill of Lords gave advise to Kings in cases of particular immergency nor is it incongruous to the course of government even to this day nor meete that the Parliament should be troubled with every such occasion and therefore the giving of advise to William the Conqueror what course he should take to settle the Lawes of England according to the instances in Councills holden An 1060. And 1070. And to gaine favour of the great men according to that in An 1106. and in the manner of endowment of the Abby of Battell as in pag 25. of the Opponents discourse and what to do upon the reading of the Popes Letter according to that in An 1114. And whether the Popes Legate should be admitted as in pag. 18. And how King Steven and Henry shall come to agreement as An 1153. And how to execute Lawes by Judges and Justices Itinerant as An 1176. And touching the manner of ingageing for a voyage by Croisado to Jerusalem An 1189. And to give answer to Embassadors of a forraine Prince pag. 25. And how King John shall conclude peace with the Pope An 1213. Where neverthelesse Math. Paris saith was Turba multa nimis I say all these might well be done by a Councell of Lords and not in any posture of a Parliament albeit that in none of all these doth any thing appeare but that the Commons might be present in every one or many of them all Secondly as touching judicature the Lords had much power therein even in the Saxon times haveing better opportunites for Knowledge and Learning especially joyned with the Clergy then the Commons in those times of deep darknesse wherein even the Clergy wanted not their share as in the first part of the discourse I have already observed Whatsoever then might be done by Judges in ordinary Courts of judicature is inferiour to the regard of the Parliament and therefore the Plea between the Arch-Bishop and Aethelstan concerning Land instanced An 1070. And betweene Lanfranke and Odo An 1071. and betweene the King and Anselme pag 15 16. and the determining of Treason of John afterwards King against his Lord and King Richard pag 23. And the difference concerning the title of a Barony between Mowbray and Scotvile pag 25. And giving of security of good behaviour by William Brawse to King John pag. 26. All these might well be determined onely before the Lords and yet the Parliament might be then sitting or not sitting as the contrary to either doth not appeare and therefore can these forme no demonstrative ground to prove that the Parliament consisted in those times onely of such as we now call the House of Lords A third worke whereby the Opponent would prove the Parliament to consist onely of the House of Lords is because hee findeth many things by them concluded touching the solemnization and the settling of the succession of Kings both which he saith were done by the Lords in Parliament or those of that House and I shall crave leave to conclude the contrary For neither is the election or Solemnization of such election a proper worke of the Parliament according to the Opponents principles nor can they prove such Conventions wherein they were to be Parliaments Not the election of Kings for then may a Parliament be without a King and therefore that instance concerning William Rufus page 16. will faile or the Opponents principles who will have no Parliament without a King The like may also be sayde of the instance concerning King Steven page 18. Much lesse can the solemnization of the election by Coronation be a proper worke for the Parliament Neverthelesse the Opponent doth well know that both the election of a King and the solemnization of such election by Coronation are Spiritlesse motions without the presence of the people and therefore though his instance page 17. concerning the election of Henry the First by the Bishops and Princes may seeme to be restrictive as to them yet it is not such in fact if Matthew Paris may be beleeved who telleth us that in the Conventus omnium was Clerus and Populus universus and might have been noted by the Opponent out of that Learned Antiquary so often by him cited if he had pleased to take notice of such matters A fourth sort of Instances concerneth matters Ecclesiasticall and making of Canons and hereof enough hath been already sayd that such worke was absolutely challenged by the Church-motes as their proper worke and therefore the Instance page 16 17. of the Councill in Henry the firsts time and the Canons made by the Bishops there and that other called by Theobald Arch-Bishop of Canterbury and instanced by the Opponent page 19. I say both these doe faile in the conclusion propounded Fifthly As touching the most proper worke of Parliaments which is the making of Lawes concerning the liberties and benefit of the people the Opponent produceth not one instance concerning the same which doth not conclude contrary to his proposall for as touching those two instances in his thirteenth page Anno 1060. they concerne not the making of Lawes but the reviving of such as had been disused formerly which might well enough be done by private Councell But as to that in his fifteenth page of the Law made by the Conquerour concerning Remigius Bishop of Lincolne although it be true that wee finde not the particular titles of Knights Citizens and Burgesses yet besides the Councill of Arch-Bishops Bishops Abbats and Princes we finde the Common Councill for so the words are Communi Concilio Concilio Archiepiscopus Episcopus Abatus omnium Principum although the Opponent would seeme to wave these words Et Concilio but putting them in a small Character and the rest in a voluminous Letter that the Readers eyes might be filled with them and overlook the other Secondly as to the instance of the Councill at Clarindon in his nineteenth page which he citeth out
would pick and chuse and prohibite the Kings Bench as they pleased and to that end would order Originalls out of the Chancery as they thought most meet for it is observed by Fleta that the Kings Bench hath no Jurisdiction of it selfe but by speciall Warrant that is to say by Originall Writs returned thither Neverthelesse it may seeme that such Crimes as are contrary to common honesty or the publique profit or peace in a more exemplary way then ordinary and therefore may be called Crimina laesi Regni or against the State These I say might more properly belong to the subline Judicature of the Councell Table as knowing better how far the publique State was interested or indammaged in such Cases then the other Judges that were experienced onely in ordinary matters of a more private concernment To recite the particular Cases upon record concerning racing of Records Forgeries and other crimes of falshood conspiracies combinations to abate and levell the prices of Commodities Ryots and such like will be superfluous In all which and others of that Cognisance the Sentence exceeded not Fine and Imprisonment or ransome Neither yet were the Common Pleas so rural but the Councel Table could rellish them also and digest them well enough and therefore did not stick to prohibite the Courts of Common Law under colour of a strange maxime That it is neither just nor honest for a man to be sued at the Common Law for a matter depending before the King and his Councell No though the Court of Common Law had the precedency and therefore although the right of Tithes being depending at the Common Law the Arch-Bishop in opposition to the jurisdiction sueth before the Kings Councell and the proceedings at the Law are thereby stayed and no wonder for the Councell Table challenged to hold the ballance of all Courts of Law within their owne Order and so if any doubt concerning the Jurisdiction depended the Councell Table gave the word and all stooped thereto But enough of the Subject matter the manner followes a new form of Processe is taken up that the Common Law and ancient Custome never knew and which grew so noisome to the People that complaints are made thereof as of common greivance and remedies are thereto applyed by the Lawes of these times For whereas by the Grand Charter nothing could be done in Judgement but according to the Lawes of the Land and in affirmance thereof a Law was made in these times that no Accusation nor Attachment nor forejudging of Life or Member nor seisure of Lands Tenements Goods or Chattels should be against the form of the Grand Charter and Law of the Land the course of affaires grew so stale that amongst other innovations a trick of a new kind of triall is brought forth by suggestions upon Articles exhibited against any man before the Councell Table and thereupon issued forth Attachments against the party complained of by meanes whereof and other courses for they could also sequester much vexation arose unto the People Hereunto upon complaints multiplied a remediall Law is made whereby it is Enacted that all such suggests made shall be carried to the Chancellor Treasurer and the Kings Grand Councell and the Informer shall finde surety to prosecute with effect and to incurre the like penalty intended for the Defendant if the Plaintiffes proofes be not compleat and then the Processe of Law shall issue forth and the Defendant shall not be taken against the form of the great Charter that is he shall not be taken untill first the fault appear upon Record by Presentment or by due Processe or by originall Writ according to the Ancient Law of the Kingdome Either therefore the Privy Councell had no power to hold any Pleas at all or else no power of triall The first of these was concluded in open Parliament and the second as good as so for if the first then the second will come on undeniably But suppose all this be given up yet was this Liberty to hold Pleas so qualified that the person could not be touched till the thing did appear by Inquisition and then in a Legal way such proceedings was had upon suggestion made against the City of London in Henry the Thirds time for one of the Judges was first sent into the City to finde the suggestion by a Jury and