shew a kind of rage and some rashness it might be imputed to the common infirmity of great men for as Oppression upon those that are inferiour makes them mad so doth Treachery against them that are superiour make them little other especially if they be overtaken with a fit of passion in the instant or their minds wrapped into a whirlpool of affairs But the change of Laws makes the greater noise wherein what change they suffered may appear from the premises if Writers have dealt uprightly otherwise general imputations without particular instances will never sway Opinion contrary to the current of the Laws that are published especially seeing we have observed the errour of the best Historian of those times in calling those things new which were anciently used in England before Normandy was in a condition of a State. Yet if this should be granted and that there were such change of Laws as is pretended it makes nothing to the point of Conquest so long as the new Laws are made by advice of Common-council and for the common good and so long as they are established to be Rules for Government I remember it is affirmed by some of those ancient Writers That the Duke or King would have brought in the Customs of Norway but the earnest Mediation of the English prevailed against it and this evinceth two things to my opinion First that there was question made what Law should be established Secondly that notwithstanding the interest that the Normans had in the Kingdom they could not prevail to bring in the whole body of their Law or of the Customs of Norway which were not onely the prima materia of their Law but also in kind had a setling at that very time in those places of this Kingdom where the Danes had their principal seat and therefore not altogether strange to the Saxons themselves The sum of which will be this That upon debate a Law must be setled and that not the Law of the Conquerour's own Will nor the Law that suits with his Desire but the ancient Law of the Kingdom And therefore if at any time the unquietness of some of the English brought the King to some thoughts of Arbitrary Rule and to shake off the clog of the Saxon Law it was long e're it stirred and sprang up too late to raise the Title of Conquest and withered too soon to settle it As touching the change of Customs for that also is imputed to the Conquerour it cannot be denied but some alteration might be in matters of smaller consideration yet are the Writers not without mistake in the particular instances For whereas they tell us that the Conquerour took away the custom of Gavel-kind and brought the custom of discent to the eldest Son and that Kent saved their Liberties and continued this custom of Gavel-kind I shall not contend about the Liberties of Kent but must till I see better reason hold the opinion of the change of Inheritance to be a meer conceit For besides what hath been already said concerning that custom of Gavel kind if we believe Glanvil the difference was between Lands holden by Knight's-service and in Socage the first of which in his time by ancient custom always descended to the eldest and those Lands that were holden in Socage if not partible by custom in which case they went equally to all the Sons went by custom in some places to the eldest in other places to the youngest so as the Rule of Inheritance in the Norman times was custom as well as in former times And furthermore if the custom of Gavel-kind had been the general custom of this Nation the King by his change had contradicted his own Prerogative and granted as great a Liberty to his Subjects as could have been invented For had the custom of Gavel-kind happened upon the Lands in Knight-service it had brought all the Sons under the Law of Wardship and had made a ready way to enthral all men of Worth and undo all Husbandry the first whereof had been as advantageous to the King 's private interest as both destructive to the publick Nor is it clear from any Author of credit that the Normans changed the Tenures of Lands albeit that it cannot be denied but such Lands as he had by forfeiture or otherwise were in his own power to dispose upon what Tenure he pleased for as well before the Normans time as long after Tenures were like as the Services were all at the Will of the Donor and were of as many Individuals almost as the minds of the Owners Some being of more general regard and publick use are recorded amongst the grounds of English Laws none of which appear to me to be of Norman original although they received their names according to that Dialect The next thing objected is the change of Language which thing some Writers tell us the King endeavoured or which is worse to be so absolute as to be absolute Tyrant and to publish Laws in a foreign Language that the people through ignorance might the rather transgress and thereby forfeit their Estates This if true so sar differed from the nature of a Conquerour as rather proveth that he was put to his shifts Nevertheless the thing tasteth so much of Spleen as it might occasion distrust of other relations concerning this subject For besides that it is nonsence for a Conqueror to entitle himself by a cheat where he hath an elder Title by Conquest I shall in full answer to that calumny insert a passage of an Historian that was in the continual view of publick affairs in those times who speaking of the Conqueror saith That he commended the Confessor's Laws to his Justices in the same Language wherein they were wont formerly to be written lest through ignorance the people might rashly offend And another Author saith That the King had a desire to learn the English Tongue that he might the better know their Law and judge according thereto It is probable nevertheless that the Laws were in the Norman Tongue and it is no less likely that the Pleadings in real Actions especially were also in the same Language else must the Normans be put to School to learn English upon peril of loss of their Estates But that either the written Laws were wholly concluded into the Norman Tongue or that the publick pleading of Causes by word of mouth in all Actions where the issue was left to the Country were in any other Language than English no advised Reader will conceive seeing it had been a madness for an English Jury to pass their Verdict in any case wherein it is likely many of them understood scarce a syllable of the Norman Language much less ought of the matter upon which their Verdict should be grounded Adde hereunto that it is not likely but the Conquerour inhibited the use of the English Language in all matters of publick Record inasmuch as the Charters made by him to corporate Towns and
demise he died a death meet to be for ever blotted out of the thoughts of all Subjects but to be had in everlasting remembrance of all Kings For if a Kingdom or Parliament misleads the King at the worst he is but misled by his Council but if he be drawn aside by favorites he must thank his own lust in the one he hath but the least share in the burthen in the other he must bear the whole CHAP. LXV Of the condition of the Nobility of England till the time of Edward the Third NOw was Prerogative mounted up to the highest pitch or endeavoured so to be either through the weakness or power of these Kings of whom the first and last had little to ground upon but their own will and the other I mean Edward the first had more wisdom and power but was otherwise distracted by foraign and more urgent employments so as the work fainted before it came to its full period The contest was between the King and Barons who till those days were rather the great and richer sort of men than Peers although they also were of the number I am not so sharp-sighted as to reach the utmost intentions of the Lords but their pretences are to such publick nature as it is plain that if their private interest was wrapped up therein they were inseparable And I shall never quarrel the Lords aim at private respects whenas it is plain the publick was so importantly concerned and yet I will not justiâ—ie all that I find written concerning their Words and Actions The Speech of the E. of Cornwal to his his elder Brother and King Henry the Third I will neither render up my Castle nor depart the Kingdom but by the judgment of the Peers and of Simon the E. of Leicester to the same King that he lyed and were he not a King the Earl would make him repent his word and of the Lords that they would drive the King out of his Kingdom and elect another and of the E. Marshal to Edward the first that he would neither go into Gascoine nor hang and such other do savour of passion especially that of the E. of Leicester and the Lords and may seem harsh and unmannerly and yet may admit of some allay if the general rudeness of the time the King 's injurious provocations and the passions of cholerick men be weighed together Yet will not all these trench upon the cause nor render the state of the Lords too high or disproportionable to their place in the policy of the Kingdom of England as things then stood I say it was not disproportionable for where the degree of a King was mounting up to such a pitch as to be above Law the Lords exceeded not their places in pressing him with their Counsels to conform to the Laws and in maintaining that trust that was reposed in them in keeping off such sinister Counsels and invasions as might violate the Laws and Liberties or hinder the current of Justice concerning which I shall shortly state the case and leave it to the censure of others The Government of the people of this Nation in their original was Democratical mixt with an Aristocracie if any credit be to be given to that little light of History that is left unto us from those ancient times Afterwards when they swarmed from their hive in Forreign parts and came over hither they came in a warlike manner under one conducter whom they called a King whose power whatever in the War yet in time of peace was not of that height as to rule alone I mean that whereas the Lords formerly had the principal executory power of Laws setled in them they never were absolutely devested of that power by the access of a King nor was the King ever possessed of all that power nor was it ever given to him but the Lords did ever hold that power the King concurring with them and in case the King would not concur the people generally sided with the Lords and so in conclusion the King suffered in the quarrel From this ground did arise from time to time the wandrings of the people in electing and deposing their Kings during the Saxon times Nor did nor could the Norman Williams shake off this co-partnership but were many times as well as other ensuing Princes perswaded against their own minds and plotted desires Nor can it otherways be supposed where Councils are setled for whereto serve they if notwithstanding them the King may go the way of his inordinate desire If the Lords then did appear against these Kings whereof we treat in cases where they appeared against the Laws and Liberties of the people it was neither new nor so heinous as it is noised for them who are equally if not more entrusted with the Common-wealth than the King by how much the Counsellors are trusted more than the Counselled to be true for the maintenance of their trust in case the King shall desert his But the greater question is concerning the manner by Threats and War. It is as probable I grant that the Lords used the one as the other for it was the common vice of the times to be rugged yet if we shall add to what hath been already said first that Knight-service was for the defence of the Kingdom principally Secondly that the greatest power of Knight-service rested with the Lords not only in propriety and ownership but in point of direction for the benefit of the Commonwealth and lastly that the state of the times now was such as the Kingdom was oppressed by strangers Counsels and the Counsels of the Kingdom rejected that instead of Law Garrisons of strangers ruled that no man could own his own that the Subjects were looked upon as enemies and of all this the King made the principal instrument who had ruled and over-ruled in this manner and so was resolved to continue I shall leave it to the better judgement of others what other healing plaister was to be had for such a sore Albeit it cannot be denied that more due respects might have been tendred to Kingly dignity than was in those times practised And yet there was a difference also in the occasions of War for certainly that last War with Edward the second was more fatal and yet less warrantable and in the issue declared that there was more of the Queen therein than of the Lords who knew a way of removing Favourites from the King without removing the King from the Kingdom or driving him out of the World. In all which nevertheless it cannot be concluded that the Lords party was encreased more than in the former Kings times for the loss of the field in Henry the Thirds time against the Prince kept them in awe all the succeeding Reign although they were not then tongue-tyed and their second loss against Edward the Second which was yet more sharp questionless quelled their spirits although they lost no right thereby and encreased the Kings party much
for the most part are but for enquiry All which saving the Justices itinerant in ancient use were instituted about these times and therewith ended both the work and common use of the ancient iters and yet all these later Courts joyntly considered have not the like comprehensive power that the iters had for they had the power of hearing and determining all causes both of the Crown and Common-pleas albeit in a different manner That is to say in the first times promiscuously united into one and the same person but soon after the Norman times and more clearly in the time of Henry the Second that power was divided into several persons some sitting upon the Common-pleas others upon the Crown-pleas The Judges of these journeying Courts were specially assigned by the King as in the case of the Gaol-delivery or setled by the Law upon the Judges of both Benches at Westminister as in case of Oyer and Terminer and of the Assizes or Nisi prius saving that in the last case they were associated with Knights in the Counties for the taking of Assizes Now concerning the Courts that were setled some were setled or annexed to the King 's personal residence as the Chancellor's Court for in these times it began to have a judiciary power of eminent stature and growing out of the decays of the great chief Justice of England Then also the Kings-Bench was annexed by the same Law unto the Kings Court or personal residence as it anciently ever had that honour although it seems the endeavours were to make it like the Common-pleas in that particular Another and last Court that was setled in this manner was the Marshals Court which in the original onely concerned the Kings houshold but afterwards compassed in a distance of the neighbouring places because the Kings attendants were many in those times whenas the Courts of Justice continually attended on his person and this precinct was called the Verge and all cases of debt and covenant where both parties were of the Houshold and of Trespasses vi armis where one of them was of the Houshold were handled in the Court of the Verge or the Marshals Court. And Inquests of death within the same shall be taken by the Coroner of the County with the Coroner of the Houshold Other Courts were rural and affixed also to some certain place either of the County or Town or other particular place That of the County suffered in these times great diminution even almost to destruction by a Law restraining the power thereof onely to Trespasses of 40 s. value or under for though formerly the Kings Justices incroached upon the County-Courts and contracted suits before themselves which by the ancient Law they ought not yet it was ever illegal and the County-Courts held their right till this Law was made which kept under those inferiour Courts and made them of less account than formerly Nevertheless the Kings Justicies or Writ to the Sheriffs oftentimes enableth the inferiour Court to have cognizance of cases of greater value Lastly a rule was set to the smaller Courts of Corporations Fairs and Markets viz. That no person should be sued in any of them which was not a debter or pledge there CHAP. LXIX Of Coroners Sheriffs and Crown-pleas COroners shall be chosen in the County from the wisest greatest and chief men of the Country Of these Officers formerly hath been spoken as touching their election qualification and work this Law brought in no change of any former Law but onely of a former Custom gained by these degenerating times which brought men into place that were far unfit who otherwise of poor and mean condition maintained themselves by bribery and extortion and being found guilty had not sufficient to give recompence This Law therefore revives the first Law and holds these men to their work of taking Inquests and Appeals by Indenture between themselves and the Sheriff and these were to be certified at the next coming of the Justices The Free-holders in every County if they will shall elect their own Sheriff unless the Sheriffwick be holden in Fee. This was indeed the ancient custom as the Officers of the Kingdom were elegible by the Common-council of the Kingdom so were all the Officers of the County chosen by the County But within a few years in the time of Edward the Second comes another Law That the Sheriffs shall be appointed by the Chancellor Treasurer Barons of the Exchequer and the Justices Which Law was made in favour of the people as by the file of that Statute doth more fully appear for though at the first blush it may seem a priviledge lost by the Freemen that these great men should have the election of the Sheriff yet it proved a great advantage to the common quiet of the people in those times of parties and was so apprehended Otherwise as the case stood in those days of Edward the Second it was no time for him to gain upon the peoples Liberties Nor had the Statute of Articuli super cartas whereof we how treat been penned with these words if they will. And questionless in these days we now live in if the people had but a little taste of this seeming liberty of electing Sheriffs in the County-court as formerly it was used it would be soon perceived that the election of these chief Officers were better disposed in some other hand if rightly pursued Homicide by misfortune shall not be adjudged murder That the Saxons made difference between Homicide by misfortune and that which was done felleo animo or with a spirit of gall formerly hath been shewed now what it was that altered the case I cannot say unless the violence cruelty and oppression of the times Formerly all kind of Manslaughter was finable I mean in the Norman times and so might more rationally be ranked into one degree but now the punishment began to change from forfeiture of Estate and loss of Member to death and forfeiture of Estate and therefore it was more necessary to make the difference in the penalty seeing in the fine formerly a difference was observed and this difference to assert by a Law that might limit the invenomed spirits of the Judges of those days Robbery punished by death This crime hitherto was punished by fine and loss of member at the utmost but is now made capital and punished with death One example whereof and the first that Story maketh mention of we find of an Irish Nobleman in the days of Henry the Third who suffered death for piracy and it was a Law that then though rigorous yet seasonably was contrived to retard the beginnings and hasten the conclusion of a Civil War in a Nation who value their Estates and Liberties above their own lives Rape upon the complaint of the party violated made within forty days shall have right If the Delinquent be convicted without such complaint made he shall be fined
intended to have no other respect than the publick good and which is the Abridgement of the large Volume of the Kingdom A Summary Conclusion ANd thus have I brought the shape of English Government rude as it is from the first off-spring of the Saxons through the rough waves of the Danish Tempests the Rocks of Norman invasion and of the Quick-sands of Arbitrary Government under Popes and Kings to the Haven much defaced it is I confess by the rage of time and yet retained the original likeness in proportion Kings first about the Norman times joyning with the Lords for their joynt interest above the ordinary pitch had mounted each other too high to be Lords over Free men Then by flattering of the Free-men into their designs hovered above them all but not being able to maintain their pitch so long as the Lords held together stooped for a party amongst them and soon obtained their desire For some Lords more ambitious than others and these again more popular than they seek several interests And thus Kings aided by their party to a Supremacy which they were never born to and raised by them into a preheminence above their Peers which neither Law nor Custom ever gave them are of Moderators in the Council of Lords become Moderators of those Councils and so they obtained all that the Lords had but no more For though both they and the Lords abused their power over the Free-men by extortion and oppression as Lords over Tenants yet could they never prevail over them as free-born Subjects to gain their consent to give their Right or the Law up to the King's beck but still the Law remained arbiter both of King and People and the Parliament Supream Expounder and Judge both of it and them For other argument hereof there will be little need besides what hath formerly appeared than what we find in Bracton who wrote in the time of Henry the Third to this effect God is superiour to the King and the Law by which he is made King and his Court viz. the Earls and Barons Earls according to their name Comites are the Kings Associates and he that hath an Associate hath a Master and therefore if the King be unbridled or which is all one without Law they ought to bridle him unless they will be unbridled as the King and then the Commons may cry Lo Jesus c. This was the judgement of that famous Lawyer of the state of an English King in Henry the Third's time I shall add hereto a concurrent testimony of a Lawyer also in Edward the First 's time Although saith he the King ought to have no equal in the Land yet because the King nor his Commissioners in case where the King intrencheth upon the right of any of his Subjects can be both Judge and Party the King by right ought to have Companions to hear and determine in Parliament all Writs and plaints of wrongs done by the King the Queen or their Children and of those wrongs especially whereof otherwise common right cannot be had Nor is this the opinion onely of Lawyers but it is the Law it self unto which the Royal assent was added and the same sealed with an Oath in the solemn stipulation made by Kings at their Coronation with the people then present in the name of the whole body the sum whereof is wont to be propounded to the King in this manner though in a different Language 1. Will you grant and keep and by your Oath confirm to the people of England the Laws and Customs to them granted by the ancient Kings of England your righteous and godly Predecessors and especially to the Clergie and People by the glorious King St. Edward your Predecessor The King's Answer I do them grant and promise 2. Will you keep to God and the Church and the Clergie and the People Peace and Concord sincerely according to your power The King's Answer I will do it 3. Do you grant to hold and keep the Laws and rightful Customs which the Commonalty of your Realm shall have chosen and to maintain and enforce them to the honour of God after your power The King's Answer I this do grant and promise In few words the King promised to keep the Laws already made the peace of his Kingdom and the Laws to be agreed upon by the Commonalty the same in substance with that of Henry the First William the Conquerour the Danish and Saxon Kings formerly had and in the foregoing discourse observed And thus is he led to the Throne in a Chain of Gold a serious memorial of the King's duty as he is a man and a glorious ornament to him as a King. If then the King be under the Law in case of direction as by stipulation he is bound if he be likewise under the Law in case of transgression to be judged by his Comites or Peers Hitherto certainly an English King is but Primas inter omnes and not supra totum and if at any time he skipped higher he afterwards fell lower for it was the lot of these times to have Lords that were bent to work the people to regard their own Liberties in which the Lords had first wrapped up their own Claims Thus come the counsels of such as have been notoriously exorbitant to be scanned and to bring these into frame all run out of frame the Barons Wars arise and thrive according as interests do concenter more or less the issue is like that of a drawn battle wherein he that continueth last in the Field is glad to be gone away and so the Title is left to be tried upon the next advantage that shall arise Yet had Kings gotten one step forwards to their designe which was in that they now had to deal with a divided Baronage It was the birth of Ambition and it was nourished by the same milk for those that side with the King are become Magnificoes next to the King's person and the sole managers of all the great affairs of State concurrent with their own designes under-board But the other Lords are in account rural standing further off and looking on at a distance are laid away as superfluous And as they themselves are out of the game of great men so grow they mindless of their interest in the great affairs yet of these there is diversity for some sport themselves in their condition others observe the irregular motions of those above and watch their own time This was the first advance of that society which was afterwards called the Privy Council being a company of choice men according to the King 's bent unto whom the consideration of all the weighty affairs of the Kingdom is committed but nothing can be concluded without the King 's fiat which regularly should follow upon the premisses according to the major vote but more ordinarily suiteth with that which best suiteth with his pleasure And now are Parliaments looked on as fatal or at the best
concerning Calvin's Case fol. 45 IX Of Courts for Causes criminal with their Laws fol. 54 X. Of the course of Civil Justice during these times fol. 56 XI Of the Militia in these times fol. 58 XII Of the Peace fol. 62 XIII A view of the summary courses of Henry the Fourth Henry the Fifth and Henry the Sixth in their several Reigns fol. 68 XIV Of the Parliament during the Reigns of these several Kings fol. 75 XV. Of the Custos or Protector Regni fol. 79 XVI Concerning the Privy Council fol. 83 XVII Of the Clergie and Church-government during these times fol. 86 XVIII Of the Court of Chancery fol. 95 XIX Of the Courts of Common-pleas and Common Law. fol. 97 XX. Concerning Sheriffs fol. 98 XXI Of Justices and Laws concerning the Peace fol. 99 XXII Of the Militia during these times fol. 102 XXIII A short Survey of the Reigns of Edward the Fourth Edward the Fifth and Richard the Third fol. 106 XXIV Of the Government in relation to the Parliament f. 109 XXV Of the condition of the Clergie fol. 112 XXVI A short sum of the Reigns of Henry the Seventh and Henry the Eighth fol. 113 XXVII Of the condition of the Crown fol. 118 XXVIII Of the condition of the Parliament in these times fol. 130 XXIX Of the power of the Clergie in the Convocation f. 134 XXX Of the power of the Clergie in their ordinary Jurisdiction fol. 136 XXXI Of Judicature fol. 141 XXXII Of the Militia fol. 143 XXXIII Of the Peace fol. 148 XXXIV Of the general Government of Edward the Sixth Queen Mary and Queen Elizabeth fol. 152 XXXV Of the Supream power during these times fol. 157 XXXVI Of the power of the Parliament during these times fol. 162 XXXVII Of the Jurisdiction Ecclesiastical during these last times fol. 166 XXXVIII Of the Militia in these later times fol. 168 XXXIX Of the Peace fol. 173 XL. A summary Conclusion of the whole matter fol. 174. THE CONTINUATION OF AN Historical and Political Discourse OF THE Laws Government OF ENGLAND THE former times since the Norman entry like a rugged Sea by cross Winds of Arbitrary Vapours in and about the Crown and by Forrein Engagements from the holy Chair made the true face of affairs cloudy and troublesome both for the Writer and the Reader Henceforward for the space of Three hundred years next ensuing Kings by experience and observation finding themselves unequal to the double chace of absolute Supremacy over the sturdy Laity and encroaching Clergie you will observe to lay aside their pretensions against the Peoples Liberties and more intentively to trench upon the Spiritualty now grown to defie all Government but that of Covetousness Nor would these times allow further advantage to Kings in this work they being either fainted by the ticklish Title of the Crown hovering between the two Houses of York and Lancaster or drawn off to forrein employments as matters of greater concernment for the present well-being of the Kingdom or for the spreading of the fame of such as desired to be renowned for valiant men It will be superfluous to recount the particular atchievements formerly attained by these Ecclesiastical men the former Treatise hath already said what was thought needful concerning that For the future I shall even premise this that the ensuing times being thus blessed with a Truce or stricter League between the Kings and Commons the errours in Government more readily do appear the corruptions in natures of men more frequently discover themselves and thereby the body of the Statute-Laws begins to swell so big that I must be enforced to contract my account of them into a narrower compass and render the same unto the Reader so far forth only as they shall concern the general stream of Government leaving those of privater regard unto every mans particular consideration as occasion shall lead him For whatever other men please to insist upon this I take for a Maxime That though the Government of a King is declared by his Actions yet the Government of a Kingdom is onely manifested by ancient Customs and publick Acts of Parliament And because I have undertaken a general Survey of the Reigns of thirteen several Kings and Queens of this Nation for I shall not exceed the issue of Henry the Eighth and to handle each of them apart will leave the Reader in a Wilderness of particulars hard to comprehend in the general sum I shall therefore reduce them all into three heads viz. Interest of Title Interest of Prerogative and Interest of Religion the last of which swayed much the three Children of Henry the Eighth the second as much in their two Ancestors viz. Henry the Eighth and Henry the Seventh and the first in the three Henries of Lancaster and three succeeding Kings of the House of York And because Edward the Third and his Grand-child Richard the Second do come under none of these Interests I shall consider them joyntly as in way of Exordium to the rest although the course of the latter was as different from the former as Lust falls short of a generous Spirit CHAP. I. A sum of the several Reigns of Edward the Third and Richard the Second SEveral I may well call them because they are the most different in their ways and ends of any two of that race that ever swayed their Scepter and yet the entrance of the first gave countenance to the conclusion of the last For the Scepter being cast away or lost by Edward the Second it was the lot of his Son Edward the Third a youth of Fifteen years of age to take it up he knowing whose it was and feeling it too heavy for him was willing enough it should return but being overswayed by Counsels drawn from reason of State and pressed thereto by those that resolved not to trust his Father any more he wisely chose to manage it himself rather than to adventure it in another hand But that is not all for as it is never seen that the Crown doth thrive after divorce from the Scepter but like a blasted Blossom falls off at the next gale of adversity such was the issue to Edward the Second his power once gone his Honour followeth soon after he had ceased to be King and within a small time did cease to be Edward His Son thus made compleat by his Fathers spoil had the honour to be the Repairer of the ruines that his Father had made and was a Prince which you might think by his story to be seldom at home and by his Laws seldom abroad Nor can it be reconciled without wonder that Providence should at once bestow upon England a courageous People brave Captains wise Council and a King that had the endowments of them all Otherwise it had out-reached conceit it self that this small Island wasted by the Barons Wars the people beaten out of heart by all Enemies in the time of the Father should nevertheless in the time of the Son with honour
Judicature rested with the Lords in relation not onely to the House of Commons but also in relation to the King whose work in such cases is not to judge above or with the Peers but to execute their sentence And that carries with it a List whereby the power of a King may appear not to be so Supreme in making of the Law as some would have it for if his Judgement and Conscience be bound by the Votes of the Peers in giving a Law in case of a particular person where the Law was not formerly known let others judge of the value of this Negative Vote in giving Law to the whole Kingdom It is true that this Parliament was quarrelled by the King and he kept it at a bay by a Proclamation that pretended Revocation as far as a Proclamation could revoke an Act of Parliament but it effected nothing nor did the contest last long Now though this Jurisdiction thus rested in the House of Lords in such cases as well as in others yet is it not so originally in them as to be wholly theirs and onely as they shall order it For the Commons of England have a right in the course and order of Jurisdiction which as the known Law is part of their Liberty and in the speedy execution of Justice as well as they have right to have Justice done And therefore whereas in Cases of Errour and delays the Appeal was from the inferiour Court to the Parliament which immediately determined the matter and now the trouble grew too great by the increase of pleas For remedy hereof a kind of Committee is made of one Bishop two Earls two Barons who by the advice of the Chancellor Treasurer and the Judges shall make good judgement in all Cases of Complaint of delay in Judgement which Committee is not made by Order of the Lords alone which they might have done in case Jurisdiction had been wholly and onely shut up in their custody but by Act of Parliament and joynt concurrence of the Commons with the Lords For as the Commons challenge speedy Execution of Justice as one of their Liberties so also to be under the Jurisdiction of such Judges and Courts as the Laws in the making whereof themselves challenge a vote do establish and appoint I will conclude this Chapter with the Constitution of the Parliament in these times For the difficulties that befel between the Kings and their people or Houses of Parliament wrought two sad effects viz. A propensity to decline calling of Parliaments so often as was used and expected and when it assembled as great a propensity in the Members to decline their attendance by means whereof as the Historian tells us the Parliament was sometimes enforced to adjourn it self for want of number sufficient The first of these arose from want of good will in the Kings the other from want of Courage and Zeal in the people The first of these was fatal and destructive to good Government for though in distempered Parliaments it is good to withdraw yet in distempered times it is necessary to meet and gain a right understanding of all parties and therefore these times were so happy as to bind themselves by publick Acts of State to re-continue the assembling of Parliaments For the face of the Times represented unto all that agitations were like to be quick violent and to continue for some succession of time It is therefore safe if not necessary that every eye should be open and Councils ready for every occasion A Law at length is agreed upon that A Parliament shall be holden once every year or more if need be But in Thirty years the power of this Law is wasted out of mind and the evil reviving revives also the Statute and yet they had Thirteen or Fourteen Parliaments in Thirty years space and not above Three or but once Four years distance of time between any Two of them in Succession This was the sence of the Members of the Houses in their meeting but at home they had homely conceits and it is found no less difficult to bring them to the meeting than to continue the meeting according to the Law being either loath to adventure their thoughts into the troublesome affairs of the Publick or their persons to expence and hazard But the publick must be served and therefore an Act of Parliament is made That all such Members as decline their appearance at the Parliament after Summons made shall be amerced and the Sheriffs likewise that shall neglect return of Summons And the Statute implyeth that it was no introduction of a new Law but a reviving of former Law now or lately disused or a Custom now out of custom And to take away all objection in point of charges and expences another Law was made to establish the Assessments and levying of their wages upon the Lands that anciently were chargeable therewith in whose hands soever the same shall come I shall conclude with this That the Parliament though like a Garment it sometimes covers the goodly feature and proportion of a well-composed body yet it keeps the same warm and as a Shield is first in all dangers and meets with many a knock which the body feels not this is their work and reward It is true that in the wearing it is felt heavy but it is the easier born if it be duly considered that it is better to be so cloathed than to be naked CHAP. III. Of the Privy-Council and Condition of the Lords THe latter must make way for the former for according to their personal esteem in their own Countries such is their Authority at the Board in joynt Councils And it was one point of happiness in a sad time of War that all men looked one way The Lords were much addicted to the Field and could do much with Edward the Third who was a brave Leader and more with the people who had been so long time used to the rough Trade of Souldiery that they loved not to be at home about matters of Husbandry wherein they had so little experience And having so fair a Garland in their eye as France it is no wonder if domestick designs seemed meaner or more dangerous Thus did God do England a good turn although it was made for the present thereby neither so rich or populous as it might have been in a time of Peace This French heat wasted many a tumultuous Spirit and ennobled the Fame of the King and Lords not onely abroad but won them much Honour and Repute of those that remained at home and so by congregating Homogeneals and severing Heterogeneals rendred the body of the people more Univocal which tended much to the setling of the Joynts of this distracted Nation A timely birth hereof doubtless was the peaceable entry of Richard the Second upon the Throne and quiet sitting there whilst as yet he was but a Child the Princes of the bloud many and they of generous active and
the point of encreasing and diminishing of the Crown in the sixth Section is captious and may sound as if there is a legal enlarging of the Crown whereof he that takes the Oath is to judge A matter which onely and properly concerns the Parliament to order and determine or else farewel all liberty of the people of England The second concerneth immediately the King in his politick capacity but trencheth upon all Laws of the Kingdom in the executive power and all the motions in the whole Kingdom either of Peace or War following in the Rear either immediately or mediately are under this notion interested into the transaction of the Privy-Council to debate and determine the King's Judgement therein unless it will determine alone And how easie a thing it is for such as have power of determining the Action by the Law to slip into the determining of a Law upon the Action and so to rule by Proclamation experience taught succeeding times sufficiently Nevertheless in these times Parliaments were every moment upon the wing and kept this Noble Band in awe by taking them into their Cognizance placing and displacing some or all of them directing and binding them by Oath as they saw occasion of which the Records are full and plentiful I say these times thus constituted added yet further encouragement to them by giving them powers by Statute-Law over and beyond what by ancient Custom they had obtained The King and Council of Lords had anciently a power of Jurisdiction that hath been in the first Part of this Discourse already observed yet it is very probable that it was not any select company of Lords but the whole Association For it is granted by all that they had originally a principal hand in the Jurisdiction and it is hard to conceive how any private number should catch such a power if not by usurpation But the manner of acquiring is less materal the principal consideration resteth upon the quality of this Jurisdiction For it is evident that much difference hath been both concerning the place and manner of exercising this Authority In general it must be granted that all Pleas Coram Rege were grounded upon Writs first purchased and returnable either in Banco or in Camera or in Cancellaria And no difference at all will be concerning the Jurisdiction in Banco for that was by the course of the common-Common-Law and the people held it one of their Liberties to have one known course of Law for determining matters of right and wrong As touching these Pleas which were holden by Writs returnable in Camera they were properly said to be Coram Rege Concilio whose meeting was in the Council-chamber in those days called the Star-chamber For other returns of Writs in the Star-chamber do not we find but such as were in Camera nor Prohibitions from thence but under the notion of the King's Council and this Camera as I said was the place of the joynt meeting of the Council as well of those of the Chancery and Benches as of those that attended upon matters of State. Now the influence of Society in point of Judicature principally aspected upon some Pleas belonging to the Crown although even these also properly were determinable in the King Bench. Nor can I observe any rule to bound the powers of these two Judicatories but this that the Council-Table would pick and chuse and prohibit the Kings Bench as they pleased and to that end would order Originals out of the Chancery as they thought most meet For it is observed by Fleta that the Kings-Bench hath no jurisdiction of it self but by special Warrant that is to say by Original Writs returned thither Nevertheless it may seem that such Crimes as are contrary to common honesty or the publick profit or peace in a more exemplary way than ordinary and therefore may be called Crimina laesi Regni or against the State these I say might more properly belong to the sublime Judicature of the Council-Table as knowing better how far the publick State was interested or endamaged in such Cases than the other Judges that were experienced onely in ordinary matters of a more private concernment To recite the particular Cases upon record concerning racing of Records Forgeries and other crimes of Falshood Conspiracies Combinations to abate and level the prices of Commodities Riots and such-like will be supersluous In all which and others of that Cognizance the Sentence exceeded not Fine and Imprisonment or Ransom Neither yet were the Common pleas so rural but the Council Table could relish them also and digest them well enough and therefore did not stick to prohibit the Courts of Common-Law under colour of a strange maxime That it is neither just nor honest for a man to be sued at the Common-Law for a matter depending before the King and his Council No though the Court of Common-law had the precedency And therefore although the right of Tythes being depending at the Common-Law the Archbishop in opposition to the Jurisdiction sueth before the Kings Council and the proceedings at the Law are thereby stayed And no wonder for the Council-Table challenged to hold the ballance of all Courts of Law within their own Order and so if any doubt concerning the Jurisdiction depended the Council-Table gave the word and all stooped thereto But enough of the Subject-matter the manner follows a new form of Process is taken up that the common-Common-Law and ancient Custom never knew and which grew so noisom to the people that complaints are made thereof as of common grievance and remedies are thereto applied by the Laws of these times For whereas by the Grand Charter nothing could be done in Judgement but according to the Laws of the Land and in affirmance thereof a Law was made in these times that no Accusation nor Attachment nor forejudging of Life or Member nor seisure of Lands Tenements Goods or Chattels should be against the form of the Grand Charter and Law of the Land This course of affairs grew so stale that amongst other innovations a trick of a new kind of Trial is brought forth by suggestions upon Articles exhibited against any man before the Council-Table and thereupon issued forth Attachments against the party complained of by means whereof and other courses for they could also sequester much vexation arose unto the people Hereunto upon complaints multiplied a remedial Law is made whereby it is Enacted That all such suggestions made shall be carried to the Chancellor Treasurer and the King 's Grand Council and the Informer shall find Surety to prosecute with effect and to incur the like penalty intended for the Defendant if the Plaintiff's proofs be not compleat and then the Process of Law shall issue forth and the Defendant shall not be taken against the form of the Great Charter that is he shall not be taken until first the fault appear upon Record by Presentment or by due Process or by original Writ
way is different from the common Road both in it's original and in the course of proceedings nor could it otherwise be considering the condition of the Nations and the people of the same interested in common Traffique The people thus interested as much differed from the other sort of Dry men if they may be so called as Sea from Land and are in nature but as March-men of several Nations that must concentre in some third way for the maintenance of Commerce for peace-sake and to the end that no Nation may be under any other Law than its own The condition of the Nations in the times when civilized Government began to settle amongst them was to be under the Roman Emperours who having setled one Law in the general grounds throughout all Nations made the Sea likewise to serve under one rule which should float up and down with it that men might know upon what terms they held their own wheresoever they went and upon what terms to part with it for their best advantage In its original therefore this Law may be called Imperial and likewise in the Process because it was directed in one way of Trial and by one Law which had its first birth from the Imperial power and probably it had not been for the common benefit of Europe to have been otherwise at other time or by other directories formed Nevertheless this became no Gem of Prerogative to the English Crown for if England did comply with forrein Natives for its own benefit it being an Island full of the Sea and in the common Road from the most parts of Europe that border upon the Sea and of delight in Merchandise it is but suitable to its self and it did so comply as it saved the main Stake by voluntary entertaining those Laws without being imposed upon by Imperial power For the Saxons came into this Kingdom a free people and so for ought yet appeareth to me continueth to this day I say that in those first times they did take into the consideration of Parliament the regulating of the fluctuating motions of Sea-laws nor were they then or after properly imposed by the King's Edict For though it were granted that Richard the First reduced the Sea-Laws in the Isle of Oleron yet that the same should be done without advice of Parliament in his return from the Holy land is to me a Riddle considering what Histories do hold forth concerning his return through Germany nor can that be good evidence to entitle Kings of England to a power to make and alter Laws according to their private pleasure and interest Nor doth that Record mentioned in the Institutes warrant any such matter but rather on the contrary groundeth the complaint upon Laws Statutes Franchises and Customs established and that this Establishment was by the King and the Council This Law was of a double nature according to the Law of the Land one part concerning the pleas of the Crown and the other between party and party for properly the King's Authority in the Admiralty is but an Authority of Judicature according to Laws established which both for process and sentence are different from the Common-Law as much as the two Elements do differ yet not different in the power that made them I shall leave the particulars to be enquired into by them that shall mind it elsewhere and only touch so much as shall reflect upon the main Government This power was executed by Deputies diversly according as the times and opportunities were for War or Peace and either transitu or portu What was done in time of War or whilst the Ship is out of the English Seas comes not to our purpose and therefore I shall not meddle with that further than this that in the first times Kings were wont to divide the work of Judicature and of War into several hands The power of War and Peace they committed unto men of approved Courage and Skill in that service and therefore generally not to the men of highest rank who had neither Mind nor Skill for a work of such labour dyet and danger This power passed under divers names sometimes by grant of the custody of the Sea-coasts sometimes of the parts and Sea coasts sometimes by being made Captain of the Sea-men and Mariners and sometimes Admiral of the Ships It was a great power and had been much greater but that it suffered a double diminution the one in the time for three or four years commonly made an end of the command of one man and at the best it was quam diu Regi placuerit the other diminution was in circuit of the power for all the Maritine Coasts were not ordinarily under the power of one man but of many each having his proper precinct upon the South or North East or Western shores and under the Title of Admiral in the times of Edward the First and forwards who brought that Title from the Holy Land. Nevertheless about the end of the times whereof we now Treat the custody of the whole Sea began to settle in one hand under the Title of Admiral of the English Seas and the place was conferred upon men of the greatest rank and so continued ever afterward The power of Jurisdiction or Judicature all this while remained distinct and it seems was setled in part in the power of the Sheriff and Justices For by the Law the Sheriff and Justices had cognizance of matters between the high water and the low water mark and what was done Super altum mare was within the directory of the Admiral these were but few things and of small consideration the principal of them being concerning War or Peace and those only within the English Seas But after Edward the Third had beaten both the French and Spaniards at Sea the people grew much more towards the Sea and became so famous that the greatest Lords thought the Regiment of Sea-affairs worthy of the best of their Rank and were pleased with the Title of Admiral whilst they left the work to others and so the Admiral became a person of more honour and less work than he had been formerly The greatness of the honour of this place thus growing soon also began to contract greatness of power beyond what it had formerly and this was principally in matter of Jurisdiction For not contented with the power of a chief Justice of War and Peace within the Seas which was his proper dominion the Lord Admiral gained the same within the low water mark and in the main streams below the next Bridge to the Sea and in all places where Ridels were set and yet these places were within the body of the County Nor did he endeavour less to gain in matters of distributive Justice for although he had a legal Jurisdiction in things done upon the Sea so far as to defend order determine and cause restitution to be made in cases of damage done unjustly yet was it no less difficult to keep
embasing of Money against forein Money not made currant against counterfeit and false Money For according to the goodness of the Money so will the Trade be more or less For the Merchant will rather lose in the price of his Commodity in Money than in exchange for other Commodity because the value thereof is less certain and the Transportation more chargeable Secondly as touching the plenty of Money that is as necessary to the advance of the Trade as of the goodness of it For according to the plenty thereof will be the plenty of the Manufactures because Handicrafts-men having no Commodities but their labour cannot work for exchange nor can exchange supply Rents and maintenance to the greater sort of people To this end therefore it is provided against melting of Money and Exportation of Silver and Gold. And yet to encourage or not discourage Importation of Silver and Gold liberty was given to every man to Export so much as they did Import provided that what they carry away must be of the new stamp or Minted in this Nation By this means Bullion came in with probability that much thereof would remain in the Nation in lieu of Commodities exported or if not the greater part yet at least the Mint gained and that was some benefit to the Nation Thirdly for the fuller currance of the Money the Issue was established in several parts of this Kingdom according to the ancient custom and this was advantageous both to the Mint and to the Stock of Money in the Kingdom This establishment was with this difference that though the Mint was setled by the Parliament yet the Exchange was left to the Directory of the King and his Council Because the Exchange is an uncertain thing subject to sudden alteration in other Nations and it is necessary that in this Country it be as suddenly ballanced with the Exâ—change in other Countries or in a short time the Nation may receive extream damage In regard whereof and many other sudden exigencies in Trade it seemeth to me convenient that a particular Council were established for continual influence into all parts of these Dominions to take into consideration the quantity of the Staple-Commodities necessary to be retained as a Stock at home for the use of the people and the Manufactures and accordingly to ballance the trade of Exportation and Importation by opening and enlarging or shutting and straitning the Stream as occasion doth require And lastly to watch the course of the Exchange in forein parts and to parallel the course thereof in this Land thereto For otherwise the publick must necessarily suffer so long as private men seek their own particular interests onely in their course of Trade CHAP. VIII Of Legiance and Treason with some Considerations upon Calvin's Case AS Times change Manners so do Manners change Laws For it is the wisdom of a State when it cannot over-rule Occasion to pursue and turn it to the best issue it can Multitude of Laws therefore are not so much a sore to the people as a symptome of a sore people Yet many times Laws are said to be many whenas they are but one branched into many particulars for the clearing of the peoples understanding who usually are not excellent in distinguishing and so become as new Plaisters made of an old Salve for Sores that never brake out before Such sore times were these whereof we now treat wherein every touch made a Wound and every Wound went to the Heart and made the Category of Treason swell to that bigness that it became an individuum vagum beyond all rule but the present sence of timorous Judges and a touchy King. Thus were many of the ignorant and well-meaning people in an hideous danger of the gulf of forfeiture before they found themselves nigh the brim All men do agree that Treason is a wound of Majesty but all the doubt is where this Majesty resteth originally and what is that Legiance which is due thereto the breach whereof amounteth to so high a censure for some men place all Majesty in one man whom they call an absolute Monarch Others in the Great men And others in the People and some in the concurrence of the King and body of the People And it is a wild way to determine all in one Conclusion whenas the same dependeth wholly upon the constitution of the Body Look then upon England in the last posture as the rigider sort of Monarchical Politicians do and Majesty will never be in glory but in the concurrence of the King and Parliament or Convention of Estates and so upon the whole account it will be upon the People whose welfare is the supream Law. Rome had Kings Consuls Dictators Decemviri and Tribunes long before the Orator's time and he saw the foundation of an Empire or perpetual Dictatorship in the person of the first of the Caesars any of all which might have challenged the supremacy of Majesty above the People And yet the often change of Government shewed plainly that it rested upon another pin and the Orator in express words no less when speaking of the Majesty of that Government he allotteth it not to those in chief command but defineth it to be magnitudo populi Romani Afterwards when the pride of the Emperours was come to its full pitch in the times of Augustus and Tiberius an Historian of those times in the Life of Tiberius tells us That he declared the bounds of Treason to be determined in Three particular instances of Treachery against the Army Sedition amongst the People and violating the Majesty of the People of Rome In all which men were not punishable for words but for actions and endeavours I do not herein propound the Government of the Roman Empire as a model for England but à majori may conclude that if the proper seat of Majesty was in the people of Rome when Emperours were in their fullest glory it is no defacing of Majesty in England to seat it upon the whole body from whom the same is contracted in the Representative and so much thereof divided unto the person of the King as any one Member is capable of according to the work allotted unto him These several seats of Majesty making also so many degrees do also imply as many degrees of wounding for it is written in Nature That the offence tending to the immediate destruction of the whole body is greater than that which destroyeth any one Member onely and when the written Law maketh it Treason to compass the destruction of the King's Person it leaveth it obvious to common sence that it is a higher degree of Treason to compass the destruction of the Representative and above all to destroy the whole body of the people Crimes that never entred into the conceit of wickedness it self in those more innocent times much less saw they any cause to mention the penalty by any written Law. Nevertheless because many sad examples had occurred
within the memory of this present Age of the danger of the person and honour of Kings and yet on the other side they saw that in such cases of Treason the King's honour was made of reaching Leather and might easily be strained within the compass of a wound of Majesty therefore Edward the Third imitating Tiberius reduced the crime of wound of Majesty in the Person of the King into certain particular instances out of the compass whereof the Judges of the Law in ordinary course must not determine Treason These concern either the safety of the Person of the King or of the Succession in the Royal Throne Or lastly the safeguard of the publick Right by the Broad and Privy seal the value of Money and by persons in matters of Judicature judicially presiding all of them reflecting upon the King considered in his politick capacity For otherwise many crimes might have been mentioned more fatally reflecting upon the King in his natural capacity which nevertheless are omitted as not worthy of so high a censure Other Treasons are left to the determination of the Parliament as occasion should offer it self whereof divers examples of a new stamp occurred within forty years next ensuing which were of a temporary regard and lived and died with the times To these two notions of Majesty and Treason I must adde a third called Legiance for it is that which maketh Majesty to be such indeed and lifteth it into the Throne and whereof the highest breach makes Treason And because that which hath been already said reflecteth upon an Opinion or rather a knot of Opinions for I find them not punctually adjudged in Calvin's Case I must a little demur to them because as their sence is commonly taken it alters the fundamental nature of the Government of this Nation from a Common-wealth to a pure Monarchy In handling of this Case the honourable Reporter took leave to range into a general discourse of Legiance although not directly within the conclusion of the Case and therein first sets down the general nature thereof That it is a mutual bond between an English King and his people and then more particularly sets forth the nature of this bond in the several duties of obedience and fealty fol. 5. a. and those also in their several properties viz. Natural Absolute fol. 7. a. due to the King omni soli semper fo 12. a. in his natural and not publick capacity fol. 10. a. Whereas he saith this bond is natural he meaneth that it is due by birth fol. 7. a. By absolute if I mistake him not he meaneth that it is indefinite fol. 5. b. viz. not circumscribed by Law but above Law and before Law fol. 13. a. and that Laws were after made to enforce the same by penalties fol. 13. b. and therefore he concludeth that this legiance is immutable fol. 13. b. and fol. 14. a. Thus having slated the point as truly as I can both for the nature of Legiance and the object thereof viz. the King and not the People otherwise than in order to the safety and honour of the King's person considered in his natural capacity as he is a man I shall in the next place examine the grounds as they are severally set down and therein shall lead the Reader no further than the Reporters own concessions Not troubling the Reader with any doubt whether this Bond consists in obedience onely or in that fealty and in all shall ever be mindful of the honour of that Pen with which I have to deal First whereas it is said that English Legiance is natural and grounded upon the birth of each party within the Kings Dominions and protection it needeth no debate so as the same be taken sano sensa viz. for a qualified Legiance without those sublimities of absolute indefinite immutable c. for otherwise if such a high strain of Legiance be due from every English man by birth then all the Magna Charta or Laws concerning the Liberties of the people come too late to qualifie the same because they cannot take away the Law of Nature fol. 14. a. And thus the party once born English must for ever remain absolutely obliged to the King of England although haply he lives not two Months under his protection all his ensuing life-time Secondly the Legiance of an English-man to his King ariseth from that civil Relation between the two Callings of King and Subject and therefore it is not a natural bond which cannot be taken away The first is true by the Reporter's own concessions Protectio trahit subjectionem subjectio protectionem so he saith fol. 5. a. fol. 9. b. and therefore though it be granted that Magistracy in general is from Nature as he saith fol. 13. a. yet of weak birth is that inference which he maketh viz. That English Allegiance is a principle in Nature Unless it be also admitted that all men on Earth that submit not to English Legiance do sin against Nature The difference then will stand thus Magistracy is founded in Nature therefore Legiance also But English Magistracy is from Civil constitution therefore is English Legiance of the like nature In the next place the Reporter saith that before any Municipal Law was made Kings did dare jura and he mounts as high for an example as the Trojans Age by the Testimony of Virgil. But I believe he intended not much strength in this seeing it is well known by any that knows the Scriptures that there were Municipal Laws given and that concerning the Office of a King by Moses which were more ancient than those of Troy and long before the time of Virgil who neither tells us in what manner those Trojan Laws were made though the Kings gave them nor if all were according to the Reporter's sence is the testimony of a Poet who sometimes useth his Poetica licentia to be taken in terminis In the next place the Reporter voucheth the Testimony of Fortescue c. 12 13. which is as absolutely opposite to the main point in hand as any Pen can declare For he tells us of divers sorts of Kingdoms some gotten by Conquest as those of Nimrod and Belus c. But saith he There is a Kingdom politick which is by the association of men by consent of Law making one chief who is made for defence of Law and of his Subjects Bodies and Estates and he cannot govern by any other power and of this nature faith he the Kingdom of England is fol. 30. 31 32. A second piece of the foundation of this opinion of the Reporter is taken ab inani it is a vain thing saith he to prescribe Laws but where by Legiance foregoing people are bound to obey But this compared with the words of Fortescue formerly mentioned falls of it self to dust and therefore I shall not further enlarge concerning it Thirdly The Reporter brings in to help the matter the consent of the Law in elder times by