then the Lord Maior appeared before the Lords and traversed the matter and in a manner appealed or rather demanded to be tryed according to the custome of the City And the like course doe we finde observed in our Law Reports of these times in a Case concerning the price of Wooll by a false Report The foote of the whole account will be this That the work of Judicature of the Privy Councell in these times in Cases of Crimes was to receive Articles and award Inquisitions and after return in nature of a Grand Inquest to recover Traverse and to order triall at the Common Law and upon Verdict returned to Fine and Ransome In other Cases either of right or equity in matters of private property they were determined either by Judges of the Bench or Chancery although possibly the suite was Coram Concilio for that all the said Judges were of the Kings Councell And yet as I dare not affirme so I cannot deny but it might also be possible that some matters especially these of a greater consequence either in their own nature or in regard of the persons whom they concerned were determined by the major Vote of the whole Councell in a prudentiall or rather Arbitrary way But this was Invita minerva and used so rarely as the Path is growne out of view saving some few footsteps here and there remaining which shew that the Grand Councell of Lords had been there CHAP. IV. Of the Chancerie IT is the birth of the Kings Power in Judicature and may deserve the name of the first born For though it had no better Title in these later times then Officium because amongst other of the Kings Escripts it formed Writs remediall for such as had received wrong yet even by that work it was in repute for so much skill in the Law of the Land that by the consent of all it was as well able to advise a remedy as to advise the Complainants where to have it and yet it had one adventage further that it was an Office of remembrance to the King who is a Person of great trust in the Law and gave such credit to all Acts done before him as being entred into the remembrance became of the highest nature of Record against which no Plea did lie Amongst these matters of debt and contract coming into the account this Office taking notice of the Record tooke Cognisance of the thing and for the executing thereof and thus in these and such like Cases granted Judiciall Writs and so found out a way of Judicature to as many Causes as
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
thus the Parliament of England tells all the World that they hold themselves compleat without the Clergy and to all intents and purposes sufficient to conclude matters concerning the Church without their Concurrence Thus began the Mewing time of Prelacy and the principall Feather of their wings to fall away having now flourished in England nigh eight hundred years and had future Ages pursued the flight as it was begun these Lordings might have beaten the Aire without making any speedy way or great work saving the noise A third step yet was made further in order to the reducing of the power of the Popedome in England but which stumbled most immediatly upon the greatnes of the Prelates For it was the condition of the Spirituall Powers besides their height of Calling to be set in high Places so as their Title was from Heaven but their Possessions were from men whereby they gained Lordship Authority and Power by way of Appendix to their Spirituall Dignities This Addition however it might please them yet it for a long time ere now had been occasion of such murmur and grudge in the Commons against the Clergy as though it advanced the Clergy for the present yet it treasured up a back reconing for these men and made them lyable to the displeasure of the Laity by seisure of their great places when as otherwayes their Ecclesiasticall Dignities had been beyond their reach And of this these times begin now to speak louder then ever not onely by complaints made in Parliament by the People but also by the Lords and Commons in Parliament to the King that the Kingdome had been now long and too long time governed by the Clergy to the disherison of the Crown and therefore prayed that the principall Offices of the Kingdome might henceforth be executed by the Laity and thus the stir arose between the Lords Temporall and Spirituall each prevayling or loosing ground as they had occasion to lay the way open for them The Duke of Lancaster being still upon the upper ground that as little regarded the Popes Curse as the Clergy loved him But the worst or rather the best is yet behinde Outward Power and Honourable places are but undersetters or props to this Gourd of Prelacy that might prove no lesse prejudiciall by creeping upon the ground then by perking upward For so long as Error abideth in the Commons Truth can have little security amongst Princes although it cannot be denyed but it s a good signe of a clear morning when the Sun rising glorieth upon the top of the Mountains God gives Commission therefore to a Worme to smite this Gourd in the roote and so at once both Prelate and Pope doe wither by undermining This was Wickleife that had the double Honour of Learning in Humane and Divine Mysteries the latter of which had for many yeares passed obscurely as it were in a twilight amongst the meaner sort who had no Indowments to hold it forth amongst the throng of learned or great men of the World And though the newes thereof did sound much of Holynesse and Devotion Theames unmeet to be propounded to an Age scarce Civillized Yet because divers of them were more immediately reflecting upon the Policy of the Church wherein all the greater sort of the Churchmen were much concerned but the Pope above all the rest the accesse of all the matter was made thereby more easie to the Consideration of the great Lords and Princes in the Kingdome who out of principles of State were more deeply ingaged against the Pope then others of their ranke formerly had been Duke John of Gant led the way in this Act and had a party amongst the Nobility that had never red the Canon Law These held forth Wickleife and his Learning to the World and Edward the Third himself savoured it well enough but in his old Age desiring his ease was contented to looke on whiles his Lords Temporall and Spirituall played their Prize yet giving his plaudite rather to his Sonne then his Spirituall Fathers as if led by Principles of Nature rather then Religion This was the blossoming part of the Wickleifists but the principall strength was from beneath where the roots spread and fastned exceedingly especially in the South and Eastern parts of this Kingdome To tell of the Vsurpations of the Clergy the Idolatry of their costly Worship the vanity of their Curses c. was exceeding welcome newes to an oppressed multitude especially where these things were rightly understood The Issue soon manifested it selfe to the World no Parliament passed without reflections at Prelates Rome or some such thing and not onely the persons and practices of these men but even their Lawes and Canons were begun to be had in contempt and their missives sleighted And thus these men pretending Patronage both from Right drawn from Heaven and derived from men faile in their Evidence unlesse the people doe still beleive more then they are able to understand No marvell if Rome be now rouzed and that sort of men that formerly were Wolves in Sheeps clothing become now red and fiery Dragons taking up a new course of Establishing their Power by Persecution This was a way of Power indeed but it s a touchy thing to have to doe with fire least it gets too high It is therefore holden a point of discretion by the Prelates not to meddle with the Lords or the Common People the former were too great the later too many the one sort would not heare the other would not understand The Teachers therefore being the Velites at them they give fire Wickleife their Leader comes on bravely and notwithstanding they all made at him he routes them and in despite of them all comes off fairely and dies in his bed by the course of Nature Then an Ordinance is levelled at the rest of the Teachers This was made of an old Canon the nature whereof was to this purpose That upon complaint of the Bishop the Kings Writt shall be granted to apprehend Preachers of Heresies Errours and matters of Slander tending to Discord and Discention betweene the States of this Realme with their Factors and Abbettors and to imprison them till they be acquitted according to the Law of the Church This Law for such it yet appears gives occasion to consider of these particulers Viz. The Crime the Delinquents the manner of Inquisition and the penalty For the first not to trouble my way with Debate about the right of liberty of Preaching the matter in Fact was that men did publiquely Preach without Authority matters of Theology tending as it s said to sow discord and dissention so as they are under consideration censure of the Church-Men and Canon Law in one regard and of the Lawes of the Kingdome and Civill Magistrate as disturbers of the Peace on the other side and thus the Subjects liberty is cast into a mysterious cloudy and doubtfull posture by matters of Opinion Secondly the Persons Delinquent are
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