Indefinite or terminated in the Natural Capacity of the King. And to make a full periodâ— to the point and make the same more clear I shall instance in one Precedent that these times of Edward the Third produced The former English Kings had Title to many Territories in France but Edward the Third had Title to all the Kingdom And being possibly not so sensible of what he had in possession as of what he had not He enters France in such a way and with that success that in a little time he â—â—ns the highest seat therein and so brought much honour to the English Nation and more than stood with the safety of the Kingdom For in the union of two Kingdoms it is dangerous for the smaller lest it be swallowed by the greater This was foreseen by the English who knew England did bear but a small proportion to France and complained of that inconvenience and thereupon a Law was made that the people of England should not be subject to the King or his Heirs as Kings of France Which manifestly importeth that an English King may put himself in such a posture in which Legiance is not due to him and that this posture is not onely in Case of Opposition but of diversity when he is King of another Nation and doth not de facto for that Time and Place rule an English King. Which if so I suppose this notion of Natural Absolute and Indefinite Legiance to the King in his Natural Capacity is out of this Kingdom if not out of the World and then the foot of the whole Account will be that the Legiance of an Englishman is Originally according to the Laws the sum of all being comprehended in the joynt safety of the people of England CHAP. IX Of Courts for Causes criminal with their Laws THe great growth of Courts founded upon Prerogative derogated much in these times from the Ancient Courts that formerly had attained the Soveraignty over the people and in the hearts of them all This was a hard lesson for them to learn but especially of the King's-Bench that was wont to learn of none and yet must be content to part with many of their Plumes to deck the Chancellor much of their work to busie the Prerogative Courts holden Coram Rege and more to those holden Coram Populo I mean The Courts of Oyer and Terminer Goal-delivery and Justices of Peace Those of Oyer and Terminer were now grown very common but less esteemed as being by men of mean regard nominated for the most part by the party that sued out the Commission which for the most part was done in behalf of those that were in danger and meaned not to be justified by Works but by Grace These escapes though small in the particulars yet in the full sum made the matter so foul as it became a common grievance and a Rule thereupon set by the Parliament for the regulating both of the Judges of such Court and the Causes The Commissions for Goal-delivery likewise grew more mean and ordinary The chief sort of Men in the several Counties had formerly the power but were found to savour too much of Neighbourhood and Alliance The leading of the work therefore is now committed to the Judges at Westminster and the other made onely Associates to them But above all the Courts of Sheriffs Coroners Leets were now grown sowr with Age having attained courses by common practice differing from Oppression onely in Name and yet were the times so unhappy as by these courses they had obtained favour and respect amongst the great men and so gained more power from above to abuse them below These men loved to be Commissioners of Oyer and Terminer and having learned how to make capital offences pecuniary found-such sweetness as they used not to be weary of their places though the Country grew weary of them and therefore disliking uncertaintes in such matters of benefit they cannot rest till they obtain more certain settlement in their places some for Years others for Life and some for ever The Disease thus contracted by degrees the Cure must be accordingly First the Sheriffwicks much dismembred to please the Court-favourites and fill the Kings privy Purse and all raised to the utmost peny of the full and beyond the just value A Law is made to restore the several Hundreds and Wapentakes to the Sheriffs and their Counties and all of them are reduced to the old Rent And it is likewise provided that none shall execute that place in County or Hundred who shall not then have sufficient Lands in that County to answer damages for injustice by them done And that no Sheriff shall serve in that place above one year and then not to be chosen again for that service till three years be past which latter clause was onely a medium taken up for the present occasion in regard that men of ability became very rare in these times especially in some of the Counties The election of the Sheriff is likewise not to be forgotten for though the Counties had the election of Coroners in regard they looked that no man should come nigh their bloud but whom they trusted yet the Sheriff came not so night their skin nor yet so nigh their Free-holds as anciently they had done for that their power in Judicature was much abated and so not worthy of so high regard yet in respect he was still to be a Minister of Justice and his place valuable more than formerly it was holden convenient that such as had the chief power of Judicature at Westminster viz. the Chancellour Treasurer Chief â—aron and the two Chief Justices should nominate the man that should be their Servant and in the Parliament nevertheless they interposed in that Election as often as they saw cause Secondly As touching Causes criminal which more ordinarily come within the cognizance of these Courts They generally held the same regard in the eye of the Law in these times that they had done formerly nevertheless in two crimes these times wrought diversly urging the edge of the Law against the one and abating it as to the other The latter of these is commonly called Petit Treason which is a murther destructive to the Commonwealth in an inferiour degree and at a further distance because it is destructive to that Legiance by which Families do consist and of whom Kingdomes are derived In former times it extended unto the Legiance between Lord and Tenant and Parents and Children But by this Law of 25 E. 3. it is reduced to the Legiance onely of Man and Wife Master and Servant Clerk and his Ordinary the last of which was now lately taken up and might have been as well laid aside as divers others were but that in these times much is to be yielded to the power of the Prelacy who loved to raise the power of the Ordinary to an extraordinary pitch that themselves might be the more considerable
his game in that Country another plays King by your leave in this and steps into the Throne teaching the King thereby this Lesson though too late That Non-residency is dangerous for a Priest but unto a Prince fatal unless his Subjects be fast to him when he is loose to them CHAP. XIII A View of the Summary Courses of Henry the Fourth Henry the Fifth and Henry the Sixth in their several Reigns HE that played this prank was the banished Duke of Hertford Son of John of Gaunt and by his death now become Duke of Lancaster by Title and as the Times then were it proved not hard to get more For in uncertain Commonwealths it is an easie thing for a man of opinion that hath less than his due to get more than he ought As Son of John of Gaunt this Duke had the peoples good wishes he a wise and a brave man and under oppression gained the more upon the people by how much they love brave men and compassionate such as suffer wrong especially from such persons from whom they all found the like measure All these concurring with the King's absence invited the Duke to adventure himself upon the influence of the peoples favour to gain his own right and what more the people would allow him and if no more yet his Honour is saved he came for his own and attained his end Thus then he comes over without Army or Foreign Power or other help saving the advice and interest of Archbishop Arundel who was his Companion in suffering Partner in the Cause and no less welcome to the Clergie than the Duke himself was to the people and so gained power to the Duke though he brought none Upon their arrival the Aspects of all are benign the Dukedom waits for him and in that as in a Mirrour he beholds the way fair and easie yet further it pities him to see the Kingdom so torn in pieces and spoiled The people knew him able and hoped him willing to amend all they offered him their Service which he accepts and therewith the Crown So hard a thing it is for to put a stop to a Conquerour in his career By this time was the Duke of Hertford thus become Duke of Lancaster and King of England under the name of Henry the Fourth by a design that in the proof was more easie than commendable and which being effected cost more skill to make that seem fair which was so foul than to accomplish the thing He therefore first heaps together Titles enough to have buried the clamour of Usurpation if it would have succeeded Conquest was a Title freest from Dispute whilst Power holds but it looks better from a Foreign Enemy than one sworn to the English Crown and therefore after that had served his turn he disclaimed it as that which was though meet enough to have yet unmeet to hold His right by Designation from his Predecessor he glanced upon but durst not adventure it too deep into the peoples consideration whose Ancestors had formerly over-ruled the Case against King John. He then stayed upon a concealed Title from a concealed Son of Henry the Third of whom they who listed might be perswaded but few believed the thing nor did himself but thence takes his slight up to a Jus Divinum or some hidden Fate that called him to the work but even there his Wings failed him and so he falls flat upon the Peoples Election De bene esse Some of these or all together might make Title enough for a great Man that resolved to hold by hook what he had got by crook and therefore trussing them up all together he enters his claim to the Crown As coming from the Bloud Royal from King Henry and through the Right that God his Grace hath sent me with the help of my Kin and Friends to recover the same which was in point to be undone for want of good Governance and due Justice The extract of all is that he was chosen by the People and Parliament then sitting And albeit that by the Resignation of Richard the Second the Parliament might seem in strict construction of Law to be expired together with the Kings power who called them together yet did not that Parliament so apprehend the matter but proceeded not onely to definitive Sentence of deposing him but declared themselves by their Commissaries to be the Three States and Representative of the People of England maintaining thereby their subsistency by the consistence of the Members together although their Chief was for the present like a head in a Trance till they had chosen Henry the Fourth to succeed in the Throne by this means preventing the conceit of discontinuance in the very Bud of the Notion Much like his entry was his continuance a continual tide of Foreign and Domestick War and Conspiracy enough to exercise his great Courage although he was more wise than warlike being loth to take up Arms for well he knew that a sick Title never sleeps but in a Bed of Peace and more loth to lay them down For besides Victory whereby he gained upon his Enemies in time of War he knew how to make advantage of them in time of Peace to secure his Friends to keep others in awe to enforce such Laws as stood with reason of State and the present posture of Affairs and where Laws failed to fill up the period with Dictates of his own Will. And upon this account the Product was a Government full of Ulcers of Bloudshed without regard of persons whether of the Lay or Religious Order without Legal Trial or priviledge of Clerk. So was Archbishop Walden dethroned Archbishop Scroop put to death and Dukes were dismounted without Conviction or Imputation saving of the Kings displeasure Taxes multiplied although begotten they were upon the Parliament like some monstrous Births shewn to the World to let it know what could be done but concealed by Historians to let it know what may not be done Yea the Priviledges of Parliament invaded in point of Election A thing that none of his Predecessors ever exemplified to him nor none of his Successors ever imitated him in Nor had he purposed it but that he was loth the People should know more of the Government than needs must To keep off Foreign Troubles he made Peace with France for longer time than he lived yet was ever infested with the Sword of St. Paul in behalf of Richard the Second's Queen and with the Factions between the Houses of Orleans and Burgundy in which he had interested himself to preserve the Foreign Neighbourhood in Parties one against another that himself might attend his own security at home He would have moved the Scots but they were already under English Banners nor could he reach so far having so many Enemies even in his own bosom The Welsh were big with Antiquity and Mountains of Defence they begin to bethink themselves of their Antient Principality hold the Kings Arms at hard duty
faithfully carried on by him that Justice it self could not touch his person unjustice did and he received this reward from his Nephew Henry the Sixth that he died in the dark because the Cause durst not endure the light Now is Henry the Sixth perswaded that he is of full Age he had laid aside his Guardian the Duke of Gloucester but forgetting to sue out his Livery he betakes himself from the Grace of God into the warm Sun as the Proverb is changing the Advice of a faithful experienced wise Counsellour for the Government of an Imperious Woman his Queen who allowed him no more of a King than the very Name and that also she abused to out-face the World. And after she had removed the Duke of Gloucester out of the way undertook the sway of the Kingdom in her own person being a Foreigner neither knowing nor caring for other Law than the Will of a Woman Thus the Glory of the House of Lancaster goes down and now a Star of the House of York appears in the rising and the people look to it The Queen hereat becomes a Souldier and begins the Civil Wars between the two Houses wherein her English party growing wise and weary she prays Aid of Ireland a Nation that like unto Crows ever wants to prey upon the Infirmities of England The Wars continue about sixteen years by â—its wherein the first loss fell to the English party the pretensions being yet onely for good Government Then the Field is quiet for about four years after which the clamour of ill Government revives and together therewith a claim to the Crown by the House of York is avouched Thereupon the Wars grew hot for about four years more and then an ebb of as long Quiet ensues The Tide at last returns and in two years War ends the Quarrel with the death of Fourscore Princes of the Bloud-Royal and of this good man but unhappy King. Unhappy King I say that to purchase his Kingdoms Freedom from a Foreign War sold himself to a Woman and yet lost his Bargain and left it to Observation That a Conscientious man that marries for by-regards never thrives For France espied their advantage they had maintained War with England from the death of Henry the Fifth with various success The Duke of Bedford being Regent for the English for the space of fourteen years mightily sustained the fainting condition of the English Affairs in those parts and having crowned his Master Henry the Sixth in Paris in the ninth year died leaving behind him an honourable Witness even from his Enemies That he was a brave Commander a true Patriot and a faithful Servant to his Lord and Brother Henry the Fifth and to his Son Henry the Sixth But now the Duke of Bedford is dead and though France had concluded a Peace with the English yet they could not forget the smart of their Rod but concluded their Peace upon a Marriage to be had with a Woman of their own bloud and interest And what they could not effect by Arms in thâ—â—r own Field they did upon English ground by a Feminine Spirit which they sent over into England to be their Queen and in one Civil War shedding more English bloud by the English Sword than they could formerly do by all the men of France were revenged upon England to the full at the English-mens own charge For what the English gain by the Sword is commonly lost by Discourse A Kingdom is never more befooled than in the Marriage of their King if the Lady be great she is good enough though as Jezabel she will neither reverence her Husband obey her Lord and King nor regard his people And thus was this Kingdom scourged by a Marriage for the sin of the wise men that building upon a false Foundation advised the King in the breach of Contract with the Earl of Arminiack's Daughter And thus the King also for that hearkning to such Counsel murthered the Duke of Gloucester that had been to him a Father yielded up his Power to his Queen a masterless and proud woman that made him like a broken Idol without use suffered a Recovery of his Crown and Scepter in the Parliament from his own Issue to the Line of York then renewing the War at his Queens beck lost what he had left of his Kingdom Country and Liberty and like the King that forgot the kindness of Jehojada lost his Life by the hand of his Servant CHAP. XIV Of the Parliament during the Reigns of these Kings THe Interest of the Parliament of England is never more predominant than when Kings want Title or Age. The first of these was the Case of Henry the Fourth immediately but of them all in relation to the pretended Law of the Crown but Henry the Sixth had the disadvantage of both whereof in its due place The pretended Law of the Crown of England is to hold by Inheritance with power to dispose of the same in such manner by such means and unto such persons as the King shall please To this it cannot be denied divers Kings had put in their claims by devising their Crown in their last Will but the success must be attributed to some power under God that must be the Executor when all is done and which must in cases of Debate concerning Succession determine the matter by a Law best known to the Judge himself Not much unlike hereunto is the Case of Henry the Fourth who like a Bud putting up in the place of a fading Leaf dismounts his Predecessor First from the peoples regard and after from his Throne which being empty sometimes he pretended the resignation of his Predecessor to him other whiles an obscure Title by descent his Conscience telling him all the while that it was the Sword that wrought the work But when he comes to plead his Title to Foreign Princes by protestation laying aside the mention of them all he justifies upon the unanimous consent of the Parliament and the people in his own onely person And so before all the World confessed the Authority and Power of the Parliament of England in disposing of the Crown in special Cases as a sufficient Bar unto any pretended Right that might arise from the House of Mortimar And yet because he never walks safely that hath an Enemy pursuing him still within reach he bethinks himself not sure enough unless his next Successours follow the dance upon the same foot To this end an Act of Parliament leads the Tune whereby the Crown is granted or confirmed to Henry the Fourth for life and entailed upon his Sons Thomas John and Humphrey by a Petition presented 5 Hen. 4. Thus Henry the Fourth to save his own stake brought his Posterity into the like capacity with himself that they must be Kings or not subsist in the World if the House of York prevails And so he becomes secured against the House of York treading on his heels unless the Parliament of England shall
that Prince that will keep Guards about his Person in the midst of his own people may as well double them into the pitch of an Army whensoever he pleases to be fearful and so turn the Royal power of Law into force of Arms. But it was the French fashion and the King 's good hope to have all taken in the best sence His Title setting aside the saying of Philip the Hardy That Kingdoms onely belong to them that can get them would hardly endure the touch till Pope Innocent by his Bull confirmed the Crown to him to hold by a six-fold right Viz. Of Inheritance of War of Espousals of Election of Gift by Parliament and lastly of Pontifical Benediction which the King liked marvelous well and the rather because his Title by Marriage was buried up in the middle and so made the less noise For though it was his best guard yet he liked not that it should be so reputed lest his Title should seem rather conferred upon him than gained by him and so should hold by a Woman or at the best by the courtesie of England if the Peoples favour should so far extend the Law in that point by both which he holds the honour of a compleat King diminished His Title by Inheritance is much disputable if the right Heirs of John of Gaunt be enquired after And much more that of War for although that brought the Possession yet no right or Title but by wrong which may indeed be plaistered over by Election or Act of Parliament but then he must be Tenant to the People As touching the Pontifical Benediction himself took that but as a redundancy that might sway with the Clergie and do his Title no hurt Nevertheless what severally they cannot do by joynt concurrence he accounts so fully done as if he were a King against all the World and more Yet is he not sure enough but as one jealous is more tender so is his eye ever upon his Title there is his guard and regard as if it were the outworks of his Crown which once lost the Crown cannot hold out long In this work he minded so much his Greatness that he lost the repute of his Goodness Then casting his eye upon the Government and finding it of a mixt temper wherein if Royalty prevails not Popularity will like a good Souldier whilst his strength is full he sallies upon the peoples liberties in regard of their persons with such cunning conveyance as he taught the People to dance more often and better to the tune of Prerogative and Allegiance than all his Predecessors had done Nor did the People perceive it till they were over their Shoes and then they clearly saw their condition and that it was in vain for them to wrangle with their own acts of which more particularly in the next Chapter The Legiance of persons of the People once gained their Estates more easily follow And therefore though in the former he wrought by Ambuscado in this he may be more brave and charge them in the Van. Yet this he did also by degrees first by light skirmishes of borrowing smaller sums of money possibly when he had no need and paying them again thereby to gain credit for greater sums of which he intended not so sudden return Then he charges them home with Benevolences a trick gained in right of his Wife from her Father for he hoped that the person of Richard the Third was now become so abominable as his Laws would be the less regarded But in this course he gained nothing but Wind. Then as Edward the Fourth he falls upon Malevolences of Penal Laws things made in terrorem to scare men to obedience rather than to compel them but are now executed Ad angorem and the people find that he is but a word and a blow with them and thus serving his Prerogative with Power and his Purse with his Prerogative he made all serve his own turn Humanitatem omnem vincente periculo In the Field he always put his Wisdom in the Van for as he was parsimonious in expences of Money so much rather of Bloud if he could prevail by Wit. Generally he was the first in Arms to make men believe he was more ready to fight than they Thus he many times gained the advantage of his Adversaries and sometimes came off without blows In the Battle he did put on courage as he did his Armour and would dare to adventure just as far as a General should as if he had ever regard of his Crown rather than of the honour of a forward Souldier which nevertheless was also so dear to him as he is seldom found in the Rear although his Judgement commanded in chief rather than his Courage In the Throne he is much more wise because he was willing it should be known In doing Justice he is seldom suspected unless where himself is party and yet then he is also so shame-faced as he would ever either stalk behind some Law that had a semblance to his ends or when he meant to step out of the way he would put his Ministers before not so much that his fineness might be known but his Royalty For the Lion hunts not its own prey nor is it Regal for a King to be seen in catching of Money though he be understood Besides it was needless he had Lords Bishops Judges and other instruments of malevolent aspects as so many Furies outwardly resembling men for the Commonwealth but working for the common mischief like some Pictures one way looking right and another way looking wrong And thus the King comes lawfully by what he catched though his instruments did not and must be still holden for a good King though it be his hard hap to have ill servants Take him now amongst the people he is alike to all yea in some things that might seem to brush upon the King 's own train for he had some of his suit that were not altogether of his mind and these he would spare to the course of Justice if need were As it befel in the case of the Duke of Suffolk whom he suffered to be tried at the Kings Bench-bar for a Murder done upon a mean person and by such means obtained the repute of a zealous Justiciar as if Justice had been his principal vertue All this suited well with his main end for he that will milk his Cattle must feed them well and it encourages men to gather and lay up when they have Law to hold by what they have His Religion I touch upon in the last place as most proper to his temper for it was the last in his thought though many times the first in the acting But where it stood in his way he turned it behind him he made Church-men his instruments that the matter might better relish for who will expect ought save well from men of Religion and then if the worst come he was but misled by such as in common reason ought
be said that the whole lump thereof did belong to the King because much thereof was not so ancient but De novo raised by the Pope's extortion and therefore the true and real profits are by particular Acts of Parliaments ensuing in special words devolved upon him The nature of this power is laid down in this Statute under a threefold expression First It is a visitatory or a reforming power which is executed by enquiry of Offences against Laws established and by executing such Laws Secondly It is an ordinary Jurisdiction for it is such as by any Spiritual Authority may be acted against Irregularities And thus the Title of Supream Ordinary is confirmed Thirdly It is such a power as must be regulated by Law and in such manner as by any Spiritual Authority may lawfully be reformed It is not therefore any absolute Arbitrary Power for that belongs onely to the Supream Head in Heaven Nor is it any Legislative Power for so the Law should be the birth of this power and his power could not then be regulated by the Law nor could every Ordinary execute such a power nor did Henry the Eighth ever make claim to any such power though he loved to be much trusted Lastly This Power was such a Power as was gained formerly from the King by Forein Usurpation which must be intended De rebus licitis and once in possession of the Crown or in right thereto belonging according to the Law. For the King hath no power thereby to confer Church-livings by Provisorship or to carry the Keys and turn the infallible Chair into an infallible Throne In brief this power was such as the King hath in the Commonwealth Neither Legislative nor Absolute in the executive but in order to the Unity and Peace of the Kingdom This was the Right of the Crown which was ever claimed but not enjoyed further than the English Scepter was able to match the Romish Keys And now the same being restored by Act of Parliament is also confirmed by an Oath enjoyned to be taken by the people binding them to acknowledge the King under God supream head on earth of the Church of England Ireland and the Kings Dominions in opposition to all forein Jurisdiction And lastly by a Law which bound all the people to maintain the Kings Title of Defender of the Faith and of the Church of England and Ireland in Earth the supream Head under the peril of Treason in every one that shall attempt to deprive the Crown of that Title We must descend to particulars for by this it will appear that these general Laws concerning the Kings refined Title contained little more than matters of Notion otherwise than a general bar to the Popes future interests And therefore the Wisdom of the State as if nothing had been already done did by degrees parcel out by several Acts of Parliament the particular interests of the Popes usurped Authority in such manner as to them seemed best And first concerning the Legislative Power in Church-Government It cannot be denied but the Pope De facto had the power of a Negative vote in all Councils and unto that had also a binding power in making Laws Decrees and Decretals out of his own breast but this was gotten by plunder he never had any right to headship of the Church nor to any such Power in right of such preferment nor was this given to the King as Head of the Church but with such limitation and qualifications that it is evident it never was in the Crown or rightly belonging thereto First Nigh three years after this Recognition by the Clergy in their Convocation it is urged upon them and they pass their promise In verbo Sacerdotii And lastly It is confirmed by Act of Parliament That they shall never make publish or execute any new Canon or Constitution Provincial or other unless the Kings Assent and License be first had thereto and the offences against this Law made punishable by Fine and Imprisonment So as the Clergy are now holden under a double Bond one the honour of their Priesthood which binds their Wills and Consciences the other the Act of Parliament which binds their powers so as they now neither will nor can start Nevertheless there is nothing in this Law nor in the future practice of this King that doth either give or assert any power to the King and Convocation to bind or conclude the Clergy or the People without an Act of Parliament concurring and inforcing the same And yet what is already done is more than any of the Kings Predecessors ever had in their possession A second Prerogative was a definite power in point of Doctrine and Worship For it is enacted that all Determinations Declarations Decrees Definitions Resolutions and Ordinations according to Gods Word and Christs Gospel by the Kings Advice and Confirmation by Letters-patent under the Great Seal at any time hereafter made and published by the Archbishops Bishops and Doctors now appointed by the King or the whole Clergie of England in matters of the Christian Faith and lawful Rites and Ceremonies of the Same shall be by the People fully believed and obeyed under penalties therein comprised Provided that nothing be done contrary to the Laws and Statutes of this Realm A Law of a new birth and not an old Law newly revived or restored This the present occasion and the natural constitution of the Law do fully manifest The occasion was the present perplexity of the people for instead of the Statute Ex officio which was now taken away the Six Articles commonly called the Six-Stringed Whip were gotten into power by a more legal and effectual Original The Parliament had heard the cries of the People concerning this and having two things to eye at once one to provide for the Peoples Liberty and further security against Foreign pretensions the other which was more difficult for the liberties of the Consciences of multitudes of men of several Opinions which could not agree in one judgement and by discord might make way for the Romish party to recover its first ground And finding it impossible for them to hunt both games at once partly because themselves were divided in opinion and the bone once cast amongst them might put their own co-existence to the question and partly because the work would be long require much debate and retard all other affairs of the Commonwealth which were now both many and weighty In this troubled wave they therefore wisely determine to hold on their course in that work which was most properly theirs and lay before them And as touching this matter concerning Doctrine they agreed in that wherein they could agree viz. To refer the matter to the King and persons of skill in that mystery of Religion to settle the same for the present till the Parliament had better leisure the people more light and the minds of the people more perswaded of the way Thus the Estates and Consciences of
power of Excommunication it self notwithstanding that the Church held it by way of reservation or saving and not by donation from the Parliament by any express Act yet was that saving with such limitations as that it received but a lame power in comparison of what it claimed and exercised in former times For whereas formerly the Church-men had the Writ De Excommunicato Capiendo at their own beck now it will not come but upon Articles and certain Conditions 1. In cases of Heresie 2. Of deserting of the Sacrament 3. Deserting of publick Worship 4. Maintenance of Error 5. Incontinency 6. Vsury 7. Simony 8. Perjury 9. Idolatry In other matters the Spiritual Sword must find or make their own way or else be quiet Secondly The Church was now no less under the Chair and Throne than under power of the Parliament nor is it a wonder if it could not thrive when it was so over◠dropped for Prelacie by the King's arms is lifted up so high above the other Clergie that the rest of the Clergie are as much underlings to the Prelacie as the Prelates are to the King. They dare not offend the Crown lest they should lose their Honours nor the inferiour Clergie them lest they should lose their Livings and Liberties and so the Prelates speak the sense of the Clergie and make the Crown their Oracle Thus in the Church-matters the Crown is all in all CHAP. XXXVII Of the Militia in these latter Times IT cannot be denied but as in the sober Government of this 〈◊〉 there is a Supremacy of Command so also in the rudest times of War and wheresoever the same is setled there must the Militia also be The word Militia is a general notion sufficient enough for a name or title but not to define the thing I take it for nothing else but the Government of the Commonwealth when it is in danger or War or in order thereunto It consisteth in the raising arming ordering and paying of the Souldiery The title of the Supream Power in all this work hath been of late put to the question and brought us to this sad condition of trial by Battle and by Fighting to find out who had the chief power to fight A Lesson that might have been learned from former Generations foregoing at a far cheaper rate when England is well in its wits Where the Law of Peace is setled there also is the Law of War and in what condition the Crown standeth in relation to the Legislative power in time of Peace may be seen in the foregoing Discourse In War the King is the peoples General by his place yet if any impediment do befal either by natural disabilities or civil to render the person incapable of managing of the Service there is no question but the people may order the matter as they please With examples hereof these times are full wherein we have a Child a Virgin and a Married Woman to sway the Work all of them in a very unmeet condition for such a Trust and yet by the help they had they managed it well enough The power of him as King or General in the Army is all one but before it is imbodied as a King onely he may do some things in order thereto according to the Law and Custom of the Nation yet this falls under a double consideration of the time and occasion In the recess of the Parliament he is the first mover and ought to move by the advice of his Council if occasion do provoke to Arms but if the same befal the Parliament then sitting no History or Record do mention that ever he moved but by their concurrent advice and direction The occasion either provoketh offensive or defensive War with other Nations or with the people of his own Nation in the case of Insurrection Examples of War with other Nations that may be called offensive Wars we have but two one in Edward the Sixth's time with Scotland and which was but in pursuance of a War begun by his Father and wherein the Kingdom stood ingaged in a case that concerned the publick good and safety viz. The Marriage of their King refused after promise made The other was in the time of Queen Mary with the French which somewhat reflected also upon the publick safety but more upon the dishonour of the same I◠none of these did either of the Supream Powers array or raise men by Prerogative but onely such as were Voluntier in that work And because the people were ill principled in Edward the Sixth's time in regard of the change of Religion he was induced to hire Foreign aid out of Germany The Wars in the time of Queen Elizabeth were in order to the defence of this Nation being ever under a malignant Aspect from abroad especially from Spain in Ireland France and the Low Countries Yet were these Wars served onely by Voluntiers nor did any Commission give power of impresting men to serve against their wills in any Expedition made to any of those places as the Commissions upon Record do testifie If any Levies of men were otherwise made or compulsory means used for such ends they are to be reckoned up amongst the errata whereof the Parliament took no notice in regard it saw the ends and issues of such Reflections in Government to be successful and honourable and that all was done by Council and a Woman popularly affected and therefore they less feared Invasion upon their Liberties Or otherwise they are to be imputed to the condition of those places being Members of the Commonwealth as the cautionary Towns in the Low Countries and the Irish Plantations were and so befel under another consideration of a defensive War in case of Invasion and common danger thereby or by Intestine broils during which condition as it is the King's duty to levy and array men so is it the duty of the people to be ready to assist one another in all such exigencies and to defend the publick Liberty Nevertheless these Arrays are not left wholly at the Will of the King but to discretion of the Council how far the same shall extend For never were general Arrays made where but one Coast was in danger and where no Conquest is in pretence but onely Piracy or Plunder But if the disease were general as in the year 88 the Array was general and yet it was of none but those that were of the Trained-bands besides such as were Voluntier Secondly The arming of these men was also diversly there was no general Rule or Law for the arming of men since the time of Edward the First to the time of Queen Mary but the Statute at Winton the course of Tenures I mean of such men as were of the Militia of this Kingdom So as when they were raised they were raised in their own Arms. But for such men as passed the Seas for Foreign Service as they were Voluntiers or sent over by the Parliament these were armed according to special contract
the Summons to the Parliament doth hold for this Quae de communi consilio ordinari contigerint and the words in the Coronation-oath Quas vulgus elegerit do speak no less whether they be taken in the â—â—eter perfect-tense or the Future-tense the conclusion will be the same True it is that in all Kings are supposed as present yet is not that valuable in the point of Council which is the foundation of the positive Law. For as the best things under heaven are subject to infirmity so Kings either short or beyond in Age or Wit or possibly given over to their lusts or sick or absent in all which the name of a King adds little more to the Law than a sound yet all the while the Government is maintained with as much honour and power as under the most wise and well-disposed King that ever blessed Throne This is done in the Convention of States which in the first times consisted of Individuals rather than Specificals The great men doubtless did many things even before they saw the English shore that Tacitus noteth yet in the publick Convention of all did nothing alone till of one House they became two The particular time of the separation is uncertain and the occasion more It may be the great Lords thought the mysteries of State too sacred to be debated before the vulgar lest they should grow into curiosity Possibly also might the Commons in their debates wish the great men absent that themselves might more freely vote without angering their great Lords Nevertheless the Royal assent is ever given in the joynt Convention of all But how a double Negative should rest in the house of Lords one originally in themselves the other in the sole person of the King whenas in no case is any Negative found upon Record but a modest waring the answer of such things as the King likes not is to me a mystery if it be not cleared by Usurpation For it is beyond reach why that which is once by the Representative of the People determined to be Honestum should be dis-determined by one or a few whose Counsels are for the most part but Notionary and grounded upon private inconveniencies and not upon experimentals of most publick concernment or that the veult or Soit fait which formerly held the room onely of a Manifesto of the Regal Will to execute the Law then made as his Coronation-Oath to execute all Laws formerly established should be taken to be a determination of the justness or honesty of the thing When as this Royal Assent is many times given by a King that knows no difference between good and evil and is never competent judge in matters that in his opinion do fall into contradiction between his own private interest and the benefit of the people However unequal it may seem yet both that and other advantages were gained by the House of Lords after the separation was once made as many of the ancient Statutes by them onely made do sufficiently hold forth which although in the general they do concern matters of Judicature wherein the Lords originally had the greatest share yet other things also escaped the Common Vote which in after-ages they recovered into their consideration again And the condition of the people in those times did principally conduce hereunto For until the Norman times were somewhat setled the former Ages had ever been uncertain in the changes between War and Peace which maintained the distance between the Lords and their Tenants and the authority of the one over the other savouring of the more absolute command in Law. And after that the Sword was turned into the Plough-share the distance is established by compact of Tenure by Service under peril of default although in a different degree for the Service of a Knight as more eminent in War so in Peace it raised the mind to regard of publick Peace but the service of the Plough supporting all is underneath all yet still under the common condition of Free-men equally as the Knight Peace now had scarcely exceeded its minority before it brought forth the unhappy birth of Ambition Kings would be more absolute and Lords more Lordly the Commons left far behind seldom come into mention amongst the publick Acts of State and as useless set aside This was the lowest ebb that ever the Commonage of England indured which continued till Ambition brought on Contention amongst the great men and thence the Barons Wars wherein the Commons parting asunder some holding for the King who promised them Liberty from their Lords others siding with the Lords who promised them Liberty from the King they became so minded of their Liberties that in the conclusion they come off upon better advantage for their Liberties than either King or Lords who all were losers before their reckoning was fully made These Wars had by experience made the King sensible of the smart of the Lords great interest with the people and pointed him to the pin upon which the same did hang to take which away a design is contrived to advance the value of the Commoners and to level the Peerage that they both may draw in one equal yoke the Chariot of Prerogative The power of the Commons in publick Councils was of some efficacy but not much honour for their meetings were tumultuary time brought forth a cure hereof the flowers of the people are by election sent to be the Representative and so the Lords are match'd if not over-match'd the people less admiring the Lords and more regarding themselves This was but a dazle an Eclipse ensues for Kings having duly eyed the nature of Tenure between the Lords and Commons look upon it as an Out-work or Block-house in their way of approach Their next endeavour is therefore to gain the Knighthood of England within the compass of their own Fee and so by priority to have their Service as often as need should require by a trick in Law as well for their own safety in time of War as for their benefit in time of Peace This was a work of a continuing nature and commended to Successors to accomplish by degrees that the whole Knighthood of England is become no more the Lords till the Kings be first served And thus the power of the People is wholly devolved into the King's Command and the Lords must now stand alone having no other foundation than the affections of the People gained by beneficence of Neighbourhood and ordinary Society which commonly ingratiates the inferiour rank of men to those of higher degree especially such of them as affect to be popular Henry the Seventh found out this Sore and taught his Successors the way to avoid that occasion of Jealousie by calling up such considerable men to attend the Court without other Wages but fruitless hopes or under colour of honour to be had by Kings from the presence of such great men in their great Trains or of other service of special note to be done onely by
men of so high accomplishment And by this means Lordship once bringing therewith both Authority and Power unto Kings before Kings grew jealous of their greatness in these latter days is become a meer Jelly and neither able to serve the interest of Kings if the people should bestir themselves nor their own any longer Henceforth the Commons of England are no mean persons and their Representative of such concernment as if Kings will have them to observe him he must serve them with their Liberties and Laws and every one the publick good of the people No man's work is beneath no man 's above it the best honour of the Kings work is to be Nobilis servitus as Antigonus said to his Son or in plain English Supream Service above all and to the whole I now conclude wishing we may attain the happiness of our Forefathers the ancient Saxons Quilibet contentus sorte propria A VINDICATION Of the ancient way of PARLIAMENTS In ENGLAND THe more Words the more Faults is a divine Maxime that hath put a stop to the publishing of this Second Part for some time but observing the ordinary humour still drawing off and passing a harsher Censure upon my intentions in my First Part than I expected I do proceed to fulfil my course that if Censure will be it may be upon better grounds when the whole matter is before Herein I shall once more mind that I meddle not with the Theological Right of Kings or other Powers but with the Civil Right in Fact now in hand And because some mens Pens of late have ranged into a denial of the Commons ancient Right in the Legislative power and others even to adnul the Right both of Lords and Commons therein resolving all such power into that one principle of a King Quicquid libet lìcet so making the breach much wider than at the beginning I shall intend my course against both As touching the Commons Right joyntly with the Lords it will be the main end of the whole but as touching the Commons Right in competition with the Lords I will first endeavour to remove out of the way what I find pulished in a late Tractate concerning that matter and so proceed upon the whole The subject of that Discourse consisteth of three parts one to prove that the ancient Parliaments before the thirteenth Century consisted onely of those whom we now call the House of Lords the other that both the Legislative and Judicial Power of the Parliament rested wholly in them Lastly that Knights Citizens and Burgesses of Parliament or the House of Commons were not known nor heard of till punier times than these This last will be granted viz. That their several Titles of Knights Citizens and Burgesses were not known in Parliament till of latter times Nevertheless it will be insisted upon that the Commons were then there The second will be granted but in part viz. That the Lords had much power in Parliament in point of Jurisdiction but neither the sole nor whole The first is absolutely denied neither is the same proved by any one instance or pregnant ground in all that Book and therefore not clearly demonstrated by Histories and Records beyond contradiction as the Title-page of that Book doth hold forth to the World. First because not one instance in all that Book is exclusive to the Commons and so the whole Argument of the Discourse will conclude Ab Authoritate Negativa which is no Argument in humane testimony at all Secondly The greatest number of instances in that Book are by him supposed to concern Parliaments or General Councils of this Nation holden by the Representative thereof whereas indeed they were either but Synodical Conventions for Church-matters whereunto the poor Commons he well knoweth might not come unless in danger of the Canons dint or if they did yet had they no other work there than to hear learn and receive Laws from the Ecclesiasticks And the Lords themselves though present yet under no other Notion were they than as Counsel to the King whom they could not cast out of their Council till after-ages though they often endeavoured it Thirdly The Author of that Tractate also well knoweth that Kings usually made Grants and Infeodations by advice of the Lords without the aid of the Parliament And it is no less true that Kings with the Lords did in their several Ages exercise ordinarily Jurisdiction in cases of distributive Justice especially after the Norman entrance For the step was easie from being Commanders in War to be Lords in Peace but hard to lay down that power at the Foot of Justice which they had usurped in the rude times of the Sword when men labour for Life rather than Liberty and no less difficult to make a difference between their deportment in commanding of Souldiers and governing of Countrymen till Peace by continuance had reduced them to a little more sobriety Nor doth it seem irrational that private differences between Party and Party should be determined in a more private way than to trouble the whole Representative of the Kingdom with matters of so mean concernment If then those Councils mentioned by the Author which concern the King's Grants and Infeodations and matters of Judicature be taken from the rest of the Precedents brought by him to maintain the thing aimed at I suppose scarce one Stone will be left for a Foundation to such a glorying Structure as is pretended in the Title-page of that Book And yet I deny not but where such occasions have befaln the Parliament sitting it hath closed with them as things taken up by the way Fourthly It may be that the Author hath also observed that all the Records of Antiquity passed through if not from the hands of the Clergie onely and they might think it sufficient for them to honour their Writings with the great Titles of men of Dignity in the Church and Commonwealth omitting the Commons as not worthy of mention and yet they might be there then present as it will appear they were in some of the particular instances ensuing to which we come now in a more punctual consideration The first of these by his own words appear to be a Church-mote or Synod it was in the year 673 called by the Archbishop who had no more power to summon a Parliament than the Author himself hath And the several Conclusions made therein do all shew that the People had no work there as may appear in the several Relations thereof made by Matthew Westminster and Sir Henry Spelman an Author that he makes much use of and therefore I shall be bold to make the best use of him that I can likewise in vindicating the truth of the point in hand For whatever this Council was it is the less material seeing the same Author recites a Precedent of Aethelbert within six years after Austin's entry into this Island which was long before this Council which bringeth on the Van of all the rest of
Womanhood 138. Coverture 139 Custos Regni a formality of State under the Parliaments Order 79. many times conferred upon Children 80. and upon a Woman 148. D. DElegates though named by the King yet by Authority of the Parliament 133 Defender of the Faith 122 Dispensations Licenses and Faculties never in the Crown but by the Parliament givent to the Archbishop under limitations 137 139 Duels ordered by the Marshal as subservient to the Common Law 63. E. EDward the Third his Reign 2. his Title upon Entry by Election ibid. Edward the Fourth his Reign though had Title of Inheritance yet entred by Election 106 Edward the Fifth approached the Crown by Inheritance but never put it on 108 Edward the Sixth his Reign his Title and Possession did meet though he was a Child and his Sister Mary grown in age 152 Ecclesiastical power vide Prelacy and Prelates Elizabeth Queen her Reign 155. her Title by Election 163 Englishire taken away 56 Episcopacy vide Prelates and Prelacy Errors vide Heresie Exchange ordered by the Statute 38 Excommunication 159. the Writ de excommunicato capiendo ordered 169. vide Parliament exportation 38. F. FAlse News punished 66 Felony by riding in armed Troops 56 66 101 150 174 First-fruits regulated 90. taken away from Rome 130 Forcible entries 101 Forts Fortifications and Castles ordered by Parliament 147 171. G. GOal-delivery by the Judges of the Benches 54 97. vide Judges Goals regulated 67 149 Guard for the Kings Person brought in by Henry the Seventh 113 Gypsies made Felons 174 H. HEnry the Fourth his Reign doubtful in his Title but rested upon Election chosen by Parliament sitting when there was no King 68 c. Henry the Fifth his Reign his Title by an Intail by the Parliament 70 c. Henry the Sixth his Reign his Title by the Intail last mentioned though a Child he is admitted to the Crown 72 c. Henry the Seventh first setled a constant Guard his sixfold Right to the Crown and his gaining Prerogative in the persons and Estates of the people ibid. 113 c. Henry the Eighth his natural endowments 116 c. his power in the matters Ecclesiastical 120 c. in Temporals 125 c. Heresie and Errour in Doctrine under the cognizance of the Civil Magistrate 36 92. not punishable by death by Law till Henry the eighths time 126 138. the Writ De Heretico comburendo hath no legal ground in any of those former Times 67 93 95 126 138 Honours vide Parliament Hospitals visited by the Pelacy 90. I. IMportation 42 Judges of Assizes 97 142 Jurisdiction Ecclesiastical not originally in the Prelacy nor absolutely 137 Justices of the Peace their residency and quality their number various their work also 62 99. one Justice 63. and the setling of their Session ibid. their power to take Bail 149. K. KIngs vide Parliament Allegiance Supremacy Militia L. LAbourers their Work and Wages 42. ordered by the Justices of the Peace 63 Lancaster the Princes of that House friends to the Clergie in policy 86 Laws made by the Successors of Henry the Eighth during their minority annulled 69. Ecclesiastical Laws vide Parliament Lieges by Birth though not born within the Allegiance of England 57 Liveries and Tokens inhibited to the Lords 64 103. and limited in the Kings person ibid. means of jealousie between the King and his people 143 Libels in the Spiritual Court to be delivered in Copies upon demand 90 Licenses vide Dispensations Lords their power and jurisdiction in the Parliament 14. in Council 17 142 Lunacy no impediment in Trial of Treason 151. M. MAry Queen her Reign 153. her Title by Election 164. she prejudiced her Supremacy by Marriage 163 Marque and Reprisal 122 Martials Court 62 Matrimonial Causes after the Reformation by Henry the Eight in the Cognizance of the Clerge by leave 139 Militia 58 102 143 122. vide War. Mint 44 84. vide Parliament Monasteries dissolved 117. maintained by Henry the Fourth 86 Money out of England to Rome stopped 32. N. NAvy Royal as Forts for the publick safety maintained at the publick charge 148 Nisi prius 98 Non-residency 139 Noble Ladies Trial 101. O. OYer Terminer 54 98 Ordinary not to be questioned in the Civil Courts for things under Ecclesiastical jurisdiction 28 29. hath cognizance of Vsury 28. of Avoidances Bigamy and Bastardy 29. grant Administration 30. visit Hospitals and call Executors to account 90. hath power to fine and imprison 91 141. to keep Courts but the Authority doubtful 137. have Cognizance of the Heresie 91 138. Matrimony Non-residence ibid. In Queen Elizabeth's time their jurisdiction left in doubt 168 c. Oath ex Officio first brought in by the Church-men in matters Ecclesiastical 92. afterwards by the Parliament into the Star-chamber in cases criminal 142. P. PArdon of Crimes not absolutely in the King 11 Parliament without the King consisting of three States 69. without the Clergie 34 Parliaments power in ordering of the Crown 75 133 162. In ordering the King's person by Protectors 9. vide Protector In ordering their Children In ordering their Family 10 75. In ordering their Revenues 10 75 68. In ordering their Council 83 In the Militia vide Militia and War. In conferring places of Honour and Trust 11 23 In ordering the Mint vide Mint In making Ecclesiastical Laws Concerning Church-Government 131 c. 121 165. Concerning Doctrine 123 131 138 c. Concerning Worship 131 Concerning Church-censures 140 In granting Licenses and Dispensations 137 In final Appeals 133 In ordering it self 14 76 In Judicature 15 111 Parliament not inconstant though mutable 110 Peace Justices and their Sessions 62 c. 99 c. 148 c. 173 c. penal Laws executed to get money 108 114 Pleadings in English 57 Pope's power in England abated 33 c. vide Ordinary Supremacy Archbishop Prelacy not favoured by the Canon 140. their power since the time of Queen Mary 166. their dignity and power distinguished 28 34 Priests Wages 41 91 Praemunire and Provisors 32 34 c. 89 Proclamations made equal to Laws 125. altered 158 Protectors variety of them makes a doubtful Government 3 5 72 Purveyance regulated 31 39 R. RAvishment consented to forfeits Joynture 56 Request Court established by Cardinal Wolsey 140 Richard the Second his Reign 6. endeavours to over-rule the Parliament but failed in the conclusion 7 Richard the Third's Reign 108. his Title by Vsurpation and Murther ibid. Riots 101. S. SAnctuaries changed into fewer priviledged places 151 Servants imbezelling Felony ibid. 174 Sheriffs Courts regulated 149. Election of Sheriffs 55. Farm of the County 98. continuance in service ibid. Extortion ibid. Souldiers vide War. Staple 42 c. 111 Star-chamber 19 c. 141 Stealers of Men and Women Felony 174 Supremacy Supream Head 120. certainly not Absolute or Arbitrary power nor a Legislative power 166 c. Supream Governour 159. in causes Ecclesiastical ibid. c. in Temporal ibid. T. TEnths and First-fruits
Advertisement THis Book at its first Publishing which was shortly after the Death of King Charles the First had the ill fortune to be coldly received in the world by reason of the Circumstances of those times but after K. Charles the Second was possest of the Crown and endeavoured to advance the Prerogative beyond its just bounds the Book began to be much enquired after and lookt into by many Learned Men who were not willing to part easily with their Birth-Rights so that in a short time it became very scarce and was sold at a great rate this occasion'd the private Reprinting of it in the year 1672 which as soon as the Government perceived they Prosecuted both the Publisher and the Book so violently that many hundreds of the Books were seized and burnt that and the great want of the Book since occasioned the Reprinting of it without any Alterations or Omissions in the year 1682 when the Press was at liberty by reason of the ceasing of the Act for Printing but Prerogative then getting above the Law it met with a new Persecution and the Publisher was Indicted for the Reprinting of it the passages in it upon which the Indictment was found were these Part II. Page 76. beginning Line the 24th thus I do easily grant that Kings have many occasions and opportunities to beguile their people yet can they do nothing as Kings but what of Right they ought to do They may call Parliaments but neither as often or seldom as they please if the Statute Laws of this Realm might take place And Part II. Page 148. Line 32. And though Kings may be Chief Commanders yet they are not the Chief Rulers The Prosecution went on so rigorously that the Publisher tho' beyond the Seas yet willing to try the Cause appeared according to the constant practice of the Court of King's-Bench by his Attorney but for not being personally present in the Court which was then impossible he was by the Arbitrary Power of the then Lord Chief Justice Jefferys Out-Law'd for a Misdemeanour and so remain'd till this wonderful Revolution by the wise Conduct of his Highness the Prince of Orange The Books have been ever since with care and charge preserved for the benefit of all that are willing to know and maintain their Antient Laws and Birth-Rights It was well known to and owned by the late Lord Chief Justice Vaughan who was one of the Executors of the Great and Learned Mr. Selden that the Ground-work was his upon which Mr. Bacon raised this Superstructure which hath been and is so well esteem'd that it is now again made publick by January the 10th 1688-9 John Starkey AN Historical and Political DISCOURSE OF THE Laws Government OF ENGLAND FROM The FIRST TIMES to the End of the Reign of QUEEN ELIZABETH WITH A VINDICATION of the ANCIENT WAY of Parliaments in England Collected from some Manuscript Notes of John Selden Esq by Nathaniel Bacon of Grays Inn Esquire LONDON Printed for John Starkey And are to be Sold by J. Robinson at the Golden Lyon in St. Pauls Church-Yard R. Bentley in Russel-Street in Covent-Garden Jacob Tonson at the Judges Head in Chancery-Lane T. Goodwin at the Maiden Head in Fleetstreet and T. Fox at the Angel in Westminster-Hall 1689. AN HISTORICAL and POLITICAL DISCOURSE OF THE Laws Government OF ENGLAND The FIRST PART From the FIRST TIMES till the REIGN OF EDWARD III. LONDON Printed for John Starkey at the Miter in Fleet-street neer Temple-Bar M.DC.LXXXII Advertisement A Private Debate concerning the right of an English King to Arbitrary rule over English Subjects as Successor to the Norman Conquerour so called first occasioned this Discourse Herein I have necessarily fall'n upon the Antiquity and Vniformity of the Government of this Nation It being cleared may also serve as an Idea for them to consider who do mind the restitution of this shattered Frame of Policy for as in all other Cures so in that of a distempered Government the Original Constitution of the Body is not lightly to be regarded and the contemplation of the Proportions and manners of the Nation in a small Model brings no less furtherance to the right apprehension of the true nature thereof besides the delight than the perusing of a Map doth to the Traveller after a long and tedious travel I propound not this Discourse as a Patern drawn up to the life of the thing nor the thing it self as a Master-piece for future Ages for well I know that Commonwealths in their minority want not onely perfection of Strength and Beauty but also of Parts and Proportion especially seeing that their full age attaineth no further growth than to a mixture of divers Forms in one Ambition hath done much by Discourse and Action to bring forth Absolute Monarchy out of the Womb of Notion but yet like that of the Philosopher's Stone the issue is but wind and the end misery to the undertakers And therefore more than probable it is that the utmost perfection of this Nether-worlds best Government consists in the upholding of a due proportion of several Interests compounded into one temperature He that knoweth the secrets of all Mens Hearts doth know that my aim in this Discourse is neither at Scepter or Crosier nor after Popular Dotage but that Justice and Truth may moderate in all This is a Vessel I confess ill and weakly built yet doth it adventure into the vast Ocean of your Censures Gentlemen who are Antiquaries Lawyers and Historians any one of whom might have steered in this course much better than my self Had my own credit been the fraight I must have expected nothing less than wrack and loss of all but the main design of this Voyage being for discovery of the true nature of this Government to common view I shall ever account your just Censures and Contradictions especially published with their grounds to be my most happy return and as a Crown to this Work And that my labour hath its full reward if others taking advantage by my imperfections shall beautifie England with a more perfect and lively Character THE CONTENTS Of the FIRST PART CHAP. I. Of the Britons and their Government page 1 II. Concerning the Conversion of the Britons into the Faith. 2 III. Of the entry of the Romans into Britain and the State thereof during their continuance 3 IV. Of the entry of the Saxons and their manner of Government 8 V. Of Austin's coming to the Saxons in England his Entertainment and Work. 11 VI. Of the imbodying of Prelacy into the Government of this Kingdom 13 VII Of Metropolitans in the Saxons time 15 VIII Of the Saxon Bishops 16 IX Of the Saxon Presbyters 17 X. Of inferiour Church-Officers amongst the Saxons 18 XI Of Church-mens maintenance amongst the Saxons ibid. XII Of the several Precincts or Jurisdictions of Church-Governours amongst the Saxons 22 XIII Of the manner of the Prelates Government of the Saxon Church 23 XIV Of Causes Ecclesiastical 24 XV.