at a distance and after long delay But Edward the Third sums up all into one breif and brings a compleate modell thereof into the World for future Ages to accomplish as occasion should lead the way The cours was now established to have Justices settled in every County there to be resident and attending that Service First they were named Guardians or Wardens of the Peace but within a few yeares altered their Title to Justices First they were chosen out of the good and lawfull men of each County After that they were two or three chosen out of the worthiest men and these were to be joyned with Lawyers Then was one Lord and three or foure in each County of the most worthy men adjoyned with Lawyers Afterward in Richard the Seconds time the number of Justices in each County might attain to the number of six and no Steward of any Lord to be admitted into the Commission but within half a yeare all is at large so be it that the choise be out of the most sufficient Knights Esquires and Gentlemen of the County Again within two yeares the number in each County is set at eight yet in all these the Judges and Serjeants were not reckoned so as the work then seemeth not so much as now a dayes although it was much of the same kinde and yet it grew up into that greatnesse which it had by degrees Before they were settled by Edward the Third there were Custodes pacis which might be those whom we now a dayes call the High-Constable of the Hundred whose work was purely Ministeriall Afterward about the second yeare of Edward the Third the Guardians of the Peace had power of Oier and Terminer in matters of riding Armed upon the Statute 2. Ed. 3. After that they have power of inquiry by Indictment in certain Cases within foure yeares after they have power of Oier and Terminer in Cases of false Jurors and maintenance and about tenne years after that they obtained like power in matters of Fellony and Trespasse The way of Commissions in case of life and member thus opened another occasion of Commission offers it self for a determinative power in case of offences against the Statute of Labourers and the Cognisance hereof is soon settled upon Commissioners in the Counties specially chosen for that Service which questionlesse as the times then stood was as commendable work as it was necessary For Souldiers were so many that Labourers were very few and those that once are accustomed to Armes thinke ever after meanly of the handycraft nor will they ever stoop thereto after their Spirits are once elivated by Mastery of Adventures And secondly those few Labourers that remained of the Sword Plague and other disasters of these wasting times understood their advantage and set a value upon their labours far above their merit apprehending that men would rather part with too much of a little then to let their work lie still that must bring them in all they have but these Commissioners lasted not long though the worke did The Justices of Peace are looked upon as meet for that service and its a vain thing to multiply Commissions where the work may be done by one that before this time had obtained an additionall Cognisance of all Causes of Riots Batteries wandering dangerous Persons and offences in Weights and Measures and in Purveiance To them I say all this work concerning Labourers is also committed by the Parliament and herewith a way was laid open for Crimes of greatest regard under Fellony to be determined by triall in the Countrey according to the course of Common Law The issue of all which was not only ease to the People but a great escape from the rigor of the Councel-Table in the Star-Chamber and the Kings-Bench at Westminster on the one side and also from the gripe of the Clergy on the other who hitherto held the Cognisance of the Markets in Weights and Measures to themselves This modell so pleased all men that Richard the Second that was pleased with nothing but his owne pleasure gave unto the Justices of Peace yet further power to execute the Statute at Northampton against riotous ridings and to settle the wages of Labourers and Servants to punish unlawfull Huntings by the meaner sort of people and regrators of Wooll fals Weights in the Staple unlawfull wearing of Liveries and unlawfull fishings contrary to the Statute at Westminster 2. Thus was the power of Justices of the Peace grown to that heighth in these and other things that it undermined not onely the Councel-Table and Kings Bench but the Commissions of Gaole delivery and of Oier and Terminer so farre forth as their work was much lesse then formerly for Neighbous in cases of Crime are better trusted with the lives and estates of men then strangers so as in all this the people are still the gainers The manner of Judicature by these Justices of the Peace still remains nothing appears by any Statute in these times that one Justice of the Peace might doe alone but record a forcible detainer although questionlesse in point of present security of the Peace and good behavior by the intent of the Statutes he might doe many things but in Cases of Oier and Terminer all must be done in publique Sessions which the Justices of the Peace had power to hold by Commission onely untill the thirty sixth year of Edward the Third and ever after that they held their Sessions by vertue of the Statutes and had power to determine divers things in their Sessions according to discretion These were remedies after the Fact now see what preventing Physick these times afforded One thing that much irritated the spirits of men into discontents was false newes or slanderous reports raised and spread amongst the great men For in these times the Lords were of such considerable a power as the vexation of one Lord proved the vexation of a multitude of the meaner sort and though the Statute of Westminster the 1. formerly had provided against such tales yet it touched onely such as concerned discord between the King and People although by implication also it might be construed to extend further But Richard the Second willing to live in quiet that he might injoy his pleasure would have the people know their duties in plain words and agreed to a Law that all such as published such false newes tending to sow strife between the great men should be imprisoned untill the first mover was found and if he were not found then the Relator should be punished by advice of the Councell So much power was then given to the Councell what ever it was Thus the seed was choked or was so intended to be though every passion was not thus suppressed For some angers conquer all feare and will hold possession come what will In the next place therefore provision is made against the first actings in sorting of parties by
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
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
Clergy gave their Vote if not the first vote and therefore certainly did neither beleeve nor honor that infallible Chaire as their owne Mother nor did they beare her yoake further then their owne benefit and reason of State did require for though the immediate benefit of this Law did descend upon the Prelacy yet it also much concerned the interest both of the honor and benefit of the Nation that the Clergy should not be at the Popes pleasure to tax and assesse as he thought good Secondly Henry the fifth added unto the Prelacy some kinde of increase both of Honour and Power Viz. To visit Hospitalls that were not of the Kings owne foundation and to reforme abuses there for the Patrons either had no Power to punish or will or care to reform them and thus upon the point although they lost a right yet they gained ease Thirdly the same King confirmed by a Statute unto Ordinaries the Cognisance of accompts of Executors for their Testators Estates which formerly was granted by the Canon Law but they wanted power to execute and a right to have and receive In all these the Clergy or Prelacy were the immediate gainers In as many other things the People were made gainers and yet the Clergy were no loosers otherwise then like the Kite that prey which was none of their owne First they refused formerly to grant copies of Libells either thereby to hinder the course of Prohibitions or to make the copies the more dear and Mony more Cheap with them Henry the fifth finding this a greivance to the People passeth a Law that all Ordinaries shall grant the copies of Libells at such time as by Law they are grantable Secondly as the Probate of Wills had anciently belonged to the Ordinary by the Canon Law and formerly also confirmed to them by the Parliament so it also regulated and setled the Fees for such Service But the Clergy having been ever under the nouriture of their Mother Rome that loved to exceed they likewise accounted it their liberty to take what they could get but the nigher they come to ingage with Kings in their government according to Law the more reformed they grow Formerly Edward the third had setled their Fees but they would not hold to the rule now the Law is redoubled by Henry the fifth with a penalty of treble dammages against delinquents Furthermore the very Preists could not containe their Paternosters Requiems Masses and such wares they had ingrossed and set thereof what price they pleased The Market was risen to that height that Edward the third undertooke to set a rate upon those commodities but that also would not hold long Henry the fifth he sets a certaine Stipend somewhat more then Edward the third had done and yet lesse then the Preists had formerly Lastly some Lawes were made wherein the Common-wealth gained and the Church were loosers First whereas the Church-men formerly held all holy things proper and peculiar to their owne Cognisance especially such as concerned the worship of God the Parliament now began to be bold with that and never asked leave It had now for a long time even since the Saxon times been the unhappy condition of this Church of England amongst others to decay continually in Piety and right devotion but through the light that now revived and Gods goodnesse it in these times came to passe that the People did entertain some sense of their duty towards God more then formerly and begin to quarrell the abuses done to the Lords day in the manner of the keeping thereof London hath the honor for beginning this reformation by an Act of their Common Councell The Parliament within seven yeares after that ingage the whole Kingdome in that service though therewith also are adjoyned other holy Feasts then holden And all Faires and Markets are injoyned to cease on that day under paine of forfeiture of Goods exposed to sale excepting Victuall and excepting the foure Sundayes in Harvest And thus though places had their consecration allowed by the Parliament and immunity from trading in Faires and Markets by the space of 160. yeares before this time yet that time which God by his owne Law had reserved to his owne selfe never came under regard to be allowed till now and yet not by the motion of the Clergy nor by their furtherance for by their thrusting in the holy dayes they made them equal with the Lords day and in Harvest time superiour by preserving them in force when as the Lords dayes were set aside So God had somewhat of these men but the Pope more Secondly as the Church-men lost in the former so the Prelacy in this that follows The Prelates had long since obtained the triall of Bastardy and therein could straine themselves so far as to put the Case of inheritance into danger where the point otherwise was cleare enough and this grew to that height that it indangered the disinheriting of the heires of the Earle of Kent It is therefore now provided that before the Ordinary in such Cases Proceed to triall Proclamations shall be made in Chancery to summon all pretenders of Interests or Titles to come before the Ordinary to make their Allegations and all trials of Bastardy otherwise made shall be voide so as whatever the Canon did the Parliament would not trust to the Ordinaries Summons nor allow of their power in any other manner then the Parliament thought meet One thing more remaineth wherin the true Church of Christ seemed to lose and yet gained and the Clergy joyning with the King seemed to gain and yet lost this was the point of worship which had long stumbled the mindes of the People and was now growne to that strength that nothing but an Act of Parliament can keep it under This opinion concerning worship was at the first so young that it was not yet baptized with any proper name but called Opinion contrary to the Church determinations or Catholique faith And against this the Clergy now stormed more then ever formerly because it was grown to such a height as if it meaned to over-top theirs To this end they procure an Act to passe That all Preachers Teachers Writers Schoolemasters Favorers or notoriously defamed Persons for the maintenance of such opinions shall be upon conviction before the Ordinarie according to the Canons imprisoned in the Diocessans Prison Fined according to the Diocessans discretion If upon Conviction he shall not abjure or shall relapse he shall be delivered unto the Seculer Power and be burned And that Preachers without Licence of the Diocessan should be restrained Concerning which Law I shall first shew what change in the Lawes of this Kingdome was endeavoured and what was really effected First it is an undeniable ground that no Free-man can be put to answer before any Judge but upon Presentment or other matter of Record foregoing and by due Processe of Law and yet it hath been ruled that strong
presumption and complaint of credit after it is entered is sufficient Record to ground proceedings in this Case to attache the Party to answer But by this Law a Triall is introduced that neither resteth upon any peremptory accusation or proofe of witnesse but meerly upon Inquisition upon the Oath and Conscience of the Party suspected which in the later dayes hath been called the triall upon the Oath Ex Officio for such was the triall allowed by the Canon in these times as appeares in the Constitutions of Otho and the Decrees of the Arch-Bishop Boniface by whom it was indeavoured to be obtruded upon the Laity about the times of Henry the Third or Edward the First but even the Clergy then withstood it as Lindwood confesseth And Otho in his very Constitution doth hold this forth by that Clause of his Nonobstante obtenta consuetudine Secondly this Law doth indeavour to introduce a new Judge with a power to Fine and Imprison according to discretion and a Prison allowed to him as his own peculier and yet the Writ De cautione admittenda still held its power to regulate that discretion as formerly it had done which by the way may render the power of this Law suspitious Thirdly the Clergy are not content to have the Estates and Liberties of the bodies of the People at their discretion but they must also have their lives although no Free-mans life could by the Fundamentall Lawes of this Kingdome come to question but by the judgement of his Peeres nor could the Clergy by their owne Canons interesse sanguine Viz. They cannot put any man to death but by this Law they may send any man to death by a Sentence as sure as death Tradatur potestati seculari And such a death not as the Civill Magistrate is wont to execute by a speedy parting of the Soul from the Body by losse of blood stop of breath or such like but the Clergy must have blood flesh bones and life and all even to the edge of nonentity it self or they are not satisfied And thus the Writ De comburendo Haeretico entered into the World True it is that some sparks of this fire are found in former times and Bracton toucheth upon such a Law in Case of a Clerk convict for Apostacy Primo degradetur post per manum Laicalem Comburatur which was indeed the Canon and that by his own Confession for it is grounded upon one Secundum quod accidit in the Synod at Oxford under Arch-Bishop Becket but that Case concerneth a Clerk who by his Profession hath put himselfe under the Law of the Canon and it was onely in Case of Apostacy himself being turned Jew and this also done upon a sudden pang of zeale and power of an Arch-Bishop that would know no Peere nor doe we finde any second to this President by the space of two hundred yeares next ensuing neither doth the Decree of Arch-Bishop Peckham who was not long after Becket treating about Apostacy in Lay-men mention any other punishment then that they are to be reclaimed Per censuras Ecclesiasticas nor yet that of Arch-Bishop Arundell amongst the Constitutions at Oxford not long before this Statute who treating about the crime of Heresie he layes the Penalty upon the forfeiture of goods with a Praesertim as if it were the Grand punishment And Lindwood in his glosse upon that place setting down the Censures against Heresie Hodie sunt saith he damnandi ad mortem as if it were otherwise but as yesterday Fourthly the next indeavour is to bring the Cognifance of all wholly to the Ecclesiasticall Court without further appeale for so the words concerning Conviction of Heresie are Whereupon credence shall be given to the Diocessan of the same place or his Ordinary in that behalfe These changes I say were indeavoured to be brought upon the Government of this Kingdome and yet the Law for all this suffered no change nor did the House of Commons however the name is thrust into the English Ordinary Print ever yeild unto the passing of the same but in the Parliament next ensuing complained thereof and protested they would not be bound by such Lawes whereto the House of Commons had not given their consent and this dashed the Law quite out of countenance although it holds the place still amongst the number for within foure yeares after the Clergy bring in another Bill of the same nature in generall though varying in some particulars but the same was again rejected All the strength therefore of this Law resteth upon the King and House of Lords ingaged by the Clergy to whom they trusted for their Religion for Book-learning was with them of small account and no lesse by the King who knew no better way to give them content that gave him so much as to set the Crowne upon his head nor to discharge his Royall word passed by the Earles of Northumberland and Westmerland in his behalf unto the Convocation Viz. That they were sent to declare the Kings good will to the Clergy and Church Liberties and that he was resolved to defend all the Liberties of the Church by his Kingly Power and to punish Hereticks and the Churches Enemies in such manner as the Clergy should thinke meete and therefore desired their dayly Prayers for his owne and the Kingdomes safety And yet for all this the People were not of this minde no small part of the Kingdome being overspread with these Opinions After Henry the Fourth comes Henry the Fifth and he also makes another assay the former opinions then knowne onely by the generall name of Heresie are now baptized by the new name of Lollardry and grown so overspreading that all the troubles of these times are still imputed to them It was indeed the Devills old and common trick thus to inrage earthly powers against these men although he be hereby but an instrument in the hand of the Cheif Builder that in laying a sure foundation doth as well ramme downe as raise up for the malice of these men made the People of God to multiply Henry the Fifth also published a Law to this same That all Persons in place of Government shall sweare to use their diligence to destroy all Heresies and Errors called Lollardries That all Lollards convict by the Clergy left to the seculer power according to the Lawes of Holy Church shall forfeit their Lands and Tenements to their Lords And the King to have the yeare and day and waste and all his Goods and Chattels If the Lord be the Ordinary the King shall have all No forfeiture to be till the Delinquent be dead They shall be found by Indictment before the Justices of the Peace This Indictment being found shall be sent to the Ordinary with the Prisoner The Indictment shall not be for Evidence but onely for Information These are the Principall things contained in this Law which by the manner of the Composure seemeth to be of an
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