A brief censure of the Saxon Prelatical Church-Government 27 XVI Of the Saxons Commonwealth and the Government thereof and first of the King. 29 XVII Of the Saxon Nobility 33 XVIII Of the Freemen amongst the Saxons 34 XIX Of the Villains amongst the Saxons 35 XX. Of the grand Council amongst the Saxons called the Micklemote 36 XXI Of the Council of Lords 38 XXII Of the manner of the Saxon Government in the time of War. 39 XXIII Of the Government of the Saxon Kingdom in the times of peace and first of the division of the Kingdom into Shires and their Officers 40 XXIV Of the County-court and Sheriffs Torn 41 XXV Of the division of the County into Hundreds and the Officers and Court thereunto belonging 42 XXVI Of the division of the Hundreds into Decennaries 43 XXVII Of Franchises and first of the Church-franchise 44 XXVIII Of the second Franchise called the Marches 45 XXIX Of County Palatines ibid. XXX Of Franchises of the person 46 XXXI Of Mannors ibid. XXXII Of Courts incident and united unto Mannors 48 XXXIII Of Townships and their Markets 49 XXXIV Of the Forests 51 XXXV Concerning Judges in Courts of Justice 52 XXXVI Of the proceedings in Judicature by Indictment Appeal Presentment and Action 53 XXXVII Of the several manners of extraordinary trial by Torture Ordeal Compurgators and Battle 55 XXXVIII Of the ordinary manner of Trial amongst the Saxons by Inquest 56 XXXIX Of passing Judgement and Execution 59 XL. Of the penal Laws amongst the Saxons 60 XLI Of the Laws of property of Lands and Goods and the manner of their Conveyance 64 XLII Of the times of Law and vacancy 68 XLIII An Epilogue to the Saxons Government 69 XLIV OF the Norman entrance 70 XLV Of the Title of the Norman Kings to the English Crown that it was by Election 72 XLVI That the Government of the Normans proceeded upon the Saxon principles and first of Parliaments 75 XLVII Of the Franchise of the Church in the Norman times 77 XLVIII Of the several subservient Jurisdictions by Marches Counties Hundreds Burroughs Lordships and Decennaries 82 XLIX Of the Immunities of the Saxon Freemen under the Norman Government 84 L. Recollection of certain Norman Laws concerning the Crown in relation to those of the Saxons formerly mentioned 86 LI. Of the like Laws that concern common Interest of Goods 89 LII Of Laws that concern common Interest of Lands 90 LIII Of divers Laws made concerning the execution of Justice 94 LIV. Of the Militia during the Normans time 65 LV. That the entry of the Normans into this Government could not be by Conquest 97 LVI A brief Survey of the sense of Writers concerning the point of Conquest 99 LVII OF the Government during the Reigns of Stephen Henry the Second Richard the First and John and first of their Titles to the Crown and disposition in Government 103 LVIII Of the state of the Nobility of England from the Conquest and during the Reign of these several Kings 107 LIX Of the state of the Clergie and their power in this Kingdom from the Norman time 109 LX. Of the English Commonalty since the Norman time 117 LXI Of Judicature the Courts and their Judges 118 LXII Of the certain Laws of Judicature in the time of Henry the 2. 120 LXIII Of the Militia of this Kingdom during the Reign of these Kings 125 LXIV OF the Government of Henry the Third Edward the First and Edward the Second Kings of England And first a general view of the disposition of their Government 129 LXV Of the condition of the Nobility of England till the time of Edward the Third 137 LXVI Of the state of the English Clergie until the time of Edward the Third and herein concerning the Statutes of Circumspecte agatis Articuli Cleri and of General Councils and National Synods 140 LXVII Of the condition of the Freemen of England and the Grand Charter and several Statutes concerning the same during the Reign of these Kings 158 LXVIII Of Courts and their Proceedings 177 LXIX Of Coroners Sheriffs and Crown-Pleas 179 LXX Of the Militia during these Kings Reigns 184 LXXI Of the Peace 188. THE PREFACE THe policy of the English Government so far as is praise-worthy is all one with Divine Providence wrapped up in a Vail of Kings and Wise men and thus implicitely hath been delivered to the World by Historians who for the most part read Men and wear their Pens in decyphering their Persons and Conditions Some of whom having met with ingenious Writers survive themselves possibly more famous after death than before Others after a miserable life wasted are yet more miserable in being little better than Tables to set forth the Painters Workmanship and to let the World know that their Historians are more witty than they of whom they wrote were either wise or good And thus History that should be a witness of Truth and Time becomes little better than a Parable or rather than a Nonsence in a fair Character whose best commendation is that it is well written Doubtless Histories of Persons or Lives of Men have their excellency in Fruit for imitation and continuance of Fame as a reward of Vertue yet will not the coacervation of these together declare the nature of a Commonwealth better than the beauty of a Body dismembered is revived by thrusting together the Members which cannot be without deformity Nor will it be denied but many wise and good Kings and Queens of this Realm may justly challenge the honour of passing many excellent Laws albeit it is the proper work of the Representative Body to form them yet to no one nor all of them can we attribute the honour of that Wisdom and Goodness that constituted this blessed Frame of Government For seldom is it seen that one Prince buildeth upon the foundation of his Predecessor or pursueth his ends or aims because as several men they have several Judgements and Desires and are subject to a Royal kind of self-love that inciteth them either to exceed former Precedents or at least to differ from them that they may not seem to rule by Copy as insufficient of themselves which is a kind of disparagement to such as are above Add hereunto that it is not to be conceited that the wisest of our Ancestors saw the Idea of this Government nor was it any where in precedent but in him that determined the same from Eternity For as no Nation can shew more variety and inconstancy in the Government of Princes than this especially for three hundred years next insuing the Normans So reason cannot move imagination that these Wheels by divers if not contrary motions could ever conspire into this temperature of policy were there not some primum mobile that hath ever kept one constant motion in all My aim therefore shall be to lay aside the consideration of Man as much as may be and to extract a summary view of the cardinal passes of the Government of this Kingdom and
over Learned men to Preach and Baptize both King and People and this Rome might probably gain some Honour although possibly the King intended it not or much less to acknowledg any Authority or Power in that Church over that of Britain This act of Lucius so advanced him in the opinion of Writers that they know not when they have said enough Some will have him to be the instrument of the first entry of Religion into this Isle others that he setled a form of Church-government under the three Archbishops of London York and Caerlion upon Vske and 28 Bishopricks the first of which is cried down by many demonstrative instances nor can it consist with the second nor that with it or with the truth of other stories For it neither can be made out that Lucius had that large circuit within his Dominion nor that the title of Archbishop was in his daies known and 't is very improbable that the British Church was so numerous or that Religion in his time was overspread the whole Island nor is there any mention in any Author of any Monuments of these Archbishops or Bishops of Britain for the space of 200. years after this King's reign and yet no continual raging persecution that we read of that should enforce them to obscure their profession or hide their heads or if such times had been it would have been expected that Bishops in those daies should be in Britain as well as in other places most famous for gifts and graces and pass in the forefront of persecution But we find no such thing no not in the rages of Dioclesian which made the British Church famous for Martyrs Writers speak of Alban Amphibalus Aron Julius and a multitude of Lay-people but do not mention one Bishop nor Presbyter nor other Clergy-man but quendam Clericum a man it seems of no note and of unknown name In Charity therefore the English Church in those daies must be of mean repute for outward pomp and to liftedup to that height of Archbishops when as Rome it self was content with a Bishop Somewhat more probable it is that is noted by Writers concerning Lucius his endeavour to settle the Commonwealth and good Laws for Government and to that end did write a Letter to Eleutherius Bishop of Rome for a Model of the Roman Laws probably being induced thereunto by the splendor of the state of the Roman-Church and Commonwealth the onely Favorite of fame in those times through the Northern parts of the World. Things afar off I confess are dim and it is meet that Antiquaries should have the honour due to great after-sight And therefore I might think as some of them have done that the Epistle of Eleutherius to King Lucius is spurious if I could imagine to what end any man should hazard his wits upon such a Fiction or if the incongruities charged against it were incurable but being allowed to be first written in Latine and then translated into British for the peoples satisfaction and in that Language the Original being lost traduced to posterity and then by some Latine Writer in after-ages returned into Latine and so derived to these times all which very probably hath been such occasions of exceptions well arise by mistake of Translators and Transcribers in ignorant times and the substance nevertheless remain entire and true Considering therefore that the matter of that Epistle savoureth of the purer times of the Church and so contrary to the dregs of Romulus I mean the policy practice and language of the Roman Clergy in these latter ages wherein this forgery if so it be was made I must allow it to pass for currant for the substance not justifying the syllabical writing thereof To others it seemeth needless and vain that Lucius should send for a model to Eleutherius when as the Roman Deputies and Legions at home might have satisfied the Kings desire in that particular or their own experience might have taught them grounds sufficient after two hundred years converse with the Romans that they should have little needed a model for that which they saw continually before their view or might have understood by inquiry of their own acquaintance But what could be expected of rough Souldiers concerning form of government of a Common-wealth or if some exceeded the ordinary strain in policy yet they were too wise to communicate such Pearls to conquered Nations that ought to look no higher than the will of the Conquerour and subsist in no better condition than may be controlled by the Supream Imperial Law of the Lord Paramount or if in this they had corresponded to the desires of the Britains yet being for the most part ignorant of the main they could never have satisfied the expectations of a Christian King who desires such a Law as may befriend Religion and wherein no man was more like to give direction than Eleutherius who seeing a kind of enmity between the Roman-Laws and Christ's Kingdom sends to the King a fair refusal of his request upon this ground that Leges Romanas Caesaris semper reprobare possumus He saw that they were not well grounded he therefore refers the King to the sacred Scripture that is truth itself Laws that come nighest to it are most constant and make the Government more easie for the Magistrate quiet for the People and delightful to all because mens mindes are setled in expectation of future events in Government according to the present rule and changes in course of Government are looked at as uncoth motions of the Celestial Bodies portending Judgements or Dissolution This was the way of humane wisdom but God hath an eye on all this beyond all reach of pre-conceit of man which was to make England happy in the enjoying of a better Law and Government than Rome how glorious soever then it was and to deliver that Island from the common danger of the World for had we once come under the Law of the first Beast as we were under his Power we had been in danger of being born Slaves under the Law of the second Beast as other Nations were who cannot shake it off to this day But Lucius lived not to effect this work it was much delayed by the evil of the times nothing was more changeable Then the Emperours grew many of them so vitious as they were a burthen to Mankind nor could they endure any Deputy or Lieutenant that were of better fame than themselves had Some of them minded the affairs of the East others of the North none of them were ad omnia And the Lieutenants in Britain either too good for their Emperour and so were soon removed or too bad for the people of the Land and never suffered to rest free from Tumults and Insurrections So that neither Lucius could prevail nor any of his Successors but passing through continual cross flouds of Persecutions under Maximinus Dioclesian and Maximinianus and many Civil Broiles till the times of Constantine
was the Synod under Arch-Bishop Dunstan called The National Synods were diversly called sometimes by the Pope sometimes by the King as the first moving occasion concerned either of them For Pope Agatho in a Synod at Rome ordered that a Synod should be called in Saxony viz. England Sacrosancta authoritate nostra Synodali unitate and many Legatine Synods in succeeding times demonstrate the same That the Saxon Kings also called them upon occasion is obvious through all the Councils and needless to instance amongst so many particulars The Provincial Synods were sometimes convocated by the King and sometimes by the Arch-bishop and sometimes joyntly The Diocesan were called by the Bishop In the National and Provincial sometimes Kings moderated alone sometimes the Arch-bishop alone and sometimes they joyned together The Assistants were others both of the Clergy and Laity of several Ranks or Degrees and it seemeth that Women were not wholly excluded for in a Synod under Withered King of Kent Abbatisses were present and attested the acts of that Synod together with others of the Clergy of greater degree The matters in action were either the making or executing of Laws for Government and because few Laws passed that did not some way reflect upon the King and people as well as the Clergy the King was for the most part present and always the Lords and others Yet if the matters concerned the Church in the first act the King though present the Arch-bishop was nevertheless President as it besel at a Synod at Clevershoe An. 747. and another at Celchith An. 816. And in the Reign of Edward the Elder though the Synod was called by the King yet the Arch-bishop was President Concerning all which it may be in the sum well conceived that in the penning of the Councils aforesaid either the Clergy being Pen-men were partial or negligent in the setting down of the right form and that the Kings called these Assemblies by instance of the Archbishop and sometime presided in his own person and sometimes deputed the Archbishop thereunto The executing of Laws was for the most part left to the Diocesan Synods yet when the cases concerned great men the more general Councils had the cognizance and therein proceeded strictly sparing no persons of what degree soever Examples we find hereof amongst others of one incestuous Lord and two delinquent Kings Edwy and Edgar Nay they spared not the whole Kingdom for in the quarrel between Cenulphus the King and Archbishop Wilfrid the whole Kingdom was under interdict for six years space and no Baptism administred all that time Nor were they very nice in medling with matters beyond their sphere even with matters of Property for at a Provincial Council for so it is called they bore all down before them even the King himself as in the case between Cenulphus the King and the Archbishop of Canterbury concerning the Monastery of Cotham The like also of another Synod concerning the Monastery of Westburgh It 's true the Lords were present and it may be said that what was done was done in their right yet the Clergy had the rule and begat the Child and the Lay-Lords onely might challenge right to the name This concurrence of the Laity with the Clergy contracted much business and by that means a customary power which once rooted the Clergy after they saw their time though not without difficulty turned both King and Lords out and shut the doors after them and so possessed themselves of the whole by Survivorship But of this hereafter The particular Diocesan Synods were as I said called by the Bishops within their several Diocesses The work therein was to preach the Word as a preparative then to visit and enquire of the manners of the Clergy in the worship of God and of all matters of scandal and them to correct These Synods were to be holden twice every year at certain times and if they met with any matter too hard for them to reform they referred it to the Provincial or National Synod CHAP. XIV Of Causes Ecclesiastical AS the power of Synods grew by degrees so did also their work both which did mutually breed and feed each other Their work consisted in the reforming and setling matters of Doctrine and Practice The first was the most ancient and which first occasioned the use of Synods In this Island the Pelagian Heresie brought in the first precedent of Synods that we have extant and herein it will admit of no denial but in the infancy of the Church the Teachers are the principal Judges of the nature of Errour and Heresie as also of the truth as the Church is the best guide to every Christian in his first instruction in the principles but after some growth there is that in every Church and Christian that makes itself party in judging of truth and errour joyntly with the first Teachers And therefore 't is not without reason that in that first Synod although Germanus was called Judex yet the people hath the name of Arbiter and 't is said that they did contestare judicium Blasphemy was questionless under Church-censure but I find no footsteps of any particular Law against it yet in Scotland a Law was made to punish it with cutting out the Tongue of the Delinquent But it may be feared that neither the Saxons nor their Roman Teachers were so zealous for the honour of Gods Name as to regard that odious sin unless we should account them so holy as that they were not tainted therewith and so needed no Law. But Apostacy was an early sin and soon provided against the Church-censure was allowed of in Britain before the Saxons Church had any breath Afterward it was punished by Fine and Imprisonment by a Law made by Alfred as he provided in like manner for other Church Laws The times anciently were not so zealous for due observance of Divine Worship unless by the Church-men who were the Leaders therein a foreign Canon was made to enforce that Duty long before but it would not down with the rude Saxons they or the greater sort of them were content to come to Church onely to pray and hear the Word and so went away This is noted by that ancient Writer in nature of an imputation as if somewhat else was to be done which they neglected this somewhat was the Mass which in those days was wont to be acted after the Sermon ended And it 's probable that if the Nobles were so ill trained up the inferiour sort was worse and yet find we no Law to constrain their diligence or to speak more plainly it 's very likely the Saxons were so resolute in their Worship as there was either little need of Law to retain them or little use of Law to reclaim them For it 's observed in their late Psalter that the Roman Clergy was not more forward to Image or Saint-worship
relation I shall first fall upon the persons and degrees abstractively then in their Assemblies and lastly of their Laws and customs The Saxons in their first state in Germany were distributed into four Classes viz. the Nobles the Free-men the Manumitted persons and the Bond-men Under the Nobility and from them arose one that was called a King of whom I shall speak apart the two last differed only in the bare liberty of their persons and therefore may be comprehended under one head as they were in their original A King amongst the Saxons in probability was anciently a Commander in the field an Officer pro tempore and no necessary Member in the constitution of their State for in time of peace when the Common-wealth was it self the executive power of the Law rested much in the Nobility but in times of War and in publick distractions they chose a General and all sware Obedience unto him during the War it being finished the General laid down his Command and every one lived aequo jure propria contentus potestate But in their transmigration into Britain the continuance of the War causing the continual use of the General made that Place or Office to settle and swell into the condition of a King and so he that was formerly Dux became Rex there being no more difference in the nature of their places than in the sense of the words the one signifying to Lead the other to Govern so as he that formerly was a servant for the occasion afterwards became a servant for life yet cloathed with Majestly like some bitter Pill covered with Gold to make the service better tasted Nor was the place more desirable if duly considered For first his Title rested upon the good opinion of the Free-men and it seemeth to be one of the best Gems of the Crown for that he was thereby declared to be most worthy of the love and service of the people Yet was the ground of their Election so uncertain as a man might imagine that sometimes there appeared more of the will than of the judgment in it that it might be said to be the more free for they neither excluded women nor children further than present occasions led them The West-Saxons deposed Seburg their Queen because they would not fight under a woman but the Mercians obeyed Elfled their Queen and under her fought valiantly with good success against the Danes imitating the custom of the Sitones or Norwegians in Germany or they might borrow it from the Lacedemonians A Custom it was so much the more honourable by how much it demonstrateth freedom and that the worth of the people rested not so much in the head as it 's diffused through the whole body And it seemeth to run in the Blood of an English-man even to this day to be as brave under a single Queen as under the most valiant King if not much more and still to strive to be as famous for the defence of Majesty wherever they set it as the Britons were of old Nor were they different in their respect of age from that of the Sex for though after the death of Edmond Edwin or Edgar were to have succeeded in the Crown by the right of descent yet the States would not admit them because they were Minors but the Mercians admitted Kenelme a child of Seven years old to be their King. They likewise excluded not Bastards till the Clergy interposed for they having wound themselves into the Councils of the Kingdom procured a Constitution to back them in the Election of Kings Legitimate c. Let the Kings be legally chosen by Priests and Elders and not such as are begotten by Adultery or Incest which Constitution was made in a Legatine Council and confirmed by great Offa. The rule of their Election was the same with that in Germany viz. to elect the chiefest out of the chiefest Family that is the chiefest for worth not by descent yet the honour they bare to their brave Kings who had deserved well made some to honour their posterity and to chuse their eldest after their decease and so in time Crowns were taken up by custom and Election oftentimes subsequent was accounted but a ceremony unless the people will dispute the point Secondly this Election was qualified under a stipulation or covenant wherein both Prince and people were mutually bound each to other the people to defend their King which the Historian saith was praecipuum Sacramentum and the Prince to the people to be no other than the influence of the Law sutable to that saying of Aethelstan the Saxon King Seeing I according to your Law allow you what is yours do you so with me as if the Law were the sole umpire between King and people and unto which not only the people but also the King must submit The like whereunto Ina the great Saxon King also No great man saith he nor any other in the whole Kingdom may abolish the written Laws Kings furthermore bound themselves at their entrance into the Throne hereunto by an Oath as it 's noted of Canutus unto whom after Aetheldred was dead the Bishops Abbots Dukes and other Nobles came and Elected him to be their King and sware Fealty unto him and he again sware to them that Secundum Deum secundum seculum c. viz. according to the Laws of God and of the Nation he would be a faithful Lord to them It 's probable I grant that the praecipuum Sacramentum formerly mentioned was in the first nature more personal for the defence of the person of their Leader whilst he was their Captain because it much concerned the good of the Army and without whom all must scatter and be brought to ruine and this the words of the Historian do evidence But the safety of the whole people depended not on him after the War was done and therefore the Oath tied them not any further nor did the safety of the people afterwards when as the Saxons entred this Land so absolutely rest upon the person of the King especially if he proved unfit to manage the work and therefore the fealty that the people sware to their King was not so absolutely determined upon their persons otherwise than in order to the publick weal as may appear from the Laws of the Confessor who was within Thirty years after the Reign of Aethelstan formerly mentioned The words in English run thus All the people in their Folkmote shall confederate themselves as sworn Brethren to defend the Kingdom against strangers and enemies together with their Lord the King and to preserve his Lands and Honours together with him with all faithfulness and that within and without the Kingdom of Britain they will be faithful to him as to their Lord and King. So as 't is evident the Saxons fealty to their King was subservient to the publick safety and the publick safety is necessarily dependant upon the
liberty of the Laws Nor was it to be expected that the Saxons would endure a King above this pitch For those parts of Germany whence they came that had the Regiment of Kings which these had not yet used they their Kings in no other manner than as Servants of State in sending them as Embassadors and Captains as if they claimed more interest in him than he in them And the Historian saith expresly that amongst those people in Germany that had Kings their Kings had a defined power and were not supra libertatem And this Maxim of State became afterwards priviledged by Sanctuary for by the growth of Antichrist not only the Clergy but even their Tenants and Retainers were exempt from the reach of Kings and even by their own concession allowed of a Law that cut the throat of their indefined prerogative viz. That if the King defend not his people and especially Church-men from injury nec nomen Regis in eo constabit verum nomen Regis perdit Which Law however it might pass for currant Divinity in those days yet 't is strange it should get into a publick Act of State. Nor was this a dead word for the people had formerly a trick of deposing their Kings when they saw him peep above the ordinary reach and this was an easie work for them to do where ever Neighbouring Princes of their own Nation watched for the windfals of Crowns This made the Monarchical Crown in this Land to walk circuit into all parts of the Countrey to find heads fit to wear it until the Norman times Thirdly the Saxons had so hampered their Kings in their Elections and made them so properly their own as they claimed an interest not only in the person of their Kings but also in their Estates so as in some respects they were scarcely sui juris For King Baldred had given the Mannor of Malings in Sussex to Christ-church in Canterbury and because the Lords consented not thereto it was revoked and King Egbert afterwards made a new grant by advice of the Lords which shews that the Demesnes of the Crown were holden sacred and not to be disposed of to any other use though pious without the consent of the Lords and herewith concur all the Saxon infeodations attested and confirmed by Bishops Abbots Dukes and others of the Nobility under their several hands Nevertheless Kings were not then like unto plumed Eagles exposed to the charity of the Fowls for food but had a Royal maintenance suitable to their Majesty Their power was double one as a Captain another as a King the first was first and made way for the second As Captain their power was to lead the Army punish according to Demerits and according to Laws and reward according to Discretion As Captain they had by ancient custom the spoil left to their ordering by permission of the Army Exigunt Principis liberalitate illum Bellatorem equum illam cruentam victricem frameam and they were not wont in such cases to be close handed per bella raptus munificentiae materia the spoils in these wasted parts of Germany bring little other than Horses and Arms. But after they came into Britain the change of Soil made them more fat Horses and Arms were turned into Towns Houses Lands and Cattle and these were distributed as spoils amongst the Saxon Souldiers by their Generals and this redounded to the maintenance of the State and port of the great men who were wont to be honoured non stipendiis sed muneribus and the people used ultro viritim conferre principibus vel armentorum vel frugum aliquid But now upon the distribution of conquered Towns Houses Lands and Cattle in Britain a yearly product of Victuals or other service was reserved and allowed to the Saxon Kings by the people as the people allowed to Joshua his Land Jos. 19. 46. So as they needed no longer the former course of Offerings but had enough to maintain their Royal port and great superfluity of Demesnes besides as their charity to the Church-men does sufficiently evidence And by this means all the Lands in England became mediately or immediately holden of the Crown and a setled maintenance annexed to the same besides the casual profits upon emergencies or perquisites of Felons or Fugitives goods mines of Gold and Silver Treasure trove Mulcts for offences and other priviledges which being originally in the Kings were by them granted and made Royalties in the hands of Subjects as at this day To the increase of his Majesty and maintenance there was an access of power not to make dispense with or alter Laws but to execute and act the Laws established and against this power there was no rising up so long as it like an unfeathered Arrow gadded not at random It 's true the Church-men or Prelates checked them often but could never give them the mate For peace sake Kings many times yielded much yet would no King of Saxon principles allow of any Canon that extolled the Clergy's Authority above that of Kings And though the placing and displacing of Bishops seemed to be all Ecclesiastical work yet would not the Kings altogether connive as the examples of Ina in placing a Bishop in Wells Offa in making two Provinces of one Cenulphus in restoring Polydorus Edfrid in deposing Wilfrid and Edward the Confessor in making Robert Norman Archbishop of Canterbury may induce into opinion and for their own safety sake the Prelates thought it wisdom for them sometimes to stoop to that power that at other times they must be beholding to And therefore though in Synodical disputes they would hold with the Canon yet in matters of Action would suit with the occasion and thereby taught Princes to account of Canons but as Notions and politickly to put the honour of Commissioners upon these men Thus the current of both powers passing in one channel made the people drink double Beer at once the turns both of Pope and King were competently served and these men had the honour of the two-handed Sword and all seemed composed into a fair compromise But the Popedom finding its Authority becalmed endured this but as a burthen till Pope Nicholas the second 's time who by the like trick commended all to the Crown as from the Papal Benediction For Edward the Confessour upon his foundation of the Abbey of Westminster sent to the Pope for his allowance and confirmation of what he had done or was to do and to make way for the more favour sent presents and a confirmation of Romescot The Pope was so inflamed with such an abundant measure of blessing as he not onely granted the Kings desire but also discharged that Abbey from ordinary jurisdiction made it a peculiar subject onely to the Kings visitation and concluded his Bull with this Horn Vobis vero posteris vestris regibus committimus advocationem tuitionem ejusdem loci omnium
chiefer of which were called Free lazzi These were such as had been Slaves but had purchased their freedom by desert and though they had escaped the depth of bondage yet attained they not to the full pitch of freemen for the Lord might acquit his own title of bondage but no man could be made free without the act of the whole body And therefore the Historian saith that they are not multum supra servos or scarce not servants They are seldom of account in any Family never in any City but in Kingdoms sometimes advanced above the Freemen yea above Nobles Those are now adays amongst the number and rank of such as are called Copy-holders who have the priviledge of Protection from the Laws but no priviledge of Vote in the making of Laws The most inferiour of all were those which were anciently called Lazzi or Slaves those were the dregs of the people and wholly at the will of their Lord to do any service or undergo any punishment And yet the magnanimity of the Saxons was such as they abhorred Tyranny and it was rarely used amongst them by beating torture imprisonment or other hard usage to compel them to serve they would rather kill them as Enemies And this wrought Reverence in these men towards their Lords and maintained a kind of generosity in their mindes that they did many brave exploits and many times not onely purchased their own freedom but also brought strength and honour to the Kingdom And though the insolency of the Danes much quelled this Saxon Nobleness yet was it revived again by the Confessors Laws which ordained That the Lords should so demean themselves towards their men that they neither incur guilt against God nor offence against the King or which is all one to respect them as Gods people and the Kings Subjects And thus much of the several degrees of men amongst the Saxons being the materials of their Commonwealth a model whereof in the making and executing of the Laws and manner thereof now next ensueth CHAP. XX. Of the grand Council of the Saxons called the Micklemote IT was originally a Council of the Lords and Freemen afterwards when they assumed the title of a Kingdom the King was a Member thereof and generally President therein but always intended to be present though actually and in his own person by emergent occasions he may be absent and sometimes by disability of his person he be unmeet to vote or be President in such an Assembly As it was in the Council at Clano or Cleve in Wiltshire when the great case between the Monks and married Priests was concluded the King was absent as the story saith because of his minority and yet if Writers say true he was then in the Sixteenth year of his age The Lords were also nevertheless in the same condition of priviledge as formerly and though it appeareth that the Kings had gotten the priviledge of summoning the grand meeting in his own name yet it was by advice of the great men and being met their Votes were no other in value than as formerly for all their Laws were ex consilio sapientum and for ought can appear out of antiquity the vote of the meanest continued as good as of the greatest arbitrium est penes plebem And thus the Micklemote or Wittagenmote of the Saxons in England continued in the King Lords and Freemen by the space of One hundred and fifty years and in some parts of England nigh Two hundred years before ever the Roman Bishops foot entred or the Roman-Clergy crept into the Councils of State. Afterwards the Prelates were admitted de bene esse for advice as sapientes and continued by allowance how canonically ipsi viderint for I understand it not especially as the Scripture was then expounded Nemo militans Deo implicet negotiis saecularibus yet if they be allowed what in those days they ordinarily took up a degree of policy above devotion that knot is also soon untied I say they entred as Sapientes not as Prelati or Church-governours for then they had holden the same power in Church-matters agitated in the Wittagenmote that they had usurped in their Synods which they held onely for Church-visitation which they could never have because the Sapientes Regni had their votes therein as freely as they Nor could the Prelates by any Law entitle themselves to such power or priviledge so contrary to the priviledge of the Wittagenmote For though it be true that the German Priests had a liberty to be present in these grand Assemblies and to have some presidency therein as to command silence c. yet it is not title to these unless they will interest themselves as their Successors to possess by a jus Divinum that jus Diabolicum which those Priests formerly had in a way of immediate providence somewhat like the possession of the Mantle of Eliah found by Elishah They might I grant plead the title from Kings but it must be granted also that Kings as yet had no more power over the Church than in the Commonwealth Nor could they have that from the Lords which the Lords never had but was ever accounted amongst the majora and of which the Wittagenmote had the only cognizance as it will appear in some particulars ensuing Unto the King Lords and Clergy must be added as I said the Freemen to make up the Micklemote compleat and though it be true that no monument of story speaks of this grand meeting from their being in Germany until after the coming of Austin yet whenas the Saxon Histories then find them in the same condition that the German story leaves them it is very probable that in the interval they continued their wonted custom although they had no Learning to leave monuments thereof unto the world And hereof the examples are not rare in those remembrances that those ancient times have left us For within six years after Austins arrival Aethelbert calls a Common-Council tam cleri quam populi Ina after him made Laws suasu instituto Episcoporum omnium senatorum natu majorum sapientum populi in magna servorum Dei frequentia Alfred after him reformed the former Laws consulto sapientum After him Aethelstan called a Council in which was the Archbishop and with him the Optimates sapientes frequentissimi besides others whereof I shall treat now that I come to the matters handled in this Court. The matters in agitation in the Wittagenmote generally were all both of publick and private concernment That which concerned the publick were such as regarded removal of inconveniencies such as are Laws for Leagues and Affinity with other Nations for preventing of War. And thus became the Saxons and Britons united and the mortal feud between those two Nations laid aside and they made one And the Saxons and Danes reconciled by a Covenant agreed unto and sworn between both Nations The like also
accused of Homicide he shall be acquitted by Twelve Lords but if of inferiour rank he shall be acquitted by Eleven of his Equals and one Lord. Thus Gods providence disposed of the pride of men to be an instrument of its own restraint For the great men ere they were aware hereby lost one of the fairest Flowers of their Garland viz. the Judicature or rather the mastership of the Life or Death of the meaner sort and thereby a fair opportunity of containing them for ever under their awe And no less remarkable was the benefit that redounded to this Nation hereby for had the great men holden this power as once they had it it might soon have endangered the liberty of the Freemen and thereby been destructive to the Fundamental Constitution of the Government of this Realm which consisteth in the just and equal participation of these Priviledges wherein all are equally concerned This was the trial wherein the people of this Nation were made happy above all other people and whereby the Freemen as they had the Legislative power so likewise had the Juridical and thereby next under God an absolute dominion over themselves and their Estates For though this course of trial was first applied to matters of Crime yet it soon also seized upon the Common-pleas which for the most part was the work of main import in the Hundred Court and suitable hereunto are the prescriptions which are extant in the Law-books of Cognizance of Pleas and Writs of Assize c. from the times of the Saxons as in that case of the Abbot of Bury amongst others doth appear CHAP. XXXIX Of passing of Judgement and Execution AFter Verdict Judgement passed according to the letter of the Law or known Custom in criminal matters according to the greatness of the offence either for death or loss of Member But if the circumstances favoured the Delinquent he was admitted to redemption of Life or Member by Fine also setled by letter of the Law and not left to the Judges discretion If the Crime reached onely to shameful penance such as Pillory or Whipping the last whereof was inflicted onely upon Bondmen then might that Penance be reduced to a Ransom according to the grain of the offence assessed in the presence of the Judge by the Freemen and entred upon the Roll and the Estreat of each Ransom severally and apart sent to the Sheriff This Ransom was paid usually unto the King and Lord and the party indamaged or his friends if the case so required according to the old German rule Pars mulctae Regi vel civitati pars ipsi qui vindicatur vel propinquis ejus This course opened indeed a way for Mercy but through corruption a Floud-gate to Wickedness in the conclusion Of Imprisonment there was little use in the eldest times afterwards it was more used not onely to secure the person to come to trial of Law for miscarriages past but sometimes to secure men against committing of future mischief especially if it more concerned the publick I find but little or no use thereof barely as a punishment nor would their Ancestors so punish their Bondmen Vinculis coercere rarum est In case of Debt or Damage the recovery thereof was in nature of elegit for the party wronged either had the offenders goods to him delivered or the value in money upon sale of the goods made by the Sheriff and if that satisfied not then the moity of the Lands was extended and so by moities so far as was possible salvo contenemento and when all was gone the Defendants Arms which were accounted as the Nether-milstone or stock of maintenance were last of all seized and then the party was accounted undone and cast upon the charity of his friends for his sustenance but the person of the man was never imprisoned as a pledge for the debt no not in the Kings case Alfred imprisoned one of his Judges for imprisoning a man in that case One punishment of death they had in cases of crime and that was by hanging or strangling and where the crime was not so great sometimes ensued loss of member or mutilation and in many such cases Excommunication pronounced indeed by the Clergy but determined by the Law which in the first conception was framed in the womb of the Legislative power in Parliament as may appear in many Laws there made nor was there in those times any question made of the cognizance thereof so long as the Clergy and Laity had charity enough to joyn in all publick Councils CHAP. XL. Of the Penal Laws amongst the Saxons PAssing the Courts and manner of proceedings till Sentence we are now come to the particular Laws that directed the Sentence and first of those that concerned criminal offences During the Saxons time the Commonwealth was in its minority the Government tender the Laws green and subject to bend according to the blast of time and occasion and according to the different dispositions of Governours Ages and People For though the Saxons were in name our first matter yet not they onely but they having once made the breach open and entred this Island it became a common receptacle of those Eastern people the Angles Danes Almains and Goths as their several Laws left with us in power do not obscurely inform us and amongst all the rest the Goths were not the least concerned herein for the Saxon King determining what people shall be holden Denizons in this Kingdom saith That the Goths ought to be received and protected in this Kingdom as sworn Brethren Kinsmen and proper Citizens of this Commonwealth Nor can any Nation upon earth shew so much of the ancient Gothique Law as this Island hath Nevertheless in this mixture of people of several Nations there being a suitable mixture of Laws as the power of any one of these people 's changed so likewise did their Laws change in power and long it was ere a right temper of one uniform Law could be setled yet in the interim these short remembrances left unconsumed by time I have subjoyned that it may appear their motions were excellent though somewhat inconstant in their practice Those times were dark and yet so far as any light appeared the people were to be honoured for their resolution in the defence thereof For there was few of the Commandments of the two Tables which they did not assert by Laws by them made the third and tenth excepted which latter commands the inward man onely and whereof God hath the sole cognizance True it is that the first Commandment containeth much of the same nature yet somewhat is visible and that they bound For whereas in those times the Devil had such power as he did prevail with some and those it may be not a few to renounce God and deliver themselves wholly to his own will they punished this crime with banishment as judging him unworthy their society that would communicate
of the like nature in Histories may appear The Conveyances formerly mentioned concerned Lands and Goods but if no such disposal of Goods were the ancient German custom carried them after the death of the ancestor promiscuously or rather in common to all the Children but in succeeding times the one half by the Law of Edmond passed to the relict of the party deceased by force of contract rather than course of descent After him Edward the Confessor recollecting the Laws declared that in case any one died intestate the Children should equally divide the Goods which I take to be understood with a salvo of the Wifes Dower or Portion As yet therefore the Ordinaries have nothing to do with the Administration for Goods passed by descent as well as Lands and upon this custom the Writ de rationabili parte bonorum was grounded at the Common-law as well for the Children as the Wifes part according as by the body of the Writ may appear CHAP. XLII Of times of Law and Vacancy SUch like as hath been shewed was the course of Government in those darker times nor did the fundamentals alter either by the diversity and mixture of people of several Nations in the first entrance nor from the Danes or Normans in their survenue not onely because in their original they all breathed one air of the Laws and Government of Greece but also they were no other than common dictates of nature refined by wise men which challenge a kinde of awe in the sense of the most barbarous I had almost forgot one circumstance which tended much to the honour of all the rest that is their speedy execution of Justice for they admitted no delays till upon experience they found that by staying a little longer they had done the sooner and this brought forth particular times of exemption as that of Infancy and Child-bearing in case of answering to criminal Accusations But more especially in case of regard of holiness of the time as that of the Lords day Saints days Fasts Ember days for even those days were had in much honour Nor onely days but seasons as from Advent to the Octaves of Epiphany from Septuagesima till Fifteen days after Easter or as by the Laws of the Confessor till Eight days after Easter and from Ascention to the Eighth day after Pentecost And though as Kings and times did change so these seasons might be diversly cut out as the Laws of Alfred Aethelstan Aetheldred Edgar Canutus and Edward do manifest yet all agreed in the season of the year and that some were more fit for holy observation than others And thus by the devotion of Princes and power of the Clergy the four Terms of the year were cut out for course of Law in the Kings Court the rest of the year being left vacant for the exercise and maintenance of Husbandry and particular callings and imployments saving that even in those times the Courts of the County and Hundred held their ancient and constant course Last of all and as a binding Law unto all it was provided that false Judges should give satisfaction to the party wronged by them and as the case required to forfeit the residue to the King to be disabled for ever for place of judicature and their lives left to the Kings mercy CHAP. XLIII The end of the Saxon Government ANd this far of the joynts of the Saxon Government in their Persons Precincts Courts Causes and Laws wherein as the distance will permit and according to my capacity I have endeavoured to refresh the Image of the Saxon Commonwealth the more curious lineaments being now disfigured by time Afar off it seems a Monarchy but in approach discovers more of a Democracy and if the temper of a body may appear by the prevailing humour towards age that Government did still appear more prevalent in all assaults both of time and change The first great change it felt was from the Danes that stormed them and shewed therein much of the wrath both of God and man. And yet they trenched not upon the fundamental Laws of the peoples Liberty The worst effect was upon the Church in the decay of the power of Religion and the Worship of God. For after much toil and loss both of sweat and bloud the Danes finding that little was to be gotten by blows but blows and that the Clergy at the least was the side-wind in the course of all affairs laid aside their Paganism and joyned with the Clergie and as their Converts and Pupils gained not onely their quiet residence but by the favour of the Clergie to make trial of the Throne and therein served the Clergie so well as they brought the people to a perfect Idolatry with times places and persons and subjection of their Estates to Church-Tributes And as at Tennis the Dane and Bishop served each other with the fond Country-man that whether Lord Dane or Lord-Bishop was the greater burthen is hard to be determined Thus became ambitious Prelacy in its full glory and the poor Church of Christ clouded in darkness and little hold left for recovery but onely by the liberty of the Saxon Freemen which the Danes could never conquer not for want of will or power but of time and occasion For the Crown returned to the Saxon-line again after the half age of one man although it was worn by three so God would have it nor did any monument of the Danish Government remain saving a few customs in some places which shew rather that the Danes were here than that they ruled here To sum up all The Saxon Common-wealth was a building of greatest strength downward even to the foundation arched together both for Peace and War. That by the Law of Decenners wherein Justice was the bond their Armies were gathered not by promiscuous flocking of people but by orderly concurrence of Families Kindreds and Decenners all chusing their own Leaders And so Honour Love and Trust conspired together to leave no mans life in danger nor death unrevenged It was a beautiful composure mutually dependant in every part from the Crown to the Clown the Magistrates being all choice men and the King the choicest of the chosen election being the birth of esteem and that of merit this bred love and mutual trust which made them as corner-stones pointed forward to break the wave of danger Nor was other reward expected by the great men but honour and admiration which commonly brought a return of acts of renown Lastly it was a regular frame in every part squared and made even by Laws which in the people ruled as Lex loquens and in the Magistrate as Lex intelligens all of them being grounded on the wisdom of the Greeks and Judicials of Moses Thus the Saxons became somewhat like the Jews distinct from all other people their Laws honourable for the King easie for the Subject and their Government above all other likest unto that of Christ's Kingdom whose
Yoke is easie and Burthen light But their motion proved so irregular as God was pleased to reduce them by another way CHAP. XLIV Of the Norman entrance THus was England become a goodly Farm The Britons were the Owners the Saxons the Occupants having no better title than a possession upon a forcible entry with a continuando for the space of Four hundred years seldom quiet either from the claim and disturbances of the restless Britons or invading Danes who not onely got footing in the Country but setled in the Throne and after gave over the same to the use as it proved of another people sprung from the wilde stock of Norway and thence transplanted into a milder Climate yet scarcely civilized That in one Isle the glory of God's bounty might shine forth to all the barbarism of Europe in making a beautiful Church out of the refuse of Nations These were the Normans out of the continent of France that in their first view appeared like the Pillar of the Cloud with terrour of Revenge upon the Danish pride the Saxon cruelty and Idolatry of both people But after some distance shewed like the Pillar of fire clearing God's providence for the good of this Island to be enjoyed by the succeeding generations Nor was this done by Revelation or Vision but by over-ruling the aspiring mind of Duke William of Normandy to be a scourge unto Harold for his usurpation and unto the people for their causless deserting the Royal Stem Yet because the haughtiest spirit is still under fame and opinion and cannot rest without pretence or colour of Right and Justice the Duke first armed himself with Titles which were too many to make one good claim and served rather to busie mens mindes with musing whilst he catcheth the prey than settle their judgements in approving of his way First he was Cousin-german to the Confessor and he childless and thus the Duke was nigh though there were nigher than he but the worst point in the case was that the Duke was a Bastard and so by the Saxon Law without the line nor was there other salve thereto but the Norman custom that made no difference so as the Duke had a colour to frame a Title though England had no Law to allow it And this was the best flower of his Garland when he meant to solace himself with the English as may appear by what his Son Henry the first sets forth to the World in his Charter whereby he advanced the Abbey of Ely into the degree of a Bishoprick and wherein amongst his other titles he calls himself Son of William the great Qui Edwardo Regi successit in regnum jure haereditario But if that came short he had the bequest of the Confessor who had designed the Duke to be his Successor and this was confirmed by the consent of the Nobility and principally of Harold himself who in assurance thereof promised his Sister to the Duke in marriage This countenanced a double Title one by Legacy the other by Election and might be sufficient if not to make the Duke's title just yet Harold's the more unjust and to ground that quarrel that in the conclusion laid the Duke's way open to the Crown And for the better varnish the Duke would not be his own Judge he refers his Title to be discussed at the Court of Rome and so flattered the Pope with a judicatory power amongst Princes a trick of the new stamp whereby he obtained sentence in his own behalf from the infallible Chair The Pope glad hereof laid up this amongst his Treasures as an Estoppel to Kings for times to come And the King made no less benefit of Estoppel against the English Clergie that otherwise might have opposed him and of assurance of those to him that were his friends and of advantage against Harold that had gotten the Crown sine Ecclesiastica authoritate and by that means had made Pope Alexander and all the Prelates of England his Enemies But if all failed yet the Duke had now a just cause of quarrel against Harold for breach of Oath and Covenant wherein if Harold chanced to be vanquished and the Crown offered it self fair he might without breach of conscience or modesty accept thereof and be accounted happy in the finding and wise in the receiving rather than unjustly hardy in the forcing thereof And this might occasion the Duke to challenge Harold to single Combat as if he would let all the World know that the quarrel was Personal and not National But this mask soon fell off by the death of Harold and the Duke must now explain himself that it was the value of the English Crown and not the Title that brought him over For though he might seem as it were in the heat of the chase to be drawn to London where the Crown was and that he rather sought after his Enemies than it yet assoon as he perceived the Crown in his power he disputed not the right although that was Edgar's but possessed himself of the long-desired prey and yet he did it in a mannerly way as if he saw in it somewhat more than Gold and precious Stones for though he might have taken it by ravishment yet he chose the way of wooing by a kind of mutual agreement Thus this mighty Conqueror suffered himself to be conquered and stooping under the Law of a Saxon King he became a King by lieve wisely foreseeing that a Title gotten by Election is more certain than that which is gotten by Power CHAP. XLV That the Title of the Norman Kings to the English Crown was by Election SOme there are that build their opinion upon passionate notes of angry Writers and do conclude that the Duke's way and Title was wholly by Conquest and thence infer strange aphorisms of State destructive to the Government of this Kingdom Let the Reader please to peruse the ensuing particulars and thence conclude as he shall see cause It will easily be granted that the Title of Conquest was never further than the King's thoughts if it ever entred therein else wherefore did he pretend other Titles to the world But because it may be thought that his wisdom would not suffer him to pretend what he intended and yet in practice intended not what he did pretend it will be the skill of the Reader to consider the manner of the first William's Coronation and his succeeding Government His Coronation questionless was the same with that of the ancient Saxon Kings for he was crowned in the Abbey of Westminster by the Archbishop of York because he of Canterbury was not Canonical At his Coronation he made a solemn Covenant to observe those Laws which were bonae approbatae antiquae legis Regni to defend the Church and Church-men to govern all the people justly to make and maintain righteous Laws and to inhibit all spoil and unjust judgements The people also entred into Covenant with him That as well within the
and being trained up even from the Cradle in the English garb moralized by Learning and now admitted into the Throne found it the wisest course to apply himself to the rule of an English King viz. To win and maintain the good opinion of the people by consorting together with them under one Law and pledging himself thereto by taking unto Wife one of the English Blood-royal by this means he refeised and reassumed the English in partnership with the Norman in their ancient right of Government and reconciled the minds of the people under a lively hope of enjoying a setled Government Nor were they greatly deceived herein for his course was less planetary than that of either of his predecessors and yet we find little said of his parley with his people in a Parliamentary way although more of his Laws than of any of his predecessors The reason will rest in this that the Writers of those times touch more upon matters of ordinary than political observation and regarded rather the thing than the place or manner how The Laws therefore although they are not entituled as made in Parliament yet in the continuation of the History of Bede it is noted that the King renewed or confirmed the ancient Laws in Concilio peritorum proborum virorum regni Angliae which may give sufficient cause to suppose that he declined not the ancient way no more than he did the ancient Law. CHAP. XLVII Of the Franchise of the Church in the Normans time THE Canon-Law that ever since Austin's coming like Thunder rumbled in the Clouds now breaks forth with confusion to all opposers It had formerly made many fair proffers of service to this Island but it was disaccepted as too stately to serve yet by often courtesies received it was allowed as a Friend afar off For the vast body of the Roman Empire like a body wasting with age died upward and left the Britains to their own Laws before the second Beast was grown which being young was nourished under the Imperial Law of the first Beast till it grew as strong as its Dam and began to prey for it self The Empire perceiving its grey hairs and the youthful courage of this Upstart was glad to enter mutual League with it That to maintain the Ecclesiastical Monarchy and This again to support the Imperial and so became the Canon and Imperial Law to be united and the Professours to be utriusque juris But this parity continued not long the young Beast looked like a Lamb but spake like a Lion and contrarily the Eagle had cast its Feathers and could towre no more so as by this time the Pope was too good for the Emperour and the Canon-Law above the Imperial yet allowing it to serve the turn And so the Professours of both Laws became Students in the Civil but Practisers of the Canon This Composition thus made beyond the Seas the great work was how to transport it over into this Isle for the Emperour could entitle the Pope to no power here because none he had Austin the Monk undertakes the work he offers it to the Britains under the goodly Title of Universal Bishop but they kept themselves out of Canon-shot The Saxons allowed the Title but liked not the power the Monk observed the stop and left time to work out that which present cunning could not being content for the present that a League of Cohabitation should be made between the two Swords though the spiritual were for the present underling not despairing that it would work out its own way over the Saxon Law as it had done over the Imperial Nor did his conceit altogether fail for the Saxons by little allowed much and the Danes more although the main was preserved until the Normans came upon the Stage who made their way by the Pope's lieve and gave him a colour of somewhat more than ever any of their Saxon predecessors had done and to gain the more quiet possession of the Crown to themselves allowed the Pope the honour of their Council learned to draw the Conveyance which as some think was made advantageously for the Pope himself in point of tenure but more probably in the Covenants For the Conquerour was scarce setled in his seat but the Canon-Law began to speak in the voice of a Royal Law First complaining of misgovernment as if the Church were extremely wronged by having the same way and Law of Tryal with the Commons of England and then propounds four several Expedients enough to have undone the whole Commonwealth in the very entrance had not the superstition of those times blinded both Parliament and People and rendred them willing to that which their successours in future ages often repented of No offence against the Bishops Laws shall be handled in the Hundred By the Saxon Law Church-matters had the preheminence both in the Hundred and in the County and it was the Bishop's duty to joyn with the Sheriff in those Courts to direct and see to the administration of Justice and yet the Canon had been above three hundred years foregoing in the Negative No Case concerning the Regiment of Souls shall be brought before the Secular Judge The Regiment of Souls was a common place sufficient to contain any thing that was in order thereunto and so every one that hath a Soul must be no more responsible unto the temporal Judge for any matter concerning it but unto the Ecclesiastical power And this not onely in case of scandal as against the moral Law or rule of Faith but for disobedience done to the Canons made afar off concerning any gesture or garb that may come within the savour of an Ecclesiastical conceit That all Delinquents against the Bishops Laws shall answer the Fact in a place appointed by the Bishop to that end So as now the Bishop hath gotten a Court by the Statute-Law that had formerly no other Cards to shew but that of the Canon and a Court of such place as the Bishop shall appoint however inconvenient for distance or uncertainty it be That the tryal of such matters shall be according to the Law of the Canon and not according to that of the Hundred That is not by Jury but by Witnesses in a clandestine way if the Bishop please or without any Accuser or by more scrutiny or any other way that may reserve the Lay-man to the breast of a prepossessed spirit of the spiritual Judge And thus the poor Country-man is exposed to the censure of an unknown Law in an unknown Tongue by an unknown way wherein they had no footing but by an implicit Faith. And herein the providence of God I imagine was more manifest than the wisdom of Man which was too weak to foresee events at so great a distance for questionless it was a point of excellent wisdom for the people now under a King of a rugged nature that would not stick to catch whatsoever he could get to deposit part of their Liberties into
they had in bodies aggregate may appear as followeth The Free-men of England were such as either joyned in the War with Harold against the Normans or such as absented themselves from the way of opposition or enmity and were either waiting upon their own affairs or siding with the Normans And questionless all the sadness of the War befel the first sort of the English whose persons and Estates to make the ways of the first Norman William regular and of one piece never fell so low as to come under the Law or rather the Will of Conquest but in their worst condition were in truth within the directory of the Law of forfeiture for Treason against their Soveraign Lord whose claim was by Title as hath been already noted The other sort either did appear to be the Normans friends or for ought appeared so were and so never offending the Law never suffered any penalty but held their persons and possessions still under the patronage of Law as anciently they and their Ancestors had done And that this was the Normans meaning they publish the same to the World in a Fundamental Law whereby is granted That all the Free-men of the whole Kingdom shall have and hold their Lands and Possessions in hereditary right for ever And by this being secured against forfeiture they are further saved from all wrong by the same Law which provideth That they shall hold them well or quietly and in peace free from all unjust Tax and from all Tallage so as nothing shall be exacted nor taken but their free service which by right they are bound to perform This is expounded in the Laws of H. 1. cap. 4. That no Tribute or Tax shall be taken but what was due in the Confessor's time Under the word Tax is understood monetagium commune per civitates or comitatus so as aids and escuage are not included for they are not charged upon Counties and Cities but upon Tenures in Knight-service nor was Dane gelt hereby taken away for that was a Tax in the Confessor's time and granted by Parliament So then the Norman Kings claimed no other right in the Lands and possessions of any of their Subjects than under and by the Law or common right and they conclude the Law with a sicut which I thus English As it is enacted to them or agreed by them and unto them by us given and granted by the Common-council of our whole Kingdom I leave the words to be criticized upon as the Reader shall please being well assured that the most strained sence can reach no further than to make it sound as an Estoppel or Conclusion to the King and his Successors to make any further claim unto the Estates of his Subjects than by Law or Right is warrantable under which notion Conquest never did nor can come as shall more fully be manifested hereafter But the right genius of this Law will also more evidently appear by the practice of those times which even when Justice it self did most importune so tenderly regarded the liberty of mens Estates that no Distress could issue without publick Warrant obtained and upon three Complaints first made and right not done And when Rape and Plunder was in the heat and men might seem to have no more right than they had power to maintain yet even then this Law was refuge sufficient for such as were oppressed and was pleaded in bar against all usurpations and intrusions under pretext of the Conquerour's right whatsoever as by the Case of Edwyn of Sharneburn may appear Secondly the Freemen of England had vote in the making of Laws by which meum and tuum was bounded and maintained as may appear by what hath been already said nor shall I endeavour further therein Thirdly they had an influence upon the judicatory power For first the matter in fact was determined by the votes of the Freemen as the laws of the Conquerour and of Henry the first do sufficiently manifest Secondly they had an influence in the making of the Sheriff who as well as the Bishop was by Election of the people Thirdly they had an influence upon all Judges by setting a penal Law upon them in case of corruption which if not so penal as to take away life was nevertheless penal enough to make an unjust Judge to be a living pattern and example of misery to teach others to beware Two things more must be added though somewhat collateral to this purpose Concerning the right of the Freemen in the common Mint and in their Villains Concerning the Mint that the Saxons having made it as parcel of the demesues of the Kingdom and leaving to the King onely an overseership reserved the controul and chief survey thereof to the Grand Council of the Kingdom who had slated the same in the Confessour's time But after him the Normans changed the current according to their own liking till by Henry the first it was reduced into the ancient course allowing no money but such as was currant in the days of the Confessour whose Laws also with some alterations by the Conquerour with common advice he also established Concerning the Lords right to their Villains it is observable first that liberty of infranchisement was allowed which could never have been had not the Liberty of the Subject been saved Secondly that Infranchisement properly is the work of the people or the body and the Lord was to deliver his villain by his right hand unto the Sheriff in full County-court and pronounce him free from his Service and shall make room for him by free passage and open doors and deliver him free Arms viz. a Lance and a Sword and then he is made a Freeman as I conceive to all intents and purposes Otherwise there might be manumission as if the villain remained in a City Borough walled Town or Castle by a space of a year and a day and no claim made to his service by his Lord he shall be thenceforth free from the service of his Lord for ever and yet this manumission could not conclude any but the Lord and his Heirs or Assignes nor could it enforce the body to allow that for a Member which was none before Thirdly that notwithstanding they allowed the Lords liberty of infranchisement yet would they not allow them free liberty of disposing them as other Chattels nor by the Law of the Conquerour might they sell their Villains out of the Countrey or beyond Sea for the King had right to the mediate service of every Villain though the Lord had the immediate and therefore that Law might hold in force nevertheless the Ordinance that Anselm made that no Lord should sell his Villain they would never allow for a Law nor did it hold in force CHAP. L. A recollection of certain Norman Laws concerning the Crown in relation to those of the Saxons formerly mentioned I Call them Norman Laws because they were allowed by them or continued
Franchises were sometimes in the Saxon more generally in the Latine but seldom or never in the Norman Dialect and that Pleadings and Indictments were entred in like manner in the Latine Tongue as formerly by an old custom brought in by the Clergie was used for the Clergie who had gotten the Key of Knowledge and Law into their own custody laid it up it that Language whereof the Commons had little knowledge that they might thereby be enforced to depend upon these men for Justice as well as for Piety The Normans therefore either found it too hard to alter the former custom in such cases or else thought it the wisest way to chuse the Latine as a third Language indifferent as well to the Normans as Saxons and best understood of any foreign Tongue besides and yet endeavoured to bring both Peoples into one Language as they were intended to be one People and to press the use of the Norman Tongue in publick affairs so far as might consist with good Government and Justice leaving time and occasion to work the issue which doubtless was much and had been more had the Norman Race continued in the Throne But falling out otherwise the English bloud prevailed in the head and the Language continued possession mixed onely with some Norman words as the people also were a mixed people So as the Language was not changed though it was altered Lastly it is affirmed that the Normans did impose a new custom called Coverfeu and it is thought by some to be a meer Vassalage that every man at the noise of the Bell every night must put out both Fire and Candle and yet it is a matter of so small concernment that being in its own nature convenient Scotland received it without such coercion and it can be reputed for no other than a seasonable advice which any Corporation in time of danger might order within their own Precinct without transgressing the Liberty of the Subjects Of less consequence is that change which is alledged was brought in by the Normans in the sealing of Deeds of Conveyance by setting a print upon Wax annexed to the Deed which formerly was wont to be by setting a print upon the blank at the end of the Deed and yet it is looked upon by some as a Trophy of Conquest or absolute Government Concerning which I will not dispute whether the Normans first brought in this course but shall rest in this That the King being about to compleat the unity of the Laws in the superstructure as well as in the fundamentals if herein and in some other particulars the English submitted to the Normans they likewise stooped to the English Law in other things And therefore such Concurrences ought not to be imputed unto a conquering power but unto moderation amongst a company of wise men Thus having glanced at the changes of Property Laws Tenures Language and some Customs we come to that which is the main occasion of all these Complaints I mean unlawful Taxes Afforrestings and other such Oppressions upon the Estates of the People concerning which I purpose not to contend for much thereof is like to be true The Norman Kings especially the two Williams were under continual occasion of Expence many Wars more Provocations which kept them ever in Action and that wrought their spirits into an immoderate heat little inferiour unto Rage and so they might soon out-reach their bounds and sit heavie on the People and in such occasions no man escaped Norman nor English Clergie-man nor Lay-man nor did the Kings themselves come off such gainers but that they might sometimes put up their gettings into their own eyes and see never a whit the worse And yet to do them right they were not always of such sad influence but had their lucida intervalla especially he that had the least cause I mean the Conquerour who certainly was a man of a serious regard and did not onely remit sometimes his Rigour in exacting where he ought not but also forbear to require that which he had some colour to demand For whereas the Dane-guelt was left unto him in the nature of an Annuity he was contented to turn it into a sum in gross and to demand it onely Cum ab exteris gentibus bella vel opiniones bellorum insurgebant and it was then done consultis magnatibus These things thus considered might have mollified somewhat the Pens of angry Writers and where they fail may be caution to Readers to consider occasions and dispositions of Princes and so long as Laws hold in Title to construe the irregularities of Princes to be but as steps out of the path to avoid a little dirt that a man may get home the more cleanly and therefore rightly can derive no other Title of absolute Soveraignty to their successours than to hold by infirmity And thus the Government under the Normans at the worst was but like that of childhood following sudden and present desires not wise enough to plot for absolute Monarchy nor to keep off a Polity which still rooted underneath though the fruit while it was now green was harsh and unpleasant I shall conclude this Norman Discourse with this Advertisement That notwithstanding the words Conquerour and Conquest have often fallen from my Pen and hereafter may do the like yet can I see no reason why divers succeeding Kings coming to the Crown by argument of the Sword and not by right of Descent may not deserve the Laurel as well as the first Norman King onely because Fame hath fancied him that Title under a kind of prescription I do the like CHAP. LVII Of the Government during the Reigns of Steven Henry the 2. Richard the 1. and John. And first of their Titles to the Crown and dispositions in Government I Have cut out this Portion of One hundred twenty and five years containing the Reigns of these Kings apart from their Successours in regard of their Titles all of them being under one general Climate and breathing one air of Election and Compact between them and the People Now was the Issue male of the Stock of Normandy quite wasted I mean in relation to succession by inheritance for although it was the lot of Henry the first to have many Children yet it was not his happiness to have many Lineal nor to hold what he had nor of them all was there left above one that might pretend to the Crown and it a Daughter who was the great Grandmother to all the succeeding Kings till this day Onely King Steven like an unruly Ghost coming in upon the Stage troubled the Play during his time This Daughter of Henry the first was married to the Emperour Henry the fourth and surviving him was in her Father's life-time acknowledged to be his Heir the Sea having formerly swallowed up the remainder of his hope Unto her the Lords sware Fealty as to the next Successour in the Throne after the decease of her Father being led thereto by the
which shew him to be a brave King if he was not a very rich man. Henry the second was more heavy because he had more to do yet find we but one assessment which was Escuage unless for the holy War which was more the Clergy-mens than his Richard was yet a greater burthen his Reign was troublesome to him and he deserved it for from the beginning thereof to the ending could never the guilt of his disobedience to his Father be blotted out but it was more troublesome to the people because it cost so much treasure was managed by such ill Governours except the Archbishop of Canterbury and was unsuccessful in most of his undertakings yet never invaded the liberties of the Commons by any face of Prerogative But what wanted in him was made compleat and running over in his Successor John who to speak in the most moderate sence of his Government being given over to himself when he was not himself robbed the Lords of their authority bereaved the Church of its Rights trod under foot the Liberties of the people wasted his own Prerogative and having brought all things into despair comes a desperate cure the head is cut off to save the body and a president left for them that list to take it up in future ages And thus that which Steven gave Henry the second lost Richard the first would not regain and John could not and so all were gainers but the Crown CHAP. LXI Of Judicature the Courts and their Judges IT is no silent argument that the Commons gain where Laws grow into course and it was the lot of these troublesome times to lay a foundation of a constant Government such as all men might learn which formerly was laid up onely in the breasts of wise experienced men The two most considerable points in Government is the Law and the Execution the latter being the life of the former and that of the Common-wealth I say not that the Law was augmented in the body of it or that the Execution had a freer course than in the best of the former times but both were more and more cleared to the world in many particulars as well touching matters concerning practice of the Law as touching rules of righteousness For the first whereof we are beholding to Glanvil in Henry the second 's time and for the latter to King John or rather the Barons in his time in the publishing of the Grand Charter or an enumeration of the Liberties or Customes of the people derived from the Saxons revived continued and confirmed by the Normans and their Successors which for the present I shall leave in lance dubio to stand or fall till occasion shall be of clearing the point in regard that King John soon repented of his Oath the Bond of his consent and to heal the Wound got the Pope's pardon and blessing thereupon so easie a thing it was for a Son of the Roman Church to pass for a good Catholick in an unrighteous way The execution of the Law was done in several Courts according to the several kinds of affairs whereof some concerned matters of Crime and Penalty and this touched the King's honour and safety of the persons of himself and his Subjects and therefore are said to be contra coronam dignitatem c. The second sort concern the profits of the Crown or treasure of the Kingdom The third concern the safety of the Estates of the people These three works were appointed unto three several Courts who had their several Judges especially appointed to that work Originally they were in one viz. in the supream Court of Judicature the Court of Lords whereof formerly was spoken but after through increase of affairs by them deputed or committed to the care of several men that were men of skill in such affairs and yet retained the Supremacy in all such cases still And because that which concerned the publick Treasure was of more publick regard than the other the deputation thereof was committed probably to some of their own members who in those days were Barons of the Realm and afterwards retained the Title but not the Degree and therefore were called for distinction-sake Barons of the Exchequer The particular times of these deputations appear not clearly out of any monument of antiquity nevertheless it is clear to me that it was before Henry the second 's time as well because Henry the first had his Judex fiscalis as Glanvil so frequently toucheth upon the King's Court of Pleas which cannot be intended at the Court of Lords for that in those days was never summoned but in time of Parliament or some other special occasion But more principally because the Historian speaking of the Judges itinerant reciteth some to be of the Common-pleas which sheweth that there was in those days a distinction of Jurisdiction in Judicatures And it may very well be conceived that this distinction of Judicature was by advice of the Parliament after that the Grand Council of Lords was laid aside by Kings and a Privy-Council taken up unto whom could not regularly belong any juridical power because that remained originally in the grand assembly of the Lords Over these Courts or two of them one man had the prime Title of Chief Justice who then was called Lord Chief Justice of England and whose office was much of the nature of the King's Lieutenant in all causes and places as well in War as Peace and sometimes was appointed to one part of the Kingdom and by reason thereof had the name onely of that part and some other of the other parts The greatness of this Office was such as the man for necessity of state was continually resident at the Court and by this means the King's Court was much attended by all sorts of persons which proved in after-times as grievous the King as it was burthensome to the people Other Judges there were which were chosen for their learning and experience most of them being of the Clergie as were also the under-Officers of those Courts for those times were Romes hour and the power of darkness Other Courts also were in the Country and were Vicontiel or Courts of Sheriffs and Lords of Hundreds and Corporations and Lordships as formerly and these were setled in some place But others there were which were itinerant over which certain Judges presided which were elected by the Grand-Council of Lords and sent by Commission from King Henry the second throughout the Kingdom then divided into Six Circuits unto each of which was assigned Three Justices so as the whole number of Justices then was Eighteen The office was before the coming of the Saxons over hither but the assignation was new as also was their Oath for they were sworn But the number continued not long for within four years the King re-divided the Land into four Circuits and unto each Circuit assigned five Justices making in the whole the number of Twenty and one Justices for the Northern
renitente and appeared either personally or by proxie Others came as parties to give and receive direction or hear Sentence in matters tending to spiritual regards And for this cause issued Summons even to Kings as at the Council of Lyons aforesaid it is said that the Pope had cited Regis terrae alios mundi principes dictum principem meaning Henry the third the matter was for assistance to the holy War and to determine the matter between Henry the third and his Clergie men And as in that case so in others of that kind Kings would send their Embassadors or Proctors and give them power in their Princes name interessendi tranctandi communicandi concludendi First of such matters quae ad reformationem Ecclesiae universalis in capite membris then of such as concern fidei orthodoxae fulciamentum Regumque ac principum pacificationem or any other particular cause which occasionally might be inserted So long then as Kings had their votes in the general Councils they were engaged in the maintenance of their decrees and by this means entred the Canon-law into Kingdoms Nor was the vote of Kings difficult to be obtained especially in matters that trenched not upon the Crown for the Pope knowing well that Kings were too wise to adventure their own persons into foraign parts where the general Councils were holden and that it was thrift for them to send such Proctors that might not altogether spend upon the King's purse allowed Bishops and Clergy-men to be Proctors for their Princes that in the Negative they might be pii inimici and less active but in the Affirmative zealous and so make the way wider by the Temporal and Spiritual vote joyned in one Neither did Kings onely save their purse but they also made their own further advantage hereby for by the engagement and respect which these their Proctors had in Councils they being for the most part such as were had in best esteem obtained better respect to the cause that they handled and speedier dispatch Nevertheless the case sometimes was such as could not expect favour and then as the King's temper was they would sometimes ride it out with full sail and to that end would either joyn with their Ecclesiastcal Proctors some of the Barons and great men of their Realm to add to the cry and make their affairs ring louder in the ears of fame although the Pope had the greater vote or otherwise would send an inhibition unto their Proctors and their assistants or an injunction to look to the rights of the Crown as Henry the Third did at the Council at Lyons and this sounded in nature of a Protest and within the Realm of England had the force of a Proviso or Saving But if the worst of all come to pass viz. that the Council passed the cause against Kings without any Inhibition or Injunction yet could it not bind the Law of the Land or Kings just Prerogatives no not in these times of Rome's hour and of the power of darkness For at a Synod holden by Arch-bishop Peckham An. 1280. the Acts of the Council of Lyons were ratified and amongst others a Canon against non-residency and pluralities and yet neither Council nor Synod could prevail for in Edward the Second's time an Abbot presenting to a Church vacant as was supposed by the Canon of pluralities the King whose Chaplain was disturbed enjoyned the Abbot to revoke his presentation upon this ground Cum igitur c. in English thus Whereas therefore that Decree bindeth not our Clerks in our service in regard that the Kings and Princes of England from time to time have enjoyed that liberty and prerogative that their Clerks whilst they attend upon their service shall not be constrained to undertake holy things or to be personally resident on their Benefices c. And if this present Law be considered whereof we now treat which took leave to enact a sence upon a former Canon so long since made and which is all one to makâ— a general Council will or nill it to tread in the steps of an English Parliament or which is more mean to speak after the sence of an English Declaration that had not yet attained the full growth of a Statute as was then conceived it will evidently appear that the power of a council made up of a mixture of a few votes out of several Nations or the major part of them being unacquainted with the Laws and Customs of Nations other than their own was too mean to set a Law upon any particuler Nation contrary to its own original and fundamental Law. And as the Voters sent to the grand Councils from England were but few so neither were the Proctors as may appear from this that Pope Innocent out of his moderation if we may believe it and to avoid much expence as he saith did order that the number of Proctors in such cases should be few But in truth the times then were no times for moderation amongst Popes and their Officers and therefore it was another thing that pinched for multitude of Proctors if their number had not been moderated might perhaps if not prevail yet so blemish the contrary party that what the Pope should get must cost him loss of spirits if not bloud And although the Bishops being fast Friends to the Pope by vertue of their Oath did prevail in power and the Pope had the controul of the Council yet the exceeding number of the Proctors on the contrary might render their conclusions somewhat questionable in point of honesty as being made against the mindes of the greater number of persons present though their votes were fewer To avoid this difficulty therefore for more surety-sake the Popes enlarged the number of Voters for whereas it seemeth to be an ancient rule that onely four Bishops should go out of England to the general Council in after-ages not one Bishop could be spared unless in cases of great and emergent consequence as may appear by the Pope's Letter to Henry Third and the case required it for the oppressions of the Pope began to ring so loud as the holy Chair began to shake Neither did Kings confine themselves to any certain number of Proctors notwithstanding the Pope's moderation but as the case required sent more or less as unto the Council at Pisa for the composing and quieting that great Schism in the Popedom Henry the Fourth sent solemn Embassadors and with them nigh eighty in all But unto the Council at Basil Henry the Sixth sent not above twelve or thirteen as Mr. Selden more particularly relateth And unto the Council at Lyons formerly mentioned the Parliament sent but six or seven to remonstrate their complaints of the extortions of the Court at Rome their Legates and Emissaries The sum of all will be that the Acts of general Councils were but Counsels which being offered to the sence of the Parliament of England might grow up
to the degree of Laws if the Parliament liked them Nevertheless National Synods in England undertook the quarrel of general Councils for Arch-bishop Peckham in a Synod 1280. enjoyned the Constitutions made in the Council at Lyons to be observed under a curse without consultation first had with the Parliament or before he knew whether they would be right or wrong And before him Boniface made Constitutions in opposition to the customs of the Kingdom so as the matter was now come to a kind of contest whether Synods or Parliaments should hold supremacy in doubtful cases concerning the limits of the Ecclesiastical and Temporal power For henceforth Kings must bid adieu to the Synods and sit no more amongst them and Synods now think themselves free to consult and determine what they please without speaking under correction nor was there other remedy left to Kings but threats by Writs directed to the Bishops firmiter inhibendo quod sicut Baronias quas de Rege tenent diligunt nullo modo praesumant concilium tenere de aliquibus quae ad coronam Regis attinent vel quae ad personam Regis vel statum suum vel statum concilii sui contingunt quod si fecerint Rex inde se capiat ad Baronias suas And this prevailed so effectually that the Bishops durst not adventure too far lest they should go beyond their guard and therefore they come and ask leave of the Parliament in cases that trenched upon the Law of the Kingdom as they did in the case of Bastardy wherein they would have had their consent That Children born before Marriage might be made legitimate by the Marriage subsequent And yet they could not prevail for they were answered Nolumus leges Angliae mutari notwithstanding that the canon-Canon-law and the Laws of the Normans sided with them And so they obtained not their desire although they still retained the Tryal of general Bastardy unto themselves Nevertheless the times were such as Kings being too weakly assisted by the people and the Clergie strongly seconded by the Pope they took advantage of those times of distraction so as to hold themselves no farther obliged to the King than the Pope and their own covetousness would allow them and to make all sure they had setled it so far as they were able by a Constitution that the Clergie were not bound to aid the King Papa inconsulto and they put it in practice in a Synod under Arch-bishop Winchelsie Anno 1295. in the time of Edward the First and although the King prevailed in the conclusion at that time yet from the times of Henry the Third the Clergie for future times granted their aids to the King by themselves and apart from the rest of the body of the Kingdom and held themselves not bound by any aid granted by the Parliament albeit that their own aids granted in their Synods were not obligatory unto the body of the Clergie in this Kingdom unless first allowed and confirmed by the Parliament And thus is England become like a two-bodied monster supported with one pair of Legs CHAP. LXVII Of the condition of the Free-men of England of the Grand Charter and other Statutes during the Reigns of these Kings SHattered asunder by broyls of Civil Wars the Freemen having laid aside that regard of the ancient mutual covenant and bond of Decenners are now become weak and almost enthralled to the lust of Kings Lords Pope and English Clergie and therefore it is no wonder if Taxes and Tributes were many and new although most of them deserved not to march under any banner but the colours of oppression nor did any thing save them from the worst Tenure of all but the several interests of those superiour powers which oftentimes did justle with one another and thereby gave the Commons liberty to take breath so as though for the present they lost ground and hunted upon a cool scent yet they still retained the prey within their view Sometimes they were cast far behind other times they recovered themselves a Truce is cried and Laws are made to moderate all and determine the bounds of every one and thus comes the Grand Charter upon the publick Theatre The Historian saith it was the same with that of King John's framing and yet by comparing them together we find them disagreeing both in words and sence and therefore shall sum the same up as shortly as I can observing the difference of the two Charters as I pass along The First Chapter concerned the Church of which sufficient hath been spoken The Freemen shall enjoy these Liberties to them and their Heirs for ever The Heir in Knight-service shall pay the ancient relief That Reliefs were setled by the Saxons hath been already shewed and also that they were continued and confirmed by Henry the First onely in those times they were paid in Horses Arms c. But in after-times all was turned into money which was more beneficial for all Lords shall have their Wards bodies and Lands after homage received until the full age though the Ward be formerly Knighted The Law of Wardship may seem more anciently seated in this Kingdom than the Normans times for if the Statutes of Scotland bear any credit that Law was in Scotland before those times The Lords were not to have the Wardship before they were possessed of the Tenure because it was theirs as a fruit of the Tenure according to the Saxon Law concerning distress that it could not be in the power of the Lord to distrain till he was possessed of the service And if by fraudulent conveyance the Heir did hold the Lord out of possession a Writ of Ward did lie against him and if he did not appear the Lord might seize the Lands unless in case of Wardship per cause de guard And in case the Lord would hold the Wardship longer than the full age of the Heir an Assize did lie against the Lord for the Heir could not enter without Livery But if the Heir were of full age at the time of the Ancestor's death the Lord could not enter the Lands and yet he should have a Relief and the primer seisin And if the Heir entred the Lands before Homage done he gained no Free hold though he were Knighted before as this Law provideth For it may seem that these times of Civil War brought forth a trick of Knighting betimes as an honourable encouragement for young sparks to enter the field before they were compleat men of discretion to know whether the cause of War was good or evil And yet reason might induce a conceit that he that was thought meet to do Knight-service in his own person might expect the maintenance fit for the ability of the person and honour of the service Grantees or their Assigns or Committees of Wardships shall preserve the Land c. from Waste and the Tenants from extortion They shall yield up the same stocked
if they receive them stocked The first of these is the Law of common reason for it is contrary to Guardianship to destroy that which by their office they ought to preserve As touching the words of the Law the Grantees are omitted in the Charter of King John and also their Assignees albeit that doubtless they were within the intent and meaning of the Law. The matter declares plainly not onely the oppression of Lords upon their Wards but also the corruption even of the Law itself that at the first aimed at the good of the Publick and honour of Knight-service but now was degenerated into the base desire of profit by making market of the Wards Estates and Marriages that brought in strip and waste of Estates and niggardly neglect of the education and training up of the persons of the Wards and an imbasing of the generation of mankind and spoil of times Nor did these times ever espy or provide against the worst of these but onely endeavoured to save the estate by punishing the wasters in damages by this Law and by forfeiture of the Wardship by a Law made in the time of Edward the First and this as well for Waste done during the time of the custody as in the life-time of his Ancestors by another Law in Edward the First 's time And because the Escheators and their under-Officers used to serve themselves out of the Estates of Minors before they certified to the King his right and those were not within the Law of Magna Charta or at least not so reputed It was therefore afterwards provided that these also should render damages in a Writ of Waste to be brought against them The marriage of Wards shall be without disparagement It was an ancient Law among the Germans and the Saxons brought it hither and as a Law setled it that Marriage must be amongst equals but this the Danes and Normans slighted and yet it continued and was revived Now as the Lord had the tuition of the Ward instead of the Ancestor so had he the care of the marriage in such manner as the Ancestor might have had if he had lived For in case the Ward were stoln and married the Delinquent suffered fine and imprisonment Or if the Ward married without the Lord's consent he shall have the double value and hold the Land over till satisfaction But in case the Lord marrieth the Ward within fourteen years of age to its disparagement he shall lose his Wardship thereby And if the Ward refuseth to accept of a marriage tendred by the Lord before her age of sixteen years the Lord shall hold the Lands till he have received the full value and in case where one Tenant holdeth of divers Lords the Lords by priority shall have the marriage These Laws were in use during the Reigns of those Kings although it cannot be certainly concluded hereby that the Wives portion properly belonged to the Lord as for his own benefit partly because the Female-Wards should have no advancement if it belonged to the Lords and partly because this forfeiture was given to the Lords in nature of a penalty as appeareth by the frame of the Statute of Merton Widows shall have their Dower inheritance their inheritance which they have joyntly with their Husbands their marriage freely and their Quarentine With due regard of the opinion of others I shall propound my own It seemeth to me that the King is within this Law as well as within the former Laws of the Normans and those of Henry the Second that are of this kind and as he is within the compass of every Law of this Charter and that it is called the Grand Charter as most immediately coming from the King to the people and not from the Lords Nor is there any ground that the Law should intend to give liberty to Widows of Wards belonging to inferiour Lords to marry whom they will and that onely the Kings Widows shall be bound Nor did this suit with the contest between the Barons and the King that their Widows should be bound unto the King and the Widows of their Tenants discharged from their tuition and therefore I conceive by the word maritagium is not meant liberty of Marriage but her Marriage-portion or rationabilis pars according to the foregoing Laws of Henry the First and Henry the Second and the Saxon Customs But as touching the liberty of Marriage it is defined and expressed that the Widows shall not be compelled to marry nevertheless if they shall marry they must marry with the Lord's liking otherwise he might have an enemy to be his Tenant that might instead of homage and service prove Traitor and be his ruine Lastly touching the Widows dwelling the Law thought it unreasonable that she should immediately after the death of her Husband be exposed to be harbourless and therefore ordained that she might continue in her Husband's house Forty days if it were not a Castle and then she was to have another dwelling assigned to her because by common intendment she is not supposed to be a person meet to defend a Castle and this was called her Quarentine which I meet not with amongst the Saxon Laws and therefore suppose it to be of Norman original No Man's Land shall be seized for Debt to the King so long as the Personal Estate will satisfie Nor shall his pledge be troubled so long as the Principal is sufficient unless he refuse to satisfie and then the pledge shall recover in value The first part hereof was the issue of the Law concerning elegit formerly observed in the Saxon times for the regard of Law principally extended unto the person next unto the Free-hold and lastly unto the goods The latter part of this Law was the Law of Pledges or Decenners in the same times unto which the Reader may resort for further light herein The City of London and other Cities Burroughs and Towns and the Cinque-ports and other Ports shall enjoy their ancient Liberties The whole Kingdom and the Members thereof herein expressed had all their Liberties saved from the dint of Conquest by the Law of William the first upon which although some of the succeeding Kings did invade yet none of them made any absolute disseisin although disturbance in some particulars But King John did not only confirm them by his grand Charters but by particular Charters to each Corporation with some enlargements and in his grand Charter inserted one clause which in the grand Charter of Henry the Third appeareth not which thus ensueth Et ad habendum commune concilium Regni de auxiliis assidendis aliter quam in tribus casibus praedictis which if the barbarism of the Latine mislead me not is thus in English And to have right of Common-Council or to be of the Common-Council of the Kingdom for the assessing of aids other than in three cases aforesaid viz. for
time and was questionless put in practice so far forth as with convenience to the Judges might be but now the convenience of the people is preferred and they must not be brought up to the King's Court but the Justices must come down to them And yet in case of difficulty the Bench where the Common-pleas are holden must determine the matter and where the time in the Iter in one County is too scant the Remanets shall be adjourned over to be tryed elsewhere in that Circuit which sheweth that the Judges itinerant had their time proportioned out to every County These Tryals also were so favoured as in the then holy times of Advent and Septuagessima or Lent they might be tried which although it was gained by Prayer made by the King to the Bishops as the words of that Law are concluded yet it shews that the Parliament had so much light as to hold the time not inherently holy but meerly sequestred by the Will of the Clergie The Plaintiffs also in Mortdancester may be divers if there be divers Heirs of one Ancestor by one Title And if there be joynt-Tenants and the Writ be against but one and the same pleaded the Writ shall abate but if joynt-Tenancy be pleaded and the Plea be false the Defendant shall be fined and imprisoned And if in the Action the Verdict be for the Plaintiff he shall recover Damages Darrein presentment shall be taken onely in the common Bank. Tryals in the common Bank or other Courts at Westminster have ever had an honourable esteem above those in the County by Nisi prius although all be equally available This might be one cause why the Titles of Churches were still retained at the common Bank whenas all other rode Circuit for that Churches affairs in those times were of high regard Speed of Tryal also was not little regarded herein for Justices by Nisi prius properly were but for enquiry till the Statute at Westm the second made them of Oyer and Terminer in the cases of Quare Impedit and Darrein presentment and gave them power to give Judgment And thus the Commons gained still in point of conveniency Free-men shall be amerced according to the degree of the fault saving to them their Free-hold and to Merchants their main Stock and to Villains their Waynage and Clergie-men shall be amerced according to their Lay-fee Barons shall be amerced by their Peers others by the Vicinage In this regard is to be had first of the persons that are to be amerced then of the parties by whom and lastly of the nature and quantity of Amercements The persons amerced are ranked into four Classes Barons Clergie Free-men and Villains But in regard of the parties by whom they are to be amerced they are but two Barons and Free-men for the Clergie Villains and Free-men are to be amerced by the Free-men of the Neighbourhood In what Courts these Amercements shall be the Stat. Marlbr tells us not before the Escheator nor other that make enquiry by Commission or Writ nor before the Justices of Assize or Oyer and Terminer but onely before the Chief Justices or Justices itinerant The Statute of Westminster adds a fifth Classis of Cities and Towns by express words which seems not so necessary unless in pillaging and oppressing times for they were taken to be within the Statute of Magna Charta though not therein named The rule of the quantity of Amercements is now set down in general and left to the discretion of the Peers or Vicinage which formerly by the Saxons were specially set down in the Law. The rule in general is with a ne plus ultra viz. not further or more than that the party amerced may spare and yet hold on in the maintenance of his course according to his degree And it must be also according to the quantity of the offence for the greatest Amercements must not be ranked with the least offences so as in every degree the main sustenance of the party is saved yea the Villains however mean they be they must have their maintenance And this sheweth that Villains had a maintenance which was under the protection of the Law and not under the gripe of their Lords to all intents unless they were the Kings Villains who it seemeth were meerly under the Kings mercy as being both their Lord and King against whom they could hold nothing as properly their own And therefore in all other cases even then the Villains were born under a kind of liberty as in the Saxons time formerly hath been declared which the Law protected against their own Lords No man shall be compelled to make repair or maintain any Bridges Banks or Causies other or otherwise than they were wont to be made repaired or maintained in the time of Henry the second The limitation to the times of Henry the second sheweth that his Justice was such as maintained the common rights of men but in the times of Richard the first and more especially of King John those Rivers Waters and Fishings formerly used in common were encroached upon enclosed and appropriated to particular mens uses which occasioned many Bridges Banks and Causies to be made and repaired to the great charge of private men all which are discharged by this Law. No Sheriff Constable Coroner or other Bayliff shall hold any Pleas of the Crown Escheators are also expressed in the old books of Magna Charta and the Abridgements however it seemeth that it is within the intent of the Law which was made to avoid the extraordinary oppression that these Officers exercised upon the people For Escheators under colour of inquiry of Estates of men would enquire of matters concerning the lives of men and Sheriffs that had power of Tryals in cases of Theft as hath been already shewn abused the same for their own benefit because in such cases they had the forfeitures This Law therefore takes away such occasions viz. from the Sheriffs and Coroners and Bayliffs or Justices other than by express commission thereto assigned all power to hold Pleas of the Crown by tryal leaving unto them nevertheless power of enquiry of which anciently they had the right If the Kings Tenant dieth supposed in arrear an Inventory shall be made of his Stock by honest men but it shall not be removed till Accounts be cleared and the overplus shall go to the Executors saving to the Wife and Children their reasonable part The first clause hereof was a Law in Henry the first 's time and a customary Law in Henry the second 's time being a remedy against an old Norman Riot of the Lord's seizure of the whole personal Estate of the party deceased under colour of a Law. The second part concerning the overplus hath this additional subjoyned in the Charter of King John If any Free man die intestate his Chattels shall be divided by his Parents and his Friends in the presence of
and Kent are saved out of this Law by the Statute the first whereof saves the Land to the Heir from the Lord and the second saves the same to the Heirs Males or for want of such to the Heirs Females and to the Wife her moity until she be espoused to another man unless she shall forfeit the same by fornication during her Widow-hood And by the same Law also the King had all Escheats of the Tenants of Archbishops and Bishops during the vacancy as a perquisite But Escheats of Land and Tenement in Cities or Burroughs the King had them in jure coronae of whomsoever they were holden All Wears shall be destroyed but such as are by the Sea-coast The Lieutenant of the Tower of London as it seemed claimed a Lordship in the Thames and by vertue thereof had all the Wears to his own use as appeareth by a Charter made to the City of London recited in the second Institutes upon this Law and this was to the detriment of the Free-men especially of the City of London in regard that all Free-men were to have right of free passage through Rivers as well as through Highways and purprestures in either were equally noxious to the common liberty And therefore that which is set down under the example or instance of the Rivers of Thames and Medway contained all the Rivers in England albeit that other parts of the Kingdom had not the like present regard as the City of London had The Writ of precipe in capite shall not be granted of any Freehold whereby a man may be in danger of losing his Court thereby It seemeth that it was one of the oppressions in those times that if a Suit were commenced in the inferiour or Lords Court concerning a Freehold a Writ of precipe in capite might be had upon a Surmise that the Freehold was holden in capite which might prove an absolute destruction to the inferiour Court and was the spoil of the Demandants case and therefore I think the Charter of King John instead of the word Court hath the word Cause There shall be but one known Weight and Measure and one breadth of Cloaths throughout the Realm of England This Law of Weights and Measures was anciently established amongst the Saxons as formerly hath been shewed and continued in the Normans times and confirmed by Richard the first and King John. And as touching the measure of the breadth of Cloaths although it might seem to abridge the liberty of particular persons yet because it was prejudicial to the common Trade of the Kingdom it was setled in this manner to avoid deceit and to establish a known price of Cloaths And it seemeth that Wine was ordinarily made in England as well as Ale otherwise the Measures of Wine could not have been established by a Law in England if they had been altogether made in other Countries Inquisition of Life and Member shall be readily granted without Fees. This was a Law of latter original made to take away a Norman oppression for by the Saxon Law as hath been already noted No man was imprisoned for Crime not bailable beyond the next County-court or Sheriff's Torn but when those rural Courts began to lose their power and the Kings Courts to devour Tryals of that nature especially by the means of the Justices itinerant which were but rare and for divers years many times intermitted during all which time supposed Offenders must lie in Prison which was quite contrary to the liberty of the Free men amongst the Saxons This occasioned a new device to save the common liberty by special Writs sued out by the party imprisoned or under bail supposing himself circumvented by hatred and malice and by the same directed to the Sheriff and others an Inquisition was taken and Tryal made of the Offence whether he deserved loss of Life or Member and if it were found for the supposed Offender he was bailed till the next coming of the Justices and for this the Writ was called the Writ of inquisition of Life or Member and sometimes the Writ de odio atia But these Inquests were soon become degenerate and subject to much corruption and therefore as soon met with a countercheck from the Law Or first rather a regulation for it was ordained that the Inquest should be chosen upon Oath and that two of the Inquest at least should be Knights and those not interessed in the Cause But yet this could not rectifie the matter for it seemed so impossible to do Justice and shew Mercy this way that the Writ is at length taken away and men left to their lot till the coming of Justices itinerant But this could not be endured above seven years for though the King be a brave Souldier and prosperous yet the people overcome him and recover their Writs de odio atia again Lords shall have the Wardships of their Tenants Heirs although they hold also of the King in Petit Serjeanty Socage Burgage or Fee-farm Inferiour Lords had the same right of Wardships with the King for their Tenures in Knight-service although their Tenants did hold also of the King unless they held of him in Knight-service which was a service done by the Tenant's own person or by the person of his Esquire or other deputy in his stead But as touching such service as was wont to be done to him by render or serving him with Arms or other utensils this was no Knight-service though such utensils concerned War but was called Petit Serjeanty as in the Law-books doth appear Nevertheless Henry the Third had usurped Wardships in such cases also and the same amongst others occasioned the Barons Wars No Judge shall compel a Free-man to confess matter against himself upon Oath without complaint first made against him Nor shall receive any complaint without present proof This Law in the Original is set down in another kind of phrase in the first part thereof which is obscure by reason thereof in express words it is thus No Judge shall compel any man ad legem manifestam which implieth that the matter was otherwise obscure if the party that was complained of or suspected did not manifest the same by his own declaring of the truth or matter enquired after and therefore they used in such cases to put him to Oath and if he denied the matter or acquitted himself the Judge would sometimes discharge him or otherwise put him to his Compurgators and this was called lex manifesta or lex apparens And it was a trick first brought in by the Clergie and the Temporal Judges imitated them therein and this became a snare and sore burthen to the Subjects To avoid which they complain of this new kind of Trial and for remedy of this usurpation this Law reviveth and establisheth the onely and old way of Trial for Glanvil saith Ob infamiam non solet juxta legem terrae aliquis per
sad experience of the latter Government of Kings in these times had taught the Knighthood of England to hold for the future Ages No Tenant in ancient Demesnes or in Burgage shall be distrained for the service of a Knight Clerks and Tenants in Socage of other Mannors than of the King shall be used as they have been formerly Tenants in ancient Demesne and Tenants in Burgage are absolutely acquitted from foreign service the one because they are in nature of the King's Husbandmen and served him and his Family with Victual the other because by their Tenure they were bound to the defence of their Burrough which in account is a Limb or Member of the Kingdom and so in nature of a Castle guard Now as touching Clerks and Tenants in Socage holding of a Subject they are left to the order of ancient use appearing upon Record As concerning the Clergy it is evident by what hath been formerly noted that though they were importunate to be discharged of the service Military in regard that their profession was for Peace and not for Bloud yet could they never obtain their desire for though their persons might challenge exemption from that work yet their Lands were bound to find Arms by their Deputies for otherwise it had been unreasonable that so great a part of the Kingdom as the Clergie then had should sit still and look on whilst by the Law of Nature every one is engaged in his own defence Nor yet did the profession of these men to be men for Peace hold always uniform some kind of Wars then were holden sacred and wherein they not onely adventured their Estates but even their own Persons and these not onely in a defensive way but by way of invasion and many times where no need was for them to appear Tenants in Socage also in regard of their service might plead exemption from the Wars for if not the Plough must stand still and the Land thereby become poor and lean Nevertheless a general service or defence of the Kingdom is imposed upon all and Husbandmen must be Souldiers when the debate is who shall have the Land. In such cases therefore they are evocati ad arma to maintain and defend the Kingdom but not compellable to foreign service as the Knights were whose service consisted much in defence of their Lord's person in reference to the defence of the Kingdom and many times policy of War drew the Lords into Arms abroad to keep the Enemy further from their borders and the Knights then under their Lords pay went along with them and therefore the service of Knighthood is commonly called servitium forinsecum Of these Socagers did arise not onely the body of English Foot-men in their Armies but the better and more wealthy sort of them found Arms of a Knight as formerly hath been observed yet always under the pay of the common Purse And if called out of the Kingdom they were meer Voluntiers for they were not called out by distress as Knights were because they held not their Land by such service but they were summoned by Proclamation and probably were mustered by the high Constables in each Hundred the Law nevertheless remaining still entire that all must be done not onely ad fidem Domini Regis but also Regni which was disputed and concluded by the Sword. For though Kings pretended danger to the publick oftentimes to raise the people yet the people would give credit as they pleased Or if the King's Title were in question or the Peoples Liberty yet every man took liberty to side with that party that liked him best nor did the King's Proclamation sway much this or that way It is true that precedents of those times cry up the King's power of arraying all Ships and men without respect unless of age or corporal disability but it will appear that no such array was but in time of no less known danger from abroad to the Kingdom than imminent and therefore might be wrought more from the general fear of the Enemy than from the King's command And yet those times were always armed in neighbouring Nations and Kings might have pretended continual cause of arraying Secondly it will no less clearly appear that Kings used no such course but in case of general danger to the whole Kingdom either from foreign Invasion as in the times of King John or from intestine Broils as in the times of Henry the third and the two Edwards successively And if the danger threatned onely one coast the array was limited onely to the parts adjacent thereunto Thirdly it seemeth that general arrays were not levied by distress till the time of Edward the first and then onely for the rendezvouze at the next Sea-coast and for defence against foreign Invasion in which case all Subjects of the Kingdom are concerned by general service otherwise it can come unto no other account than that Title Prerogative and therein be charactered as a trick above the ordinary strain Fourthly those times brought forth no general array of all persons between the ages of sixteen years and sixty that was made by distress in any case of Civil War but onely by Sheriffs summons and in case of disobedience by summons to appear before the King and his Council which sheweth that by the common Law they were not compellable or punishable Lastly though these arrays of men were sometimes at the charge of the King and sometimes at the Subjects own charge yet that last was out of the road-way of the Subjects liberty as the subsequent times do fully manifest And the like may be said of arrays of Ships which however under command of Kings for publick service were nevertheless rigged and paid out of the publick charge The sum of all will be that in cases of defence from foreign Invasion Kings had power of array according to the order of Law if they exceeded that Rule it may be more rightly said they did what they would than what they ought CHAP. LXXI Of the Peace WAR and Peace are two births by several venters and may like the day and night succeed but can never inherit each to other and for that cause they may claim to belong to one Father and that one and the same power should act in both and yet it is no good Maxime That he that is the chief Commander in War ought to be the chief in the order of Peace For it naturally befalls that War especially that which we call Civil War like some diseases in the body does rather breed ill humours than consume them and these must be purged by dieting the State and constant course of Justice unto which the rugged Waves of War have little or no affinity if they have not enmity Nevertheless the wisdom of our Ancestors thought it most meet to keep their Kings in work as well in time of Peace as of War and therefore as they anciently referred the principal care thereof to the Lords who together
with certain select persons in every County did administer Justice in several Iters or Circuits so when Kings had once gotten the name of being chief in civil affairs as they had it in martial they soon left the Lords behind them who also were willing enough with their own case and had the name of doing all notwithstanding it was done by advice of the Lords and directory of Ministers or Commissioners thereto deputed And thus that Peace which formerly passed under the Titles of Pax Domini pax Vicecomitis which is pax Regni became by eminency swallowed up in that which was called the Kings Peace and the Justices called the Kings Justices and himself flattered into that Title of Fountain of Justice which belongeth onely to him that is The Most High or Chief Law-giver The manner how this honourable care of the Safety and Peace of the Kingdom was employed may be referred to a double consideration the one in execution of Justice upon Delinquents the other in preventing occasions of offence or delinquency by means whereof the publick Peace might be endangered The first was acted diversly according to the present sence of affairs for what was at first done by the Princes in their Circuits with one hundred of the Commons called Comites and that done per pagos vicosque was afterwards done by itinerant Judges sent from the King for the greatest matters and by Lords in their Leets Governours or chief Magistrates of Towns in their Courts and Sheriffs in their Torns as Judices stati for the ease of the people in matters of less moment I say I conceive it was in the Torn for I suppose no emergent Court taken up upon occasion could by the Law draw a necessity of a sudden appearance of all above twelve years of age at the same And for the same cause it seemeth that one certain Torn every year was holden for inquiries of Homicide unto which all above twelve years of age were to come except Barons Clergie and Women or otherwise all such had been bound to attendance on every Torn Nevertheless the work of the Torns continued not to hear and determine as anciently they had done For in Henry the third's time and formerly divers men had Prisons to their own use some as Palatines others as Lords of Franchise and others by power and usurpation and had the benefit of all Fines incident and by this means many were fined that deserved it not and some also that deserved worse To prevent which evil Henry the third took away that power of holding Crown-pleas And Edward the first took away their power to determine Escapes and left them onely the power of inquiry and to certifie at the next coming of the Justices But these injurious times had holden too long to be forgotten or laid aside by such cool pursuit Men were still ordinarily imprisoned and so continued oftentimes till the coming of the Justices itinerant For whereas in case of Bloudshed the Writ de odio atia was a remedy the other had no remedy but by procuring a Commission of Oyer and Terminer which ordinarily was a cure worse than the hurt As a remedy hereof Edward the first found out the new way of making Justices of Peace as may appear by the Statute at Winton which Law being purposely made for the conserving of the Peace providing for penalty of Crimes already committed as well as for the suppressing of future ordaineth That offences against that Law shall be presented to Justices assigned to enquire thereof and though these at the first might be itinerant yet it soon made way to resiant And before that Statute it seemeth the King had found out the way if that Note be true which is left revived into memory by that honourable Reporter which relating to the sixth year of Edward the first saith That then prima fuit institutio justiciariorum pro pace conservanda And yet some semblance there is that it was yet more ancient even in the time of Henry the first if I mistake not the sence of that clause in his Laws concerning Vagabonds he ordereth that they shall be carried Justiciae quae praeest although the Language be not so Clerkly as to speak the sence out Now though their Work as yet was but in tryal and they were onely trusted with power of inquiry yet it induced a new way wherein the Sheriff was not so much as intrusted to intermeddle and which not onely intermitted the course of his proceedings in such matters but also led the way to the dispoiling of the Sheriff's Torn and Lord's Leet of that little remainder that was left them of Judicatory power in matters that were against the Peace and made their Inquisitory power less regardful and eased the Justices itinerant of much of their Work in regard they were speedily to certifie up to the King and so these matters should be determined in Parliament according as those Justices were elected in Parliament who as it seems were jealous of giving the power of determining those offences into any sudden hand To sum up then the first part as touching the punishment of offences against the Peace the wheel is now in the turning the Leets and Torns begin to be slighted the labour of the Justices itinerant lessened the Commissions of Oyer and Terminer disused by the bringing in of a new Order of Justices for the Peace especially appointed and the Parliament as the supreme Providers left as the reserve for the asserting and maintenance of the same albeit that under it the power of determining much rested upon Justices or Judges that attended the King's Court after that the Common-pleas were setled and confined to a certain place The preserving of the Peace for the future consisted in preventing and suppressing Riots Routs unlawful Assemblies and in apprehending and securing of such as were actors and contrivers of such designes and other Malefactors And herein we are to consider 1. The Laws 2. The Means 3. The executive power Concerning the first there is no question to be made but that the power of making Laws for the maintenance of the Peace rested in the Parliament although endeavour possibly might be used to settle the same in the sole order of the King 's own person and therefore we find not onely the assize of Arms but generally the substance of the Statute at Winton to be formerly taken up by Proclamation by Kings predecessors to Edward the second who first that I can find put the same into force of a Law by Parliament finding by experience that Proclamations may declare the King's Mind but not command the Peoples Wills although peradventure the thing enjoyned was of ancient use and little inferiour to Custom or Common Law. Such are the Distempers of Civil Broils that bring up Peace in the rear as a reserve when their own strength is wasted rather than out of any natural inclination thereto A brief
recollection of the Laws thus ensue In case of Robbery or Felony committed and the Delinquent be not forth-coming or discovered the County or Hundred shall answer the damages Of this more may appear from the Norman and Saxon Laws the intent appeareth by the Law it self to stir up the people to use all means by pursuit with Hue and Cry and making inquisitions of the Fact with all speed in Townships Hundreds Franchises and Counties Persons suspected shall not be entertained or harboured by any Inhabitant unless he will undertake for him Of this also formerly both in the Norman and Saxon Laws Walled Towns shall keep their gates shut from Sun-set to Sun-rising The like observed in Cities Burroughs and Towns from the Feast of Ascension to Michaelmas The power of the Watch was great it might apprehend any Passenger and stay him all night and if he be a suspected person he is to be committed to the Sheriff and if an escape be made the party is to be pursued with Hue and Cry. These two last Chapters were in effect in Henry the third's time in course by way of the King's command by Writ in the 36th and 37th years of his Reign with some more particulars concerning the same High-ways through every Lordship shall be kept clear on each side by the space of 200 foot from Hedges Ditches Bushes and Vnderwood High-way herein intended are such as are from one Market-Town to another and in such were always preserved the publick peace or safety for the maintenance of Commerce and freedom of Traffick which is of such publick concernment that it hath been of very ancient institution Every man between the age of fifteen years and forty shall maintain Arms in his house according to the ancient Assize for the preserving of the Peace This Chapter brings into consideration the second thing propounded viz. the means of preserving of the Peace which are two First by maintaining Arms 2. By certifying Defaults In the first is to be considered the persons that are to be assessed 2. The Arms 3. The end The persons to be assessed to Arms are indefinitely set down and comprehend all sorts as wel bond as free and others for such are the expressions in the Commission of Henry the third But by the Assize of Henry the second none were to be armed but Free-men and they worth sixteen or ten marks in Goods at the least yet their ages are limited by this Law they must be between fifteen years and forty but by the Commission in Henry the third's time all between fifteen and sixty years of age were to be armed King John arrayed all sorts free bond and all others that have Arms or ought to have or can carry Arms and it seems by what hath been formerly noted that those that were younger than their Tenure would bear them out were accepted into service if they would offer themselves but by these courses they though under one and twenty years of age were not onely accepted but compelled to War. Under this Title we may also touch upon the persons that were the instruments to array these men or rather to arm them and these were Justices itinerant or one or more Commissioners such as the King found most meet of the service And unto these were Commissions with instructions sent and sometimes Writs were directed onely to the Sheriffs to take with them twelve Knights of the County and to go into every Hundred and call before them all such persons as by the Law ought to be assessed at Arms and to cause them to be sworn to find and maintain Arms in such manner as by the Law they then should be or formerly were assessed and sometimes the establishment of Arms were set down in those Writs and sometimes published by Proclamation For Kings found all means little enough to prevail to bring in alteration of Arms and of their service which was a thing not onely troublesome but chargeable and whereunto they could not easily prevail to bring the Free-men to consent And therefore sometimes the endeavours of Kings in such cases did not onely meet dilationem but also deletionem as the Historian's words are until the way was found out to declare an establishment by Parliament by this Statute made at Winton Now for the nature of the establishment we are to consider that the people of England were distinguished according to their Tenures into such as held by Knight-service and such as held by Socage and that none but those being Free-holders could be charged to find Arms according as by the Laws of the Norman Conquerour may appear The establishment of Arms for the Knights were established by their Tenures in certainty and therefore no need was either of Assessment or Oath to tie them to find such Arms but all the difficulty was for such as were not bound by other Tenure than as free-born Subjects all of whom do owe to their Country defence and so questionless had liberty to provide themselves of such Arms as were by common and constant use held most advantageous against the common Enemy and for the publick defence And that these were put in certainty may appear by the Law of King William formerly noted and by some instances in the Saxon Laws anciently used amongst others that Law of Aethelstane That for every Plough every man should find two compleat Horses And another Order of Aetheldred nigh eighty years aster differing from it assessed upon every eight Hides of Land a Helmet and a Coat of Mail And the Historian tells us That a Hide is a Plough-Land or so much Land as one Plough can keep in till the end of one whole year And the relief of the Noble-men of all sorts and ranks in Horses Helmets Coats of Mail Lances Shields and Swords the meanest of all which degrees being called Mediocris Thainus yielding a relief equal to the Arms of a Knight in the times whereof we now treat viz. one Horse one Helmet one Coat of Mail one Lance one Shield one Sword all comprehended under arma sua as if he had a certain proper Arms. And the Laws concerning the forfeiture of Arms do in effect affirm the thing viz. that all men were armed yet probable it is that laws were not then so often made for the enforcing this or that particular sort of Arms in regard that till the Normans time this Island was troubled but seldom with any Enemies from foreign parts that brought any new sorts of Weapons into fashion the Danes and Norwegians being no other than an old Acquaintance of theirs Neither were the Saxons as yet tamed by any Enemy so far as to beg a Peace albeit that the Danes had gotten them under But after the Norman times the English being somewhat over-matched in War inclined more to Husbandry and began to lay aside their regard of Arms and this occasioned the Kings to make Assessments of
but as heavy dull Debates and inconvenient both for speed and secrecy which indeed are advantages for weak and unwarrantable councils but such as are well-grounded upon truth and strength of reason of State are not afraid to behold the clearest noon-day and prevail neither by speed nor secrecy but by the power of uncontrolled Reason fetcht from truth it self The Grand Council of Lords also are now no less burthensome For though they were not able to prevail against the private designes of an arbitrary Supremacy yet do they hinder the progress tell tales to the people and blot the names of those that are of that aspiring humour which once done like that of Sisyphus they have no other end of their labour than their toil Thus perished that ancient and rightly honourable Grand Council of Lords having first laid aside the publick then lost unity and lastly themselves besides the extream danger of the whole body For the sence of State once contracted into a Privy-Council is soon contracted into a Cabinet-Council and last of all into a Favourite or two which many times brings damage to the publick and both themselves and Kings into extream praecipices partly for want of maturity but principally through the providence of God over-ruling irregular courses to the hurt of such as walk in them Nor were the Clergie idle in this bustle of affairs although not very well employed for it is not to be imagined but that these private prizes plaid between the Lords Commons and King laid each other open to the aim of a forrein pretension whilst they lay at their close guard one against another And this made an Ecclesiastical power to grow upon the Civil like the Ivy upon the Oak from being Servants to Friends and thence Lords of Lords and Kings of Kings By the first putting forth it might seem to be a Spiritual Kingdom but in the blossom which now is come to some lustre it is evident to be nothing but a Temporal Monarchy over the Consciences of men and so like Cuckows laying their Eggs in nests that are none of their own they have their brood brought up at the publick charge Nevertheless this their Monarchy was as yet beyond their reach it was Prelacy that they laboured for pretending to the Pope's use but in order to themselves The Cripple espyed their halting and made them soon tread after his pace he is content they should be Prelates without measure within their several Diocesses and Provinces so as he may be the sole Praelatissimo beyond all comparison And undoubtedly thus had been before these times destroyed the very principles of the Church-Government of this Kingdom but that two things prejudiced the work The one that the Papalty was a forrein power and the other that as yet the Pope was entangled with the power of Councils if he did not stoop thereunto The first of these two was the most deadly Herb in the Pottage and made it so unsavoury that it could never be digested in this Kingdom For Kings looking upon this as an intrenchment upon their Prerogative and the People also as an intrenchment upon their Liberties both or one of them were ever upon the guard to keep out that which was without and would be ruled neither by Law nor Counsel And therefore though both Kings and People yielded much unto the importunity of these men and gave them many priviledges whereby they became great yet was their greatness dependant upon the Law of the Land and Vote of Parliament and though they had the more power they nevertheless were not one jot the more absolute but still the Law kept above their top I deny not but they in their practice exceeded the rule often and lifted themselves above their rank yet it is as well to be granted that they could never make Law to bind the Church-men much less the Laity but by conjunction of the Grand Councils both for Church and Commonwealth-affairs nor could they execute any Law in case that concerned the Liberty or Propriety of either but in a Synodical way or as deputed by the Parliament in that manner And therefore I must conclude that in these times whereof we treat the principles of Church-Government so far as warranted by Law were in their nature Presbyterial that is both in making Laws and executing them Bishops and Arch-bishops were never trusted with the sole administration of them but in and by consent of Synods in which the Clergy and Laity ought to have their joynt vote And all power more or contrary hereto was at the best an usurpation coloured by practice which was easily attained where there was a perpetual Moderatorship resting in the Bishop and over all the Pope the King Lords and Commons in the mean while being buried in pursuit of several interests elsewhere To make all semblable the Free-men met with the sad influence of these distempers as well from the King and Lords as the Clergy Kings to save their own stake from the Pope remitted of that protection which they owed to their Subjects and let in upon them a floud of oppressions and extortions from the Romish and English Clergy and so like a little ship cast out a Barrel for the Whale to pursue till it gets away But this changed no right The Lords by their parties shattered them asunder and dismembred their body by intestine broils The Clergy more craftily making some of them free Denizons of the Roman See and taking them into their protection whilst others of the Free-men at a distance were exposed as a prey to the continual assaults of those devouring times All these conspired together to deface and destroy that ancient and goodly bond of Brotherhood the Law of Decenners by which the Free-men formerly holden together like Cement in a strong Wall are now left like a heap of loose stones or so many single men scarcely escaping with their skin of Liberties and those invaded by many projects and shifts in Government of State-affairs So must I leave them until some happy hand shall work their repair both for time and manner as it shall please that great and wise Master-builder of the World. FINIS THE CONTINUATION OF THE Historical Political DISCOURSE OF THE LAWS GOVERNMENT OF ENGLAND Until the end of the REIGN of Queen Elizabeth WITH A VINDICATION Of the ancient way of PARLIAMENTS In ENGLAND LONDON Printed for John Starkey at the Miter in Fleet-street neer Temple-Bar M.DC.LXXXII THE CONTENTS OF THE Several CHAPTERS of this BOOK I. THe sum of the several Reigns of Edward the Third and Richard the Second fol. 2 II. The state of the King and Parliament in relation of him to it and of it to him fol. 9. III. Of the Privy Council and the condition of the Lords fol. 16 IV. Of the Chancery fol. 21 V. Of the Admirals Court. fol. 24 VI. Of the Church-mens interest fol. 27 VII Concerning Trade fol. 38 VIII Of Treason and Legiance with some Considerations