more of that now they devise a way to spoile and prey for themselves and yet neither to rob nor break house To this end they would scatter little Scrolls in writing requiring the party that they intended to prey upon to leave so much Money upon such a day at such a place and this was Sub paena of burning the parties house and goods which many times did insue upon default made this practise was at once made Treason to prevent the grouth of such an evill And the like was done with Robberies and Manslaughters contrary to the Kings Truce and Safeconduct As many or more new Fellonies were also now created One was the cutting out of mens tongues and plucking out of eyes a strange cruelty and that shewed the extreame savagenesse of those times so much the more intollerable by how much the poore tortured creature could hardly be either eye or eare witnesse of the truth of his own wrong A second Fellony was the customary carrying of Wooll or Wool-fells out of the Realme to other places except Callis Another Fellony concerneth Souldiers which I refer over to the next Chapter The last was Servants plundering their Masters Goods and absenting themselves if upon Proclamation made they appeare not this was also made Fellony In the next place as touching forcible entries and riots the remedies so often inculcated and new dressed shew plainly the nature of the times These kind of crimes commonly are as the light Skirmishes in the beginning of a War and follow in the conclusion also as the faintings of a battell fought till both sides be weary I shall not enter into each particular Statute diverse of them being little other then as asseverations annexed to a sentence to add credit and stirr up minding in men that otherwise would soone forget what is sayd or done The remedies formerly propounded are now refined and made more effectuall First in regard of speed which is as necessary in these forces as the stopping of the breaches of waters in the first Act and therefore one Justice of the Peace may proceed upon a holder by force or breaker of the Peace with a Continuando but Riots are looked upon as more dangerous and the first opposition had need be more stiffe least being uneffectuall aggravates the violence and therefore it s required that two Justices and the Sheriffe should joyne in the worke to carry one the worke with more Authority and Power And what they cannot do in the punitive part they must certifie to the King and his Councel or to the Kings Bench if traverse be made So as though the Power of the County be annexed to the Sheriffe Jure ordinario to maintaine the peace yet the Parliament did delegate the same upon Justices as it thought most expedient To maintaine and recover the Peace when it s broken shewes more Power but to prevent the breach shewes more Wisdome and therefore to all the rest the Wisdome of these times provided carefully First for Guards and Watches according to the Statute at Wint and committed the care thereof to the Justices of the Peace And secondly against the gendring of partyes for its commonly seene that such as are admired for excellecies of Person are so far adolized of some as that their gestures actions and opinions are observed tokens of favour though never so small are desired from such and the Idoll likes it well gives Points Ribbons it may be Hats and with these men are soon gained to be Servants in the fashion and not long after to be servants in Action be it War or Treason or any other way This manner of cheat the former times had been too well acquainted with Knights and Esquires are not feared in times where the word Lord carries the wonderment away their offences against the Statutes of Liveries are all great though in themselves never so small and therefore are sure of Fine and Ransome and it s well if they escape a yeares Imprisonment without baile or mainprize Lords may weare the Kings Livery but may give none Knights and Esquires may weare the Kings Livery in their attendance upon his Person but not in the Countrey The King and Prince may give Liveries to Lords and meniall Servants The summe is that Liveries may be given by the more publique Persons for State not to make parties and Men may weare Liveries in token of Service in Peace and not in Armes One thing must be added to all which may concern triall in all Viz. A Law was now made that Noble Ladies shall be tried by their Peeres a Law now of the first stamp and strange it is that it never came before now into the breast of the Law but that it came now it is not strange no meaner Person then the Dutches of Glocester is first charged with Treason when that could not appear then for Necromancy very fitly that she might be tried by the Ecclesiasticall way of witnesses She is found guilty and a Sentence of Penance and imprisonment or banishment passed thereupon after such a wilde way as both Nobles and Commons passed this Law for the Vindication of that Noble Sexe from such hudling trialls for the future CHAP. XXII Of the Militia during these times THe Title of Henry the Fourth to the Crown was maintained principally by his Tenures which the Courtiers call Knight-Service but the Common People force of Armes and that which destroyed many a man was the principall means of his subsistence Otherwise its clear that his Title was staring naught nor could he outface Mortimars Title without a naked Sword which he used warily for he had Enemies enough to keep his Sword in hand and Freinds enough to keep it from striking at randome for coming in by the Peoples favour he was obleiged to be rather remisse then rigorous yet his manner of comming was by the Sword and that occasioneth men much to debate about his absolute power in the Militia as supposing that what power he had other Kings may De jure challenge the same and let that be taken for granted though it will not necessarily follow in true reasoning And let it also be taken for good that Henry the Fourth entered the Throne by his Sword yet is there not any Monument in Story or Antiquity that favoureth any absolute right in him over the Militia but the current is I think somwhat clear against it First because Henry the Fourth De Jure could not compell men to serve beyond the Seas but raised them by contract and therefore by Act of Parliament he did confirme the Statute 1 Ed. 3. Stat. 2. cap. 5. which Statute was purposely made to that end And the same also is countenanced by another Statute made in these times whereof we now Treat by the words whereof appeareth that the Souldiers for the Forrain Service were levied by Contract between them and the Captain who undertooke to Levy them by
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
Money possibly when he had no need and paying them againe thereby to gain credit for greater sums of which he intended not so suddain returne Then he charges them home with Benevolences a trick gained in right of his Wife from her Father for he hoped that the Person of Richard the third was now become so abominable as his Laws would be the lesse regarded But in this course he gained nothing but winde then as Edward the fourth he falls upon Malevolences of penall Lawes things made in terrorem to scare men to obedience rather then to compell them but are now executed Ad angorem and the people find that he is but a word and a blow with them and thus serving his Prerogative with Power and his Purse with his Prerogative he made all serve his owne turne Humanitatem omnem vicente periculo In the feild he alwayes put his Wisdome in the Van for as he was parcimonious in expences of Money so much rather of Blood if he could prevaile by wit Generally he was the first in armes to make men beleeve he was more ready to fight then they Thus he many times gained the advantage of his adversaries and sometimes came off without blowes In the Battell he did put on courage as he did his armor and would dare to adventure just as far as a Generall should as if he had ever regard of his Crown rather then of the honor of a forward Souldier which neverthelesse was also so dear to him as he is seldome found in the reare although his judgment commanded in cheife rather then his courage In the Throne he is much more wise because he was willing it should be known In doing Justice he is seldome suspected unlesse where himselfe is party and yet then he is also so shamfaced as he would ever either stalk behinde some Law that had a semblance to his ends or when he meant to step out of the way he would put his Ministers before not so much that his finenesse might be known but his royalty For the Lion hunts not his own prey nor is it regall for a King to be seen in catching of mony though he be understood besides it was needlesse he had Lords Bishops Judges and other instruments of malevolent aspect as so many furies outwardly resembling men for the Common-wealth but working for the common mischeife like some pictures one way looking right and another looking wrong and thus the King comes lawfully by what he catched though his instruments did not and must be still holden for a good King though it be his hard hap to have ill Servants Take him now amongst the People he is alike to all yea in some things that might seem to brush upon the Kings owne traine for he had some of his suite that were not altogether of his minde and these he would spare to the Course of Justice if need were as it befell in the Case of the Duke of Suffolk whom he suffered to be tried at the Kings Bench bar for a murther done upon a meane person and by such meanes obtained the repute of a Zealous Justiciar as if Justice had been his principall vertue All this suited well with his maine end for he that will milk his cattell must feed them well and it incourages men to gather and lay up when they have Law to hold by what they have His religion I touch upon in the last place as most proper to his temper for it was the last in his thought though many times the first in the acting but where it stood in his way he turned it behinde him he made Church-men his instruments that the matter might better relish for who wil expect ought save well from men of religion and then if the worst come he was but misled by such as in common reason ought to be trusted And it is his unhappynesse to meet with Clergy men to serve a turn and a Pope to give his benediction to aâ—l Nor was this Gratis for there were as many mutuall ingagements between the