what manner they thought meet and not otherwise Aids are lawful if they be legally given by common consent of Parliament Taxes if legally given by Parliament are no less lawful yet they must be collected in such manner and by such means as the Parliaments Order doth direct Loans of moneys to the King may be made by them that will but the King must not demand them because the Subject hath no means to recover the debt This trick had been lately tryed by Edward the Second much money he got and it was repayed by the Order of the Parliament But of all the rest nothing shewed more absolute Authority in the publick Revenue than the care that was had of the Demesnes of the Crown for whereas the Expxences of Kings grew so vast that neither the yearly Revenue could suffice nor Aids Assessments and Taxes could satisfie however ordinary they in these times were become rather than Kings would contain themselves they would invade their own Demesnes by pawning selling and giving them away either for love or money and thus was poverty treasured up against the future both for King and Crown The Parliament espying this leak that was like to undo all applyed a speedy remedy undoing what was done and undoing some by an Act of Resumption and thereby taught Kings to look to their Honour better for the future and People also to take heed of medling with such ticklish matters and to know that he that hath such in his possession hath them by a crack'd Title that cannot be amended but by Act of Parliament Fourthly an English King is no Out-law nor can he do any wrong though the man may He hath a double relation one as a King the other as a Man and the uniting of both in one person hath cheated many a man of his judgment in the case of Prerogative He hath a double Will and these many times contrary equally as in other Relations and in this contrariety sometimes the King overcomes the Man and sometimes the Man the King so as if any man the King hath much more cause to cry out O miserable man These divers Wills are generally led by divers Rules One of a man which many times reacheth no higher than the Affections and if the man be weak they deserve little better name than Lusts. The rule of a King is Law or Councils of these in place and unto these in all prudentials he must submit his Judgment and Will as he is a King. Nor can he do otherwise unless he will presume to be wiser than his Council Suitable hereunto doth that clause in one of the Statutes of these times conclude viz. That the King is bound by his Oath to pass all Laws that are for the good of the Kingdom For were the power of Election or determination of the point onely in the King then were the Oath in vain nor is the Parliament at all in case of the King's dissent to judge of the convenience or inconvenience of Proposals made for the good of the whole body according to that power which is exercised in these times Nor is it rational to infer here from that if Law and Council be the Rule of a King then the Obedience of the People unto this King must be in order to Law and Council otherwise the Disobedience cannot be determined to be against the King but against the Man and though against the private Will of the Commander yet not against the Law nor therefore can it be said illegal or unjust The Parliament in these times held forth this Doctrine plainly to the World That it is their proper work in Cases needful to do right to such as are wronged by the King his Command is no Warrant in such Cases If a man be wrongfully imprisoned by him he shall be released and set at liberty by them Let his Act be never so authentical under the Broad Seal it can take no man's Right away Richard the Second did his utmost to satisfie and quiet the tumultuous Rabble under Cade and Straw and granted store of Manumissions to the Bond-men by Declaration and by his Letters-Patents but not one of them good enough to deprive any one of the meanest of the Free-men of their Rights in those Bond-men The priviledge of shewing mercy and granting pardon hath been anciently betrusted to the King as an Overseer of the execution of Law yet he hath not that Prerogative To have mercy on whom he will have mercy Ever since this Nation had learned to read the Bible Murther hath been excepted from mercy nor did the Law ever allow any King that Prerogative to pardon that Edward the Third did not challenge any such not onely bound thereto by his Coronation-Oath but by publick Acts of State declaring the same yet because the Parliament was not always sitting and Kings were ever subject to this Temptation to favour Servants by granting mercy to Malefactors a general Rule of Inhibition is made against all pardon to be granted by the King in case of Felony but onely in cases allowed by advice of the Council It is true that in the first times of Richard the Second he liked not to be thus girt in his power which he pretended was more at liberty in his Predecessors possibly he meaned King John and Edward the Second who many times did what they listed yet under his favour no Law was so shameless as to hold forth such a power till Richard the Second's Law countenanced it But why do I call it a Law which is onely a Declaration by consent of the Lords such as then were the Commons would never own such an Opinion And therefore it soon proved abortive for within three or four years by publick Act of Parliament it is peremptorily declared That the King's Pardon shall not extend to Murther So as upon the whole matter it is plain That it is not the King's Will though supported by the Council of Lords and backed by the Opinion of the Judges that must be a Rule for the Government of this Kingdom nor doth any Allegiance bind Obedience thereunto in case where Justice or the Liberty of the People is concerned Three things yet remain which Kings have claimed to be their own viz. Conferring Titles of Honour and Places of Trust and the Legislative Power The first is but a Feather and not worthy of regard yet it is plain that these times produce many precedents of Dukes Marquesses and Earls made in Parliament and possibly it may be apparent that the first motion of any such Title of Honour did first fetch its original thence if not in the Field but it is not worthy of the labour The second is more considerable viz. The power of conferring Places of Publick Trust This Kings have pretended unto although in course of congruity it will be thought more meet that it belongeth rather to that chief
and grand Trust of the whole Kingdom committed to the Parliament And the practice of these times is not much discrepant whether we regard such as are for advice or execution Of the first of these are those whom we commonly call the Privy Council whose advice in course toucheth first upon the King's Person but by reflection worketh strong impressions upon the People so far as the influence of the King's power extends And therefore it is not beyond the Sphear of the Parliament to interpose and qualifie that influence so as it may be for the general good of the whole Kingdom For many times Kings are either above or beneath themselves and in such cases if the Council be of the King's suit he is of the deeper dye and proves more Malignant to the People Edward the Third growing into great opinion in the World his proportion exceeds his own portion and the Peoples good wills to boot they think the fault is in the Privy-Council and an Inquisition is set upon it So also they do in his fiftieth year when he grows downward And the like in the beginning of Richard the Second's Reign he being now a Youth and therefore unstable in his Resolutions and unable to make Election So as upon the whole matter if the King fall short in point of Judgment or Resolution or inordinate in his Affections but more especially where they observe the major or more considerable part of the Council to draw towards a designe in such cases as these the Parliament as its own duty undertook to settle a good Council about the King's person that might advise him during their recess For the Privy-Council is never more it self than when it is an Epitome of the Common-Council of the Kingdom In like manner such Officers as concern execution of Law and Counsel are as narrowly to be enquired into for if their motion be irregular it is less material what the rule be The Parliament therefore held it their duty to interpose in the Election of grand Officers of the Kingdom such as are the Chancellors Judges and Justices or to confirm or displace them or bind them by Oath The Rolls of the eighth fourteenth fifteenth and thirty-sixth years of Edward the Third and the sixth tenth and eleventh years of Richard the Second do manifest this sufficiently I have done with the Subject-matter or work of the Parliament in the mutual relation of the King and it the manner of proceeding was either joyntly with the King or without him and either joyntly with the two Houses or severally and either immediately by themselves or their Committees As touching the first it is evident that in all matters wherein gain ariseth to the Crown from the people by Subsidy or otherwise the strength of the Grant by Act of Parliament resteth in the two Houses and that the King's Assent is but pro forma as touching that matter and therefore such Grants have been made as tended in some measure to derogate either from the King's Wisdom care or fidelity yet even these have passed with the Royal Assent though the full Assent or good will of the person of the King was not correspondent thereto as in these Cases formerly noted where Subsidies were given with Limitations and Conditions and upon rendring account to the people And it is as evident that where the King's person is disabled to understand as in case of Infancy there the Royal Assent can bear little weight with it but most of all in the King's absence where either the Assent is put thereto by Commissioners that know not the King 's particular mind or the Act is done onely by the Houses in nature of Ordinances and yet these of force to bind all parties but the King. But nothing more debased the Royal Assent in these times than a trick that Edward the Third plaid in the midst of the fullest strength of his Government It was in time of War which never is time of good Husbandry and laying up nor of sober advice in laying out nor of equity in levying and collecting moneys for the Nerves of War. This forward Warrier in the heat of his Atchievements finds his strength benummed for want of money he leaves off comes home rages against his Archbishop to whom he had committed the care of provision for his War and the Archbishop as hotly falls upon some of the Treasury in the Army on the one side and upon others in the Country whose oppressions saith he instead of bringing in money made the people to give a stop thereto A contest hereupon thus had it was concluded by the power of the Parliament that such men should be questioned and that the Parliament from time to time should call all Officers of State to account and thereupon ensues a calm After the Parliament ended the King repeats the matter it makes his heart sick he disgorgeth himself by a Proclamation made by advice of Nobles and Wise men as he saith and tells all the World he dissembled with his Parliament and what he did was done by duress of mind to please for the time and to gain his ends which being now had he by his Proclamation revokes what he had done in Parliament or endeavoured it And thus is England put to School to learn to dissolve three hard knots First Whether a King can dissemble with his Parliament Secondly Whether Edward the Third his dissembling assent makes a Law Lastly Whether by a Proclamation by advice of Nobles and Wise men he can declare that he dissembled with his Parliament and therein not dissemble the Royal Assent so as to bring all the Laws made in any Kings time into question at least during his Life However the result may be it is evident the Royal Assent gets no honour hereby and the Statute as little that hath suffered this Proclamation all this time to pass among the number of the Statutes in Print as a Law whenas many Statutes that are Laws of not are left out as useless Although in the general the two Houses joyned in every Act Ad extra yet Ad intra and in relation one to another they had their several operations the House of Commons intermedled more in the matter of Fact the House of Lords in matter of Right although in either of these there is a mutual aspect from both In matters of Judicature much rested with the Lords and therefore it is ordained that The House of Lords shall remedy all offences contrary to the Law of Magna Charta And in cases where no remedy is left nor Judgement by the Law the matter shall be determined in Parliament and the King shall command execution to be done according to the Judgement of the Peers Which Laws seem to be but declarative of the former Law and in the nature of reviving that power into Act which was formerly laid asleep and doth strongly imply that the ultimate act in
this power within its own bounds than the watry Element upon which it sloated but it made continual waves upon the Franchise of the Land and for this cause no sooner had these great men savoured of the Honour and Authority of that Dignity but comes a Statute to restrain their Authority in the Cognizance of Cases only unto such matters as are done upon the main Sea as formerly was wont to be And within two years after that Act of Parliament is backed by another Act to the same purpose in more full expressions saving that for Man-slaughter the Admirals power extended even to the high water-mark and into the main streams And this leadeth on the next consideration viz. What is the subject matter of this Jurisdiction and Authority I shall not enter into the depth of particulars but shall reduce all to the two heads of Peace and Justice The Lord Admiral is as I formerly said a Justice of Peace at Sea maintaining the Peace by power and restoring the Peace by setting an Order unto matters of Difference as well between Foraigners as between the English and Foraigners as may appear by that Plea in the fourth Institutes formerly mentioned Secondly That point of Justice principally concerneth matters of Contract and Complaints for breach of Contract of these the Admiral is the Judge to determine according to Law and Custom Now as subservient unto both these he hath Authority of command over Sea-men and Ships that belong to the State and over all Sea-men and Ships in order to the service of the State to arrest and order them for the great voyages of the King and Realm and during the said voyage but this he cannot do without express Order because the determining of a voyage Royal is not wholly in his power Lastly the Lord Admiral hath power not only over the Sea-men serving in the Ships of State but over all other Sea-men to arrest them for the service of the State and if any of them run away without leave from the Admiral or power deputed from him he hath power by enquiry to make a Record thereof and certifie the same to the Sheriffs Mayors Bailiffs c. who shall cause them to be apprehended and imprisoned By all which and divers other Laws not only the power of the Admiral is declared but the original from whence it is derived namely from the Legislative power of the Parliament and not from the single person of the King or any other Council whatsoever But enough hath been already said of these Courts of State in their particular precincts One general interest befalls them all That as they are led by a Law much different from the Courts of common-Common-Law so are they thereby the more endeared to Kings as being subservient to their Prerogative no less than the common-Common-Law is to the peoples liberty In which condition being looked upon as Corrivals this principal Maxime of Government will thence arise That the bounds of these several Laws are so to be regarded that not the least gap of intrenchment be laid open each to other lest the Fence once broken Prerogative or Liberty should become boundless and bring in Confusion instead of Law. CHAP. VI. Of the Church-mens Interest BUt the Church-mens interest was yet more Tart standing in need of no less allay than that of the King's Authority for that the King is no less concerned therein than the people and the rather because it was now grown to that pitch that it is become the Darling of Kings and continually henceforth courted by them either to gain them from the Papal Jurisdiction to be more engaged to the Crown or by their means to gain the Papal Jurisdiction to be more favourable and complying with the Prerogative Royal. The former times were tumultuous and the Pope is gained to joyn with the Crown to keep the people under though by that means what the Crown saved to it self from the people it lost to Rome Henceforth the course of Affairs grew more civil or if you will graced with a blush of Religion and it was the policy of these times whereof we now treat to carry a benign Aspect to the Pope so far only as to slave him off from being an enemy whilst Kings drove on a new design to ingratiate and engage the Church men of their own Nation unto it's own Crown This they did by distinguishing the Office or Dignity of Episcopacy into the Ministerial and Honourable Parts the later they called Prelacy and was superadded for encouragement of the former and to make their work more acceptaple to men for their Hospitalities sake for the maintenance whereof they had large Endowments and Advancements And then they reduced them to a right understanding of their Original which they say is neither Jus Divinum nor Romanum but that their Lordships power and great possessions were given them by the Kings and others of this Realm And that by vertue thereof the Patronage and custody of the Possessions in the vacancy ought to belong to the Kings and other the Founders and that unto them the right of Election into such advancements doth belong not unto the Pope nor could he gain other Title unto such power but by usurpation and encroachment upon the right of others But these great men were not to be won by Syllogisms Ordinarily they are begotten between Ambition and Covetousness nourished by Riches and Honour and like the Needle in the Compass turn ever after that way Edward the Third therefore labours to win these men heaped Honour and Priviledges upon them that they might see the gleanings of the Crown of England to be better than the vintage of the Tripple Crown Doubtless he was a Prince that knew how to set a full value upon Church men especially such as were devout and it may be did somewhat outreach in that course For though he saw God in outward events more than any of his Predecessors and disclaiming all humane merits reflected much upon God's mercy even in smaller blessings yet we find his Letters reflect very much upon the Prayers of his Clergy he loved to have their Persons nigh unto him put them into places of greatest Trust for Honour and Power in Judicature and not altogether without cause he had thereby purchased unto his Kingdom the name and repute of being a Kingdom of Priests But all this is but Personal and may give some liking to the present Incumbents but not to the expectants and therefore the Royal Favour extended so far in these times as to bring on the Parliament to give countenance to the Courts and Judiciary power of the Ordinaries by the positive Law of the Kingdom although formerly the Canons had already long since made way thereto by practice I shall hereof note these few particulars ensuing Ordinaries shall not be questioned in the King's Court for Commutation Testamentary Matters or Matrimonial Causes nor other things touching Jurisdiction of Holy-Church Things
going out and nothing coming in he had a rule upon his private expences a good gloss upon the publick and a platform for the augmenting of the Treasure of the Kingdom as well for the benefit of the people as of the Crown 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 Queen who were of a gallant and accomplisht deportment they had a Son a Prince of as great renown as ever Prince had and he also a Family suitable to his generosity that they had other Children every one like their Father both for War and Peace and that for the maintenance of all these the expences must be in reason larger than formerly they were wont to be Nevertheless 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 himself his Wife and Children then to the Families of himself 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 setling of the manner less considerable It must be levyed by Authority in writing under the Seal 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 immediately 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 carriage than is necessary And thus was this wild Ivy of Purveyance that like some kinds of Plants spreads over all by rooting up and cutting down brought into some kind of fashion that if it did no good it might do the less 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 own private interests nor so weak and irresolved as not to employ himself and his Souldiers to the utmost to bring to pass his pretentions nor so unhappy as to fail of the desirable issue of what he took in hand So as though the people parted with much money yet the Kingdom gained much honour and renown and becoming a terrour to their Neighbours enjoyed what they had in fuller security and so were no loosers by the bargain 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 the Taxes were frequent yet but light for frequent light Taxes steal insensibly without regret and as they grow into matters of course so they meet with acceptance of course Two things made them of light account First they were not Taxes altogether of Money in kind but of Goods such as the Sheaf and Fleece and such-like things whereof the ownership is visible whereas many are supposed to have Money which have it not but must borrow it or sell their goods at an under-rate many times to accomplish it for the payment of their Taxes Secondly these Taxes are assessed by the Neighbourhood and not upon extremity of Survey by Commissioners who many times are subject to miscarry upon grounds of private Interest or for want of due information or by making more haste than good speed These Taxes likewise were reduced to the ancient rule according to the Statute of Westminster the first And thus did this King shew himself truly Royal in demanding his Taxes upon evident grounds of State levying them with a tender hand and employing them to their right end Thirdly that which digested all and bred good bloud was in that the people had quid pro quo by the advance of Trade wherein the King shewed himself the Cape-Merchant of the world Certainly mens parts in these times were of vast reach that could manage such Wars settle such a Government and lay such a foundation of a Treasury by Trade a thing necessary to this Island next unto its own being as may appear not only in regard of the Riches of this Nation but in regard of the Strength thereof and in regard of the maintenance of the Crown the two latter of which being no other than a natural effluence of the former it will be sufficient to touch the same in order to the thing in hand Now as touching that it is evident that the riches of any Nation are supported by the Conjuncture of three regards First That the natural Commodities of the Nation may be improved Secondly That the poorer sort of people be set a work Thirdly That the value of money be rightly balanced For as on the one part though the people be never so laborious if the natural Commodities of the Island be not improved by their labour the people can never grow much richer than barely for subsistence during their labour so neither can the improvement of the natural Commodity inrich the Kingdom so long as many mouths are fed upon the main stock and waste the same by idleness and prodigality Nor though both these should concur yet cannot the Kingdom be said truely to be rich unless by intercourse and Traffick there be an emptying out of the superfluity of such Commodities by way of Barter or otherwise for such Forein Commodities whereof this Nation slandeth in most need for supply of all occasions For God hath so attempered the whole Regiment of the earth in such manner that no one Nation under Heaven can well and comfortably subsist in and by it self but all must give and receive mutual Commodity from each other otherwise superfluity would make any Commodity though in it self never so precious vile and little conducible to the inriching of the Nation Now for the compassing of all these the Wise men of these times first took into their consideration the principal Commodities of this Kingdom and because they found them impounded in the Staple they set all at liberty to buy and sell the same as they pleased And thus began a Free Trade of Wool throughout the Realm and matter for employment by every man that would but this continued not long The people soon had Commodity enough for work and Kings liked too well of the restraining of that liberty in order to their own benefit and soon found out occasions to reconcile the reason of State with their own Interests and
certain Cases vouched to that purpose the first concerning the Legiance of Children to Parents which cometh not to this case because it is a Legiance of Nature and this Legiance whereof we speak is yet under a litigious Title And I suppose will in the conclusion be found to rest onely upon a Civil constitution therefore I leave that The second is That a man attainted and outlawed is nevertheless within the King's protection for this saith the Reporter is a Law of Nature Indelebilis immutabilis and neither Parliament nor Statue can take this power away fol. 13. b. 14. a. And therefore the Reporter concludes That as well the Legiance of the Subject as the Protection of him by the King are both of them from the Law of Nature An opinion that speaks much mercy yet it seems strange considering the Pen for if it be a Law of Nature and immutable for the King to protect persons attainted then must no such person suffer for if he be under the King's protection that being by a Law of Nature cannot be changed by any positive Law as the Reporter saith nor can the King be so bound by any such Statute but by a non obstante be can set himself at liberty when he pleaseth and then the issue will be this The King hath a natural power to protect the persons of Law-breakers from the power of the Law therefore much more their Estates and then farewel all Law but this of the Kings natural Protection I say that these are of a high strain considering what the Reporter speaketh elsewhere But to pursue his instance he saith That the King hath power to protect an attainted person That if any man kill him without warrant he is a Man-slayer and yet this person attainted hath lost the legal protection It is true yet not to all intents for by the Sentence of the Law his life is bound up under the Law of that Sentence viz. That he must not suffer in other manner than the Sentence determineth nor before Warrant of Execution issue forth to that end And notwithstanding the Sentence yet the Law leaveth him a liberty of Purchase or Inheritance though to the use of the Crown and therefore in some respects the Law protects his person so long as he lives and the King 's natural Protection is in vain in such cases Lastly suppose the King hath a power of Non ohstante if the same be allowed to him in a limited way by the Law it is no Argument to prove the King's natural power which is driven at under natural Legiance much less if it cannot be made forth that the Law doth allow any such power of Non obstante at all but by the iniquity of the times permitteth the same to subsist onely to avoid Contention as it came into this Kingdom by way of Usurpation And thus I have onely discovered the Foundation of this first Qualification which I shall onely leave naked supposing that no man seeing it will build at all thereupon The second Property that cometh to be considered is That English Legiance is absolute fol. 5. b. fol. 7. a. which is a word of a vast extent serving rather to amaze men's apprehensions than to enlighten them And therefore the Reporter did well not to trouble himself or the Reader in the clearing or proof thereof but lest the point rather to be believed than understood nor shall I in the Negative For God himself can have no other Legiance from an Englishman than absolute Legiance and Kings being as other men subject to erre especially in this point of Prerogative are much rather subject thereto being misled by such Doctrines as these are The Scripture determines this point and cuts the knot in sunder The third property of English Legiance which the Reporter insisteth upon is that it is indefinite which he explaineth to be Proprium quarto modo so as it is both Vniversal and Immutable fol. 5. b. fol. 12. and neither defined by Time Place or Person As touching the Time and Person the Reporter enlarged not at all therefore I shall onely leave the Reader to chew upon the point supposing himself in the first times of Edward the Fourth when Henry the Sixth was then alive and let him resolve to which of them his Legiance had been due considering them both in their natural capacity as the Reporter would have it But as touching the place it is reported that English Legiance is not onely due from an English man to an English King in England but in all places of the Kings Dominions though otherwise Forem as to the power of the Law of England Yea saith the Reporter as far as the Kings power of protection doth extend And yet this had not been enough if the Premises be granted For if this Legiance whereof we speak be absolute and omni soli semper then it is due to the King from an English man ubivis Gentium Nevertheless to take the Reporter in a moderate sence it is worth consideration whether English Legiance in the days of Edward the Third extended as far as the Kings power of Protection whenas he had the Crown of France in a Forein right to that of England In this the Reporter is extreamly positive upon many grounds which he insisteth upon First he saith that Verus and Fidelis are qualities of the mind and cannot be circumscribed within the predicament of Vbi and upon this ground he might conclude that this Legiance is due to the King from an English man all the world over as well as in all the King's Dominions But concerning the ground it may be denied for though simply in it self considered as a notion Verity or Fedility are not circumscribed in place yet being qualities of the Soul and that being in the Body in relation thereunto it may be in the predicament of Vbi for where-ever that Body and Soul is there is Faith and Truth according to its model which though not absolute and indefinite yet if according to the Laws of the place wherein the man is he is truly said to be Verus Fidelis Secondly The Reporter argueth that the King's Protection is not local or included within the bounds of England therefore also is not the Legiance for Protectio trahit Legiantiam Legiantia Protectionem Had this reason been formed into a Syllogisim it had appeared less valuable for the Protection of an English King qua talis of an English man is local and included within the bounds of the Kingdom But if the same King be also King of France or Duke of Aquitane and an English man shall travel into those parts he is still under the same King's protection yet not as King of England but as King of France or Duke of Aquitane Otherwise let the party be of France or Aquitane or England all is one he must be whether French or English under an unlimited absolute Protection without regard had
to the Customs or Laws of the place yea contrary to them which I believe the Reporter never intended to affirm Thirdly The Reporter salleth upon the matter in fact and tells us that the King of England did many times De facto grant Protections to persons in places out of the English Consines and it will not be denied But never was any absolute and indefinite Protection so granted for the Protection extends to defence from injury and all injury is to be expounded and judged according to the Laws of the place Nor do any of the Precedents vouched by the Reporter clear that the King of England did grant as King of England Protection to any Englishman in any parts of the King's Dominion beyond the Seas which was not qualified according to the Laws and Customs of that place Especially it being apparent that an English King may hold Dominion in Foreign parts in Legiance under a Foreign King as Edward the Third held the Dutchy of Guien and therefore cannot grant absolute Protection in such place nor receive absolute Legiance from any person there being Fourthly The Reporter saith That the King of England hath power to command his Subjects of England to go with him in his Wars as well without the Realm of England as within the same therefore the Legiance of an Englishman to his King is indefinite and not local or circumscribed by place or within the Kingdom of England Although the first of thâ—se be granted yet will not the inference hold for possibly this may arise from the constitution of a positive Law and not from natural or absolute Legiance nor doth any Authority by him cited justifie any such Legiance But I cannot agree the first for it is not true that the King hath any such power from his own personal interest nor doth the authority of former Ages warrant any such matter For a fuller disquisition whereof I shall refer the Reader to the Eleventh Chapter ensuing because the whole matter concerning the Militia cometh there to be handled in course Fifthly To close up all the rest the Reporter brings The Testimony of the Judges of the Common Law out of the Testimony of Hengham wherein an Action was brought by a French woman against an English man who refused to answer because the Plaintiff was a French woman and not of the Legiance or Faith of England This was disallowed by the Judges because Legiance and Faith was referred to England and not to the King. Thereupon the Defendant averred that the Plaintiff is not of the Legiance of England nor of the Faith of the King And upon this Plea thus amended the Plaintiff gave over her Action The Reporter from hence observeth that Faith and Legiance is referred to the King indefinitely and generally and therefore it is so due to him The reason might have had more force had the Object of Allegiance or the nature thereof been the point in question but neither of them coming to debate and Allegiance being subjected to England and Faith to the King I see not what more can be concluded from hence but that Allegiance from an English man is due to England and Faith to the King which I suppose must be intended to be in order to that Allegiance because by the former Plea England had them both and the King was wholly left out in the Case Nevertheless I rather think that the present point in controversie will receive little light herefrom on either part We are now come to the fourth property of English Legiance that it is due to the King 's Natural Capacity and not to his Politick Capacity or due to the Office of a King in regard of the Person of the Man and not to the Person in regard of the Office fol. 20. And because this is of no small importance neither easily understood nor granted Therefore he backeth his Opinion by many reasons First he saith that the King sweareth to his Subjects in his Natural Capacity therefore the Subjects swear to him in his Natural Capacity This reason was intended to be taken from Relatives and then it should have been thus A King doth swear to his Subjects in their Natural Capacity therefore Subjects swear to a King in his Natural Capacity But it being otherwise it is mistaken and proves not the Point Yet if we should take the Reporter in sano Sensu there is no question but the Oath is made to the Natural Capacity yet not Terminativè more than the Oath of the Tenant to his Lord which this Author pleaseth to couple with the mutual dependence between King and Subject fol. 4. b. 5. a. Nor doth the Oath of an Englishman bind him to the Obedience of all or any Commands which the King shall give in relation onely to his Natural Capacity or in opposition to his Politick Capacity Nor will the Reporter himself allow that the Politick Capacity of the King can be separate from his Natural Capacity fol. 10. And yet it is evident that a King may in his Natural Capacity command that of which his Politick Capacity cannot give Allowance The second reason of this Opinion is taken from the nature of Treason which saith the Reporter is committed against the Natural Person of the King and this is against due Legiance according to the form of Indictments in that Case provided This is not demonstrative because that crime which is done against the Natural Person of a Man may as well extend to it in relation to his Place or Office and so may Treason be plotted against the Natural Person of a King as he is King neither is there any other difference between the murther of a King and a private Man but only in regard to the Place and Office of a King which makes the murther of him Treason For which cause all Indictments that do conclude Contra Legiantiae debitum do as well also conclude Contra Coronam Dignitatem c. The third reason is this A body politick can neither make nor take Homage 33. H. 8. Bro. tit Fealty Therefore cannot the King in his Politick Capacity take Legiance The first must be granted only sub modo for though it cannot take Homage immediately yet by the means of the Natural Capacity it may take such service And therefore that Rule holds only where the Body Politick is not aggregate and not one Person in several Capacities for the Tenant that performs his service to his Lord performs the same to his Lord in his Natural Capacity but it is in relation to his Politick Capacity as he is his Lord. For Lord and Tenant King and Subject are but Notions and neither can give nor take service but that Man that is Lord or Tenant or King or Subject may even as the power of protection is in a King not as he is a Man but as a King. The fourth reason is this The King 's Natural Person hath right in the Crown by Inheritance therefore also in the
are not of the Legiance of the King of England but as Lord of that Territory The other matter to be observed concerning pleading in the Courts of Civil Justice is this That whereas anciently from the Normans time till these times the pleadings were in the Norman Tongue they shall be henceforth in English out of an inconvenience I believe rather supposed than felt For though some kind of knowledge of Law-terms may be encreased thereby yet unless that shall be professedly studied it will breed nothing but Notions and they an over-weening conceit which many times sets men to Suits in Law to their own loss like some weak influence of the Celestial Bodies that are strong enough to stir up humours but not to expel them or draw them out However even thus in part is the reproach of Normandy rolled away like that of Egypt from the Israelites at Mount Gilgal CHAP. XI Of the Militia in these times WAR is ever terrible but if just and well governed Majestical the one may excite resistance and defence but the other conquers before blow given because it convinceth the Judgment and so prevails upon the Conscience For that heart can never be resolute in its own defence that is at War with its own understanding nor can such a heart consider such a War otherwise than as Divine and bearing the face of an Ordinance of God and then how can the Issue be unsuccessful It is no strange thing for Kings to miscarry in their Wars because it is rarely seen that they are under good Counsel but if a Christian Counsel miscarry we may conclude it extraordinary in the efficient cause and no less wonderful in the issue and end Upon this ground it concerneth a Christian Nation not onely in point of honour but of safety and continuance to settle fundamental Laws of War against time of War as of Peace in time of Peace Neither was England deficient herein saving that antient times were more obscure in the particulars and these days revealed them at such a time wherein we may say that Edward the Third approved himself not onely King of England but of himself above the ordinary strain of expectation For being now become a famous Commander and Conquerour having also an Army inured to fight and overcome and so might have given a Law he nevertheless received the same submitting both it and himself to the Directory of the Parliament in making a War with France which was three to one against him in very respect but in the Title besides the disadvantage from Scotland that lay continually beating upon his Rear The like may be observed of his War with Scotland in both which he evidently telleth the World that he held it unreasonable to enter upon the managing of an offensive Foreign War without the concurrence of the common consent of the People and that not onely for the thing it self but also for his own Personal Engagement in the Service For a King though he be the Generalissimo yet is he so from the People and his Person being of that high value is not to be exposed to every occasion that may provoke War without due advice first had with the publick Council because in his Person the People adventureth as well as himself And in this manner were the Wars in France by Edward the Third and in Scotland concluded upon debate In the next place as touching the Arrays of Men for War I find no foot-steps of any power which was claimed as peculiar to the King therein and acknowledged by the Parliament but many instances do I meet with in the opposite all which do plainly tell us that the old shifts of Jurati and Obligati ad arma could do little either in the calling of men forth or arming them for the War. But in case of publick defence against Foreigners men were summoned upon their Legiance as anciently was used And this was by both King and Parliament fully declared and all such Obligations by writing called in and damned as dishonourable to the King. In foreign service the course was no less regular if the War was by special direction of the Parliament they likewise ordered the manner of the raising of Souldiers viz. so many out of a County and so many out of a Burrough all which are by the express words of the Statute said to be granted by the Knights and Burgesses But if it was onely upon the King 's particular instigation and not by order or consent of the Parliament the King in such case being Voluntier all the Souldiers were in like manner unless some particular Law or Tenure otherwise obliged them As touching the arming of Souldiers the Law was yet more certain and particular If the Souldiers were men of Estate they were armed according to the ancient rule asserted by the Statute at Winton or otherwise were especially assessed by the Parliament or by virtue of their Tenures The first of these is confirmed by Edward the Third in Parliament wherein he willeth that no man shall be urged to arm himself otherwise than he was wont in the times of his Ancestors Kings of England The two latter were likewise confirmed by another Law made in the same Kings time whereby it was ordained That no Man shall be constrained to find Men of Arms Hoblers nor Archers other than those which hold by such services if it be not by common consent and grant made in Parliament By Men of Arms meaning those which we now call Curiassieres or compleat armed by Hoblers meaning those now called light Horse-men The Archers served on Foot and were principally armed with Bows although they had also Swords or other such offensive portable Weapons The first of these concerneth onely the arming of a man 's own person the other the finding of Souldiers and arming of them and both together sufficient for the safeguard of the Rights and Liberties of the People invaded in those times by Commissions of Array and such other expressions of Prerogative Royal for as touching the arming of a man 's own person the Statute of 1 Edward 3. formerly mentioned is clear in the point And though the Statute of 25 Edward 3. doth not in the latter direct as touching the finding Arms for others as is urged in his Majesty's Answer to the Declaration of the Parliament concerning the Commission of Array July 4. 1642. yet is it therein granted that a compleat Souldier is within the Letter of the Statute and seeing the person of the Souldier is not in the power of any private person in such cases to command him to the service it seemeth clear to me that the Statute must intend the arming of him with compleat Arms and not the armed person of the man. The Souldiery thus arrayed they are in the next place to be called to their Rendezvouz the Knights by Summons sent to the Sheriff but the rest by Proclamation If the Knights appear
till by Laws Enacted in Parliament they lost their Liberties of bearing Office Ministerial or of Judicature of holding Castle of Convention without the Kings License yea of Purchase and by degrees were brought down from the height of a Free Principality to be starved in their power and inferiour to a Free People And thus the Welsh on the one side the discontented Lords on the other and Mortimar's Title in all so busied the King as though he lopped off the Tops as they sprang up yet they sprang forth as they were lopped nor was it the Kings lot all this while to find out the root of All or to strike at that Lastly when time had made all Troublers weary yet he still sits upon Torns he was jealous of his Subjects jealous of his Son yea jealous of himself it being ever the first and last of his thoughts how to keep his Crown For the most part of his Reign he was troubled with the walking Ghost of Richard the Second ever and anon he was alive he was here he was there and so the peoples minds were always kept at random but when all these Spirits are conjured down Richard the Second's Ghost is yet within Henry's own breast So ruled Henry the Fourth an unhappy confident man that durst undertake more than he would did more than he ought was successful in what he did yet never attained his end to be sure of his Crown and quiet of mind For a Plaister to this Sore he turned somewhat towards Religion but shewed it more in zeal to Church-men than in works of Piety and therefore may be thought to regard them rather as his best Friends in right of Archbishop Arundel than as in relation to Religion Yet as if he overlooked that he desires their Prayers becomes a strict observer of superstitious Rites is fiery zealous against the Lollards intends a Journey into the Holy Land and War against the Infidels the common Physick of guilty Kings in those days Briefly he did will to do any thing but undo what he had done and had done more had his Journey to the Holy Land succeeded But whether hastned or delayed by a Prophecie of the ending of his days falls not within my Pen to censure entring upon the Work he died in the beginning of his purposes in the midst of his fears never came to the Holy Land and yet yielded up his last breath in Jerusalem The Parliament was then sitting and was witness of the death of Henry the Fourth as it had been of his entrance upon the Throne as if purposed to see the course of the Crown in the doubtful current between the two Houses of Lancaster and York and to maintain their own Honour in directing the Scepter according to their warranty upon a late Intail by Act of Parliament Yet did not all rest upon this for the Heir of Henry the Fourth was a Man every inch of him and meant not to Moot upon the point His Father died a King and he his Heir had the Crown and was resolved to hold it A rough young man he had been formerly and bold enough to out-face small doubts in point of Succession for he could for need out-face common Civility it self This might have lien in his way for he that cannot govern himself can much less govern a Kingdom Yet a hidden providence concluded quite contrary and rendred him a clear Testimony of a strange change by the anointing Oyl like that of Saul that forthwith had the Spirit of another man. So though not hammered thereto by Affliction as was Edward the First yet was he his parallel in Government and superiour in Success Being seated in the Throne all men thought it dangerous to abide the adventure of the Turn of this Kings Spirit The Clergie had but yesterday tried the Mastery with the Laity and gained it but by one Vote there was no dealing with the Clergie whilst Archbishop Arundel lived nor with him whilst Henry the Fourth lived or his Merits were in memory but now they both are dead the Clergie and the Laity are upon even ground This might make the Clergie now not over-confident The Lords looked on the King as a man like enough to strike him that stands next The wise men saw he would be doing all men were tired with Intestine Quarrels and jumped in one That he that would be in action should act abroad where he might get Renown and a Purchase big enough for his Spirit Scotland was a Kingdom yet incompetent to the King's Appetite France was the fairer Mark and better Game and though too big for the English gripe yet the Eagle stooped and sped himself so well as within six years he fastned upon the Sword and Scepter and a Daughter of France and might have seized the Crown but chose to suffer a blur to lie upon his Title derived from Edward the Third rather than to incur the censure of Arrogancy over a stooping Enemy or to pluck the fruit from the Tree before it was fully ripe which in time would fall â—nto his lap by a better Law than that of the Sword Otherwise it might be well conceited that he that hath both Right and Power and will not seize disclaims Besides the King was as well Inheritor to his Father's Fate as Crown still he had success but the end was so far distant that he died in the way thereto The brave Dauphine of France maintaining War after his Father the French King had yielded up the Bucklers to Henry the Fifth till Henry the Fifth died and the English did forgo what they had formerly gotten in France by the Sword of that great Commander Nor did the English gain any thing in the conclusion of this War but an honourable windy repute of being one of the five Chief Nations of Christendom if honour it be to be reputed amongst the Nations a Conquerour of France the chief Leader unto the dethroning of three Popes at once the Election of Pope Martin and of giving a Cure to that deadly Wound of the Popedom which had spent the bloud of two hundred thousand mens lives lost in that Quarrel These Foreign Engagements made the King less sollicitous of the point of Prerogative at home and the rather because he knew the way to conquer his private Enemies Arms and his Subjects Hearts without loss of Honour in the one or Reverence in the other He loved Justice above the rank of his Predecessors and in some respects above himself for he advanced Gascoign for doing Justice though to the King 's own shame He liked not to intrude himself into Elections and therefore though requested by the Monks of Canterbury he would not nominate a Successour to Archbishop Arundel but left the whole work to them In the Authority of his place he was moderate and where his Predecessors did matters without the Lords consent when he made his Unkle the Marquiss of Dorset Duke of Exeter and had given
And thus the Free-men yielded up their liberty of Election to the Free-holders possibly not knowing what they did nevertheless the Parliament well knew what they did this change was no less good than great For first These times were no times for any great measure of Civility The Preface of the Statute shews That the meanest held himself as good a man as the greatest in the Country and this tended to Parties Tumults and Bloudshed Secondly Where the Multitude prevail the meaner sort are upon the upper hand and these generally ignorant cannot judge of persons nor times but being for the most part led by Faction or Affection rather than by right Understanding make their Elections and thereby the general Council of this Nation less generous and noble Thirdly There is no less equity in the change than policy For what can be more reasonable than that those men onely should have their Votes in Election of the Common-Council of the Kindom whose Estates are chargeable with the publick Taxes and Assessments and with the Wages of those persons that are chosen for the publick Service But above all the rest this advancing of the Free-holders in this manner of Election was beneficial to the Free-men of England although perchance they considered not thereof and this will more clearly appear in the consideration of these three particulars First It abated the power of the Lords and great Men who held the inferiour sort at their Devotion and much of what they had by their Vote Secondly It rendred the Body of the People more brave for the advancing of the Free-holder above the Free-man raiseth the spirit of the meaner sort to publick regards and under a kind of Ambition to aspire unto the degree of a Free-holder that they may be somewhat in the Commonwealth And thus leaving the meanest rank sifted to the very bran they become less considerable and more subject to the Coercive power whilst in the mean time the Free-holder now advanced unto the degree of a Yeoman becomes no less careful to maintain correspondency with the Laws than he was industrious in the attaining of his degree Thirdly But this means now the Law makes a separation of the inferiour Clergie and Cloistered people from this service wherein they might serve particular ends much but Rome much more For nothing appeareth but that these dead persons in Law were nevertheless Free-men in Fact and lost not the liberty of their Birth-right by entring into Religion to become thereby either Bond or no Free Members of the people of England Lastly As a binding Plaister above the rest First a Negative Law is made that the persons elected in the County must not be of the degree of a Yeoman but of the most noted Knights Esquires or Gentlemen of the County which tacitly implies that it was too common to advance those of the meaner sort Whether by reason of the former wasting times Knights and Esquires were grown scant in number or by reason of their rudeness in account or it may be the Yeomanry grew now to feel their strength and meant not to be further Underlings to the great Men than they are to their Feathers to wear them no longer than they will make them brave Secondly the person thus agreed upon his Entertainment must be accordingly and therefore the manner of taxing in full County and levying the rate of Wages for their maintenance is reformed and settled And Lastly their persons are put under the protection of the Law in an especial manner for as their work is full of reflection so formerly they had met with many sad influences for their labour And therefore a penal Law is made against force to be made upon the persons of those Workmen of State either in their going to that Service or attending thereupon making such Delinquents liable to Fine and Imprisonment and double damages And thus however the times were full of Confusions yet a foundation was laid of a more uniform Government in future times than England hitherto had seen CHAP. XV. Of the Custos or Protector Regni KIngs though they have vast Dimensions yet are not infinite nor greater than the bounds of one Kingdom wherein if present they are in all places present if otherwise they are like the Sun gone down and must rule by reflexion as the Moon in the night In a mixt Commonwealth they are integral Members and therefore regularly must act Per deputatum when their persons are absent in another Legialty and cannot act Per se Partly because their Lustre is somewhat eclipsed by another Horizon and partly by common intendment they cannot take notice of things done in their absence It hath therefore been the ancient course of Kings of this Nation to constitute Vice-gerents in their absence giving them several Titles and several Powers according as the necessity of Affairs required Sometimes they are called Lord Warden or Lord Keeper of the Kingdom and have therewith the gegeral power of a King as it was with John Warren Earl of Surrey appointed thereunto by Edward the First who had not onely power to command but to grant and this power extended both to England and Scotland And Peter Gaveston though a Foreigner had the like power given him by Edward the Second over England to the reproach of the English Nobility which also they revenged afterward Sometimes these Vice-gerents are called Lieutenants which seemeth to confer onely the King's power in the Militia as a Lieutenant general in an Army And thus Richard the Second made Edmund Duke of York his Lieutenant of the Kingdom of England to oppose the entry of the Duke of Hertford afterwards called Henry the Fourth into England during the King's absence in Ireland And in the mean while the other part of the Royalty which concerned the Revenues of the Crown was betrusted to the Earl of Wiltshire Sir John Bush Sir James Baggot and Sir Henry Green unto whom men say The King put his Kingdom to farm But more ordinarily the Kings power was delegated unto one under both the Titles of Lord Guardian of the Kingdom and Lieutenant within the same such was the Title of Henry Lacy Earl of Lincoln and of Gilbert de Clare Earl of Gloucester and of Audomar de Valentia Earl of Pembrooke all of them at several times so constituted by Edward the Second as by the Patent-Rolls appeareth So likewise did Edward the Third make his Brother John of Eltham twice and the Black Prince thrice and Lionel Duke of Clarence and his Brother Thomas each of them once in the several passages of Edward the Third beyond the Sea in the third fifth twelfth fourteenth sixteenth nineteenth and thirty third years of his Reign concerning which see the Patent-Rolls of those years And Henry the Fifth gave likewise the same Title and Authority to the Duke of Bedford upon the King's Voyage into France and afterward that Duke being sent over to second the King
in the French Wars the Duke of Gloucester obtained the same power and place But Henry the Sixth added a further Title of Protector and Defender of the Kingdom and Church of England this was first given to the Duke of Bedford and afterwards he being made Regent of France it was conferred upon the Duke of Gloucester And towards the latter time of Henry the Sixth it was granted by him to Richard Duke of York This Title carried along with it a power different from that of a King onely in honour and the person so adorned may be said to sway the Scepter but not to wear the Crown And therefore in the minority of Henry the Sixth whenas the Government was ordered by the Parliament and to that end a Protector was made and he well guarded with a Privy Council and they provided with Instructions one of them was That in all matters not to be transacted ordinarily but by the King 's express consent the Privy Council should advise with the Protector But this is not so needful in regard that it concerneth the power of executing of Laws which by right of the liberty of the Subject is the known duty of the Scepter in whose hands soever it is holden And therefore I shall pass to the Legislative Power wherein it is evident that the Protector 's power was no whit inferiour to the King's power For First the Protector Ex Officio by advice of the Council did summon Parliaments by Writs even as the Kings themselves under their own Test and if they did not bear the Royal Assent yet did they direct the same and received Petitions in Parliament to them directed as to Kings and every way supplied the room of a King in order to the perfecting publishing and enforcing of Law to Execution Secondly the Parliaments holden by Protectors and Laws therein made are no whit inferiour to those by the King whether for Honour or Power And therefore if a Parliament be holden by the Lord Warden and sitting the Parliament the King in person shall arrive and be there present neither is the Parliament interrupted thereby nor the power thereof changed at all though the power and place of the Wardenship of the Kingdom doth utterly vanish by the personal access of the King because in all places where the King is subservient to the Kingdom or the Commonwealth the Lord Warden in his absence is conservient unto him being in his stead and not under him for the very place supposeth him as not because not present And this was by a Law declaratively published at such time as Henry the Fifth was Regent of France and therefore by common presumption was likely to have much occasion of residence in that Kingdom aâ—â— it holdeth in equal force with all other Laws of the highest size which is the rather to be noted because it is though under a Protector obligatory to the King and makes his personal presence no more considerable than the presence of his shadow For the King spent three whole years in the French Wars and during that time never saw England where nevertheless in that interim three Parliaments had been holden one by the Duke of Bedford and two by the Duke of Gloucester in the last of which this Law was made And in truth if we look upon this Title of the Kingdoms Guardianship in its bare Lineaments without lights and shadows it will appear little better than a Crown of Feathers worn onely for bravery and in nothing adding to the real ability of the governing part of this Nation Neither were the persons of these Magnificoes so well deserving nor did the Nation expect any such matter from them Edward the First was a wise King and yet in his absence chose Edward the Second to hold that place he being then not above fourteen years of age Afterwards Edward the Second's Queen and the Lords of her party were wise enough in their way and yet they chose Edward the Third to be their Custos Regni then not fourteen years old his Father in the mean time being neither absent from the Kingdom nor deposed but onely dismissed from acting in the administration of the Government Edward the Third follows the same example he first makes his Brother John of Eltham Custos Regni and this he did at two several times once when he was but Eleven years old afterwards when he was about Fourteen Then he made his Son the Black Prince upon several occasions three times Lord-Warden of the Kingdom once he being about Nine years old and again when he was Eleven years old and once when about Fourteen years old Lastly Edward the Third appointed his Son Lionel Duke of Clarence unto this place of Custos Regni when as he was scarce Eight years old all which will appear upon the comparing their Ages with the several Rolls of 25 E. 1. 3 5 12 14 26. 19 E. 3. If therefore the work of a Custos Regni be such as may be as well done by the Infants of Kings as by the wisest Counsellor or most valiant man it is in my opinion manifest that the place is of little other use to this Commonwealth than to serve as an attire to a comely person to make it seem more fair because it is in fashion nor doth it advance the value of a King one grain above what his Personal endowments do deserve Hitherto of the Title and Power the next consideration will be of the original Fountain from whence it is derived wherein the Precedents are clear and plain that ordinarily they are the next and immediate Off-spring of Kings if they be present within the four Seas to be by them enabled by Letters-Patents or Commission But whether present or absent the Parliament when it sate did ever peruse their Authority and if it saw need changed enlarged or abridged both it and them Thus was the Duke of Gloucester made Lord Warden in the time of Henry the Fifth he being then in France in the room of the Duke of Bedford The like also in Henry the Sixth's time when as the King was young for then the Parliament made the Duke of Bedford Lord Warden and added unto that Title the Title of Protector Afterward at the Duke's going over into France they committed that service to the Duke of Gloucester if I forget not the nature of the Roll during the Duke of Bedford's absence and with a Salvo of his right Not unlike hereunto was the course that was taken by the Parliament in these sullen later times of Henry the Sixth whereof more hereafter in the next Paragraph Lastly The limitation of this high power and Title is different according to the occasion for the Guardianship of the Kingdom by common intendment is to endure no longer than the King is absent from the Helm either by voluntary deserting the work or employment in Foreign parts though united they be under the Government of the same King together
allow the Chief Justice of the King-bench unto that service in any of them all but onely once in the County of Lancaster and then onely at the King's pleasure Otherwise it was to be as was used by the space of one hundred years foregoing possibly because his power was too great to be trusted amongst the people Lastly the Judges of Nisi Prius were anciently made by Edward the First by whom also the Assizes were settled at certain times of the year and afterwards by the Statute of York the Nisi Prius in smaller cases was granted before one Justice of the Bench where the Plea dependeth and one substantial man of the County but those of greater concernment were to be had before two Justices of that Bench or in case they were wanting then before Justices of the other Bench or in default of them before the chief Baron if he were a man of Law and in default of that before the Judges of Assize Therefore in those days the Justices of the Benches in their Iters in the Counties were divided in their power some being for Assizes others for Nisi Prius and in some times and cases some were for both For in those times of Edward the Third Judges of Assize had power to enquire in some matters that concerned the Crown or to try Nisi Prius Nor were these powers united till in Henry the Sixth's time Justices of Nisi Prius had the power of Oyer and Terminer annexed to them in all cases of Felony and Treason What was formerly provided by Edward the Third and Richard the Second for instruction to these Judges and to bind them thereto by solemn Oath I shall not particularly mention but shall leave the consideration of the Original of the whole Judicature of this Nation unto the Readers observation upon the premises CHAP. XX. Concerning Sheriffs HEnry the Fourth after a small rest in his Throne though he always sate loose sought after the civil Peace as the corner-stone of his subsistence and that by a way of Justice which found more acceptance with the Vulgar than the common Education of the greater number in these times could promise for the worst of men cannot endure to suffer Injustice though themselves will do it Now because where Kings are reputed to be the Fountain and Life of Justice Sheriffs may be reputed to be the breath thereof and by their Irregularities do render the Government of the King as loathsome as unsavoury breath doth the person whose it is Therefore Henry the Fourth chose rather to be a loser in his Farmâ—â—ts of the Sheriff-wicks than to occasion the Sheriffs to save their bargains by oppression And to this end he took away the course of farming of Sheriff-wicks and made the Sheriffs bare accountants for the Annual profits and as touching the casual profits the Sheriff discharged himself upon Oath This was a good security to the King but yet the People was not herewith satisfied For though the Sheriffs might not take to Farm yet what they had they might let to Farm and then wherein are the people the better for these Laws seeing it is all one for them to be oppressed by the Sheriff immediately as by the Proxy For preventing of this inconvenience another Law is made That the Sheriff shall not let his Bailywick to Farm nor be Non-resident and to this he must bind himself by Oath So as now the Sheriff is double girt and may be fairly ridden without danger to the King or People But men ride Horses for ease and pleasure and he that must bend his mind always to watch his Horses motion will chuse rather to go on foot And therefore Henry the Fifth renewed the Law of Richard the Second that Sheriffs shall be but for one year and then not to be chosen again nor serve for three years next following This Order continued for the space of eight years within which time War 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 four years And it was above twenty years after e're the Stock was recruited again after which time the substance of the former Statutes of Edward the Third Richard the Second and 1 Henry the Fifth is revived again with a penalty upon the Sheriff his Deputy or Clerk that shall execute that place above one year So the custom of holding that Office ten or twelve years by occasion of the Dispensation for four years was laid aside But the Cure would never be perfect so long as Sheriffs held by Inheritance for it was easie to find new Deputies but not to lay down old Customs nor could it be lasting unless the penalties also had been annexed to the particular Crimes For a Sheriff before he is a year old by experience formerly had becomes too cunning for all these Laws and therefore Laws are made also against the ordinary corruption of these places such as are extorting of Fees false making of Juries false returns 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 ado a Sheriff is made a tolerable Officer and his place by degrees so hedged in that what was in former times hard to pluck up is now become hard to set CHAP. XXI Of Justices and Laws concerning the Peace THE faint Title of Henry the Fourth to the Crown made him ever tender of the Civil Peace without breach whereof he was sure to be quiet in the Throne He undertook not this work by any superlative power from and by himself but useth the help of the Parliament and Laws wherein he was industrious pretending love of Unity amongst his people which nevertheless he liked not unless in order to quiet between himself 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 unless 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 Council so as now by Law the King can neither be Justice nor make Justice Jure proprio but as his interest with the Council is more or less prevalent and that power that first gave it to the Crown the same power took it away or imparted and placed it else where But as touching the Work or Power of the Justices themselves it grew exceedingly much whereof was only of enquiry and to make Certificates as of Heresie Treason Falshood of Sheriffs c. But more of Oyer and Terminer as in case of Watches deceitfulness in Trades as of making Arrow-heads guilding of Metal