Clergy and him as any of his Predecessors of the hous of Lancaster besids Lastly it may wel be supposed however wise this King seemed to be that many saw through him which procured him a troublesome reigne though many times occasioned by his owne interposing in forraine Interests wherein he suffered more from others then they from him Amongst the rest the Dutches of Burgundy though a Woman shee were mated him with Phantomes and apparitions of dead bodyes of the House of Yorke the scare whereof put the King and all his people in allarme and striking at idle shadows slew one another All which together with the appearances of Collections Taxes and other accoutrements to furnish such imployments were enough to disturb that ease and rest that the King aimed to enjoy make him burdensome to his People and both himselfe and them weary of each other and so he went down to the grave with but a dry funerall leaving no better testimony behinde him then that he was a cunning man rather then a wise English King and though he died rich yet is he since grown into debt to the Pen-men of his story that by their owne excellency have rendred him a better King then he was HEnry the Eight was a conception in whom the two Bloods of Yorke and Lancaster did meete both of them unconquered both of them predominant and therefore no wonder if he was a man beyond the Ordinary proportion of other men in stature of body and in qualities of mind not disproportionable It s regularly true that great bodies move slowly but it holds not where much spirit is and it was the condition of this Prince to have a Spirit of the largest size that acted him into motion with no lesse speed then mighty Power This himselfe understood right well and therefore might be haughty upon a double title both of purchase and inheritance nor did he faile of expectation herein for he could not endure that man that would owne his right in competition with the Kings aimes and therefore would have his Kingdome be like his doublet to keep him warme and yet sit loose about him that he might have elbow room suitable hereunto were his undertakings invited thereunto by the inordinate motions or rather commotions of his neighbouring Princes for it was now full Sea in all Countries and though England was inferiour to some of them yet the King held it dishonorable for him not to adventure as far as the bravest of them and in the end outwent them all What he wanted in number he supplyed in courage wherein he so exceeded that he avoyded dangers rather out of judgment then feare His thoughts resolutions indeavors and actions were all the birth of occasion and of each other as if he had obtained a generall Passe from Providence with warranty against all Counterguards whatsoever His Wisdome served him to espy present opportunities rather then to foresee
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
granted prohibition enjoyned the Ordinary to grant absolution where it saw cause neverthelesse in some cases Henry the Eighth gives way to some Statutes to allow them this power as in the levying of Tenths In the next place the Prelacy had not this Ecclesiasticall jurisdiction in themselves so as to grant it to others but the Parliament did dispose thereof not only to Bishops but to Chancellors Vicars generall Commissaries being Doctors of the Law and not within holy Orders and limiting their jurisdiction in cases concerning the Papall jurisdiction and their manner of sending their processe and Citations to draw men from their proper Diocesse and also their inordinate Fees in cases Testamentary The Prelates therefore might possibly make great claim hereof for generally they were still of the old stamp loved to have all by Divine right and lived they cared not by what wrong But the Laity inclining too much to the new Religion as then it was termed refused to yeeld one foot unto their pretentions And so like two Horses tied together by their Bits indeavor after severall courses ever and anon kicking one at another yet still bestrode by a King that was joynted for the purpose and so good a horse-man that neither of them could unhorse him till Death laid him on the ground And thus was the Romane Eagle deplumed every Bird had its own feathers the great men the Honours and Priviledges the meaner men the profits and so an end to Annates Legatine levies Peterpence Mortuaries Monestries and all that retinue the vast expences by Bulls and Appeales to Rome to all the cares expences and toile in attendance on the Romane Chaire The beginning of all the happinesse of England CHAP. XXXI Of Judicature THese two Kings were men of towreing Spirits liked not to see others upon the wing in which regard it was dangerous to be great and more safe not to be worthy of regard Especially in the times of Henry the eighth whose motion was more eager and there was no comming nigh to him but for such as were of his own traine and would follow as fast as he would lead and therefore generally the Commons had more cause to praise the King for his Justice then the Nobility had Both the Kings loved the aire of profit passing well but the later was not so well breathed and therefore had more to do with Courts which had the face of Justice But behinde were for the Kings Revenue Such were the Court of Requests of meane originall meane education yet by continuance attained to a high growth The Court of Tenths and first fruits The Court of Surveyors The Court of the Lord Steward of the houshold The Court of Commission before the Admirall The Court of Wards The Court of the President of the North The Prerogative Court The Court of Delegates The Court of Commission of Review Others of more private regard and that which might have given the name to all the rest the Court of Augmentation Besides these there were some in Wales but that which concerned more the matter of Judicature was the losse of that grand liberty of that Countrey formerly a province belonging to this Nation and now by Henry the eighth incorporated into the same and made a Member thereof and brought under the same fundamentall Law a work that had now been long a doing and from the time of Edward the third brought on to perfection by degrees First by annexing the Tenure of the Marches to the Crowne Then upon occasion of their rebellion by losse of many of their wonted liberties Afterwards Henry the eighth defaced the bounds of diverse the ancient Counties and setled them a new and the bounds of the Marches also and appointed Plees in Courts of Judicature to be holden in the English tongue And last of all reunited them again to the English Nation giving them vote in Parliament as other parcell of the English Dominions had True it is that from their first submission even unto Edward the first they were summoned unto Parliament and had vote there but onely in order to the Interests of their own Countrey now and henceforth they possesse one and the same vote as English men Secondly as Courts and Judicatories multiplied so some also of those that were ancient enlarged their Jurisdiction especially such of them as most nighly related to Prerogative amomgst others the privy Councell leads the way Who now began to have too much to do in a double capacity one at the Councell Table the other in the Star Chamber For now their Power began to be diversly considered In their first capacity they had too much of the Affaires of the Common Pleas in the later they had too much of the Crown Pleas both of them serving rather to scare men from doing wrong then to do any man right And therefore though some men might seeme to have some recompence yet the greatest gain fell to the King and his Courtiers and thus became Majesty or State or Prerogative to be more feared then beloved What the Power of the Councell was formerly hath already beene manifested that which both these Kings conspired in and whereby they gained more Power over the People then all their Predecessors was this that other Kings stood too much upon their own leggs these leaned much upon the Lords and gained the Lords to stick close to them and in this they had both the Kings Love and the Peoples Leave who now disjoynted upon severall Interests especially that of Religion must be contented to let go that which they had no heart to hold And thus they obtained a judicatory Power over the people like that of great men whose Censures are commonly above capacity and not like to that of the Peers This was begun in Henry the sevenths time who taking occasion to complain of corruption and neglect in ordinary Trialls of the Common Law gets the People to yeild to the Councell or some of them a Power of Oier and Terminer by examination upon Bill or information in matters concerning Maintenance Liveries Retainders Embraceries corruption in Sheriffs and Juries Riots and unlawfull Assemblies Crimes all of them of the same Blood with rebellion which the King as much hated as the thought of his Title to the Crowne and therefore would have it feared as much as the punishment by such a mighty Power and a Triall of a dreadfull Nature could effect A Triall I say wherein both the guilty and the guiltlesse adventure their whole Estates against the edge of the arbitrary wills of great men of unknown Interests in an unknown way at unknown places having no other assurance how or when to come off but a Proclamation to tell the People that the King above all things delighted in Justice A bitter pill this was for the People to swallow yet it was so artificially composed that at the first taste it gave a prety rellish the King delights in Justice the
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