Liveries are all great though in themselves never so small and therefore are sure of Fine and Ransome and it is well if they escape a years imprisonment without Bail or Mainprize Lords may wear the King Livery but may give none Knights and Esquires may wear the Kings Livery in their attendance upon his person but not in the Country The King and â—â—ince may give Liveries to Lords and menial Servants The sum is that Liveries may be given by the more publick persons for state not to make parties and men may wear Liveries in token of Service in Peace and not in Arms. One thing must be added to all which may concern Trial in all Viz. A Law was made that Noble Ladies shall be tried by their Peers A Law now of the first stamp and strange it is that it never came before now into the breast of the Law but that it came now it is not strange No meaner person than the Dutchess of Gloucester is first charged with Treason when that could not appear then for Necromancy very fitly that she might be tried by the Ecclesiastical way of Witnesses She is found guilty and a Sentance of Penance and Imprisonment or Banishment passed thereupon after such a wild way as both Nobles and Commons passed this Law for the vindication of that noble Sex from such hudling Trials for the future CHAP. XXII Of the Militia during these times THe Title of Henry the Fourth to the Crown was maintained principally by his Tenures which the Courtiers call Knight service but the Common people force of Arms And that which destroyed many a man was the principal means of his subsistence Otherwise it is clear that his Title was stark naught nor could he outface Mortimer's Title without a naked Sword which he used warily for he had Enemies enough to keep his Sword in hand and Friends enough to keep it from striking at random For coming in by the peoples favour he was obliged to be rather remiss than rigorous yet his manner of coming was by the Sword and that occasioneth men much to debate about his absolute power in the Militia as supposing that what power he had other Kings may De jure challenge the same And let that be taken for granted though it will not necessarily follow in true reasoning And let it also be taken for good That Henry the Fourth entred the Throne by his Sword yet is there not any Monument in Story or Antiquity that favoureth any absolute right in him over the Militia but the current is I think somewhat clear against it First Because Henry the Fourth De jure could not compel men to serve beyond the Seas but raised them by contract and therefore by Act of Parliament he did confirm the Statute 1 Edw. 3. Stat. 2. cap. 5. which Statute was purposely made to that end And the same also is countenanced by another Statute made in these times whereof we now Treat by the words whereof appeareth that the Souldiers for the Foreign Service were levied by Contract between them and the Captain who undertook to levy them by Wage so as none were then compelled to enter into Service by Imprest or absolute Command Nor is there any Authority amongst all those cited in Calvin's Case that doth mention any such thing but contrarily that Opinion of Thirning is express That the King cannot send men beyond Seas to Wars without Wages and therefore no man is bound to any such service by any absolute Legiance as the Reporter would understand the point but if he receiveth Wages thereto he by that Contract binds himself Secondly It seemeth also to be granted that such as went voluntarily in the Kings Service ever had the Kings Pray after they were out of their Counties if the King ruled by his Laws For by the Statute formerly mentioned the King did likewise confirm the Statute of 18 Edw. 3. Stat. 2. cap. 7. which is express in that point and the matter in fact also is evident upon the Records Thirdly Touching the arming of those that were thus levied as there was a certain Law by which all men were assessed to certain Arms either by the Service and Tenure of their Lands or by Parliament for such as were not bound to find sufficient Arms by their Tenure according as is contained in the Statute 25 Edw. 3. Stat. 5. cap. 8. So did Henry the Fourth by the Statute formerly mentioned to be made in his time confirm that Law of Edward the Third In the argument of Calvin's case it is much insisted upon to prove the Legiance of an English man to the King to be absolute because he hath power to send men to War at his pleasure and he hath the onely power to make War and if so then hath he absolute power in the Militia As touching the power of sending men to War hath been already spoken but as touching the power to make War there is no doubt but where a King hath made a League with another King he onely can break that League and so make War and that Opinion of Brian must be agreed for good in that sence But if a League be made by Act of Parliament or if the King will have War and the Parliament will make a League without him no Authority doth in such case avouch that it is the right of the King or that he hath a legal power to break that League as he pleaseth Neither in the next place hath the King any Right or legal Power to make War with his own Subjects as he pleaseth but is bound to maintain the Peace not onely by his Oath at his Coronatiion but also by the Laws whereto he is bound if he will reign in right of an English King. For every man knoweth that the grounds of the Statutes of wearing of Liveries was for the maintaining of the publick Peace And Henry the Fourth amongst other provisions made against that trick hath this That the King shall give onely his Honourable Livery to his Lords Temporal whom shall please him and to his Knights and Esquires menial and to his Knights and Esquires which be of his retinue and take of him their yearly Fee for term of Life and that no Yeoman shall take or wear any Livery of the King nor of none other Lord. And another Law was made within one year ensuing confirming the former and providing that the Prince may give Liveries to such Lords as he pleases and to his menial Gentlemen and that they may wear the same as in the Kings Case By both which the King and Prince are both in one Case as touching the power of giving Liveries if the one hath absolute power then hath the other the like if one be under the Directory of Law in that point then is also the other For it is clear that the King is intended by the Statute to be bound from giving Liveries and the people from wearing them
otherwise than in especial Cases And then the conclusion will be that if the King may not give Liveries to the prejudice of the Peace then may he much less break the Peace at his pleasure or levie Men Arms and War when he shall think most meet Take then away from the King absolute power to compel men to take up Arms otherwise than in case of Foreign Invasion power to compel men to go out of their Counties to War power to charge men for maintenance of the Wars power to make them find Arms at his pleasure and lastly power to break the Peace or do ought that may tend thereto and certainly the power of the Militia that remaineth though never so surely setled in the Kings hand can never bite this Nation Nor can the noise of the Commission of Array entitle the King unto any such vast power as is pretended For though it be granted that the Commission of Array was amended by the Parliament in these times and secondly that being so amended it was to serve for a Precedent or Rule for the future yet will it not follow that Henry the Fourth had or any Successor of his hath any power of Array originally from themselves absolutely in themselves or determinatively to such ends as he or they shall think meet First As touching the amendment of the Commission it was done upon complaint made by the Commons as a grievance that such Commissions had issued forth as had been grievous hurtful and dangerous And the King agrees to the amendments upon advice had with the Lords and Judges And if it be true that the amendments were in the material clauses as it is granted then it seemeth that formerly a greater power was exercised than by Law ought to have been and then hath not the King an absolute power of Array for the just power of a King can be no grievance to the Subject Secondly If the Commission of Array thus mended was to serve as a rule of Array for the future then there is a rule beyond which Henry the Fourth and his Successors may not go and then it will also follow that the power of Array is not originally nor absolutely in the King but from and under the Rule and Law of the Parliament which rule was not made by the Kings own directions but as we are told beyond expectation alterations were made in material parts of the Commission and the powers in execution there whereof no complaint of grievance had been made The issue then is If the King had an Universal power in the Array the Parliament likewise had a general liberty without any restriction to correct that power Lastly Suppose that this power of the Parliament is executed and concluded by the Commission thus amended and that thereby the Kings power is established yet can it not be concluded that this power is originally or absolutely in the King. It is not absolutely in him because it is limited in these particulars First It is not continual because it is onely in case of eminent danger Secondly It is not general upon all occasions but onely in cases of a Foreign and sudden Invasion and attempts Thirdly The powers are not undefined but circumscribed 1. To Array such as are armed so as they cannot assess Arms upon such 2. To compel those of able Bodies and Estates to be armed and those of able Estates and not able Bodies to arm such as are of able Bodies and not Estates but this must be Juxta facultates and salvo Statu 3. Whereas they strain themselves to make the Statute of Henry the Fourth and the Commission of Array to consist with the Statutes of 13 E. 1. 1 E. 3. and 25 E. 3. thereby they affirm so many more restrictions unto this power of Array as those Statutes are remedial in particular cases yet do I not agree to their Glosses but leave them to the debate already published concerning the same Secondly As this power was not absolutely in the Kings so was it not originally from themselves because they had not the Legislative power concerning the same but the same was ever and yet is in the Parliament Hereof I shall note onely three particular instances First The Militia is a posture that extendeth as well to Sea as Land That which concerneth the Sea is the Law of Marque and Reprizal granted to such of the people of this Nation as are pillaged by Sea by such as have the King's Conduct or publick Truce And by this Law the party pillaged had power to recompence himself upon that man that had pillaged him or upon any other Subject of that Nation in case upon request made of the Magistrate in that Nation satisfaction be not given him for his wrong it was a Law made by the Parliament whereby the Chancellour had power to grant such Letters or Commission upon complaint to him made This was grounded upon the Statute of Magna Charta concerning Free Trade which had been prejudiced by the rigour of the Conservators of the Truce against the Kings Subjects although what was by them done was done in their own defence And by which means the Foreigners were become bold to transgress and the English fearful in their own Charge and many laid aside their Trade by Sea and thereby the strength of the Kingdom was much impaired Nor is the equity of this Law to be questioned for if the Magistrate upon complaint made grants not relief the offence becomes publick and the Nation chargeable in nature of an Accessory after the Fact and so the next man liable to give satisfaction and to seek for relief at home The King then hath a power to grant Letters of Marque by Sea or Land and this power is granted by Parliament and this power is a limited power onely in particular cases in regard that many times these prove in nature of the first light skirmishes of a general War. Two other instances yet remain concerning the Order and Government of the Souldiers in the Army the one concerning the Souldiers pay Viz. That Captains shall not abate the Souldiers Wages but for their Clothing under peril of Fine to the King. The other concerning the Souldiers service That they shall not depart from their Colours without leave before the time of their service be expired unless in case of sickness or other good cause testified and allowed by the Captain and such as shall do otherwise shall suffer as Felons Which Laws could not have holden in force had they not been made by Parliament in respect that the penalties concern the Estates and Lives of men which are not to be invaded but by the Law of the Land. So as both Captains and Souldiers as touching the Legislative power are not under the King in his personal capacity but under the Law of the Parliament Lastly As the rule of War was under the Legislative power of the Parliament so was the rule of
controul for when displeasure was like to ensue he could speak fair and feast and if need was kiss away all discontent Towards his end as stale drink he grew sowr For as in the first part of his Reign he had been supplied by good-will against Law so in his latter times he had gotten a trick of supply by Law against good-will This was by penal Laws which are a remedy if they be used Ad terrorem but if strained beyond that the Remedy proveth worse than the Disease In their first institution they are forms of courtesie from the people to the King but in the rigorous execution of them are trials of mastery of the King over the people and are usually laid up against days of reckoning between the Prince and them Those penal Laws are best contrived that with the greatest terrour to the Delinquent bring the least profit to the King's Coffers Once for all this King's Acts were many his Enterprizes more but seldom attaining that end which they faced He was a man of War and did more by his Fame than his Sword was no sooner resolved in good earnest but he died left a Kingdom unassured his Children young and many friends in shew but in truth very few Now if ever was the Kingdom in a Trance Edward the Fourth left a Son the Prima materia of a King and who lived long enough to be enrolled amongst English Kings yet served the place no further than to be an occasion to fill up the measure of the wickedness of the Duke of Gloucester and a monument of Gods displeasure against the House of Edward the Fourth whether for that breach of Oath or treachery against Henry the Sixth or for what other cause I cannot tell But at the best this Prince was in relation to his Uncle the Duke of Gloucester little other than as an Overseer to an Executor that might see and complain but cannot amend For the Duke ruled over-ruled and mis-ruled all under the name of Edward the Fifth and left no monument of good Government upon record till he changed both the Name and Person of Edward the Fifth to Richard the Third his Fame had lifted him up and might have supported him had he regarded it But as no man had more honour before he ascended the Throne so no man ever entred and sate thereon with less His proceedings were from a Protector to an Vsurper and thence to a Tyrant a Scourge to the whole Nation especially the Nobility and lastly an instrument of Gods Revenge upon himself a man made up of Clay and Blood living not loved and dying unlamented The manner of his Government was strained having once won the Saddle he is loth to be cast knowing himself guilty all over and that nothing could absolve his Fame but a Parliament he calls it courts it and where his Wit could not reach to apologize he makes whole by recompence takes away Benevolences he is ready to let them have their present desires what can they have more He promiseth good behaviour for the future which he might the better do because he had already attained his ends Thus in one Parliament for he could hold no more he gave such content as even to wonderment he could assoon find an Army in the field to fight for him as the most meritorious of his Predecessors Hiâ— ill Title made him very jealous and thereby taught his best Friends to keep at a distance after which time few escaped that came within his reach and so he served God's Judgement against his adjutants though he understood it not Amongst the rest against the Duke of Buckingham his great Associate both in the Butchery of the two young Princes and usurpation of the Royal Scepter He lived till he had laid the Foundation of better times in the person of Henry the Seventh and then received his reward But an ill Conscience must be continually fed or it will eat up its own womb The Kings mind being delivered from fear of the Sons of Edward the Fourth now dead torments himself with thoughts of his Daughter alive ashamed he is of Butchery of a Girl he chuseth a conceit of Bastardizing the Children of Elizabeth Gray that calleth her self Queen of England but this proved too hard to concoct Soon after that he goes a contrary way The Lady Elizabeth Gray is now undoubted Wife of Edward the Fourth and her eldest Daughter as undoubted Heir to the Crown And so the King will now be contented to adventure himself into an incestuous Marriage with her if his own Queen were not in the way onely to secure the Peace of the Kingdom which he good King was bound in Conscience to maintain though with the peril of his own Soul and in this zeal of Conscience his Queen soon went out of the way and so Love is made to the young Lady But Henry Earl of Richmond was there before and the Lady warily declined the choice till the golden Apple was won which was not long after accomplished the King losing both the Lady his Crown and own Life together put an end to much wickedness and had the end thereof in Bosworth-Field CHAP. XXIV Of the Government in relation to the Parliament THe seasons now in Tract were of short continuance lives passed away more speedily than years and it may seem useless to enquire what is the nature of the Government in such a time whenas the greatest work was to maintain Life and Soul together and when all is done little else is done For though the Title of the House of York was never so clear against that of Lancaster yet it had been so long darkned with a continual â—uccession of Kings of the Red Rose that either by their Merit had gained a Throne in the peoples Hearts or by their Facility had yielded their Throne up to the peoples will as it proved not easie to convince them that liked well their present Lot and were doubtful of change or to make them tender of the right of Edward the Fourth above their own quiet Above Threescore years now had England made trial of the Government of the Lancastrian Princes and thereof about Thirty years experience had they of Henry the Sixth they saw he was a gentle Price On the other side Edward the Fourth newly sprung up out of a Root watered with blood himself also a man for the Field This might well put the minds of the people to a stand what to think of this Man whose Nature and ends are so doubtful and brought nothing to commend him to the good wills of the people but his bare Title which the common sort usually judge of according as they see it prosper more or less Add hereunto that Divine Providence did not so clearly nor suddenly determine his secret purpose concerning this change by any constant success to either part by means whereof the one half of Edward the Fourth's Reign was spent while as yet Henry the
them to put up beyond his place and to bid adieu to the advice of all the rest but he gets the uppermost seat in the King's Head makes a Foot-stool of the King's Heart and then it is two to one that the people in such cases must bear the greater burthen For whoever first said it he said most true That Prerogative in the hand of a King is a Scepter of Gold but in the hand of a Subject it is a Rod of Iron The Reign of this King Henry the Eighth serves us with much experience of this kind for if the consideration of the Affairs of this Government should be divided the same would be double the one under the Regiment of Cardinal Wolsey the other of the King by Cromwel Cranmer Gardiner and others interchangeably I call that of Wolsey a Regiment for he was in the nature or condition of a Pro-Rex during the Kings Juvenility This fortune thus super-induced upon a Cardinal raised from mean degree to be Legate à Latere courted by Foreign Princes slattered by the Emperour with Titles of Son and Cousin made him lead a dance that the King however active he was is put to his career to hold him company which the King perceiving tripped up his heels and left the Archbishop the Chancellour the Cardinal the Legate and many more with him lying on the ground No pride like to that of the Clergie whose parts are more sublime and apprehensions clear If God addeth not a superiour Work to rule over all a little honour will blow up all with powder The King having thus matched the Cardinal forgot his former natural pace and once in a heat could cool no more till death cooled him He knew by experience that the Cardinal could over-awe the people why should not the King do as much if the Lords stooped to the Cardinal why not much rather to the King The Cardinal pulled down reared up turned square to round why should he be less than his Subjects Such conceits as these soon wound up the Kings mind to that height that it is death to him to stoop one inch lower to more moderate advice though he loved their persons never so well but all must be content with the weight of his arm though it were no small one and yet in point of Religion affairs tended to a kind of Reformation all this while CHAP. XXVII Of the State of the Crown THat the Crown of England now abounded more in Flowers than Crosses the Face of Story doth hold forth to ordinary Observation and yet few are satisfied either in the true nature of the particular advantages or in the manner how they were obtained or in the continuance I must therefore make a little stop upon them because in the true discerning of them the discovery of the nature of the Government in latter days doth much depend Hitherto the Crown came short of absolute power over the people upon two grounds in observation one relating to the Clergie the other to the Laity The Church-men were heretofore under a Foreign power and a Foreign Law against which Kings durst not deeply engage either not being assured of their own Title or employed in pursuit of other game or being of a weak Spirit were scared with the Thunder-bolt of the Pope's Curse But the Laity were under another Law and such an one as by clear and unquestionable Custom had established bounds between the way of Kings and the Rights of the People Neither did Kings directly invade those Borders either led thereto by a kind of Conscience in such of them as were morally enclined or in others by a kind of fear of raising up Earthquakes from beneath which commonly do overthrow high Towers sooner than Winds from above But now such interests are laid aside fast asleep by two Kings Whereof one cared not much for Fear and neither of them for Conscience For Henry the Seventh having leisure to study the Nature and contemplate the Fashion of the English Crown dislikes the Model in some particulars It was not rich enough nor well poised to his mind which ever was not to be poor but towards his latter time to be exceeding rich as supposing that to be the onely way to be more desirable to Friends formidable to Enemies and absolute over his People And this opinion of his missed in the main end though it attained his immediate desire For by mistaking the right way it made a rich King but not a rich Crown He delighted more in the riches of his People than in a rich People And this bred no good blood because the People thought that the Law was not on his side in that matter They suffered him to visit their Purses but are loth it should prove customary lest they should lose their Common Right They therefore chose rather to give him power by Act of Parliament to revoke Letters-Patents and Grants and make resumptions of Offices Fees Annuities and the like that he might rather repossess his own than possess theirs Many Penal Laws likewise of a limited and Temporary regard are made and as Cheese after a full Dinner they close up all with Subsidies For it was evident to all men that the Royal mind of the King served no further than to take what was given provided that the People would give what else would be taken By this means Henry the Seventh left rich Coffers to descend to Henry the Eighth but the Crown was still the same in price In this Act of the Play the People carry away the plaudite The second Act was the point of Allegiance wherein both parts carry themselves so cunningly as it is hard to adjudge the Garland yet it may be thought the King observed it rather because he offered all the play whilst the People did onely lie at their close guard The whole project consisted in this to gain a more absolute Allegiance from the English to their King. And because this is exemplified partly in War and partly in Peace that part which concerneth War will more properly fall under the consideration of the Militia and therefore I shall refer the same to that head in the 32 Chapter ensuing and will come to the second consideration of Allegiance in relation to Peace and therein touch upon the Kings power in making of Laws and of Judicature according to those Laws As touching the making of Laws the ingenuity of Henry the Seventh could not suffer him to make any claim thereto in any positive way yet his actions declare that his heart was that way For being beset with troubles he could often fancy dangers and arm himself then call a Parliament who were wise enough to grant as readily as he asked rather than to be compelled thereto So he had Laws made according to his own Will though he made them not The matter of Judicature comes next and therein he made his Judges appear and not himself though they did not onely represent his person but his mind
the people for the present must endure In deposito of the King and other persons that a kind of Interim might be composed and the Church for the present might enjoy a kind of twilight rather than lie under continual darkness and by waiting for the Sun-rising be in a better preparation thereunto For the words of the Statute are That all must be done without any partial respect or affection to the Papistical sort or any other Sect or Sects whatsoever Unto this Agreement both parties were inclined by divers regards For the Romanists though having the possession yet being doubtful of their strength to hold the same if it came to the push of the Pike in regard that the House of Commons wanted Faith as the Bishop of Rochester was pleased to say in the House of Lords and that liberty of Conscience was then a pleasing Theme as well as liberty of Estates to all the People These men might therefore trust the King with their interests having had long experience of his Principles and therefore as Supream Head they held him most meet to have the care of this matter for still this Title brings on the Van of all these Acts of Parliament On the other side that party that stood for Reformation though they began to put up head yet not assured of their own power and being so exceedingly oppressed with the six Articles as they could not expect a worse condition but in probability might find a better they therefore also cast themselves upon the King who had already been baited by the German Princes and Divines and the outcries of his own People and possibly might entertain some prejudice at length at that manner of Worship that had its original from that Arch-enemy of his Head-ship of the Church of England Nor did the issue fall out altogether unsuitable to these expectations For the King did somewhat to unsettle what was already done and abated in some measure the flame and heat of the Statute although nothing was established in the opposite thereto but the whole rested much upon the disposition of a King subject to change As touching the constitution of this Law that also shews that this was not derived from the ancient Right of the Crown now restored but by the positive concession of the People in their representative in regard it is not absolute but qualified and limited diversly First This power is given to this King not to his Successors for they are left out of the Act so as they trusted not the King but Henry the Eighth and what they did was for his own sake Secondly They trusted the King but he must be advised by Counsel of men of skill Thirdly They must not respect any Sect or those of the Papistical sort Fourthly All must be according to Gods Word and Christs Gospel And Lastly Nothing must be done contrary to the Laws and Statutes of this Realm And thus though they trusted much yet not all nor over-long For it was but a temporary Law and during the present condition of affairs Nor did the King or People rest upon this Law for within three years following another Law is made to confirm what was then already done by the King and a larger power granted to the King to change and alter as to his Wisdom shall seem convenient Thus the Kings Injunctions already set forth were established all opposal to them inhibited and the King hath a power of Lawing and Unlawing in Christ's Kingdom and to stab an Act of Parliament in matters of highest concernment And the reason is the King will have it so and who dares gainsay it as Cranmer said The King loves his Queen well but his own opinion better For new things meeting with new love if it be once interrupted in the first heat turns into a displeasure as hot as the first love Nor had either party great cause to boast in their gainings for none of them all had any security but such as kept close to a good Conscience All this though much more than any of his Predecessors ever attained was nevertheless not enough till his Title was as compleat The Pope had fashioned him one now above twenty years old for his service done against Luther and others of that way and sent it to him as a Trophee of the Victory this was Defender of the Faith which the King then took kindly but laid it up till he thought he had deserved it better and therefore now he presents it to the Parliament who by a Statute annexed it to the Crown of England for ever now made triple by the Royalizing of that of Ireland amongst the rest A third Prerogative concerned the Kings power in temporal matters And now must England look to it self for never had English King the like advantage over his People as this man had His Title out-faced all question left rich by his Father trained up in the highest way of Prerogative absolute Lord of the English Clergy and of their Interest in the People of a vast spirit able to match both the Emperour and French abroad and yet more busie at home than all his Predecessors A King that feared nothing but the falling of the Heavens the People contrarily weary of Civil Wars enamoured with the first tastes of Peace and Pleasures whiles as yet it was but in the blushing child-hood over-awed by a strange Giant a King with a Pope in his belly having the Temporal Sword in his hand the Spiritual Sword at his command Of a merciless savage nature but a word and a blow without regard even of his bosome-Companions What can then the naked relation of a Subject do with such an one if Providence steps not in and stops not the Lions mouth all will be soon swallowed up into the hungry maw of Prerogative To set all on work comes Steven Gardiner from his Embassage to the Emperour sad apprehensions are scattered that the motions abroad are exceeding violent and sudden that the Emperour and French King are fast in nothing but in change according to occasion that like the Eagle they make many points before they stoop to the Prey that if the motions at home do wait upon debates of Parliament things must needs come short in execution and the affairs of this Nation extreamly suffer A dangerous thing it is that the King should be at disadvantage either with the Emperour or French King for want of power in these cases of sudden exigencies and for some small time during the juncture of these important affairs that seeing likewise at home the point concerning Religion is coming to the Test the minds of men are at a gaze their Affections and Passions are on their Tiptoes It is reason the King should steer with a shorter Rudder that this care might meet with every turn of Providence which otherwise might suddenly blow up the Peace and good Government of this Nation These and the like represented a fair face to that
Canon And upon this account the King's Ancestors had possessed themselves of the Cells in the hands of Foreigners in times of War and now a deadly feud is stirred between Henry the Eighth and the Pope their holy Father The Children cannot expect to thrive whenas their Father is cast out of doors and so all must out together Yet the manner is observable they must not be cast out but must go out the inferiour and greater part are dead persons have learnt obedience they can neither bark nor bite and therefore they may sleep and what is done must be done with such of them as are alive Upon a Visitation these are brought under the Test and found in such a condition that they had better give way and voluntarily surrender than abide the Trial. Once more the smallest are picked out whilst the greater stand by and wonder but either do not foresee or in despair of altering the King's Resolution do nothing but expect the sad hour which within Four years comes upon them all every one of them chusing rather to surrender and expect the King's Mercie for maintenance during life than adventure against the dint of his Justice and Power and so lose all for they were ill befriended amongst all sorts of the people Thus came the personal Estate and Stock of these Houses to the Kings immediate Treasury and their yearly maintenance to the disposing of the Crown Which might have advanced the same well-nigh to the value of Two hundred thousand pounds yearly but that the King intended to let the people enjoy the fat as well as he that they might be mutually engaged to maintain hold of the Prey that they had joyntly gotten Out of all which nevertheless the Crown had a small rent or service annual for the acknowledgement of their Tenure besides the First-fruits of Spiritual Dignities and the Tenths both which he formerly had already obtained The first whereof was but casual and occasional in the payment arising onely at the entrance of the party into his Promotion and which was gained by the Pope from Edward the First although at his Parliament at Carlisle in his Thirty fourth year he withstood the same This was above Three hundred and twenty thousand pounds in the whole sum The latter was Annual and amounted to above Thirty thousand pounds And thus the Popes Usurpations are turned into duties to the Crown but were much lessened in regard that these Cells and Monasteries were accounted amongst these Ecclesiastical Promotions which by their dissolution fell off in that account Nevertheless the advancement that might by a parcimonious King have been made of the fall of this Cedar was such that the Crown might have been rendred of it self absolute and all-sufficient But Henry the Eighth was not thus minded the Affairs of Europe were gotten into a high pitch Princes generally over-active Henry the Eighth inferiour to none of them what comes in goes out and he is a rare example of that divine Proverb As Riches increase so do the Mouths of them that eat he still stands in need of his peoples Love Purses and Power So Divine Providence orders the matter that Kings can never attain further end of their undertakings without the aid of the people than their labour lest 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 piece-meal onely nor they good Historians that will tell you the bare Journal 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 a compleat Monarchy wherein the King may act what he resolveth resolve what he pleaseth and please what he lusteth whenas 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 than by especial allowance of the Parliament For first It is evident though the King was Supream Head of the Church yet this was not like the head of a mad man led by phancy 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 Seondly It is no less clear 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 Lord's 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 believed 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 Clergie 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 against the Kings Prerogative or the Laws and Customs 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 days of Henry Eighth by divers continuances and was not any power devolved to the Crown under the Title of Supremacie nor by vertue of the Act of Parliament concerning it but by the continual 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 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 Laws concerning Church-Government In the next place cometh to be considered
first submission even unto Edward the First they were summoned unto Parliament and had vote there but onely in order to the Interests of their own Country now and henceforth they possess one and the same vote as English men Secondly as Courts and Judicatories multiplied so some also of those that were ancient enlarged their Jurisdiction especially such of them as most nighly related to Prerogative Amongst others the Privy Council leads the way who now began to have too much to do in a double capacity one at the Council-Table the other at the Star Chamber For now their power began to be diversly considered In their first capacity they had too much of the affairs of the Common-Pleas in the latter they had too much of the Crown-Pleas both of them serving rather to scare men from doing wrong than to do any man right And therefore though some men might seem to have some recompence yet the greatest gain fell to the King and his Courtiers and thus became Majesty or State or Prerogative to be more feared than beloved What the power of the Council was formerly hath already been manifested that which both these Kings conspired in and whereby they gained more power over the people than all their Predecessors was this that other Kings stood too much upon their own Legs these leaned much upon the Lords and gained the Lords to stick close to them and in this they had both the Kings Love and the Peoples Leave who now disjoynted upon several Interests especially that of Religion must be contented to let go that which they had no heart to hold And thus they obtained a Judicatory power over the people like that of great men whose censures are commonly above capacity and not like to that of the Peers This was begun in Henry the Seventh's time who taking occasion to complain of corruption and neglect in ordinary Trials of the Common Law gets the people to yield to the Council or some of them a power of Oyer and Terminer by examination upon Bill or information in matters concerning Maintenance Liveries Retainders Embraceries corruption in Sheriffs and Juries Riots and unlawful Assemblies crimes all of them of the same bloud with Rebellion which the King as much hated as the thought of his Title to the Crown and therefore would have it feared as much as the punishment by such a mighty power and a Trial of a dreadful nature could effect A Trial I say wherein both the guilty and the guiltless adventure their whole Estates against the edge of the arbitrary wills of great men of unknown Interests in an unknown way at unknown places having no other assurance how or when to come off but a Proclamation to tell the people that the King above all things delighted in Justice A bitter Pill this was for the people to swallow yet it was so artificially composed that at the first taste it gave a pretty rellish the King delights in Justice the Chancellour hath his Conscience the Archbishop brings Religion the Judges bring Law so as it is probable nothing will be done but according to Justice Conscience Religion and Law a very fair mixture but that there was a Treasurer in the case Yet the success answered not expectation the persons offended were many times inferiour and their Estates not great the Offenders more mean and of desperate fortunes for great men were too wise to try this new way or to taste of their entertainment Therefore within nine years the Judges of Assize are betrusted with all and that Court so continued for as many years more and then the King marked out one crime amongst the rest for his own tooth belonging to the great men onely for they are onely to commit the crime and to give recompence suitable to the King's Appetite It is giving of Liveries and Retainders a sore evil in the eyes of a jealous King tending to draw the inferiour sort to honour and admire and be of the suit of those of the greater sort and then beware the Crown These therefore must be tried before the King himself and his Council that he may know whom he is to fear and of whom to take heed And hereupon is a strange power given to summon upon a meer Suspicion To proceed without Information To examine the Defendant upon Oath and make him his own accuser To punish according to discretion by Fine and Imprisonment And thus the King and his Council have gotten a power under colour of Liveries and Retainders to bring the whole Kingdom to be of their Livery or else they can suspect whom they please apprehend whom they suspect put him presently to the rack of confession and so into Prison till he hath satisfied both displeasure and jealousie and covetousness it self Never was England before now in so low a degree of thraldom bound under a double knot of self-accusing and arbitrary censure and this out-reached not onely in matters meerly Civil tending to the common Peace but was intruded also into matters Ecclesiastical in order to the peace of the Church All bound unto the good Behaviour both in Body and Soul under peril of loss of all that a man hath dear to him in this world The plot of all this was laid by Henry the Seventh and was followed by Henry the Eighth who put that into practice which his Father had in design being led thereto by such a skilful Guide as Cardinal Wolsey was who though of mean Birth yet of a Spirit above a King and equal to the Popedom strained the string of Prerogative to its utmost height and then taught the King to play thereon which he did after his blunt manner till his dying day And thus though the Clergie are brought a peg lower and the Nobility advanced higher yet was it the policy of these Kings to make them all of their own Livery and Retaindership to keep them in an upper region looking on the poor Commons at a distance far below and well it was for the Commons thus to be till the influence of these blazing Stars grew cooler CHAP. XXXII Of the Militia IT may fall within the verge of Opinion that the guilty Title of Henry the Seventh to the Crown of England gauled his mind with jealousie the greatest part of his Reign Whether it were that he had not declared himself so fully upon his Title by his Wife or that as yet he feared some unknown Plantagenet would arise and put his Crown to the question This made him skilful in the point of Fortification wherein he likewise spent the greatest part of his Reign not so much by force of Arms for he cared not much for that noise well knowing that Peace is the safer condition for a King that comes in by power but principally by way of gaining Concessions and acknowledgement from the Subjects a Musick that he much delighted to hear well knowing it would conclude those amongst them that knew too much
and instruct them that knew too little and so in time he should pass for currant amongst them all It was no hard matter for the King to accomplish this the greater part of the Kindom being pre-ingaged unto his Title and of them many depending upon him for livelihood if he failed they must look to lose all But the present occasion urged more importantly the Title to the Crown was already put to the question by the pretentions of one that named himself Duke of York And it is now high time for the Law to declare it self to direct the people in such a Case What shall the people do where Might overcomes Right or if days come like those of Henry the Sixth wherein the Subjects should be between Two Mill-stones of one King in Title and another King in possession for whom must they take up Arms If for Edward the Fourth then are they Traitors to Henry the Sixth If for Henry the Sixth then are they Traitors to Edward the Fourth And so now if for Henry the Seventh then they may be Traitors to the Duke of York If for the Duke of York then are they Traitors to Henry the Seventh For though the Duke of York was said to be but a contrivance of the House of Burgundy yet a great part both of the great men and others were of another opinion and the King himself was not very certain of his condition for the space of six years thereby This puts the Title of Allegiance and that power of the Militia to the touch at length both King and Parliament come to one conclusion consisting of three particulars First That the King for the time being whether by right or wrong ought to have the Subjects Allegiance like to that of the wise Counsellor of that brave King of Israel Whom the Lord and his People and all the men of Israel chuse his will I be And this is not onely declared by the express words in the Preface of the Law but also by the Kings own practice For he discharged such as aided him against Richard the Third then King by pardon by Parliament but such as aided him being King by declaration of the Law. Secondly That this Allegiance draweth therewith ingagement for the defence of that King and Kingdom Thirdly That the discharge of this Service whereto the Subjects are bound by Allegiance ought not to be imputed unto them as Treason Nor shall any person be impeached or attained therefore The first and the last of these need no dispute The Second is more worthy of consideration in the particular words set down in the Statute viz. That the Subjects are to serve their Prince in his Wars for the defence of him and the Land against every Rebellion Power and Might reared against him and with him to enter and abide in Service in Battle Wherein two things are to be considered the Service and the time or occasion The Service is to serve the Prince in his Wars and with him to enter and abide in service in Battel which is the less to be stood upon because there is a condition annexed if the case so require which must be determined by some Authority not particularly mentioned Albeit that whatsoever is therein set down is onely by way of supposal in a Preface annexed to the Law by the King and permitted by the Commons that were as willing the same should be allowed as the King himself both of them being weary of Wars and willing to admit this Conclusion for the better security of them both in these doubtful times But to lay all these aside for the Case is not stated till the Cause be considered all this must be onely when and where the King's Person and Kingdom is endangered by Rebellion Power or Might reared against him So as the King's Person must be present in the War for the defence of the Kingdom or no man is bound by his Allegiance to hazard his own life And then this point of Allegiance consisteth onely in defending the King in the defence of the Land or more particularly in defending the King's Person he being then in the defence of the Land and defending him in order to the defence of the Land. So as no man can rationally infer from hence that the King hath an universal power of Array when he pleases because the King when he pleases may not levy War nor make other War than a defensive War when the Land is endangered or when need shall require as another Statute hath it But who shall determine this need or danger neither in these or any other Laws is mentioned either out of want of occasion or by reason of the tenderness of the times wherein both Prince and People were willing to decline the Question Secondly the persons that are to do this service are to be considered of and although they are indefinitely set down under the word Subjects it may be supposed that the word is not to be taken in so large a sence as to comprehend all of all Ages Sexes Callings and Conditions in regard that even by the Common-Law some of each of these sorts are discharged from such service But it may seem the King was neither satisfied with the expressions of this first Law concerning the occasion or time of this service nor did he see sufficient ground under the notion of bare Allegiance to desire more New ways are by him found out his Patentees were not a few and although few or none could ever boast much of any cheap Purchases gained from him for he was wont to be well paid beforehand for his Patents either by Money or that which was as beneficial to him yet he was resolved that their holding should be no less advantageous to him than their having And therefore in plain words he lets them know that notwithstanding former consideration upon which they had their Patents at the first they must fight for him if they will live upon him and either adventure their Lives or their Benefit chuse they which and if they find fault with their condition he touches them with the Law of their Allegiance And thus he makes way to intimate a claim of a more absolute Allegiance for being to shew the Equity of the Law in regard of their Allegiance he tells them That every Subject is bound by his Allegiance to serve and assist his Prince and Soveraign Lord at all seasons when need shall require General words that affirm nothing in certainty yet do glance shrewdly upon an absolute and universal assistance Then coming to drive the Nail home it is said that the Patentees are bound to give their attendance upon his Royal Person to defend the same when he shall fortune to go in his person to Wars for the defence of the Realm or against his Rebels and Enemies And as another Statute addeth Within the same Realm or without and according to their Allegiance and not to depart without especial License or
sense of that grand Title of Supremacy of Jurisdiction Power Superiority Pre-eminence and Authority than by the common Vogue hath been made The Title of Supremacy was first formed in the behalf of Henry the Eighth's Claim in matters Ecclesiastical which by the Statute is explained under these words of power To visit correct repress redress Offences and Enormities This Power and no other did Queen Elizabeth claim witness the words of the Statute in her own time But in the framing of the Oath of Supremacy in her time not onely in Causes Ecclesiastical but Temporal which never came within the Statutes and publick Acts in Henry the Seventh's time are inserted and if any thing more was intended it must come under the word Things which also was inserted in the said Oath and yet if the words of the Statute of Queen Elizabeth formerly mentioned be credited the word Things ought to comprehend no more than the word Causes and then the power of Queen Elizabeth in the Commonwealth will be comprehended in these words of Supremacy to visit correct repress redress Offences and Enormities for the Supremacy in the Church and Commonwealth is the same in Measure and what more than this I cannot understand out of any publick Act of this Nation Now in regard Offences and Enormities are properly against Laws the power to visit and correct must also be regulated according to Laws either of War or Peace Nor do these five words Jurisdiction Power Superiority Pre-eminence and Authority contain any more Supremacy or other sence for two of them speak onely the Rank or Degree of the Queen in Government viz. Superiority and Pre-eminence belongeth onely to her and not to any other Foreign Power And two other words do note her Right and Title thereto by Power and Authority committed to her And the other word denotes the thing wherein she hath Superiority and Power viz. in Jurisdiction the nature of which word Vlpian speaking of the nature of a mixt Government explaineth thus Quando servata dictione juris judiciorum fit animadversio So as this Supreme Authority in Jurisdiction is no other than Supreme Power to visit correct redress Offences or determine matters in doubt by deputing fit persons to that end and purpose according to the Law and this is all the Supremacy that appeareth to me belonging to the Crown in these times CHAP. XXXVI Of the Power of the Parliament during these times WHen the Throne is full of a King and he is as full of opinion of his own sufficiency and power a Parliament is looked upon as an old fashion out of fashion and serves for little other than for present shift when Kings have run themselves over Head and Ears A Condition that those of that high degree are extremely subject unto but where the Crown is too heavy for the wearer by reason of infirmity the Parliament is looked upon as the chief Supporters in the maintaining both the Honour and Power of that Authority that otherwise would fall under contempt A Work that must be done with a curious touch and a clear hand or they must look for the like Censure to that of a King to a great Lord that crowned him My Lord I like your work very well but you have left the print of your fingers upon my Crown Such was the condition of these times wherein a Child and two Women are the chief but ever under the correction and direction of the Common Council in matters of common concernment Two things declare the point the course of the Title of the Crown and the Order of the powers thereof The Title ever had a Law which was at the Helm although diversly expounded Kings ever loved the Rule of Inheritance and therefore usually strained their Pedegree hard to make both ends meet though in truth they were guilty oftentimes to themselves that they were not within the degrees The People ever loved the Title of Election and though ever they joyned it to the Royal bloud and many times to the right Heir to make the same pass more currant without interruption of the first love between them and their Princes yet more often had they Kings that could not boast much of their Birthright in their first entry into their Throne Of three and twenty Kings from the Saxons time four of the former had no Title by Inheritance the two Williams Henry the First and King Steven Two others viz. Henry the Second and Richard the first had right of Birth yet came in by Compact The Seventh which was King John had no Title but Election The Eighth viz. Henry the Third came in a Child and contrary to Compact between the Nobility and the French Lewis The Ninth and Tenth succeeded as by unquestionable Title of Descent yet the Nobles were pre-engaged The Eleventh which was Edward the Third in his entry eldest Son but not Heir for his Father was alive but his Successour was his Heir It is true there were other Children of Edward the Third alive that were more worthy of the Crown but they were too many to agree in any but a Child that might be ruled by themselves Three next of the ensuing Kings were of a collateral line Their two Successours viz. Edward the Fourth and Edward the Fifth were of the Line yet Edward the Fourth came in by disseisin and Edward the Fifth by permission Richard the Third and Henry the Sevâ—nth were collateral to one another and to the right Bloud Henry the Eighth though when he was King might claim from his Mother yet came in as Heir to his Father And if Edward the Sixth was right Heir to the House of York by his Grandmother yet cannot the Crown be said to descend upon the two Sisters neither as Heirs to him nor Henry the Eighth nor to one another so long as the Statute of their Illegitimation remained which as touching Queen Mary was till three months after her entry upon the Throne and as touching Queen Elizabeth for ever for that Virago provided for her self not by way of Repeal as her Sister had done but more tenderly regarding the Honour of her Father and the Parliament than to mention their blemishes in Government by doing and undoing She over-looked that Act of Henry the Eighth and the Notion of Inheritance and contented her self with her Title by the Statute made by her Father in his Thirty fifth year which to her was a meer purchase and was not ashamed to declare to all the world that she did have and hold thereby and that it was High Treason for any Subject to deny that the course of the Crown of England is to be ordered by Act of Parliament And this power did the Parliament exercise not onely in ordering the course of the Crown to Queen Mary and Queen Elizabeth but during the Reign of Queen Elizabeth so far as to disinherit and disable any person who should pretend Right to the Crown in opposition to the
But Queen Mary having gotten a safe reserve from Spain upon all adventures and a strong interest amongst the people by upholding the Catholick party made no bones to innovate in the point of arming of the Militia although it cost the people much more than was imposed upon their Ancestors The pattern hereof was taken from the Spanish Cabinet the Queen being loth to be inferiour to her own Husband in bringing as much strength to him as he to her and both of them willing enough to appear potent in the eyes of France that then stood in competition with them both A yoke it was yet neither the King nor Queens Will but the Parliament put it on and ere an Age expired it was cast off again For the better understanding see it in this Scheme Per Annum Lances Light-horse Corslets Bows Hacquebuts Bills 1000 l. 6 10 40 30 20 20 1000 marks 4 6 30 20 10 10 400 l. 2 4 20 15 6  200 l. 1 2 10 8 3  100 l.  2 3 3 2  100 marks  1 2 2 1  40 l.   2 1 2  20 l.   1 1 1  10 l.   A Coat of Plate 1 1  5 l.   A Coat of Plate 1   Goods 1000 marks 1 1 2 4 3  400 l.  1 1 2 1  200 l.   1 2 1  100 l.   1 2   40 l.   2 Coats of Plate 1  1 20 l.   1 Coat of Plate 2  1 10 l.    1 1 The Lances were to be compleatly harnessed or the one half of them The Corcelets furnished with Coats of Mail and Pikes the Bows with and Iron Cap and a Sheaf of Arrows the Hacquebuts with Sallets All which was to be over and besides such Arms as men were bound unto by Tenure or Covenant with the Landlord or by vertue of the Statute 33. H. 8. c. 5. besides Townships which were charged with joynt-arms Annuities and Copy-holds were charged as Goods If the Arms were lost in the Service the owner must make them good again The defaults were punishable with Fine by the Justices of the Peace who had the view and might present them at the Sessions to be proceeded upon as in other cases Here is provision enough yet not as the Arms of the Militia of the Kingdom but as a Magazine in the hands of every particular man and as his proper Goods to be imployed for the publick Service either upon suddain Invasion in a defensive War or when the Parliament shall send them abroad And yet it is also a rule unto the Crown against arbitrary Assessments upon discretion from which it cannot recede if it mean to do right It might now very well stand with the Justice of Queen Elizabeth to grant Commissions of Array Secundum formam Statutorum and do hurt to no man. It is true her Commissions of Lord Lieutenancy wanted that limitation in words yet they carried the sense For if the Crown were bound by the Law the Lord Lieutenants 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 And thus came the Scotish blood to have pretensions to a greater Prerogative than all their Predecessors had upon this supposal that the Statute of Queen Mary took away all former Laws of that kind and then the taking away of the Statute of Queen 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 general rule for Arms in all places of this Nation for the Marches of Scotland were a peculiar Jurisdiction as to this point They stood in more constant need of Arms than any other part of this Nation in regard of their uncertain condition in relation to their neighbouring Jurisdiction and therefore were the Farms of these parts generally contracted for upon a special reservation of Arms for each particular which being now decayed 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 general 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 means of Peace and present Safety yet they are Symptoms of War 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 fear the Neighbourhood This was more especially regarded in the days of Philip 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 Realm onely by the natural born of the same And afterwards when occasion was offered for the building of more of that nature a new power is given to King Philip and Queen Mary to re-edifie or make Forts and Castles which must be executed by Commission to the Lieges for ten years and onely within the Counties bordering upon Scotland and these particularly named in the Statute So as the Crown had not power to build in all cases 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 engaged in Foreign 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 not faithful to the Publick Interest although they gave no cause of seizure 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
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 natural 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 radical and not by any forced inoculation The people are of a middle temper according to their Climate the Northern Melancholy and the Southern Choler meeting in their general 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 than 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 tempestuous pretensions from Rome and Foreign Princes or by Earthquakes of Civil Contention about the Title between the two Houses of York 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 kind to take than give and supposing others as open-hearted as themselves are many times in Treaties over-matched by them whom they over-match in Arms. Upon the same account they are neither imperious over those beneath nor stubborn against them above but can well discern both person and time Man Woman or Child all is one with them they will honour 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 onely in order to the publick good Nevertheless they love much to be free When they were under awe of the Popes Curse they bore off designs by the head and shoulders but afterwards by watchfulness and foresight 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 Alarm is soon given and taken and whether high or low none are spared that stand in their way This they do owe to the Eastern people from whom they fetch their Pedegree So as the onely 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 easie and sit loose upon them but if too close girt they will break all or cast their load or die And therefore Queen Elizabeth gained much to the Crown by fair carriage good words and cleanly conveyance which was not soon discovered nor easily parted with But Henry the Eighth by height 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 Clergie came not into pomp and power till Austin's time and soon came to the height of a third State appendent to the former and so continued till Henry the Eighth's 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 General by their Election under whom after they had obtained a peaceable setling they named him anew by the name of Konning or the Wise man for then was Wisdom more necessary than Valour But after the Clergie 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 onely to Ecclesiasticks although the vulgar held their appellation still which by contraction or rather corruption did at length arrive into the word King a notion which as often changeth the sence as the Air some making the person all in all others some in all and some nothing at all but a complement of State. The Clergie gave him his Title in the first sence and are willing he should have a power over the Estates in order to their design which then was to rule the King and by him all his People he doing what he listeth with them and the Clergie the like with him The Saxons take the word in the second sence for though they had put upon the Commonwealth one Head and on that one Head one Crown yet unto that Head did belong many Eyes and many Brains 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 humours be yet must the Law be his rule He cannot engage the people either to make continue or determine any offensive War without their consent nor compel them to arm themselves nor command them out of their Counties for War or 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 Laws nor alter the old form new Judicatories Writs Process Judgements 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 Licenses Ecclesiastical nor Commissions of Jurisdiction other than 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 King's 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 than that of Kings For though Law as touching morality in the general be of heavenly Birth yet the positive Laws 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
true and so they did unto the Councils in the ancient Saxon times and so the Knights of the Counties ought to do in these days if they obey the Writ Duos Milites gladiis cinctos c. Secondly he saith that the Knights were not to come to Council That is his opinion yet the Writ speaks that the Discreti Milites were to come Ad loquendum cum Rege de negotiis regni It is true saith he but not Ad tractandum faciendum consentiendum It is true it is not so said nor is it excluded and were it so yet the Opponents conclusion will not thence arise That none but the King and those who are of the House of Lords were there present The Sixth and last instance mentioned by the Opponent is in his Thirtieth page and concerneth Escuage granted to King John who by his Charter granted That in such cases he would summon Archbishops Bishops Abbots Earls and the greater Barons unto such Conventions by special Writs and that the Sheriff shall summon promiscuously all others which hold in Capite and thence he concludes That none but the Great Lords and the Tenants in Capite whom he calls the lesser Barons were present but no Knights Citizens or Burgesses all which being granted yet in full Parliament the Citizens and Burgesses might be there For Councils were called of such persons as suited to the matter to be debated upon If for matters purely Ecclesiastical the King and his Council of Lords and the Church-men made up the Council If for advice in emergencies the King and such Lords as were next at hand determined the conclusions If for Escuage the King and such as were to pay Escuage made up a Council to ascertain the sum which was otherwise uncertain If for matters that concerned the common Liberty all sorts were present as may appear out of the very Charter of King John noted in my former discourse page 258. and also from an Observation of Cambden concerning Henry the Third Ad summum honorem pertinet said he Ex quo Rex Henricus Tertius ex tanta multitudine quae seditiosa ac turbulentia fuit optimos quosque ad Comitia Parliamentaria evocaverit Secondly The Opponent takes that for granted that never will be viz. That all the Kings Tenants In Capite were of the House of Lords whenas himself acknowledgeth a difference page 28. viz. That the Barons are summoned by Writs sigillatim as all the Members of the House of Lords are but these are by general Summons their number great and hard it will be to understand how or when they came to be excluded from that Society I shall insist no further upon the particulars of this Tractate but demur upon the whole matter and leave it to Judgement upon the Premises which might have been much better reduced to the main Conclusion if the Opponent in the first place had defined the word PARLIAMENT For it was a Convention without the People and sometimes without the KING as in the Cases formerly mentioned of the Elections of William Rufus and of King Stephen And if sometimes a Parliament of Lords onely may be against the King and so without King or People as in the Case between Stephen and Maud the Empress and the Case likewise concerning King John both which also were formerly mentioned All this is no more to the Government than it would be should at any time the Commons hold a Parliament without a King or House of Lords and then all the Opponents labour is to little purpose A TABLE TO THE Second Part. A A Betting of Felony made Felony page 174 Administration granted to the next of the Kindred 30 Admirals power from the Parliament 24. formerly under many brought into one 25. once gained jurisdiction to the high-water-mark 26. and his Power regulated by Law ibid. over Sea-men Ports and Ships ibid. Allegiance according to Law 11. vide Supremacy the nature thereof in general 42. it is not natural ibid. 52. not absolute or indefinite 49. not to the King in his natural capacity 51. it obligeth not the people to serve in forein War 60. it is due to the person of the King for the time being 144 163. what it is in time of War and relation thereunto 144. Henry the Seventh and Henry the Eighth endeavoured to advance it in relation to the Crown but effected it not 61. Appeals in cases Ecclesiastical restrained from Rome and given in the Kings case to the Convocation and in the cases of the people the Archbishop afterwards to the Delegates and were never setled in the Crown 133 136. vide Archbishop Archbishop hath the lawful power of the Pope in Appeals and Dispensations Licenses and Faculties 136. the Archbishop of York loseth his jurisdiction over the Scotish Bishops 113 Arrays Commission of Array 104 vide War. Assent of the King to Acts of Parliament serveth onely to the execution of the Law and not to the making thereof 13 Association of the people for the common safety before the Statute enabling the same 173. B. BAstardy not to be determined by the Ordinary before Summons to the pretenders of Title to be heard 92 Bench the Kings Bench at Westminster abated in power by the Commissions of Oyer and Terminer and Goal-delivery 54 97 Benevolence first used by Edward the Fourth 108. taken away by Richard the Third ibid. taken up again by Henry the Seventh 114 Bishops not impeachable before the Civil Magistrate 29. their Temporalties to be neither seized nor wasted in the vacancy Vide Ordinary Buggery made Felony 173. C. CAnons their power anciently in debate 37. such as are not according to the Law are taken away 138 Castles and Goals restored to the Country 67. vide Forts and Fortifications Chancery once an Office afterwards a Court 21. the power grows by Act of Parliament 22 95. the manner of the proceedings 23. Keeper of the Great Seal increaseth in power 95 Chancellour elected by the Parliament 23 Cheshire made a Principality 7 Children carried into Cloisters remedied 96 Clergie priviledgea from Arrests 31. discharged of purveyance and free quarter ibid. their Temporalties in question 38. the Commons love not their persons 86. their first declining from Rome in the matter of Provisors 88. they gain free process in matters Ecclesiastical 112. their defection from Rome and submission to the Crown 120 Clergie upon Trial but once allowed 151. in some cases disallowed 147 173. Commissioners Ecclesiastical 167. High Commission ibid. Conjuration vide Witchcraft Conservators of the Truce 95 Constables Court vide Marshals Court Convocation established by Parliament 89. it then undertook great matters but much more after the Clergies forsaking the Pope 134 Councils the Privy Council ordered by Parliament 13 20 83. of use for sudden motions 16. their Oaths 17. and Jurisdictions 19. and power 83 Magnum Concilium or the grand Council of Lords 16 Crown entitled not by Descent 75 162. but intailed 75. vide 109.