not so fill he would have Souldiers but they must be his Patentees not for any skill or valour in them above others but he hoped they would compound with him for Licenses to absent rather then to adventure themselves and so he might get the more Money that could finde pay for Souldiers more and better then they were or would be for otherwise the Patentees might by the Statute have beene allowed to serve the King by their Deputies which would have done the King better Service in the Warrs then themselves could have done and for this very purpose much use was made of these Statutes as well by Henry the seventh as Henry the eighth both for Licenses and Pardons for composition in such Cases as their Records do plentifully shew Secondly let the Claime of Kings be what they will yet the matter in fact shew plainly that they never had possession of what they claimed Both these Kings pretended a Forraine-Warr each of them once against one and the same Nation and to that end advanced unto one place with their Armies although the one went in good earnest the other in jest Their Armies were not gathered by Prerogative but of Volunteirs this not only the Records but also the Statutes do clearly set forth Some souldiers served under Captaines of their own choise and therefore the Law inflicteth a penalty upon such Captains as bring not their number compleat according to their undertaking other Souldiers are levied by Commission by way of imprest which in those dayes were Volunteirs also and expecting favour from the publique the rather because they devoted themselves thereto without relation to any private Captaine willingly therefore received imprest Money And of this course the State saw a necessity both for the better choise of men and for the more publique owning of the worke For such as had been usually levied by the Captaines were fit only to fill up room and make up the number and yet many times there was a failing in that also and this manner of raising the Infantry was continued by Henry the eighth as by the like Law in his time may appeare As touching the levying of the Horse although diverse Statutes were made for the maintenance of the breed of Horses and Persons of all degrees of ability were assessed at the finding and maintaining of a certaine number of Horses yet do none of them tell us that they shall finde and maintaine them armed compleatly for the Warrs nor shall send them forth upon their own charge and therefore I suppose they were raised as formerly these two Kings had the happinesse to be admired the one for his shrewd cunning Head the other for a resolute and couragious Heart And it was no hard matter to finde men that loved to ingratiate themselves and indeavour to catch their favour though with the adventure of their Lives especially if they looked after Honour and Glory which as a Crowne they saw pitched at the Goale of their Actions Thirdly Concerning the pay of the Souldier the Law was the same as formerly the same was ascertained by the Statute-Law the payment was to be made by the Captaine under perill of imprisonment and forfeiture of Goods and Chattels and the true number of his Souldiers to be maintained and listed under the like perill Fourthly As touching the Souldiers service the same course also was taken as before if they dissert their Colours they shall be punished as Felons and the manner of tryall to be at the Common Law Fifthly For Fortifications the power properly belongeth to the supream Authority to give order therein For the people may not fortifie themselves otherwise then in their particular Houses which are reputed every mans Castle because publique Forts are enemies to the publique peace unlesse in case of publique danger concerning which private persons can make no determination And furthermore no Fortifications can be made and maintained without abridgement of the Common liberty of the people either by impairing their Freehold or exacting their labour or other Contribution none of which ought to be done but by publique Law and therefore when the Inhabitants of the County of Cornwall were to make defence against Invasion and Piracy from the Coast of Little Brittaine in regard they were a long slender County and upon sudden surprisals people could not so readily flock together for their joint defence they obtained an act of Parliament to give them power to fortifie the Sea coasts according to the direction of the Sheriff and Justices of the Peace Lastly Warrs once begun must be maintained at the charge of the undertakers If they be the Kings own Wars he must maintaine them out of his owne Treasury till the benefit of them doe prove to the common good and in such cases the charges have been sometimes provided before the work by Act of Parliament and sometimes after Henry the Seventh and Henry the eighth both of them at their severall times went to Boloigne with their Armies Henry the seventh with an intent to gaine profit to himselfe by an advantagious peace and had his ends therein and was ashamed to aske ayde of the people towards the charges of that Warr. Henry the Eighth went upon his owne charge also with his Army trusting to the Parliament for consideration to be had of his imployment wherein his expectation did not faile and in his absence made Queen Katharine Generall of all the Forces of England in his absence and gave her power with other five Noble Personages to take up Money upon Loane as occasion should require and to give security for the same for the maintaining and raising of Forces if need should require as is more particularly set forth in the Patent Rolls of these times Neverthelesse the Warr at Sea Infra quatuor maria was ever reputed Defensive as to the Nation and under the publique charge because no Warr could be there but an Enemy must be at hand and so the Nation in eminent danger and therefore the maintenance of the Navy Roiall in such cases was from the publique Treasury To conclude therefore If the Parliament and Common Law in all these cases of Levies of men for Warr payment of Souldiers and their deportment in cases of Fortifications and of maintenance of Warrs at Sea and the deportment of such as are imployed therein I say if they give the Law and carry the supream directory then certainely the Law rules in that which seemes most Lawlesse and though Kings may be cheife Commanders yet they are not the cheife Rulers CHAP. XXXIII Of the Peace PEace and Warr originally depend upon the same power because they relate each to other as the end to the meanes and receive motion from one and the same fountaine of Law that ruleth both in Peace and Warr It is very true that severall Ages hitherto have been troubled with arbitrary exhalations and these very times whereof we now treat are not altogether cleare
Power or Authority formerly had been or might be lawfully exercised for Visitation of the Ecclesiastical State and Persons and for Reformation Order and Correction of the same and of all manner of Errours Heresies Schismes Abuses Offences Contempts and Enormities she had therefore neither absolute Empire nor absolute Jurisdiction over the Churches neither Power to make declare alter or repeal any Law neither did she ever exercise any such Power but onely by Act of Parliament she had a Power over Ceremonies in the Worship of God which was given her by the Parliament to execute by advice and therefore was limited as also was all the remainder of her Power in Jurisdiction Ecclesiastical for she could do nothing in her own Person but by Commission and these Commissioners must be Natives and Denizons not Forrainers and the same to be but in certain Cases and with certain Process Some Cases of Ecclesiastical Cognisance were referred to Triall at the Common Law viz. Such as concerned the publique Worship of God in Cases of Forfeiture and Imprisonment Lastly neither had the Queen nor her Commissioners nor Bishops absolute Power over the Church-Censures no Censure was regarded but Excommunication and that no further then in order to the Writ De Excommunicato capiendo and in all Cases the same was to be regulated according to the Statute in that Case provided or by the Common Law in Case of Action in all which we finde no Jurisdiction in Cases Ecclesiastical that is absolutely settled in the Crown In matters Temporal the thing is yet more clear she never altered continued repealed nor explained any Law otherwise then by Act of Parliament whereof there are multitudes of Examples in the Statutes of her Reign and what she did by her Judges was ever under Correction A Woman she was and therefore could be no Judge much less in the Cases of Difference concerning her self and her Crown A Queen she was and might make Judges but she must go according to the Law new Judicatories she could make none nor judicially make declare alter or determine the Power of any Court or Judge in Case of Difficulty but by her Parliament as in the Cases concerning the Power of the Lord Keeper the Powers of the Commissioners of Sewers and charitable uses the Courts at Westminster and the County Courts in the severall Statutes concerning the same may more fully appear And which is yet of a meaner size her Power extended not to redress any inconvenience in process of Errour or Delay in Courts of Law nor to remedy Errours in Judgements Fines Recoveries Attainders or other matters of Record or Triall whereof the Statutes of her time are full and also the opinions and judgements of the Judges of the Common Law concurring therewith I mention not the power of life and member which without all contradiction hath ever been under the protection of the known Law so as upon the whole Account it will be evident that this Queen had no absolute Pre-eminence in all Cases but either in contra-distinction to forrain Power or the power of any particular person and not in opposition to the joint interest of the Representative of England Queen Mary comes next although a Woman as well as she yea her elder sister and predecessor yet came short of her in the point of Supremacy by a double submission both unto the Law of a Husband and of a forrain power in cases Ecclesiastical although the same was with such qualifications as it was much more in Title and pretence then in reality and so in the conclusion neither approved her self to be good Wife good