Edward the First and Edward the Second Succession 129 c. Power in Ecclesiastical matters 140 c. 145 In Civil affairs 173 c. 199 c. Knight-service amongst the Saxons 47 Marriage 91 126 159 Acquittal 93 Widows 160. L. LAnguage endeavoured to be changed by the Normans 101 Lashlight amongst the Saxons 62 Lecturers amongst the Saxons 18 Leet amongst the Saxons 48 Legierwit amongst the Saxons 62 Livery and seisin amongst the Saxons 67 London 161 Lords day maintained by the Saxons 61 By the Normans as plea of the Crown 86 Lords their Councils amongst the Saxons 38 52 From the Conquerour's till Henry the Third 107 Lorica what it is 193 Lucius 5 c. Luminaries amongst the Saxons 20 Lunacy vide Fools M. MAgna Charta 107 Renewed with the Curse 130 Stat. c. 158 Cap. 35. 152 Cap. 37. ibid. Mainpernours by the Saxons 53 54 By the Normans 94 Maims punished by the Saxons 62 Mambota amongst the Saxons 61 Mannors amongst the Saxons 46 Normans 83 Man-slaughter punished by the Saxons 61 Normans 87 After 121 Manumisson 85 Marriage-portion vide Dower Marriage vide Knights-service Merchants Mag. Charta 170 Marches amongst the Saxons 45 Normans 82 Markets amongst the Saxons 49 Normans 89 Vide Townships Marshals Courts 178 Matrimonial causes amongst the Saxons 26 Medietas linguae amongst the Saxons 57 Metropolitan amongst the Saxons 15 Micklemote amongst the Saxons 36 The Primacy of Canterbury setled there 22 Mills tythed 149 Militia amongst the Saxons 39 The Normans 95 During the Kings next ensuing 127 During Henry 3. Edward 1. Edward 2. 184 Mint amongst the Saxons Normans 85 Monastery admission 114 Mortdancester 123 163 Mortmain 152 Mortuary amongst the Saxons 20 N. NEws scandalous 182 Night-watches by the Normans 88 After 190 Nobility amongst the Saxons 33 From the Normans times 107 From King John's time 137 Normans their Title 70 c. Not Conquest 97 Novel disseisin 124 163. O. OBlations cognizance 146 Odio Atia 168 c. Officers power greater than Kings 108 Ordeal amongst the Saxons 55 Ordinaries intestate 144 Outfangtheoff amongst the Saxons 46 Ostiares amongst the Saxons 18 Oaths 153 169 P. PAlatine county amongst the Saxons 45 Parishes amongst the Saxons 22 Parliaments 75 173 Parks trespasses 183 Passage 170 Peace amongst the Saxons 62 The Normans 87 After 188 Penal Laws Saxons 60 Normans 86 After in the time of Henry 2. 120 After 179 Perjury punished by the Saxons 25 63 Peers amongst the Saxons 58 Peter-pence amongst the Saxons 20 The Normans 86 Pledges 94 Plough-Alms Saxons 20 Pope's power 12 110 114 Oppressions of the Clergie 140 Prelacy in England not till Constantine's 7. came from Rome by Austin 13 c. Suddenly grown 27 Prâ—cipe Mag. Charta 167 Priors vide Abbots Presbyters amongst the Saxons 17 Presentment amongst the Saxons 54 Priority vide Tenure Prohibitions 142 145 Protector 130 Provinces amongst the Saxons 22 Purveyance 152 165 c. Q. QUare Clausum fregit Saxon 63 Quare excommunicavit 141 Quare non admisit ibid. Quarentine 160 176 Quo warranto 152 R. RAnsom 59 162 Rape Norman 88 After 121 c. 180 Reasonable part 160 165 Vide Dower Redemption vide Ransom Redisseisn 183 Relief Norman 90 After 125 Religious houses vide Abbeys Replevy Norman 89 After 161 Richard the First 105 Romans entry 3 The Papalty with seven degrees of their Church-Officers 18 Seven sorts of Church-maintenance 22 Romescot Romesfeogh vide Heordpenny Robbery punisht by the Saxons 63 By Normans 88 After 121 122 180 190 S. SAbbath-day Saxon-Law 61 Sacriledge Saxon-Law 25 Sanctuary 87 114 150 Saxons in England mingled 56 Seal vide Deeds 67 Sheriffs Saxon 40 Extortion 172 179 Simony punished by the Saxons 26 Sorcery vide Witchery Soul-shot Saxon 20 Socage Saxon 48 Steven his government 103 Stat. Magna Charta vide Magna Charta Merton cap. 1 2 6 7. 160 Cap. 1. 176 Cap. 3. 183 Cap. 9 157 Cap. 10. 172 Cap. 11. 183 Marlbridge cap. 1 2 3. 161 Cap. 4. ibid Cap. 5. 175 Cap. 8. 183 Cap. 9. 162 Cap. 10. 142 172 Cap. 15. 162 Cap. 16. 163 Cap. 17. 176 Cap. 19. 164 Cap. 20. 163 Cap. 21. 162 Cap. 22. 162 Cap. 25. 179 188 Cap. 29. 142 West cap. 1 2 5. 143 c. Cap. 3. 181 189 Cap. 4. 176 Cap. 6. 164 Cap. 9. 181 Cap. 10. 179 Cap. 11. 168 Cap. 12. 181 Cap. 13. 180 Cap. 14. 172 Cap. 15. 182 Cap. 16. 162 Cap. 20. 183 Cap. 22. 160 Cap. 23. 179 Cap. 32. 166 Cap. 33. 172 Cap. 34. 182 Cap. 36. 178 Cap. 51. 163 Bigamy 154 c. Gloucest cap. 1. 164 Cap. 5. 160 Cap. 6. 163 Cap. 8. 179 189 Cap. 9. 168 De Religiosis 153 Westm. 2. cap. 13. 172 Cap. 16. 160 Cap. 19. 144 Cap. 24. 178 Cap. 26. 183 Cap. 29. 168 178 Cap. 30. 164 Cap. 33. 153 Cap. 44. 180 Winton 189 c. Circumspecte agatis 145 c. Quia emptores 172 De Judaismo 171 Quo Warranto 152 De vasto 160 De consultatione habenda 148 De Wardis 160 Artic. super Cart. cap. 2. 166 Cap. 3. 178 Cap. 9. 179 Cap. 12. 163 Cap. 13 14. 173 Cap. 15. 178 Cap. 18. 160 Conjunct feoffat 164 Amortizand terris 153 Asportat bonis Relig. 152 De militibus 184 Artic. Cleri 137 148 Vicecomit 137 172 179 De prisis bonis Cleri 137 152 Prerog Reg. 137 Cap. 3 13. 160 Cap. 7. 172 Cap. 9. 175 Cap. 11. 176 Cap. 14 16. 167 Sub-Deacons 18 Suit of Court 125 Vide Mannor Synods Briton 7 Saxon 23 Disadvantages to Prelacy 27 Norman 77 Without the Laity 117 Power 154 c. T. TAil Saxon Law 66 Taxes 173 Vide Free-men Tenures vide Mannor Normans changed them not 100 Tenures by several Lords priority 124 By Escheats 171 Term Saxon 68 Testament Saxon ibid. After 126 c. Thefts cognizance 121 222 Tythes original 19 Cognizance 27 Normans 86 111 148 149 Torn Saxon 41 173 Torture amongst the Saxons 55 Townships and their Courts Saxon 49 Normans 83 Treason punished by Saxons 61 After 121 Trover of Goods 89 Troth-plight 111 V. VAcancies of Churches 111 c. 115 Vacation vide Term. View of Pledges Saxon 48 Norman 83 After 164 173 Villains Saxon 34 Normans 85 Violence done to Clerks 146 Use in deeds of Conveyance Saxon 67 Usury 171 W. WArdship 92 126 160 169 Warranty Saxon 67 Wears 167 Wera wergilda Saxon 62 Weights and Measures Saxons 28 Normans 88 168 Widows vide Socage and Knight-service William the First 70 c. William Rufus 73 Wife Saxon 62 Will vide Testament Witnesses deeds Saxon 67 Witchery 25 Punished by Saxons 60 Wita Saxon 62 Worship Saxon cognizance 24 Wrecks 176. AN Historical and Political Discourse OF THE Laws Government OF ENGLAND CHAP. I. Of the BRITONS and their Government THIS is Britain or rather that part thereof in after-ages called Saxony and England from the peoples Names transplanted thither The Britons to lay aside all conceipts of Fame I take to be
to speed for the present and left the future to look to it self Ireland was nigh but we find nothing concerning their interest in shipping the French Coasts were not their own men being yet within the Roman Line and none were at liberty but such as were never subdued by the Romans only the Saxons are in the thoughts of the Britons a mighty people not far off able to mate the Romans in their chiefest pride and though in a manner Borderers upon the Roman world yet unsubdued by them used to the Wars mighty at Sea and now given over by the Romans in a plain field were at leisure and so well knew the way to Britain that the Romans intituled the Coasts of Norfolk and Suffolk the Saxons Coasts from the many visits that the Saxons had already made into those parts full sore against the Romans wills I hold it both needless and fruitless to enter into the Lists concerning the original of the Saxons whether they were Natives from the Northern parts of Germany or the Reliques of the Macedonian Army under Alexander But it seems their Government about the time of Tiberius was in the general so suitable to the Grecians as if not by the Reliques of Alexanders Army which is generally agreed emptied it self into the North yet by the Neighbourhood of Greece unto these Nations it cannot be imagined but much of the Grecian wisdom was derived into those parts long before the Romans glory was mounted up to the full pitch and because this wisdom could never be thus imported but in vessels of mans flesh rigged according to the Grecian guize it may be well supposed that there is some consanguinity between the Saxons and the Grecians although the degrees be not known The people were a free people governed by Laws and those made not after the manner of the Gauls as Caesar noteth by the great men but by the people and therefore called a free-people because they are a Law to themselves and this was a priviledge belonging to all the Germans as Tacitus observeth in cases of most publick consequence de majoribus omnes like unto the manner both of the Athenians and Lacedemonians in their Concio For which cause also I take the Gauls to be strangers in Blood unto the Britons however nigh they were in habitation That some matters of action especially concerning the publick safety were by that general vote concluded and ordered seems probably by their manner of meeting with their weapons But such matters as were of less concernment the Councel of Lords determined de minoribus Principes saith the same Author Their Country they divided into Counties or Circuits all under the government of twelve Lords like the Athenian territory under the Archontes These with the other Princes had the judicial power of distributive justice commited to them together with one hundred of the Commons out of each division The Election of these Princes with their Commission was concluded inter majora by the general Assembly and they executed their Commission in Circuits like unto the Athenian Heliastick or Subdial Court which was rural and for the most part kept in the open aire In brief their judicial proceedings were very suitable to the Athenian but their military more like the Lacedomonian whom above all others in their manners they most resembled In their Religion they were very devout saving that they much rested in the reverence they bare to their Priests whom they made the moderator of their general Assembly their Judge Advocate and Executioner in Martial Law therein submitting to them as unto Gods instrument They worship an invisible and an infinite Diety mans flesh is their Sacrifice of highest account and as often as they make inquiry by lots they do it with that solemn reverence as may put all the Christian world to the blush precatus Deos caelumque suspiciens and this done by the Priest of the Town if it be in publick causes or otherwise if private then by the master of the Family so as they had Family-worship as well as publick These things I note that it may appear how nigh these invited guests resemble the old Religion of the Britons and how probable it is that this Island hath from time to time been no other than as a Sewer to empty the superfluity of the German Nations and how the influence of these old principles doth work in the fundamental government of this Kingdom to this present day These are the instruments chosen by God and called by the Britons to be their deliverers from their Enemies which they did indeed yet not swayed thereto by love of Justice or compassion for if writers say true they were no better than high-way-men both by Sea and Land but by their love of spoil and prey and by the displeasure of God against a dissolute people They profess friendship nevertheless in their first entrance but espying the weakness of the Britons and feeling the strength of the Picts and finding the Land large and good they soon pickt quarrels with their Hoast made peace with the Picts and of fained Friends becoming unfained Foes to the Britons scattered a poor remnant of Christians some to the furthest corners of the Kingdom others into forrain Nations like so many Seeds men to sow the precious Seed of Life in a savage soil And those few that remained behind profiting under much misery by their doctrine and good example yielded better blessings unto their new-come guests than they either expected or desired And thus the miseries of poor Britain became riches of mercy to the North and Eastern people and the ruines here the foundations of many famous Churches else-where Nor yet was mercy from the Britons utterly taken away nor their blood drawn out to the last drop or their name quite blotted out of the book of fame for whereas two things make men miserable viz. the heaviness of the burden without and the failing of the heart within and Gods ordinary way of redress of the former beginneth in taking away the latter thus dealt he with the Britons For in danger as want of strength breeds fear and that by extremity despair so despair oftentimes revives into a kind of rage that puts strength forth beyond reason I say beyond reason for cause cannot not be given thereof other than Gods extraordinary dispensation in a judiciary way when he seeth the stronger to wax insolent over the weaker Thus the Britons fled from the Picts so long as they had any hope of relief from the Saxons but being become their Enemies and pursuing them to the low-water mark that in all reason they must either drink or bleed their last then their courage revived and by divers Victories by the space of 200 years God stopped the hasty Conquest of the Saxons The result whereof by truces leagues commerce conversation and marriages between these two Nations declared plainly that it was too late
than the people were backward thereto and therein shewed themselves the true Seed of their Ancestors in Germany of whom it 's observed that they endured not Images but worshipped a Deity which they saw sola reverentia Sorcery and Witchcraft they had in abomination yet it was a sin always in a mist and hard to be discerned but by the quick-sighted Clergy and therefore it was left to their censure as a sin against the Worship of God. This Ethebald the Mercian King first endowed them with and they alone exercised the Cognizance thereof till Alfred's time who inflicted thereupon the penalty of Banishment but if any were killed by inchantment the delinquent suffered death by a Law made by Aethelstan And thus by degrees became one and the same Crime punishable in several Jurisdictions in several respects Concerning Perjury the Prelates had much to do therewith in future times and they had the first hint from Ina the Saxon King 's Grant to them of power to take Testimonies upon Oath as supposing that the Reverence that men might bear to their Persons and Functions would the rather over-awe their Tongues in witnessing that they would not dare to falsifie lest these knowing men should espy it and forthwith give them their doom But no positive Law allowed them that power of sentence till Aethelstan's Law gave it and upon conviction by the same Law distested the delinquents Oath for ever Sacriledge comes in the next place being a particular Crime meerly of the Clergy-mens invention and naming for before they baptized it you might have well enough called it Theft Oppression or Extortion This Crime the Prelates held under their Cognizance by vertue of that general Maxime That all wrong done to the Church must be judged by the Church The first time that I can observe they challenged this power was by Egbert Archbishop of York in the Seventh Century But nothing was more their own than Simony and that may be the reason why we find so little thereof either for the discovery or correcting of it All former Crimes were in their first act destructive to the Church but this advantageous and therefore though the Canons roar loud yet the execution is not mortal because it 's bent against the dignity and not the gain And although the Canon would not that any Presbyter should be made but presented therewith to some place to exercise his Function in yet it serveth not for those times when men were sent forth rather to make Flocks than to feed Flocks And yet the Theam of Marriage was the best Dish in all their Entertainment They had the whole common place thereof with the Appurtenances within the compass of their Text before ever it attained the honour of a Sacrament It was a branch of Moses Law whereof they were the sole Expositors and so seemeth to be cast upon them by a kind of necessity as an Orphan that had no owner Nevertheless a passage in Eusebius seemeth to report this Trust in the Civil Magistrate for he relateth out of Justin Martyr concerning a Divorce sued out by a godly Matron long before the Prelacie got into the Saddle or the Clergie had the power of Judicature And whereas Lucius taxed Vrbicius the Magistrate for punishing Ptolomy who was guilty of no Crime worthy of his cognizance in that kind amongst other Crimes enumerated by him whereof Ptolomy was not guilty he nameth the Crimes against the Seventh Commandment intimating thereby a power in the Judge to have cognizance of those Crimes as well as others But the Prelacie beginning to mount nibled at it in the second Centurie but more cleerly in the fourth when the persecutions were allayed and men of Learning began to feel their Honour and never left pursuit till they had swallowed the Bait and exercised not onely a Judiciary power in determining all Doubts and Controversies concerning the same but challenged an Efficienciary power in the Marriage-making This Garland Austin brought over with him and crowned the Saxon Clergie therewith as may appear by his Queries to Pope Gregory And thus the Saxons that formerly wedded themselves became hereafter wedded by the Clergie Yet the Civil Magistrate retained a supream Legislative power concerning it as the joynt Marriages between the Saxons Britons and Picts do manifest For it 's said of that Work that it was effected per commune concilium assensum omnium Episcoporum procerum comitum omnium sapientum seniorum populorum totius regni per praeceptum Regis Inae and in the time of Edward their King were enacted Laws or Rules concerning Marriage and so unto the Lay-power was the Ecclesiastical adjoyned in this Work. The Clergie having gained the Principal with more ease obtained the Appurthenances such as Bastardy Adultery Fornication and Incest There was some doubt concerning Bastardy because it trenched far into the Title of Inheritance and so they attained that sub modo as afterward will appear The Laws of Alfred and Edward the elder allowed them the cognizance of Incest although nevertheless the Civil Magistrate retained also the cognizance thereof so far as concerned the penalty of the Temporal Law. Adultery and Fornication they held without controul yet in the same manner as the former for the Civil Magistrate had cognizance thereof so far as touched the Temporal penalty And to give them as much as can be allowed it 's probable that in all or most of the Cases foregoing they had the honour to advise in determining of the Crime and declaring the Law or defining the matter for in those ignorant times it could not be expected from any other But how the cognizance of Tythes crept under their wing might be much more wondred at for that it was originally from the Grant of the People nor can a better ground be found by me than this that it was a matter of late original For till the Seventh Century the times were troublesome and no setled maintenance could be expected for the Ministry where men were not in some certainty of their daily Bread. And as it will hardly be demonstrated that this Title was ever in any positive National Law before the time of Charlemain in whose time by a Synod of Clergie and Laitie it was decreed that Tythes should be gathered by selected persons to pay the Bishops and Presbyters So neither can I find any Saxon National Constitution to settle this duty till Alfred's time although the Church-men had them as a voluntary Gift so far as touched the quota pars for the space of well-nigh a hundred years before But Alfred made a National Law under a penalty to enforce this Duty which the Canon could not wring from the Saxons how dreadful soever the Censure proved And by this means the Church had their remedy by Ecclesiastical censure for the matter in fact and
totius Angliae Ecclesiarum vice nostra cum concilio Episcoporum Abbatum constituatis ubique quae justa sunt How the King took the conclusion I find not but he could never make better use than by way of estoppel unless he meaned to sacrifice his own right as a thank-offering to a shadow which I find not that he or his next Successors ever did But as touching the Laity Histories do not touch upon any conceit of withdrawing Monarchical power It 's true Kings had their excesses yet all was amended either by the body of the people when they pleased to examine the matter or by the Princes fair compliance when complaint was made and so the Law was saved And thus upon all the premises I shall conclude a Saxon King was no other than a primum mobile set in a regular motion by Laws established by the whole body of the Kingdom CHAP XVII Of the Saxon Nobility THe ancient Saxon Nobility in Germany were the chiefest in action both in War and in Peace That rank of men was continued by three means viz. by Birth or Blood by Valour and by Wisdom The first was rather at the first a stem arising out of the first two than a different degree or kind for Noble blood was at the first enobled by brave actions afterward continued in their honour to their Posterity till by as base courses it was lost as it was gained by worthy Atchievements these were called Adelingi The Nobility of Action consisted either in matters of War or of Peace Those of Peace arose principally from Wisdom which being gained for the most part by much experience were therefore called Aldermanni or elder men The Nobility of War arose somewhat from valour or courage with wisdom but more from good success for many brave and fortunate Commanders have not been very daring and the bravest spirits though wise have not been ever honoured with good success these were called Heretochii Nevertheless all these names or titles were used promiscuously in following times and all called Nobiles But both that and Duces Satrape and Comites were all of the Roman Dialect as the former were of the Saxon. Time also brought others into this honourable Band viz. The great Officers of the Kings Houshold and their attests are found amongst the Kings Charters amongst the Nobles and that much advanced the price of Kings for he that is worthy to be not onely Lord above Nobles but Master of some may by a little courtesie prevail over all This starry Heaven had several Orbs some so high as in common esteem they were next the Imperial Heaven having a tincture of Royal Blood and at the next door to the Throne Others though not of so clear light had nevertheless no less powerful influence upon the people but rather more by how much more nigher to them Their power in matters of Peace or Government of the Commonwealth was exercised either collectively or apart and severally In their meetings they ordered the smaller emergencies of the publick in convocating and directing the people De minoribus rebus consultant principes These minora are such as are subservient to the majora and pro hic nunc require suddain order touching any particular part or member of the Common-wealth At other times they visited their several Territories or Circuits hearing and determining matters of Controversie and executing Judgment according to the known Laws Principes jura per pagos vicosque reddunt Yet they had Comites of the Country joyned with them whereof afterward This was their course in German Saxony but in England the new stem of Kingly power arising higher than all the rest sucked much from them and kept them under for the judiciary power was in time drawn up into the Regal order and the Lords executed the same as Deputies from and under him designed thereto by Writs and Commissions as it is more particularly noted of King Alfred The Lords thus lessened in their judiciary power carried the less authority in their Votes and Consultations The King was a perpetual Moderator in that work and it was no small advantage he had thereby to sway the Votes Men that are advanced if they have any excellency soon gain admiration and it 's a hard thing for one that hath yielded his heart to admiration to keep it from adoration This hath mounted up Kings to the top more than their own ambition and made them undertake what they ought not because we esteem more highly of them than we ought I speak not against due but undue Obedience for had the Saxon Lords remembred themselves and the true nature of the authority of their King they needed not to be amazed at their check nor to give way to their passion as they did many times and advised others to do the like Nor had Kings by degrees become beyond controul and uncapable to be advised This errour the Lords espied too late and sometimes would remember their ancient right and power and did take boldness to set a Law upon the exorbitancy of their King as in that case of Aethelwolf and his Queen amongst others may appear but that was like some enterprizes that owe more to extremity of occasion than to the courage of the undertaker CHAP. XVIII Of the Freemen amongst the Saxons THe next and most considerable degree of all the people is that of the Freemen called anciently Frilingi or Free-born or such as are born free from all yoke of Arbitrary power and from all Law of compulsion other than what is made by his voluntary consent for all Freemen have votes in the making and executing of the general Laws of the Kingdom In the first they differed from the Gauls of whom it is noted that the Commons are never called to Council nor are much better than servants In the second they differ from many free people and are a degree more excellent being adjoyned to the Lords in judicature both by advice and power consilium authoritas adsunt And therefore those that were elected to that work were called Comites ex plebe and made one rank of Freemen for wisdom superiour to the rest Another degree of these were beholding to their Riches and were called Custodes Pagani an honourable title belonging to Military service and these were such as had obtained an estate of such value as that their ordinary Arms were a Helmet a Coat of Mail and a gilt Sword. The rest of the Freemen were contented with the name of Ceorles or Pagani viz. Rural Clowns who nevertheless were the most considerable party both in War and Peace and had as sure a title to their own liberties as the Custodes pagani or the Country Gentleman had CHAP. XIX Of the Villains amongst the Saxons THe most inferiour rank amongst the Saxons were those that of latter times were called Villains but those also antiently divided into two degrees the
Walls and Castles and for the former by setling a Magistracy peculiar to that place or Township not as so many Decenners but as one body consisting of many members And thus by custom they grew to be Fraternities or Corporations under one Magistrate or Head whom they called Alderman and held a Court of Justice at the first holden twice a year which was in nature of a Leet with a view of Frank-pledge as may appear in the cases of Dorchester Circester and Doncaster in Alfred's time and herewith they had publick Markets which served them for their better conveniencies This priviledge of Market was a liberty of publick sale and trade in Commodities that principally concern the Belly but by common course became a pass for Commodities of every kind almost Concerning this liberty I shall desire leave to interpose this Parenthesis ensuing before I proceed in the intended discourse In the first times as every man by common right had property in his own Goods so by the same right he had power to alien to any person at any time in any place by gift sale exchange or other ways and that by such Alienation but especially by sale a Right was vested in the Buyer against all men saving the Eigne-right which was recompenced upon warranty and recovery in value And in those days common sense taught men to buy or sell of or to the next Neighbour that would bargain with them and for want of such occasion to repair to the next Assembly Meeting or Concourse of people for the sale of such Commodities as their Neighbourhood would not take off their hands And thus the greater Towns that had Walls or Castles became the greatest Markets and others less and this made the Neighbourhood of those Towns to repair thither to buy as others to sell. But time discovering a double inconveniency herein viz. that by these less publick sales in smaller Villages where little or no care of Right or Justice was had and by which means the word Pagan became a word of reproach many mens Goods by clandestine Contracts were lost and no care had of their recovery and which was yet more prejudicial to the Publick that the greater Towns appointed for the strength and defence of the Kingdom became ill provided with supply of Victuals either for the present or future and what was had for the most part was gotten at the second hand and higher rate than the Country-Villages had The wise men by publick Edict laid a restraint of Markets in smaller Villages and more private places and thus the greater Towns having Markets formerly became more publick Markets not by any new Right or Priviledge from the Crown for it neither had such power nor could have but upon usurpation against the common Right of such Towns and places of publick defence This Restraint upon the reasons aforesaid was made first in the Saxon-times as may appear by their Laws but more cleerly declared and confirmed afterwards by the Laws of the Normans which never gave any new Right of Market-overt unto those places of publick defence but onely did inhibit the same in the smaller Villages and private places In which respect although the Kings of this Nation in future times took leave to abolish that Restraint which did lie upon some of those more private places for certain reasons of State and so these places became Markets-overt which formerly were none yet could they never take away that priviledge which Nature it self cast upon those greater Towns being the very Limbs of the Kingdom without wrong done to the common Right and the publick Good nor abridge them of that power but that they might still use their liberty at times and places within their Precinct as might best conduce with the benefit of the Inhabitants of those places even as any particular Free man may govern his own Estate as him liketh best And thus upon the whole matter it is to be concluded that the ancient Burroughs of this Kingdom properly do not hold their liberty of Market-overt by Prescription or Charter but by common Right and not as a Corporation made by Charter but as they are a multitude of people anciently gathered together and united upon whom the strength and wealth of the Kingdom doth or did formerly much more depend than on any of the smaller Villages and open Towns even as every Free man possesseth and useth his proper Inheritance and Estate without particular priviledge derived from the Crown Nor can the King take away the liberty of Market-overt from such places more than he can take away the liberty of buying and selling from any Free man to whom the Law alloweth a liberty of ownership This I submit to the censure of the learned in the Laws in regard of the different opinions concerning the same This liberty of Township thus made and the Place and People Inhabitants thereof being of such consequence in the publick administration had for their better support and safety liberty of Fortification and power to charge one another with the maintenance of the Fortifications by an imposition called Burghbote and held their Tenements under a Rent to their Lord or King called Burgage as they were a body aggregate CHAP. XXXIV Of the Forests BEsides other Prerogatives of the Saxon Kings they had also a Franchise for wild Beasts for the Chase which we commonly call Forest being a precinct of ground neither parcel of the County nor the Diocess nor of the Kingdom but rather appendant thereunto This savoured of the old German sport but by custom turned from sport to earnest For although in the first times the Saxons were so few and the Country so spacious that they might allow the Beasts their Farm as well as themselves their own People nevertheless so multiplied as of necessity they must intercommon either with Beasts or Fishes the former whereof however more cleanly yet the latter had the surest footing and was chosen as the least of two evils rather than for any likelihood of good Neighbourhood For as Nature taught Beasts to prey for themselves so men to defend their own and this bred such a fewd between Beasts and men as that Kings doubting to lose their Game took in with the weaker that the world might see the happiness of England where Beasts enjoy their liberty as well as men But this was as it were by compromise for it had been very hard to have pleased the Free men who had liberty of Game within their own ground by common Right and to preserve the Kings liberty of Forest co-incident therewith had not the King employed on the one side the power of a Dane that looked somewhat like a Conquerour and on the other side that which looked as like to the bounty of a King in allowing liberty of ownership to men inhabiting within the bounds of the Forest which at the first was set apart onely for the Kings pleasure and all his wits to
be a loser by so well-deserving service as in those days that was accounted Nevertheless the English look upon Henry as the fitter man for their turn being now at hand and Robert at Jerusalem and being a native born in England civilized into the English garb by education and of a wiser and fairer demeanour and more inclining to peaceable Government which both Normans and English much inclined to as being weary of thirty years service in the Wars And therefore it is not marvellous if they applied themselves to him in a way of capitulation and less wonderful if he hearkned thereunto and yet neither unadvisedly yielded unto by him nor traiterously propounded by them as some in zeal to Monarchy conclude the point The worst of the whole matter resting in this that the King bound himself to be just that he might be great and the people to submit unto Justice that they might be free like as their Ancestors were and themselves by the Law established ought to be For the capitulation was in substance setled by the ancient Laws of the Saxons mixed with some additions of Laws made by the Kings Father with the joynt advice of the grand Council of the Kingdom all which both the Norman Williams had often confirmed by solemn protestations and promises however their actions upon sudden surprisal were malae consuetudines and exactiones injustae by this Kings own acknowledgment Thus these three Norman Kings made their way to the Throne the first by Arms under colour of Title the second by a kind of Title under colour of Arms and the last by favour but all entred the same by capitulation election and stipulation and for the general had some regard to suit their course in order of retaining the good will of their people although in a different measure according to the differency of occasions CHAP. XLVI That the Government of the Normans proceeded upon the Saxon principles and first of Parliaments THE principles which I mean are these First the Legislative power and influence thereof upon the whole Secondly the Members of that Government with their several motions Thirdly the Laws and Customs or Rules of those Motions And first concerning the Legislative power Although it be true that the first Williams great and most constant labour was to have and to hold and had but little time or liberty to enjoy yet that time of rest which he had did apply it and himself in the setling of the Laws by the advice of Common-council I say not by advice of his own heart or two or three Norman Lords or of the Norman Nobility only as some men take the confidence to aver as if they had been eye-witnesses to the actions of those days but by the joynt advice of the grand-Council of the Lords and wise men of the Kingdom of England I will not insist upon force of argument to shew that common reason must of necessity sway the King into this course but shall reserve that to another place the testimonies of Writers must now serve the turn and herein the testimony of the Chronicle of Lichfield must have the first place which speaks both of a Council of Lords and saith that by their advice he caused to be Summoned a meeting of all the Nobles and wise men through all the Counties of England to set down their Laws and Customs This was in the fourth year of his Reign or rather after his entry and as soon as the Kingdom was brought into any reasonable posture of quiet and which besides the intention of governing the Kingdom according unto Law doth strongly pretend that the Parliament had the Legislative power and right of cognizance and judicature in those Laws that concerned the Kingdom in general and for the particular Laws or Customs of several places or Precincts it was referred to a Committee or Jury in every County to set them forth upon Oath Secondly that this Council had power to change Laws may likewise appear in that Act made concerning the introduction of the Canon-Law which shews not only the power of that Council in Church-matters but also that the Canon was no further in force than the same would allow and this was also done by Common council and the Council of the Archbishops Bishops Abbots and all the Princes of the Kingdom which connexion shews plainly that there was a Council besides that of the Prelates and Princes Thirdly in matters of general charge upon the whole body of the people the King used also the help of this Grand-council as may especially appear in the charge of Arms imposed upon the Subjects which was said to be done by the Common council of the whole Kingdom as is witnessed even by the Kings own Law. It may seem also that the grand Officers of the State were elected by such grand assembly of the wise men for we find that Lanfrank was elected to the See of Canterbury by the assent of the Lords and Prelates and of the whole people that is by the Parliament of England and as probable it is that Bishops were therein also elected for that the Bishop of Lichfield resigned his Bishoprick in such like Assembly if the meaning of Lanfrank be rightly understood who saith in his Letter that it was in conventu Episcoporum atque Laicorum Lastly that one Law of the Kings which may be called the first Magna Charta in the Norman times by which the King reserved to himself from the free-men of this Kingdom nothing but their free service in the conclusion saith that their Lands were thus granted to them in inheritance of the King by the Common-council of the whole Kingdom and so asserts in one the liberty of the free-men and of the representative body of the Kingdom These footsteps of the Parliament find we in the Conquerors time besides other more general intimations scattered amongst the Historians which may induce opinion to its full strength that this King however Conqueror he was yet made use of this additional power of Parliament to perfect his designs and it may be more often than either of his Sons that yet had less pretence of superlative power to countenance their proceedings William Rufus was a man of resolution no whit inferiour if not surpassing his Father and had wit enough for any thing but to govern his desires which led him many times wild and might occasion conceit that he was almost a mad King though he were a witty man and therefore it is the less marvail if he used not the help of the Common-council more than needs must where Kings many times are told of that which they are loth to know Nevertheless William the second could not pass over thirteen years without a parley with his Commons and Clergy unless he meant to adventure a parley between them and his Brother Robert who like an Eagle eyed his posture though he hovered afar off But Henry the first was more wise
up higher as for them to stoop lower And however it was dangerous now for the Duke to try masteries unless he meant to hazard all and to change the substance for the shadow Lastly to lay them all aside and to take the Normans as in themselves considered a People under such Laws and Customs as were the same with the Saxon and originally in them and from them derived into Normandy by Rollo or some other or take them as a People willing to lay aside their own Law as some Writers affirm and more willing to take up the Danish customs which were also very nigh akin to theirs and in part setled by the Danes in that part of the Kingdom where themselves most resided It must be concluded that a Government by Law was intended and such a Law that was no way cross to the Fundamental Laws of this Kingdom but concurring therewith in every of which regards the future Generations may justly claim their Immunities as Successours and Heirs unto the Normans albeit no Saxon could have enjoyed or derived the same to Posterity A second sort of men that made the King uncapable to hold by Conquest was the Clergie a considerable part of the Kingdom in those days whenas in every Nation they grew checkmate and in this Kingdom had well-nigh the one half of the Knights fees and thereby a principal part of the strength of the Kingdom besides the Consciences of them all and for a Reserve they had the Pope in the rear whose power in every Kingdom was little inferiour to that of the King 's own and therefore sufficient to stop an absolute Conquest unless the Clergie were first conquered But the King came in upon great disadvantages in both these regards for whereas his pretence upon his entry was to advance Justice principally toward the Clergie who formerly were wronged by Harold or voiced so to be this bound him from Injustice and Oppression And furthermore the Pope had him in a double bond one as Prince of the English Clergie the other as Judge of the Title of the Crown by the King 's own Election and that by Sentence for the King had merited of him if not to hold the Crown it self by Fealty to the Roman See yet by such services as that the Tripple-Crown should be no loser The King therefore must resolve to have no more to do with the Church than will stand with the Pope's liking unless he meaned to adventure himself and all he had into the danger of the great Curse of which the King would seem more sensible than perhaps he was Nor were those times of the Church so moderate as to bring forth Church-men that would catch the good will of the Laity by condescention or Popes of that height of perfection as to part with one tittle of their great Titles much less ought of that pitch of power which they had griped though it would save the World from Ruine In all which regards the Norman Duke was too far inferiour to attain by Conquest any thing in this Kingdom wherein the Pope or Clergie claimed ought to have or do A third sort of People avoided the dint of Conquest either by timely siding with the Norman or by constant resisting of him or by neutrality Of the first sort were many both Lords and others that by affinity and consanguinity were become English-men to the Norman use others were purchased thereunto by the Clergie that were zealous for the Pope's honour that was engaged in the Work. Of those likewise that were resolute in the defence of the Liberty of their Country there were not a few that purchased their Liberty who otherwise might under pretence of Treachery have forfeited the same to the rapacious humour of the Conquerour And this was not done onely by Valour for Normandy stood in a tottering condition with their Duke partly drawn away by the French that feared the Duke would be too strong for them and partly declining their own further aid lest their Duke should be too great for the Dutchy It was therefore wisdom in the Conquerour to settle the English aflairs in the fairest way to gain them for himself who had been so brave against him But the greatest number especially of the Commons looked on while the game was playing as contented with the cast of the Dice whatever it should be These were afterwards by the King looked upon not as Enemies as the president of Edwin of Sharneburn witnesseth sufficiently but such as either were or by fair carriage would be made his friends and therefore he concluded them under a Law of assurance that they that had been so peaceable should have and enjoy their Lands as entirely and peaceably as they had formerly done before his entry To conclude therefore this point if these three parties of the English Normans the English Clergie the stout English and the peaceable English be set aside from the Title of Conquest it will be probable that not one tenth part of the Kingdom were ever under other change than of the Governour 's own person CHAP. LVI A brief Survey of the sence of Writers concernign the point of Conquest THE clamours in story that the Conquerour altered and made Laws at pleasure brought in new Customs molested the Persons and Estates of the People with Depopulations Extortions and Oppressions and others of that nature have made latter times to conclude his Government to be as of a Conquerour meerly arbitrary and that he did what he list How different this conclusion is from the intent of those Writers I know not but if the King's Title and Government was as a Conquerour then was his Will the onely Law and can administer no cause of complaint of wrong and oppression and therefore if these be taken in nature of complaints they declare plainly that there was a Law in Title or else there could have been no transgression or cause to complain But if the Reader shall apprehend these passages in Writers to be no other than sober Relations then were it not amiss to consider from what sort of men these Complaints or Relations do proceed viz. from Writers that have been cloystered men little seen in affairs of State more than by common report and rumour prejudiced by the King's displeasure against their Cloysters and therefore apprehensive of matters in the saddest sence and many times far beyond the truth and might as well be supposed to mis-relate as to mistake For if we shall touch upon particulars I think no man will deny but the King allowed property indifferently as well to Normans as English if the premises be rightly considered and therefore though somewhat be true of the plundering of houses of Religion persecuting of the English Nobility deposing of Bishops and Abbots whereof they speak yet all might be deservedly done in a legal way and in execution of Justice whereof Histories are not altogether silent Nevertheless if in the prosecution the King did
more the conceit of Fame than there was cause These concurring with unnatural troubles from most unthankful Sons made that spirit of his to fail that formerly knew no peer as it is often seen that the most generous spirits are sooner quelled with shame and grief than with fear of any danger whatsoever Towards his Lay-Subjects he was more regardant for the setling of Laws and executing of Justice so as some have thought him the first source of our English Laws others more truly the first Mecaenas since the Conquest that brought on the spring-time of a setled Common-wealth and therefore left this fair testimony by his putting forth that Primrose of English Laws under the name of Glanvil letting all men know that thenceforth England would no more veil itself in an unknown Law but explain itself unto the World to be a regular Government Such was the King's Idea yet was he touched with so much of the common infirmity of Kings as shewed him to be a man especially in his old age being loaden with Military Affairs wherein he had been long exercised he had contracted some shifting courses of a Souldier in gathering Money and Souldiers somewhat out of the road-way of an English King and led an ill example to future Ages nor had he other salve for this wound but that it was for the honour of Christian faith and for the sake of Jerusalem Next comes in Richard the first Henry the Second's Son both in birth and courage yet was his behaviour to his Father such that his meritorious Holy War could never wipe it out of the Calendar of story His entrance was upon an Election made in his Fathers life-time and the same confirmed by receiving of Homage from the Peers The sad troubles that this Election amongst other things occasioned to his Father in his old age shew plainly that Richard trusted not to the Title of Inheritance nor the French King that took his part unto the English custom for the possession of the Crown but all must be done in the Life of the Father that must secure the Government to the Son when the Father is dead And thus is he entred upon the Throne not as Heir but as Successor to his Father yea rather as Survivor taking possession of what was by special compact conveyed to him by the means of his Father in his life-time though sore against his will if Writers speak true As his entrance was it promised a better Government than followed for though it was for the most part hidden in the Womb as himself did subsist in another World yet by a secret providence he was given over to the election of ill Deputies and therefore he was not well beloved however dear he was to this Nation A third part of his Government was spent in a calm with Pope Clergy Commons and all Nations that were not Infidels upon conscience it seems that he ought not to be troubled who adventured his person so bravely in the Holy War. But above all he was the Clergies darling not only for his adventure in the Holy Land but now much more in his return by his imprisonment in Germany and therefore they sluck close to him in his absence not only in maintenance of his right to the Câ—own whereto some made claim and his own Brother John did more but emptied themselves to the utmost for his delivery which they effected to the envy of the French and such as longed for his downfal here in England The King comes like the Sun-rising scattering his Brothers designs by his very view then returns his thoughts for France where he spent the rest of a restless life and as his entry upon the Throne was unnatural for he made his way upon his Fathers Herse so was his Reign full of troubles and his end not unlike for it was violent and by the hand of his own subject and so ended his Reign that scarce had any begining Next comes in King John to act his part according to his entry hand over head whether called by a people scared with the noise of Succession by inheritance or such as thought it not convenient nor safe in a stirring time to have a Child to be their King or lastly led by an interest that John the youngest Son of Henry the second had by woful experience obtained amongst the Lords or some or all concurring it is clear they crossed the way of inheritance waved Arthur's Title who was Heir to Richard the first and by him also appointed to succeed being then but a Child and they chose John a man of War trained up in the Government of Ireland which made way for his active spirit and well seen in the Government of England which might have made him wise and under these conceits they were willing to forget his oppression in Ireland his Treachery against his Lord and King in England set the Crown upon his head and in conclusion acted the Tragedy of Abimelech in English wherein the Cedar was rooted up and the Bramble trodden down The general temper of his Government sheweth that though the King must be thought sober yet the man was mad for he hawked at all manner of game France Scotland England Laity Clergy spared not the Pope himself scorned to stoop to occasion all which he did by the strength of the name of a King till at length being well cuft and plumed he was fain to yoke his lawless will under the grand Charter depose his Crown at the Popes foot and instead of a King became little better than a chief Lord in England Thus although Richard the First forgot this mans disloyalty yet God remembred it for the King having gotten the Pope upon the hip and put him to his last shift to stir up the French to set his curse on work was by a hidden providence conquered in the middest of a Royal Army without view of Enemy or other weapon than a meer noise his Nobility either suspecting all would be gone to Rome or expecting that the King would not deny them their own seeing he had been so profuse in giving away that which was not his demand that their Liberties might be confirmed but he being loath to be mated by his Nobles though he was overmatched by the Pope arms himself with the Popes curse and the Lords themselves with the Frenchmens power thus the Tables are turned and the French playing an after-game to gain to themselves the Crown of England after they saw the death of a Warlike King discovered their design before it was ripe and in the conclusion were beaten out of the Kingdom by a Child It is not worth inquiry what the King allowed or disallowed for it was his course to repent of any thing done contrary to his present sense and made it his chief principle in policy to have no principle but desire wherein he triumphed too long by reason of the contentions between the Clergie and the Laity which
cases and of the Writ de cautione admittenda Persons cited and making default may be interdicted and the King's Officer shall compel him to obey If the King's Officer make default he shall be amerced and then the party interdicted may be excommunicated So as the Process in the Spiritual Courts was to be regulated according to Law. Nor did it lie in the power of such Courts to order their own way or scatter the censure of Excommunication according to their own liking This together with all those that forego the Arch-bishop upon his repentance absolutely withstood although he had twice consented and once subscribed to them having also received some kind of allowance thereof even from Rome it self Clergy-men holding per Baroniam shall do such services as to their Tenure belong and shall assist in the King's Court till judgement of Life or Member Two things are hereby manifest First that notwithstanding the Conquerour's Law formerly mentioned Bishops still sate as Judges in the King's Courts as they had done in the Saxon times but it was upon causes that merely concerned the Laity so as the Law of the Conquerour extended onely to separate the Laity out of the Spiritual-Courts and not the Clergie out of the Lay-Courts Secondly that the Clergie especially those of the greater sort questioned their services due by Tenure as if they intended neither Lord nor King but the Pope onely Doubtless the use of Tenures in those times was of infinite consequence to the peace of the Kingdom and government of these Kings whenas by these principally not onely all degrees were united and made dependant from the Lord paramount to the Tenant peravale but especially the Clergie with the Laity upon the Crown without which a strange metamorphosis in Government must needs have ensued beyond the shape of any reasonable conceit the one half almost of the people in England being absolutely put under the Dominion of a foreign power Sanctuary shall not protect forfeited Goods nor Clerks convicted or confessed This was Law but violence did both now and afterwards much obliterate it Churches holden of the King shall not be aliened without License It was an ancient Law of the Saxons that no Tenements holden by service could be aliened without License or consent of the Lord because of the Allegiance between Lord and Tenant Now there was no question but that Churches might lie in Tenure as well as other Tenements but the strife was by the Church-men to hold their Tenements free from all humane service which the King withstood Sons of the Laity shall not be admitted into a Monastery without the Lord's consent Upon the same ground with the former for the Lord had not onely right in his Tenant which could not be aliened without his consent but also a right in his Tenant's Children in regard they in time might by descent become his Tenants and so lie under the same ground of Law For although this be no alienation by legal purchase yet it is in nature of the same relation for he that is in a Monastery is dead to all worldly affairs These then are the rights that the King claimed and the Clergy disclaimed at the first although upon more sober consideration they generally consented unto the five last But their Captain-Archbishop Becket withstood the rest which cost him his life in the conclusion with this honourable testimony that his death Sampson-like effected more than his life For the main thing of all the rest the Pope gained to be friends for the loss of so great a stickler in the Church-affairs as Becket was In this Tragedy the Pope observing how the English Bishops had forsaken their Archbishops espied a muse through which all the game of the Popedom might soon escape and the Pope be left to sit upon Thorns in regard of his Authority here in England For let the Metropolitan of all England be a sworn servant to the Metropolitan of the Christian World and the rest of the English Bishops not concur it will make the Tripple Crown at the best but double Alexander the Pope therefore meaned not to trust their fair natures any longer but puts an Oath upon every English Bishop to take before their consecration whereby he became bound 1. To absolute allegiance to the Pope and Romish Church 2. Not to further by deed or consent any prejudice to them 3. To conceal their Counsels 4. To aid the Roman Papacy against all persons 5. To assist the Roman Legat. 6. To come to Synods upon Summons 7. To visit Rome once every three years 8. Not to sell any part of their Bishoprick without consent of the Pope And thus the English Bishops that formerly did but regard Rome now give their Estates Bodies and Souls unto her service that which remains the King of England may keep And well it was that it was not worse considering that the King had vowed perpetual enmity against the Pope But he wisely perceiving that the King's spirit would up again having thus gotten the main battle durst not adventure upon the King's rear lest he might turn head and so he let the King come off with the loss of Appeals and an order to annul the customs that by him were brought in against the Church which in truth were none This was too much for so brave a King as Henry the second to lose the scare-crow-power of Rome yet it befel him as many great spirits that favour prevails more with them than fear or power For being towards his last times worn with grief at his unnatural Sons a shadow of the kindness of the Pope's Legat unto him won that which the Clergy could never formerly wrest from him in these particulars granted by him that No Clerk shall answer in the Lay-courts but onely for the Forest and their Lay-fee This savoured more of courtesie than Justice and therefore we find not that the same did thrive nor did continue long in force as a Law although the claim thereof lasted Vacancies shall not be holden in the King's hand above one year unless upon case of necessity This seemeth to pass somewhat from the Crown but lost it nothing for if the Clergy accepted of this grant they thereby allow the Crown a right to make it and a liberty to determine its own right or continuing the same by being sole Judge of the necessity Killers of Clerks convicted shall be punished in the Bishops presence by the King's Justice In the licentious times of King Steven wherein the Clergy played Rex they grew so unruly that in a short time they had committed above a Hundred murthers To prevent this evil the King loth to enter the List with the Clergy about too many matters let loose the Law of feud for the friends of the party slain to take revenge and this cost the bloud of many Clerks The Laity haply being more industrious therein than otherwise they would have been
Freemen in such cases it being contrary to the Grand Charter never asked by the Clergie formerly nor no complaint before now for denial for my part therefore I shall not apprehend it of a higher nature than the King 's Writ which in those days went forth at random if the 44th Article of the Clergies complaints foregoing be true It being so contrary to the common sence of Parliament to give the bodies of the Freemen to the will of the Clergie to whom they would not submit their Free holds But the Writ proceeds in enumeration of particulars Reparations and adornings of Churches and Fences of Church-yards Violence done to a Clerk Defamation to reform not to give damage Perjury oblations payments of Tythes between Rector and Parishioner Right of Tythes between two Rectors to a fourth part of the value Mortuaries due by custom A Pension from a Rector to a Prelate or Advocate The most of which were under the power of a prohibition in the time of Henry the Third who was King but yesterday as the Articles of complaint formerly set down do manifest Nor had the Clergie ever better Title than connivance of some such favourites as King Steven whose Acts may peradventure be urged against Kings but not against the people unless their own act can be produced to warrant them The learning in the Princes case will I suppose admit of a difference for it can never be made out that the King's Council in Parliament was the Magnum concilium Regni but onely the House of Lords and therefore whatever passed in Parliament by their onely advice might bind the King but could never reach the Commons nor their Liberties And thus the Grand Charter in the first conception was conclusive to the King but was not the act of the Parliament because the Parliament cannot grant a Charter to it self of that which was originally custom And therefore this Law however countenanced can never be concluded to be other than a Permission not onely because it was never the Act of the Commons of England but because it is contrary to the liberty of the Freemen And it is beyond all imagination that the Commons should out themselves from the protection of the common-Common-Law and yoke themselves their Free-holds and Estates under the bondage of the Canons nor ought such a construction to be admitted without express words to warrant it As for the conclusion it is worse and not onely dishonourable to the King in binding his Arms from protecting his Subjects by the Common Laws and so in some respects making them Outlaws but dishonourable to it self whilst it makes Prohibitions grounded upon Laws to be nullities by a late trick of non obstante which was first taken up by the Pope then by Henry the third and by this King granted to the Clergie and thus are all set at liberty from any rule but that of Licentiousness Nevertheless this Law did thrive accordingly for we find scarce any footsteps in story of any regard had thereof till it became grey-headed For it was not long e're the King stood in need of money and was necessitated to try the good wills of the Clergie more than once this occasioned them to be slow in answer and in conclusion to deny that they should aid the King with any more money Papa inconsulto The King hereupon disavows the Clergy and leaves them to the Romish oppressions which were many and then the Clergie rub up all old sores and exhibit their complaints to their holy Father to this effect 1. That the King's Justices intermeddle in Testamentary causes accounts of Executors and cognizance of Tythes especially to the fourth part of the Living 2. That the Clergie were charged to the King's Carriages That the King's Mills were discharged from paying of Tythes That Clerks attending on the Exchequer were necessitated to non-residency And that after their decease their Goods were seized till their acounts were made That Ecclesiastical possessions were wasted during vacancies 3. That Clerks were admitted to free Chappels by Lay men 4. That the King's Justices took cognizance of Vsury Defamation violence done to Clerks Sacriledge Oblations Fences of the Church-yards and Mortuaries 5. That prohibitions are granted without surmise 6. That Clerks are called to answer in the King's Court for crimes and being acquitted the Informers escape without penalty 7. That Clerks are not allowed their Clergie 8. That after purgation made Clerks are questioned in the King's Court for the same offence 9. That persons in Sanctuary are therein besieged 10. That the Writ de Cautione admittenda issueth forth although the Church be not satisfied and excommunicate persons being imprisoned are enlarged in like manner 11. That Debts between Clerks due are determined in the temporal Courts 12. That Bishops are compelled by Distress to cause Clerks to appear in Lay-courts without cause 13. That the Church loseth it's right by the ceasing of Rent or Pension by the space of two years 14. That Nuns are compelled to sue in the Lay-courts for their right in possessions befalling by decease of their Kinred 15. That Churches are deprived of their Priviledges till they shew Quo warranto they hold them 16. That Ecclesiastical Judges are stopped in their proceedings by Sheriffs and great men 17. That Bishops refusal of Clerks presented are examined in the Lay-courts 18. That Patrons of Religious Houses do oppress them by extream Quarter 19. That Bigamy and Bastardy are tried in Lay-courts 20. That the King suffers his Livings to be vacant for many years 21. That the Clergie are wronged by the Statute of Mortmain Here 's all and more than all that 's true and more than enough to let the Reader see that the Writ Circumspecte agatis was but a face put on for the present after laid aside and the Clergy left to the bare Canon They likewise shew what the Clergy aimed at and in that they did not obtain it was to be attributed to the resolution of the Laity and not any neglect in themselves for the Arch-bishop died in the service and it is thought that grief for these matters was no little cause thereof But the times within a while grew troublesome and the King in pursuit of the French Wars being unadvised in his way angred the people by his arbitrary levie of Men and Money as it brought forth a State-scoul little inferiour to a Quarrel And to pacifie the Clergie he granted them the Writ de consultatione habenda in all matrimonial and testamentary cases which were of their least doubted priviledges and this qualified the first Article of complaint next foregowing if such cause they had of complaint and this was all that the Clergie got at Edward the first 's hands Edward the second was a man that was neither well-affected to Rome nor weak in spirit and yet so unhappy that his way neither promised good success nor ever had it and so he became a Servant unto