Catholique nor good Queen She could be no good Wife because she was too great for her Husband within the Realm and resolved not to be without A Catholique she was but the worst that ever held her place her Father appeared what he was spake plain English and was easily discerned But she told the Pope a fair Tale of disclaiming Supremacy and reconciling her Kingdom yet none of her Predecessors did go beyond her in irregularity of her proceedings Before ever she called Parliament she settled the great Work of Reformation or rather Deformation in the Worship of God by single Proclamation and not onely took away the partition-wall of Doctrine by the like power but gave way and power to Persecution thereupon to arise before any power or Order from the holy Sea then so called inabled her thereunto And after that she declared her self convinced that she ought not to exercise Ecclesiastical Jurisdiction and by her Instructions forbade the Bishops to use in their Process that Clause of Regia Autoritate fulcitus yet even these Instructions had no other Authority then her own and nevertheless she still inforced the Execution of all matters concerning the publique Worship of God and Government of the Church when as yet the Pope had no admittance unto his ancient claim It is very true that the Pope long ere now had made a fair offer and the Queen had lent her ear but her Train was too great to move as fast as was pretended so as no meeting could be had till the Queens Marriage with Spain was past and such as were dis-affected found it was bootless to stop the Current of two such mighty streams of Power now joyned into one and so that unclean spirit returned seven times worse then when he went out and took Seisin meerly upon Repeal of the Laws made by Henry the eighth in the Negative without further Grant or Livery for though an express Embassage was sent to Rome to perform the solemnity of the submission yet the Pope died before the arivall of the Embassie and the solemnity failing left the Title of the Crown much blemished yet was it not wholly defaced for if the Statutes in Henry the eighth and Edward the sixths time did but confirm the possession its evident that the repealing of those Statutes took away no right from the Crown nor gave legal possession to the Pope that had formerly neither possession nor right but left him to his Remitter as in his ancient right or rather in his ancient wrong Yet right or wrong de facto he both did win and wear the Keys so long as the Queen lived and so far as she pleased for her devotion would not allow of absolute obedience in that kinde nor all for Gospel that the Pope said or did but by her self and Councel executed the powers of Supremacy of Jurisdiction in Church matters not onely in pursuance of the Papall Authority but in crossing the same where the Popes way crossed her opinion as in the cases of the War between her Husband and France and the Power Legatine of Cardinal Pool her condemning of Doctrines and Books to be Heretical by Proclamation establishing both Prayers and Dirges and other Orders of publique Worship whereof more fully in the publique Histories of those Times and in the Queens Injunction upon
now treat She was a compleat Conquerour of War and Treason and therein the true Inheritor of the Fate of her Grand-father Henry the seventh with advantage for she out-faced all Dangers by her onely presence having therof had more experience then any Princes that ever possessed her Throne yet she was wise enough to beware against the future considering her condition to be the last of her Line that the next behinde her was rather likely to trip up her heels then support her Train that the Pope narrowly watched every opportunity the distance between him and the Throne being no greater then the breadth of her onely Person It may well therefore admit of excuse if the Statute of the 15. of Edward the third concerning Treasons did not give satisfaction although therein if she were solicitous her Subjects were more Some kindes of Offences were made Treason by statute-Statute-Laws which formerly appeared not such because they appeared not at all and yet in the opinion of her People the Queen was too slack in the making and more slack in the execution of them The People had ingaged themselves deeply against the Queen of Scots and it was not safe for them to go back they go yet deeper and without any positive Authority leading the way they enter into an Association amongst themselves for the Queens safety and it was well liked by the Queen because she knew it was well meant although by some it was mistaken nevertheless to take away all Exception a Law is made in pursuance thereof and so the Work is reduced under an ordinary rate though the publique Danger was such as might well have digested an extraordinary undertaking I intend not to enter into the particulars of these Treasons of the new stamp because they are but temporary and in their ultimate reach tend onely to the safeguard of the Queens person in order to the intentionary sense of the Statute of 25. Edw. 3. although not within the explicit words of that Law Onely this is observable that though the Times were full of malice yet was not all malice looked upon as fatal nor every Expression thereof Treason or privity thereto Treason although the Crown it self was not a little concerned therein but reduced to an inferiour degree called Misprision as if they were willing rather to construe undertakings for mistakings and thereby overlook much of the malignity of those Times then to make strict inquisition into every Punctilio of Offence As touching Felony the Rules were various some were of a new original as that of Gipsies others formerly such afterwards said aside are now revived with advantage as Conjuration and Buggery but Imbessellings by Servants of their Masters Goods made Felony for a time by Edward the sixth is by Queen Elizabeth made perpetual Some Felonies are made such within a certain precinct as Men-stealers and other Crimes upon the Scottish Borders Others formerly made Felony are now unmade as that concerning Prophesies and divers formerly protected under the refuge of Clergy are now barred of that reserve Such as are those that command Councel or hire others to commit Pettie Treason Murder or Robbery 4 5 Phil. Mar. cap. 4. Stealers of Horses Geldings or Mares 2 E. 6. cap. 33. Robbers of Houses Booth or Tent by Day or Night 5 E. 6. cap. 9. Pick-pockets or Cut-purses 8 Eliz. cap. 4. And Women-stealers 39 Eliz. cap. 9. And some Crimes made Felony impeachable onely within a certain time and not upon a cool suite so as upon the whole heap of the Account the zeal of the Times will appear to be more hot by how much iniquity appeared more hainous and that wicked men waxed worse as the Times waxed better More particulars of this nature and of other Offences of inferior note might be superadded as also of Laws of alteration and amendment of Process and Triall and of Common Assurance and Conveyance of Estates of particular Revenue all which might be insisted upon if need were to clear out yet further the conclusion of the whole matter which I hasten to accomplish led on by a natural motion that grows in speed the nigher it comes to its end CHAP. XL. A summary Conclusion upon the whole matter IN the stating of this whole account I shall first glance upon the naturall constitution of the People of England and then gather up the scattered Notions into one form because the one doth not a little illustrate the other and shew the same to be radicall and not by any forced inoculation The People are of a middle temper according to their Climate The Northern Melancholly and the Southern Choller meeting in their generall Constitution doth render them ingenious and active which nourished also under the wings of Liberty inspires a courage generous and not soon out of breath Active they are and so nigh to pure act that nothing hurts them more then much quiet of which they had little experience from their first transmigration till the time of King James but ever were at work either in building as before the Norman times or after in repairing their ruines occasioned by tempestous pretentions from Rome and Forrain Princes or by earth-quakes of Civill contention about the Title between the two Houses of Yorke and Lancaster or intrenchments of the Crown upon the Liberty of the People But King James conquering all enmity spake Peace abroad and sang Lullaby at home Yet like a dead calm in a hot spring treasured up in store sad distempers against a back Winter Their Ingenuity will not allow them to be excellent at the cheat but are rather subject in that kinde to take then give and supposing others as open hearted as themselves are many times in Treaties overmatched by them whom they overmatch in Armes Upon the same account they are neither imperous over those beneath nor stubborn against them above but can wel discern both person and time Man Woman or Child all is one with them they will honor Majesty where ever they see it And of the twain tender it more when they see it set upon infirmity as if they knew how to command themselves only in order to the publique good Nevertheless they love much to be free when they were under awe of the Popes Curse they bore off designes by the Head and Shoulders but afterwards by watchfullnesse and fore-sight and having attained a light in Religion that will own their Liberties of them both they make up one Garland not to be touched by any rude hand but as if it were the bird of the eye the whole body startles forthwith the allarme is soon given and taken and whether high or low none are spared that stand in their way This they do owe to the Easterne People from whom they fetch their Pedegree So as the only way to conquer them is to let them have their Liberties for like some Horses they are good for carriage so long as their burthens are easy and sit loose
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