and nothing shall hinder it but the special reservation of the donor and yet he saith that such gift or grant taketh not away the right of the Lord Paramount in his Tenure albeit the gift be in free Alms. Nevertheless it seemeth to be such restraint that the Templars and Hospitallers were fain to find out a new way which was to protect mens Tenements from execution of Law by levying crosses thereon albeit the right of the Lords was not barred and therefore Edw. 1. provided a Law to make this also in nature of a Mortmain within the Statute made in the seventh year of his Reign called the Statute de Religiosis by which it was enacted that in case of such alienations in Mortmain the Lord should have liberty to enter if he failed then the Lord Paramount or if he failed the King should enter and dispose of the same and that no license of Mortmain should be sued out but by the mean Lord's assent and where part of the premises remain still in the Donor and the original Writ mentioneth all the particulars And thus at length was this issue for the present stayed which hitherto wasted the strength of the Kingdom and by continual current emptying it into the mare mortuum of the Clergie consumed the maintenance of Knight service by converting the same to Clerk-service No Judge shall compel a Free-man to make Oath without the Kings command So is the sence of the Law rendred by an ancient Authour and I hope I shall not wrong the Text if I affirm that the Ecclesiastical Judge was included within the equity though properly he be not Balivus for the Law intends to shew that it is a liberty that the Subject hath not to be compelled to take Oath without the Kings especial command and by consequence it sheweth also that the King at that time and until then had the directory of Oaths for it was an ancient Liberty given in the Kings Charters unto such as they pleased viz. to impose Oaths and to punish for breach of Oath and this passed under the word Athae or Athas and so Edmund the Saxon King gave to the Abbey of Glastenbury amongst other Athas Ordulas and the Church-men that first procured vacations from Suits of Law during holy times procured a Law also to be setled by Edward the Saxon King and Gunthurne the Dane that Ordeal and Oaths should be forbidden upon the holy Feasts and lawful Fasts And a wonder it is how it escaped the gripe of the Clergie so long who catched at any thing that had but a glance of Gods worship in it And if this were the Subjects Liberty not to be compelled to Swear surely much more not to be compelled to accuse himself unless by the Law he be especially bound for it is Glanvil's rule Ob infamiam non solet juxta legem terrae aliquis per legem apparentem se purgare nisi prius convictus fuerit vel confessus in curia But the power of the Clergie now was grown strong and they begin to remember themselves and that Oaths are of a holy regard and they men for holiness best able to judge when and to whom they shall be ministred and therefore now they begin to enter their claim and to make a sure Title they get a grant from Pope Innocent to Steven Langton Arch-Bishop of Canterbury of a faculty of licensing administration of Oaths during the time of Lent and he accordingly enjoyed it during the mad time of Henry the Third But Edward the first quarrelled it and left it questionable to Edward the Second who being in his condition as a lost man had less care of such smaller matters and therefore allowed that his Judges of Assizes should be licensed by the Arch-bishop to administer Oaths in their Circuits in the sacred times of Advent and Septuagessima and this course continued till Henry the Eighth's time The Clergie having thus gotten the bridle gallop amain they now call whom they will and put them to their Oaths to accuse other men or themselves or else they are Excommunicated Henry the Third withstood this course if the Clergie-mens complaints in the times of that King Artic. 9. be true and notwithstanding the same the Law holds its course and in pursuance thereof we find an attachment upon a prohibition in this form ensuing Put the Bishop of N. to his pledges that he be before our Justices to shew cause why he made to be summoned and by Ecclesiastical censures constrained Lay-persons men or women to appear before him to swear unwillingly at the Bishops pleasure to the great prejudice of our Crown and Dignity and contrary to the custom of the Kingdom of England And thus both King and Clergie were at contest for this power over the peoples Consciences to which neither had the right otherwise than by rules of Law. Bigamists shall not be allowed their Clergie whether they become such before the Council of Lyons or since and that Constitution there made shall be so construed Whatsoever therefore their Synods in those times pretended against the married Clergie it seemeth by this Law that they had Clergie that were married once and again and yet before and after the Council were admitted as Clerks in the judgment of the Law. But the general Council interposes their authority and deprives them that are the second time married of all their priviledges of Clergie It was it seemeth twenty years and more after that Council before the Church-men in England were throughly reformed for either some were still Bigami at the making of this Law or as touching that point it was vain nor is it easie to conceive what occasion should after so long a time move such exposition the words of the Constitution being Bigamos omni privilegio clericali declaramus esse nudatos Now whether this slow Reformation arose from the defect in Law or in obedience thereto may be gathered from some particulars ensuing First it is apparent that the Canons of general Councils eo nomine had formerly of ancient times gotten a kind of preheminence in this Nation but by what means is not so clear In the Saxon times they were of no further force than the great Council of this Kingdom allowed by express act For the Nicene Faith and the first five general Councils were received by Synodical confirmations of this Kingdom made in the joynt meeting both of the Laity and Clergie and during such joynt consulting the summons to the general Councils was sent to the King to send Bishops Abbots c. but after that the Laity were excluded by the Clergie from their meetings and the King himself also served in the same manner the Summons to the general Council issued forth to the Bishops immediately and in particular to each of them and to the Abbots and Priors in general by vertue whereof they went inconsulto Rege and sometimes Rege
Richard the First were made by the consent of Archbishops Bishops Abbots Earls Barons and Knights of the whole Kingdom for what the great men gained they gained for themselves and their Tenants And the truth is that in those times although publick damage concerned all yet it was ordinary for Kings to make a shew of summoning Parliaments whenas properly they were but Parliamentary meetings of some such Lords Clergy and others as the King saw most convenient to drive on his own design And therefore we find that Henry the Third about the latter part of his Reign when his Government grew towards the dregs he having in the Kingdom Two hundred and fifty Baronies he summoned unto one of these Parliamentary meetings but Five and twenty Barons and One hundred and fifty of his Clergy Nevertheless the Law of King John was still the same and we cannot rightly read the Law in such Precedents as are rather the birth of will than reason Fourthly that no aids were then granted but such as passed under the title Escuage or according thereunto for the words are No Escuage shall be demanded or granted or taken but for redeeming the King's person Knighting of his Son or Marriage of his Daughter Nor is the way of assessing in these times different saving that instead of all the Knights two onely are now chosen in every County the Tenure as it seemeth first giving the Title of that Order and both Tenure and Order now changed into that Title taken up for the time and occasion Fifthly that it was then the ancient custom and so used in the time of Henry the First that the advice of those then present was the advice of the whole and that their advice passed for a Law without contradiction notwithstanding the King 's Negative voice for the words are The matter at that day shall proceed according to the counsel of those that shall be present although all do not come and therefore that clause in the King's Oath quas vulgus eligerit may well be understood in the future and not in the preter tense Last of all though not gathered from the Text of this Law whereof we treat yet being co-incident with the matter it is observable that though the Clergie were now in their ruffle and felt themselves in their full strength yet there befel a posture of state that discovered to the world that the English held not the interest of the Clergie to be of such publick concernment or necessary concurrence in the Government of the Kingdom as was pretended For the Clergie finding Assessments of the Laity so heavy and that occasions of publick charge were like to multiply daily they therefore to save the main stock procured an Inhibition from Rome against all such impositions from the Laity and against such payments by the Clergie and in the strength of this they absolutely refuse to submit to aid Edward the First by any such way although all the Parliament had thereunto consented And thus having divided themselves from the Parliament they were by them divided from it and not onely outed of all priviledge of Parliament but of all the priviledge of Subjects into the state of praemunire and thus set up for a monument to future times for them also to act without the consent of those men as occasion should offer But Henry the Third not satisfied with this ancient and ordinary way of Assessment upon ordinary occasions took up that extraordinary course of Assessment upon all the Freemen of the Kingdom which was formerly taken up onely in that extraordinary occasion of redeeming of the King 's or Lord's person out of captivity and common defence of the Land from piracy and under the Title of Dane-gelt which was now absolutely dead and hanged up in chains as a monument of oppression Nevertheless it cannot be denied but that in former times the Freemen were as deeply taxed if not oppressed with payments to their Lords at such times as they were charged over to the King in the cases aforesaid as by the latter words of the Law aforesaid of King John doth appear and whereby it is probable that the inferiour Lords were gainers The conclusion of the Charter of Henry the Third the same suiting also with the third observation foregoing doth not a little favour the same for it is expresly set down that in lieu of the King's confirmation of the Charter of Liberties aforesaid not onely the Archbishops Bishops Abbots Priors Earls Barons and Knights but also the Freemen and all the Kingdom gave a fifteenth of all their moveables And thus have I summed up and compared both the Copies of the Grand Charters of Englands Liberties saving two particulars inserted into the forest-Forest-Laws of Henry the Third wherein if any thing had been new and unreasonable King John might have colour to except against them as extorted by force and Henry the Third might as he was advised plead nonage and so they might have been choaked in their birth but being all Consuetudines as in the conclusion they are called and Kings ashamed to depend upon such frivolous exceptions it may be wondred what might move them to adventure so much blood-shed and themselves into so many troubles to avoid their own acts unless the writing of them were an obligation acknowledged before the world and they resolving secretly to be under none were loth to publish the same to all men It is a strange vanity in great men to pretend love to Justice and yet not endure to be bound thereto whenas we see that God himself loves to be bound by his word and to have it pleaded because he delights as much to be acknowledged true in performing as good in promising But neither was King John or Henry the Third of this spirit fain they would undo but could not It is true it was at the first but a King's Charter of Confirmation and had Kings been patient therewith it might have grown no bigger but by opposition it rooted deeper and grew up unto the stature of a Statute and setled so fast as it can never be avoided but by surrender from the whole body Having thus summed up the Liberties of the Subjects and Free-men of England under this Charter I shall make some Appendix hereunto by annexing a few additionals in these times established and although they come not within the letter of the Grand Charter yet are they subservient thereunto And first concerning the King and this either as he is King or as he is Lord. As King he had these Prerogatives above all Lords The King shall have the custody of Fools and Ideots Lands for their maintenance and shall render the same to their Heirs And concerning Mad-men and Lunaticks the King shall provide a Bailiff for their maintenance rendering account to them when they are sober or to their Administrators It is no less liberty or priviledge of the People that Fools and Mad persons
are to be ordered by Tutors than Children and therefore this may be annexed to the rest of the Liberties as well as the other Nevertheless it seemeth that the Laws took them into their regard in respect of their Estates which might be abused to the prejudice of the Publick rather than out of any respect had to their persons Now because there is a difference between the disability of these persons the one being perpetual the other temporary therefore is there also by these Laws a difference in the disposal of their Estates for the Tutor had a right in the disposing of the one and but a bare authority or power in providing for the other Secondly the person of the Tutor is to be considered Anciently it was the next kindred grounded as I conceive upon the natural affection going along with the blood and this so continued in custom until these times for though the Mirrour of Justice saith that Henry the First brought in that course of giving the custody of these disabled persons to the King as hath been formerly observed yet Bracton that wrote long after the time of Henry the First speaking of these kind of persons saith Talibus de necessitate dandus est tutor vel curator not so much as mentioning the King in the case And in another place speaking of such as are alieni juris saith that some are under the custody of their Lords and others under their Parents and friends But let the time of the entrance of this Law be never so uncertain it is now a declared Law that the King in such cases is the common Curator or Tutor of all such persons as he is a Chief Justice rendring to every one his right The King shall have the Wrecks of the Sea. What shall be called a Wreck the Statute at West 1. declareth viz. Where the Ship so perisheth that nothing therein escapeth alive and these are rather in their original committed to the King as a Curator than given him as a Proprietor although that Custom hath since setled a kind of right which may perhaps be accounted rather a Title by Estoppel For the fundamental ground is that the right owner cannot be manifested and therefore the King shall hold it and if the right owner can be manifested the King shall hold it till the owner doth appear The Heir in Socage-tenure shall have an Action of Waste and an account against his Guardian for the profits of the Lands and Marriage The Heir in Socage being under age shall also be under custody of such Guardian of the next kinred who cannot challenge right of Inheritance in such Lands so holden as if the Lands descended from the Father's side the Mother or next of the kinred of the Mothers side shall have the custody and so if the Lands descend from the Mother the Father or next kinred of the Father's side shall have the custody And this custody bringeth with it an Authority or Power onely and no Right as in case of the Heir in Knight-service and therefore cannot be granted over as the Wardship in Knight-service might but the Guardian in Socage remaineth accomptant to the Heir for all profits both of Land and Marriage The full age of Tenant in Socage is such age wherein he is able to do that service which is Fourteen years for at such age he may be able by common repute to aid in Tillage of the ground which is his proper service But the Son of a Burgess hath no set time of full Age but at such time as he can tell Money and measure Cloath and such work as concerns that calling Widows deforced of their Dower of Quarentine shall by Action recover damages till they recover their Dower They shall also have power to devise their crop arising from her Dower It was used that the Heir should have the crop with the Land but this Statute altered that former usage and yet saved the Lord's liberty to distrain if any services were due Writs de consimili casu granted in cases that fall under the same Law and need the same remedy and such Writs shall be made by agreement of the Clerks in the Chancery and advice of such as are skilful in the Law. It was none of the meanest Liberties of the Freemen of England that no Writs did issue forth against them but such as were anciently in use and agreed upon in Parliament And it was no less a grievance and just cause of complaint that Kings used to send Writs of new impression to execute the dictates of their own wills and not of the Laws of the Kingdom as the complaints of the Clergy in the times of Henry the Third do witness Nevertheless because many mens cases befel not directly within the Letter of any Law for remedy and yet were very burthensome for want of remedy it is provided by this Law that such emergent cases that do fall within the inconvenience shall be comprehended within the remedy of that Law. Aid to make the Son of the Lord a Knight and to marry his eldest Daughter shall be assessed after the rate of twenty shillings for a Knights Fee and twenty shillings for twenty pounds in yearly value of Socage-tenure The uncertainties of Aids are by this Law reduced and setled as touching the sum and thereby delivered the people from much oppression which they suffered formerly Nor was onely the particular sum hereby but also the age of the Son when he was to be made a Knight viz. at the age of Fifteen years too soon for him to perform Knight-service but not too soon for the Lord to get his money And the Daughter likewise was allowed to be fit for Marriage at Seven years of age or at least to give her consent thereto albeit that in truth she was neither fit for the one or other and therefore it must be the Lords gain that made the Law and it was not amiss to have the aid beforehand though the marriage succeeded not for many years after and if the Lord died in the interim the Executors having Assets paid it or otherwise his Heir CHAP. LXVIII Of Courts and their Proceedings BEsides the Courts of Justices itinerant which were ancient as hath been said other Courts have been raised of later birth albeit even they also have been of ancient constitutions and divers of them itinerant also and some of them setled in one place The work of the Justices itinerant was universal comprehending both the matters of the Crown and Common-pleas That of Oyer and Terminer is onely of Crown-pleas originally commenced and enquired of by themselves and granted forth upon emergent crimes of important consequence that require speedy regard and reformation Justices of Gaol-delivery have a more large work that is to deliver the Gaols of all criminal offenders formerly indicted or before themselves Justices of Assize and Nisi prius are to have cognizance of Common-pleas onely and
to take Arms from the King with their pay or otherwise they must fight without Weapons I am now come to the last general point which concerneth the executive power of matters concerning the peace within this Law touching which the Statute enforceth this That Constables in every Hundred and Franchise shall have the view of Arms and shall present defaults against the Statute of Justices assigned who shall certifie the same to the King in every Parliament and the King shall provide remedy Whereby it seemeth manifest that hitherto no Law or Custom was made against any for default of Arms but onely such as held by that Tenure and therefore they had a shift to cause them to swear to maintain Arms and so might proceed upon defaults as in case of perjury and that the Parliament was still loth to set any certain rule for penalty and absolutely declined it and left it under a general periculo incumbente which it is likely men would rather eschew by obedience than adventure upon out of a daring spirit unless their case was very clear within the mercy of common reason And therefore such cases were left to special order of the Parliament rather than they would deliver such a rod as determining power was over into any uncertain hand whatever It is very true that by the opinion of some this also hath been controverted as if all the executive power had been turned out of the Parliaments Order into the directory of Edward the First which thing reacheth far for then in order thereunto the whole Militia of the Kingdom must have been under his safe command And whether it ever entred into the conceit of that King I know not but somewhat like thereunto is not obscurely urged to nourish and suggest such a kind of notion and so derive it unto his Successors upon the words of a Statute de defensione portandi armorum the English whereof I shall render out of the French as followeth It belongeth to Vs viz. Edw. 1. and from Vs by Our Royal Seigniory to defend force of Arms and all other force against Our peace at all times that We shall please and to punish according to the Laws and Vsages of this Realm such as shall oppose and to this they viz. Lords and Commons are bound Vs to aid as their good Lord always when need shall be Two things are concurrant with this which is the body of the Statute if such it be The one is the Preface or the occasion And the second is the conclusion upon the whole body of the same The preface first sets down the inscription or direction of the Law not to the people but to the Justices of his Bench and so it is in nature of a Writ or Declaration sent unto his Judges Then it sets down the occasion which was a debate between Edw. 1. and his Lords with a Treaty which was had before certain persons deputed thereto and it was accorded that at the next Parliament Order shall be taken by common consent of the King the Prelates Earls and Barons that in all Parliaments Treaties and other Assemblies which shall be had in the Kingdom of England for ever after all men shall come thereto without force and without arms well and peaceably and thence it recites that the said meeting at Parliament was had and that there the Prelates Earls Barons and Commonalty being assembled to advise upon this matter nous eiont dit saith one Copy and noâ—â— eions dit saith another Copy so as whether this was the Declaration of the King unto the Parliament or of the Parliament to the King is one doubt and a principal one it is in such a case as this Then the conclusion of all is that the King commandeth these things shall be read before the Justices in the Bench and there enrolled and this is dated the 30th of October in the Seventh year of his Reign which was Ann. 1279. So as if it were the Declaration of the King then it implieth as if it were not very well accepted of the Parliament and therefore the King would have it rest upon Record in nature of a Claim or Protestando for saving the Prerogative of the Crown But if it were the Declaration of the Parliament the King held it so precious a flower that fearing it should fade set it in a private Garden of his own that it might be more carefully nursed against the blast of Time as if the Parliament had not assented thereto or if they did meaned not to hold it forth to the world for future times to be a constant rule but onely by way of concession to ease themselves of the present difficulty in making a Law against wearing of Armour in ordinary civil affairs and so referred it to the King's care to provide against emergent breach of the peace as an expedient for the present inconveniences in affairs And it will well suit with the posture of affairs then in course for the Welsh-Wars were now intermitted and a quiet of three years ensued in the midst of which Souldiers having liberty to do nothing and that is next to naught but recreate themselves used their wonted guise as if they were not dressed that day that they were not armed nor fit for counsel unless as their Ancestors with Weapons in their hands nor worthy of the presence of a King under other notion than as a General in the field and themselves as Commanders that are never A-la-mode but when all in Iron and Steel I say to make a Law that must suddenly bind men from riding or being armed when no man thought himself safe otherwise was in effect to expose their bare necks to the next turn of the Sword of a King that they did not over-much trust and the less in regard he trusted not them I do not wonder therefore if the Parliament liked not the work but left it to the King to provide for the keeping off breaches of the Peace and promised their assistance therein Lastly supposing all that is or can be supposed viz. that the Parliament had given up the power of the Militia unto Edward the First yet it was not to all intents nor did it continue for besides the Statute of Tornaments which sheweth plainly that the ordering of Armour was in the power of the Parliament and which in all probability was made after that Law last before-mentioned the Statute at Winton made after this Law nigh six years space ordereth the use of the Trained bands in maintaining the peace and reserveth the penalties to themselves for any default committed against the said Act. And therefore notwithstanding any thing that yet appeareth to me out of any Law or History the chief Moderatorship of War and Peace within the Realm of England resteth hitherto upon the Parliament next unto God and in the King no otherwise than in order to the Publick the rule whereof can be determined by no other Judge than that which can be
Issue or Demurrer and then to the Common-Law where upon Trial if the Defendant make default the Plaintiff shall have Judgement and Execution And if the Heir be in Ward to the King the Mother shall sue and recover her Dower in the Chancery And they tell us that it had power to prohibit Spiritual Courts and Courts of Common-Law yea to over-rule or reverse Judgements and yet the Common-Law held it's ground when it was concerned for neither were all suits there by Bill as in cases of Equity nor determined according to such rules nor did the power of Judicature rest in the breast of one Chancellor but in him joyntly with other Council of the King which were also learned Judges of the Law. For the Report informeth that Edward the Second had granted a Rent in Tail to the Earl of Kent who dying his Son under age and Ward to the King Edward the Third seised amongst other Lands the Rent and granted it to Sir John Molins Upon Petition the King refers the matter to the Arch-bishop and others of the Council calling to them the Chancellor A Scire Facias goes forth to Sir John Molins he upon appearance pleaded to the jurisdiction as a case belonging to the Common-law but it would not be allowed because it was to repeal the King's Charter And whereas it was objected that the reference was to the Archbishop and others and therefore the cause ought not to be determined in the Chancery it was resolved that it did properly belong to the Chancery by the Law And in the argument of the case it appears clearly that the King's Council there were learned in the Law. And the same is yet more evident by the Title of Bills in those days exhibited in the Chancery which was directed to the Chancellor and the King's Council and the Rule given Per tout les Justices Which I rather note for the shortness of the form of Bills in those days far different from these times wherein the substance of the complaint however small in it self is oftentimes blown out into so great a bubble that it breaks to nothing And the Statutes formerly mentioned do assert the same thing as touching the King's Council For though they speak of the Council or Chancery in the English Tongue yet in the original the words are Conceil en Chancery Having thus touched upon the matters under the Judicatory of the Chancery and Judges in the same In the next place the manner of proceedings comes to consideration For it seems they had been formerly very irregular and that contrary to the Grand Charter upon a bare suggestion in the Chancery the party complained of was imprisoned and no proceedings made thereupon For remedy whereof it was ordained That upon suggestions so made the Complainant was to find Sureties to pursue the Suggestions and that the Process of Law should issue forth against the party without imprisoning him and that if the Suggestions were not proved true the Complainant should incur the like penalty that the Defendant should have done in case he had been found Guilty But afterwards this later Clause was altered by another Statute because it was full of uncertainty and it was ordained that in such case the Complainant shall be imprisoned until he shall satisfie the Defendant of his Damages and furthermore shall make Fine and Ransom to the King. But because that the Defendant many times held his advantage even to extremity this course lasted not long but a new Law was made which put the power of awarding Damages in such cases into the Chancellour to do according to his discretion And thus the Chancery obtained power to award Damages which they never had formely and the Chancellour a Precedency both in the Chancery and of the Council in the Court of Star-chamber and in many cases in the Exchequer By the first he had a power in matters of Meum and Tuum by the last in matters Mei and Regis and by the other in matters Mei and Regni A considerable man certainly he was in the motions of Government but how much more if he be made Arch-bishop of Canterbury Cardinal and Legate à Latere or Arch-bishop Lord Treasurer and Legate à Latere as these days had divers times seen Extraordinary advancements bestowed upon the Nobility brings Honour to the Throne but if they be not men of noted Worth and Uprightness they make the Scepter stoop by stirring up envy in the Nobility and indignation from the people For seldom is it seen that Advancements are fed from the Crown though they be bred from thence but either maintained by new supplies from the peoples Purses or the ruine or decay of some Officers more ancient than themselves or both And such was the condition of the Chancellour he sucked fat from beneath and Bloud and Spirits from the Grand Chief Justiciar of England and so reduced that Honourable Potentate unto the degree of Chief Justice of the King's Bench leaving scarcely unto him the Name or Title of Lord. One thing more remaineth touching the election or nomination of this Great man. At the first he was no better than a Register or the King's Remembrancer or Secretary having also the Honour to advise the King in such matters as came within the circuit of the Writings in his custody and questionless Eo usque it is suitable to all the reason in the World that he should be of the King 's sole Nomination and Election But when it befals that instead of advising the King his word is taken to be the Rule and a Judicatory power put upon that and unto this is superadded that honourable trust of keeping and governing the Great Seal of the Kingdom with the continual growing power occasionally conferred upon him by the Parliament He is now become no more the King's Remembrancer but the Lord Chancellor of England and Supream Officer of State. And it seems but reasonable that he should hold his place by publick Election as well as the Grand Justiciar whose Plumes he borrowed and other Grand Officers of State did before him For he that will have his Servant to work for another must give the other that Honour of Electing him thereto nor was this laid aside nor forgotten by these times but a claim was put in for the Election or allowance of this principal Officer amongst others the Parliament obtaining a Judgement in the case by the King's Confession and so the thing is left to the judgement of future ages Viz. Whether a King that can do no man wrong can dissemble the Royal Assent in Parliament or declare himself legally in that manner by Proclamation CHAP. V. Of Admirals Courts THis is a third Court that maintained the King's Judicatory power in a different way from that which is commonly called the common-Common-Law and by many is therefore supposed to advance the King's Prerogative but upon mistaken grounds It is very true that the
conclusion he now sees it bootless to stand always upon his defence and receives affronâ—s he resolves therefore to enter the lists and maketh seizure of the Deanery of York which formerly by usurpation the Pope had conferred upon a Cardinal and of all Church-livings given by the Pope to aliens Then a Law is made more sharp than those in the eighteenth year wherein Provisors of Abbies and Priories are made liable to a Proemuniri and Provisors of other Ecclesiastical Livings and Dignities whereby the presentation of the rightful Patron is disturbed to be fined and imprisoned until the fine and damages to the party wronged be paid And all such as draw men to plead out of England in cases that belong to the cognizance of the Kings Court and all obtainers of provisions in the Court at Rome these were also subject to a Proemuniri For whilst these things were thus in action the Pope bestirred himself notably with Citations Excommunications Interdictions and such other birds of prey not only against mean men but Judges Bishops and the King's Council as amongst others the case of the Bishop of Ely at the solicitation of some of some of inferiour regard as I remember a Clerk or some such thing Yet as these Bull-drivers or Summoners to the Romish Court were no late upstarts so were not these times the first that took them to task for before the Statutes of Proemuniri we find provision was made against Provisors and that some Statute did precede those in Print which punished a disturber of the King 's Incumbent by a Bull from Rome with perpetual Imprisonment or at the King's will. Besides the party wronged was allowed an Action for his Damages Qui tam pro Domino Rege quam pro seipso sequitur And before that time also bringers of Bulls from Rome were imprisoned although in all these cases aforesaid the liberty of the Persons both of Lords and Prelates was saved And thus all the while King Edward the Third kept the Field he gave the Pope cuff for cuff but retiring himself to take his ease he waxing wanton waxed weak and more slowly pursued the vindication of his own Right and his Subjects Liberty The Laws are laid aside and Rome had further day given to plead and in the mean time Execution is staid the double mind is double dyed and advantage is soon espyed above sixty Church-livings more are suddenly catched and given to the Favourites at Rome The Parliament rings herewith yet the King delays the remedy and in this Eddy of affairs Edward the Third dies and Richard the Second takes up the place who had wit enough to observe what concerned his own interest and courage enough to pursue it but neither wit nor courage to over-rule his Lusts which in the conclusion over-ruled all rule and brought himself to destruction He found the people at his entrance into the Throne irritated with the Pope's oppressions and vexed at his Grandfather's desidiousness his spirit is also stirred within him and himself thereby pressed to tread in his Grandfather's former ways and to out-run him in his latter He made the penalty of Proemuniri to extend to all Farmers or others in nature of Bailiffs that held any Church maintenance to the use of any Alien and unto all Aliens that are Purchasors of such Provisions to any use and unto all Lieges that shall in like manner purchase such Provisions But as touching such as shall accept such Provisions he ordained Banishment for their Persons and Forfeiture of their Estate Notwithstanding all this the Roman Horse-leech would not so give over The King grew into displeasure with his Subjects and they with him and with one another they see the Pope still on horseback and fear that the English Clergie their own Country-men if not Friends and Abettors yet are buâ— faint and feigned Enemies to the Pope's Cause Nor was it without cause that their fear was such for as the Pope had two hands to receive so they had two hearts making shew of forming blows at the Pope but then always at a distance or when without the Pope's Guard and thus the Laws begin to stammer and cannot speak so plain English as they were wont The people hereat offended resolve to put the Clergie into the Van and to try their mettle to the full At the last parliament that Richard the Second did hold both the Lords Temporal and Spiritual are opposed one by one The Lords Temporal like themselves resolve and enter their Resolutions to defend the Right of the Crown in the Cases of Provisors although even amongst these great men all were not equally resolute for Sir William Brian had purchased the Pope's Excommunication against some that had committed Burglary and he was committed to the Tower for his labour But the Prelates answer was ambiguous and with modifications which was all one to cry as men use to say Craven yet was the Statute made peremptory according to what was formerly enacted And though the Prelates cautionary way of proceeding might be a principal reason why the Pope's power held so long in England in an usurping way yet Kings also much conduced thereto by seeking too much their personal ease above the honour of their place and the Pope's blessings and opinion of his favour more than their own good or the peoples Liberty for there was no other balm for a distracted mind than that which dropped from the Pope's Lips. In like manner Richard the Second being already at least in purpose estranged from his people sought to get friends at Rome to hold by the Spiritual Sword what he was in danger to lose by laying aside the Sword of Justice which is the surest Tenure for Kings to hold by And though the Popedom was now under a Schism between two Popes Clement and Vrban yet he was so far won for Vrban that he not onely engaged himself and the Parliament to determine his Election and uphold the same but also Ex abundante did by Implication allow to him an Indefinite power to grant provisions and so at once he lost the Die and gained a Stake that like a bubble looked fair but soon vanished away Nevertheless these two Comrades whilst they were togather resolved to make the most of each other that they could and therefore though the Popedom liked not the King yet the Pope had his love so far as he could deny himself for he had already denied his Kingdom And if the Articles exhibited against the King by Henry the Fourth be true the Pope had his Faith also For that he might be rid of his reputed Enemy Archbishop Arundel he trusted the Pope with that Complement of making Walden Archbishop of Canterbury in Arundel's stead which the Pope took so kindly as he made it a Precedent for Provisors for the future Nor did the King stick in this one Singular but made it his custom in passing of Laws
ease was contented to look on whilst his Lords Temporal and Spiritual played their prize yet giving his plaudite rather to his Son than his Spiritual Fathers as if led by principles of Nature rather than Religion This was the blossoming part of the Wickliffists but the principal strength was from beneath where the roots spread and fastned exceedingly especially in the South and Eastern parts of this Kingdom To tell of the Vsurpations of the Clergie the Idolatry of their costly Worship the vanity of their Curses c. was exceeding welcome news to an oppressed multitude especially where these things were rightly understood The issue soon manifested it self to the world no Parliament passed without reflections at Prelates Rome or some such thing and not only the persons and practices of these men but even their Laws and Canons were begun to be had in contempt and their Missives slighted And thus these men pretending patronage both from Right drawn from Heaven and derived from men fail in their Evidence unless the people do still believe more than they are able to understand No marvel if Rome be now rowzed and that sort of men that formerly were Wolves in Sheeps cloathing 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 is a touchy thing to have to do with fire lest 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 latter too many the one sort would not hear the other would not understand the Teachers therefore being the Velites at them they give fire Wickliff their Leader comes on bravely and notwithstanding they all made at him he routs them and in despite of them all comes off fairly 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 King's Writ shall be granted to apprehend Preachers of Heresies Errours and matters of Slander tending to Discord and Dissention between the States of this Realm with their Factors and Abettors 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 particulars 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 publickly Preach without Authority matters of Theology tending as it is said to sow discord and discention so as they are under consideration and censure of the Church-men and Canon-Law in one regard and of the Laws of the Kingdom and Civil Magistrate as disturbers of the peace on the other side And thus the Subjects Liberty is cast into a mysterious cloudy and doubtful posture by matters of Opinion Secondly the persons Delinquent are also left to an indefinite Construction for they are not only Preachers in publick which might be an Order of Men within the Church-cognizance as things then stood in regard it was permitted to the Church to Authorize men to Preach but also their Factors and Abettors 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 return complaints against whom they please upon such grounds as they shall think meet The persons that must make this Inquisition by this Law are the Ordinaries or any one of them and for ought appears the same might be done by Pope Council General National Provincial Diocesan or their Delegates according to the Canon although the last precedent that I met with was executed by a Grand Council of Lords and Prelates in the time of Henry the Second But now the Clergie finding the Laity began to swell against the Canon they thought it high time to get the Civil Sword to joyn in the work to be as their Hands to apprehend and Goalers to hold in custody such as they should complain of without any other Legal Conviction Although hereby they not only disclaimed the exercising of their own 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 than a meer shape and was complained of by the Parliament within few months 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 publick Book 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 than they or their Ancestors 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 Clergie would grant a Tenth the Clergie took this Articulating of the Commons in snuff and protested that the Laity should not charge them The Commons hereat begin to bid battle to the Temporalties of the Clergie and had not the King been a fast Friend in good earnest unto the Clergie the Laity had won the Field Thus were these times like the motion of the Ballance unto the Church-men sometimes up sometimes down getting somewhat which they formerly had not with less assurance in what they had CHAP. VII Concerning Trade KINGS hitherto had lived upon the main stock improving the same to the utmost penny few of them laid up for the future much less endeavoured to advance the principal for their Successors There had now been 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 over-plus was either gained by or saved from the game their Executors might be the better for it their Heirs were not But Edward the Third had a new game to play he must gain his right by his Sword or he must lose it his Spirit was too big to sit still and bear blows and yet pre-advising himself about the poverty of the people and that their patience would be spent soon after their supplies if they continually saw much
him a Pension to maintain that honour he asked the Lords consent thereto To the Clergie he was more than just if not indulgent led thereto by his Father's example as being wrapped up in the same Interest as I conceive rather than out of any liking of their ways now growing more bold upon Usurpation than in former times Or it may be that having prevailed in that work in France which to any rational man must needs appear above the power of the King and all the Realm of England he looked upon it as more than humane and himself as an instrument of Miracles And was stirred up in his Zeal to God according to his understanding in those dark times to give the Clergie scope and to pleasure them with their liberty of the canon-Canon-Law that began now to thunder with Fire and Terrour in such manner that neither greatness nor multitude could withstand the dint as was evidenced in that Penance inflicted upon the Lord Strange and his Lady in case of Bloud-shed in Holy Ground and their hot pursuit of the Lord Cobham unto a death of a new nature for somewhat done which was sometimes called Treason and sometimes Heresie And thus became Henry the Fifth baptized in the Flames of the Lollards as his Father had sadly rendred up his spirit in the same I say in this he is to be looked upon as one misled for want of light rather than in opposition against the light For in his last Will wherein men are wont to be more serious and sincere amongst his private regards he forgets not to reflect upon Religion to this purpose We further bequeath saith he to the redundant Mercy of the Most Excellent Saviour the Faith Hope and Charity the Vertue Prosperity and Peace of the Kings our Successours and of our Kingdom of England that God for his goodness sake would protect visit and defend them from Divisiâ—â—s Dissentions and from all manner of decitfulness of Hereticks And thus the Piety Justice and Moderation of Henry the Fifth adorned and crowned the honour of his Courage and Greatness with that honourable Title of Prince of Priests And had he been blessed with a clearer light he might as well under God have obtained the Title of Prince of Princâ—s wanting nothing that might have rendred him a precedent of Fame But the time is now come that the Tide of England's Glory must turn and the sudden Conquest in France by Henry the Fifth not unlike the Macedonian Monarchy must disgorge it self of what it had hastily devoured but never could digest Three things concurred hereunto one dangerous the other two fatal to the flourishing condition of any Nation First The King is a Minor in the least degree that ever any Prince sate on English Throne He entred thereinto neither knowing what he did nor where he was and some say he sate therein in his Mothers Lap for his Life had been more in the Womb than abroad A sad presage of what followed for many men think that he was in a Lap all his days Nor are the chief men to be blamed herein for it is a certain Truth That it is much better that the Election of a King should be grounded upon a rule that is known though it be by descent of Inheritance than upon none at all For if a Child should succeed or a Lunatick yet where the Principle of Government resteth upon the Representative of the people there is the less cause of Complaint the Government being still the same both for Strength Wisdom and Uniformity though it may be the Nation not so active and brave For a Commonwealth can admit of no Minority though a Monarchy by descent may Secondly This deficiency in Nature might have been supplied but that these times were unhappy in the great power of the Lords to please whom the Government is parcelled out into two shares One is made Protector of the King's person the other Protector of the Kingdom too many by one For let their persons be never so eminent for Abilities if they be not as eminent for Humility and Self-command their hearts will soon over-rule their heads into a Faction And therefore though the Earl of Warwick was a wise man and the Duke of Gloucester a wise man yet the Earl of Warwick with the Duke of Gloucester were not wise On the other side the Protectorship of the King's person being in the Duke of Exeter and that of the Realm in the Duke of Gloucester things succeeded passing well for they both had one publick aim and the Duke of Exeter could comply with the Spirit of the Duke of Gloucester who otherwise was not so pliant But after five years the Duke of Exeter dying and the Government of the King's person devolving to the Earl of Warwick who sided with the proud Cardinal of Winchester against the Duke of Gloucester and so not onely consumed the rest of the Kings Non-age in a restless disturbance of Affairs but also despoiled Henry the Sixth of the spirit of a King for the future and so the Kingdom of a King. For it was not the condition of Henry the Sixth to be endowed with a spirit of such height but might well have been led by Advice and needed not the Earl of Warwick's rugged Brow to over-look him who was not content to have the King onely attendant upon his Advice but must likewise have him under his Rod to be corrected for his Faults and that by a Commission under the King 's own Hand and Seal dated in the Eleventh year of the King's Reign and so under colour of curbing he killed that spirit in the King which otherwise doubtless had both spirit and pride enough to act himself above his due height and could not have been so long a Child and so little a Man as he was It is very true that Henry the Fifth by Will seemed to countenance his Brothers and it cannot be denied but the Duke of Gloucester was of such noble parts that they could hardly dilate in any work inferiour to the Government of a Kingdom Nevertheless to yield much to the Will of a diseased King in such cases is as ill a precedenâ— as the making of a King by Adoption And it had been better for the people to have adhered to the Duke of Gloucester alone than by joyning him with another bring into a precedent such a luxuriant Complement of State as a Protectorship of a Kingdom which is of such little use to a Commonwealth and of so bitter Fruit to the Party as must needs bring Repentance when it is too late For he that can manage the Protectorship of a Realm without anger of good men or envy of bad men is fitting to live onely with Angels and too good for the World. Nor did the Duke of Gloucester meet with better measure how wise soever he was and truly devoted to the good of the Realm For after four and twenty years Government so wisely and
from without and in all good ends from above And therefore as a Seal to all the rest it was wisely done by the Parliament to draw the mindes of the Privy Council together and to present them joyntly before God by an Oath obliging themselves to a solemn and constant observance of their instructions and to perievere therein For the unchangeable God can onely stamp a lasting Image upon the mind and bind the same that is so subject to change to an unchangeable Law whereby the people may be made as happy for continuance as for Righteousness and Peace The Privy Council thus setled dressed and girt becomes of high esteem both for Trust and honourable Employment in great matters The Mint is the very Liver of the Nation and was wont to be the chief care of the Parliament it self in all the dimensions thereof Now the Mint is two ways considered viz. either in the value of the Metal and Money or in the Coinage The first of these and things most immediately concurring therewith the Parliament still retains to its own immediate Survey such as are the inhibiting of exportation of Gold and Silver and of melting of Coyn into Plate or Bullion the regulating of the current of Foreign Coyn the reducing of money both Foreign and Domestick imbased by Counterfacture Clipping Washing c. the regulating of Allay of Gold and Silver the regulating Exchange and such like concerning all which the Reader may please to peruse the Statutes 2 H. 4. cap. 5 6 11 13. 4 H. 4. cap. 16. 3 H. 5. Stat 1. 4. cap. 6. 9. cap. 11. and 2 H. 6. cap. 6. The second Consideration touching the Mint concerned the election and government of the Officers touching the Mint and Exchange or the places where they shall be holden which with some other matters of inferiour nature were left to the Order of the Privy Council either with the King or alone in case of the King's absence or disability A second power given to the Privy Council was in point of Trade and Merchandize Formerly they had somewhat to do therein but still the Parliament set out their bounds In Richard the Second's time the people had liberty of Trade in some Commodities by way of Exportation but the Privy Council might restrain them upon inconvenience to the publick Now the same is confirmed and though it concerned Corn onely yet it was a Precedent that led the way to a much larger power in the Trade of the Staple Commodities of this Island to enlarge or straiten it as they though meet And so they became in a fair way to have a principal power over the Revenues and Riches of this Nation But this lasted not long for within ten years these Licenses of Transportation cost the Merchant so much as he could make little gains of all his care and pains and therefore a rule is set to a general allowance of all Transportation of Corn till the price of Wheat came to a Noble and Barley at Three shillings and no longer This being first made Temporary was afterwards made Perpetual and so gave a restraint unto the power of the King and Council But where no positive restraint was made by any Statute the King and Council seemed to have the sole power left unto them to open and shut the passes of Trade as they pleased For whereas the Commodity of Butter and Cheese was made Staple the King and Council had power to stop the sale thereof notwithstanding that the Law gave full liberty to the Subjects to bring all their Staple-Commodities to the Staple Nevertheless this power in the King is not primitive but derived from the Parliament for they had power over the Kings Licenses and Restraints in such cases as by the several Statutes do appear A third power given to the Privy Council was a power of Summons and Process against Delinquents in cases of Riots Extortions Oppressions and grievous Offences The Summons to be by Privy-Seal the Process Proclamations and for Non-appearance Forfeiture if the Delinquent be of the degree of a Lord if of inferiour rank then a Fine or Out-lawry At the first view the Statute hath an ill favoured Aspect as if it raised up a new Court of Judicature but the time is to be considered with the occasion for it was made for the securing of the peace in a turbulent time And besides the Law carrieth along with it two restrictions which puts the right of Cognizance in the Privy Council to the question First It saveth the Jurisdiction of other Courts and provideth further That no matter determinable by the Law of this Realm shall be by this Act determined in other form than after the course of the same Law in the Kings Court having determination of the same which implieth that some kinds of Riots and Extortions are of so high a nature that though determinable in the Kingsâ—Court yet are they to be determined before the Lords In the next place this Law provideth That such offences as are determinable by the Law of the Realm that is by Jury shall still be so tried Secondly If Conviction be upon Confession or by Certificate in case where by reason of parties and partakings Inquisition by Jury cannot be had there the Lords shall immediately determine the same Lastly If the Certificate be traversed then the same shall be tried in the King 's Bench. But there is another Restriction that undoeth all in effect in point of right because what this Law setleth therein it setleth but for seven years and leaveth the Privy Council to the limits of the Common Law for the future In the mean time the Privy Council may be thought terrible and very high both by this Law and the greatness of the Lords Kings Unkles and Kings Brothers are Subjects indeed but of so high a degree that if a little goodness of nature or publick spirit shine in them they soon become the Objects of admiration from the Vulgar and gain more from them by their vicinity than the King can do at a distance For the Commons of England by the fair demeanour of popular great men are soon won out of their very Cloaths and are never more in danger to part with their Liberties than when the Heaven is fair above their heads and the Nobility serve the King and flatter them Nevertheless as I said the season must also be considered of this power thus by this Law contracted for what the Lords gained not by their popularity the Queen did with her power who now mindful of her contemned beauty and opposition from the Duke of Gloucester against her Marriage removes him out of the way gets the reins of Government into her hand and like a Woman drives on in full career The Duke of York and other Lords not liking this gallop endeavour to stop her pace but are all over-born the Duke taken prisoner and doubtless had pledged the
also been cleared by another Pen. That their work at such times was to advise concerning such matters as should be propounded to them by the King in Parliament their Summons do shew the particulars whereof for the most part concerned supplies of Money from the Church-men And yet sometimes matters of great moment were debated therein As in a Convocation summoned by Henry the Fifth in his ninth year the preheminence of Pope Eugenius above the Council of Bazil was debated and as much as they could they determined the same The credit of their decisions in former time I believe was not much amongst the people because the men were looked upon with an evil eye Now that the Parliament seemeth to own them in their way and to protect them their determinations are somewhat The Church-men espy their opportunity and whilst the benevolent influence of the State is in its first heat they improve it in this manner The times were now come about wherein light began to spring forth conscience tobestir itself and men to study the Scriptures This was imputed to the idleness and carelesness of the Clergie who suffered the minds of young Scholars to luxuriate into Errours of Divinity for want of putting them on to other Learning and gave no encouragement to studies of humane Literature by preferring those that were deserving The Convocation taking this into consideration do decree That no person should exercise any jurisdiction in any Office as Vicar-general Commissary or Official or otherwise unless he shall have first in the University have taken Degrees in the Civil or Canon Law. A shrewd trick this was to stop the growth of the study of Divinity and Wickliff's way and to imbellish mens minds with a kind of Learning that may gain them preferment or at least an opinion of abilities beyond the common strain and dangerous to be meddled with Like some Gallants that wear Swords as Badges of Honour and to bid men beware because they possibly may strike though in their own persons they may be very Cowards And no less mischievously intended was this against the rugged Common-Law a Rule so nigh allied to the Gospel-way as it favoureth Liberty and so far estranged from the way of the Civil and Canon-Law as there is no hope of accommodation till Christ and Anti-Christ have fought the field Thus much of the Church of England in relation to the State now as it is absolutely considered in regard of the several degrees of persons therein Although these three Kings were much endeared to the English Clergy yet the difference between the Laity and them growing high the King 's principal care is now to keep an even hand between them both for he that will back two Horses at once must keep them even or put his joynts to the adventure First Henry the Fourth granteth That no more shall be paid to Rome for the first-fruits of Archbishops and Bishops than hath been anciently used The occasion hereof was to prevent the horrible mischief and damnable custom of Rome for such are the very words of that Statute unto which the Clergy gave their Vote if not the first Vote and therefore certainly did neither believe nor honour that infallible Chair as their own Mother nor did they bear her Yoke further than their own benefit and reason of State did require For though the immediate benefit of this Law did descend upon the Prelacy yet it also much concerned the interest both of the honour and benefit of the Nation that the Clergy should not be at the Pope's pleasure to tax and assess as he thought good Secondly Henry the Fifth added unto the Prelacy some kind of increase both of Honour and Power viz. to visit Hospitals that were not of the King 's own foundation and to reform abuses there for the Patrons either had no power to punish or will or care to reform them And thus upon the point although they lost a Right yet they gained ease Thirdly The same King confirmed by a Statute unto Ordinaries the cognizance of Accounts of Executors for their Testators Estates which formerly was granted by the canon-Canon-Law but they wanted power to execute and a Right to have and receive In all these the Clergie or Prelacy were the immediate gainers In as many other things the people were made gainers and yet the Clergie were no losers otherwise than like the Kite of that prey which was none of their own First They refused formerly to grant Copies of Libels either thereby to hinder the course of Prohibitions or to make the Copies the moredear and Money more cheap with them Henry the Fifth finding this a grievance to the people passeth a Law That all Ordinaries shall grant the Copies of Libels at such time as by Law they are grantable Secondly As the probate of Wills had anciently belonged to the Ordinary by the Canon-Law and formerly also confirmed to them by the Parliament so it also regulated and settled the Fees for such Service But the Clergy having been ever under the noutriture of their Mother Rome that loved to exceed they likewise accounted it their liberty to take what they could get But the nigher they come to engage with Kings in their Government according to Law the more reformed they grow Formerly Edward the Third had settled their Fees but they would not hold to the rule Now the Law is doubled by Henry the Fifth with a penalty of treble damages against Delinquents Furthermore the very Priests could not contain their Pater-Nosters Requiems Masses and such Wares they had engrossed and set thereof what price they pleased The Market was risen to that height that Edward the Third undertook to set a rate upon those Commodities but that also would not hold long Henry the Fifth he sets a certain stipend somewhat more than Edward the Third had done and yet less than the Priests had formerly Lastly Some Laws were made wherein the Commonwealth gained and the Church were losers First Whereas the Church-men formerly held all holy things proper and peculiar to their own Cognizance especially such as concerned the Worship of God the Parliament now began to be bold with that and never asked leave It had now for a long time even since the Saxon times been the unhappy condition of this Church of England amongst others to decay continually in Piety and right Devotion but through the light that now revived and God's goodness it in these times came to pass that the people did entertain some sense of their duty towards God more than formerly and begin to quarrel the abuses done to the Lords day in the manner of the keeping thereof London hath the honour for beginning this Reformation by an Act of their Common Council The Parliament within seven years after that engage the whole Kingdom in that service though therewith also are adjoyned other holy Feasts then holden and all Fairs and Markets are enjoyned to cease on that
day under pain of forfeiture of Goods exposed to sale excepting Victual and excepting the four Sundays in Harvest And thus though places had their Consecration allowed by the Parliament and immunity from trading in Fairs and Markets by the space of a hundred and sixty years before this time yet that time which God by his own Law had reserved to his own self never came under regard to be allowed till now and yet not by the motion of the Clergie nor by their furtherance For by their thrusting in the Holy days they made them equal with the Lords day and in Harvest-time superiour by preserving them in force whenas the Lords days 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 Trial of Bastardy and therein could strain themselves so far as to put the case of Inheritance into danger where the point otherwise was clear enough And this grew to that height that it endangered the disinheriting of the Heirs of the â—arl of Kent It is therefore now provided that before the Ordinary in such Cases proceeded to Trial 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 void so as whatever the Canon did the Parliament would not trust to the Ordinaries Summons nor allow of their power in any other manner than the Parliament thought meet One thing more remaineth wherein the true Church of Christ seemed to lose and yet gained and the Clergie joyning with the King seemed to gain and yet lost this was the point of Worship which had long stumbled the minds of the people and was now grown 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 Catholick Faith. And against this the Clergie now stormed more than ever formerly because it was grown to such a height as if it meaned to over-top theirs To this end they procured an Act to pass That all Preachers Teachers Writers School-masters Favourers or notoriously defamed persons for the maintenance of such Opinions shall be upon conviction before the Ordinary according to the Canons imprisoned in the Diocesans Prison and Fined according to the Diocesans discretion If upon Conviction he shall not abjure or shall relapse he shall be delivered unto the Secular power and be burned And that Preachers without License of the Diocesan should be restrained Concerning which Law I shall first shew what change in the Laws of this Kingdom was endeavoured and what was really effected First It is an undeniable ground That no Freeman can be put to answer before any Judge but upon presentment or other matter of Record foregoing and by due Process of Law. And yet it had been ruled that strong presumption and complaint of credit after it is entred is sufficient Record to ground proceedings in this Case to attach the party to Answer But by this Law a Trial is introduced that neither resleth upon any peremptory Accusation or proof of Witness but meerly upon Inquisition upon the Oath and Conscience of the party suspected which in the latter days hath been called the Trial upon the Oath Ex Officio For such was the Trial allowed by the Canon in these times as appears in the Constitutions of Otho and the Decrees of the Archbishop Boniface by whom it was endeavoured to be obtruded upon the Laity about the times of Henry the Third or Edward the First but even the Clergie then withstood it as Lindwood confesseth And Otho in his very Constitution doth hold this forth by that clause of his Non obstante obtenta consuetudine Seconly This Law doth endeavour to introduce a new Judge with a power to Fine and Imprison according to discretion and a Prison allowed to him as his own peculiar 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 suspicious Thirdly The Clergie 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 Freeman's life could by the Fundamental Laws of this Kingdom come to question but by the Judgement of his Peers nor could the Clergie by their own Canons interesse sanguini 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 Civil Magistrate is wont to execute by a speedy parting of the Soul from the Body by loss of Blood stop of Breath or such like but the Clergie must have Bloud Flesh Bones and Life and all even the edge of non entity it self or they are not satisfied and thus the Writ De comburendo Hoeretico entred 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 Archbishop Becket But that Case concerneth a Clerk who by his profession hath put himself 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 zeal and power of an Archbishop that would know no Peer Nor do we find any second to this Precedent by the space of Two hundred years next ensuing neither doth the Decree of Archbishop Peckham who was not long after Becket treating about Apostacy in Lay-men mention any other punishment than that they are to be reclaimed Per censuras Ecclesiasticas Nor yet that of Archbishop Arundel amongst the Constitutions at Oxford not long before this Statute who treating about the crime of Heresie lays the penalty upon forfeiture of Goods with a Praesertim as if it were the grand punishment And Linwood in his Gloss 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 endeavour is to bring the cognizance of all wholly to the Ecclesiastical Court without further Appeal for so the words concerning Conviction of Heresie are Whereupon evidence shall be given to the Diocesan of the same place or his Ordinary in that behalf These changes I say were endeavoured to be brought upon the Government of
this Kingdom and yet the Law for all this suffered no change nor did the House of Commons however the name is thrust into the English Ordinary Print ever yield unto the passing of the same but in the Parliament next ensuing complained thereof and protested they would not be bound by such Laws whereto the House of Commons had not given their consent And this dashed the Law quite out of countenance although it holds the place still amongst the number for within four years after the Clergie bring in another Bill of the same nature in general though varying in some particulars but the same was again rejected All the strength therefore of this Law resteth upon the King and House of Lords engaged by the Clergie whom they trusted for their Religion for Book-learning was with them of small account and no less by the King who knew no better way to give the Clergie content that gave him so much as to set the Crown upon his Head nor to discharge his Royal Word passed by the Earls of Northumberland and Westmorland in his behalf unto the Convocation viz. That they were sent to declare the Kings good will to the Clergie and Church-Liberties and that he was resolved to defend all the Liberties of the Church by his Kingly power and to punish Hereticks and the Churches Enemies in such manner as the Clergie should think meet and therefore desired their daily prayers for his own and the Kingdoms safety And yet for all this the people were not of this mind no small part of the Kingdom being overspread with these opinions After Henry the Fourth comes Henry the Fifth and he also makes another essay the former opinions then known onely by the general names of Heresie are now baptized by the new name of Lollardry and grown so overspreading that all the troubles of these times are still imputed to them It was indeed the Devils old and common trick thus to inrage earthly powers against these men although he be hereby but an instrument in the hand of the chief Builder that in laying a sure Foundation doth as well ram down as raise up for the malice of these men made the people of God to multiply Henry the Fifth also published a Law to this same purpose That all persons in place of Government shall swear to use their diligence to destroy all Heresies and Errors called Lollardries That all Lollards convict by the Clergie left to the secular power according to the Laws of Holy Church shall forfeit their Lands and Tenements to their Lords And the King to have the Year and Day and Waste and all his Goods and Chattels If the Lord be the Ordinary the King shall have all No forfeiture to be till the Delinquent be dead They shall be found by Indictment before the Justices of the Peace This Indictment being found shall be sent to the Ordinary with the Prisoner The Indictment shall not be for Evidence but onely for Information These are the principal things contained in this Law which by the manner of the composure seemeth to be of an uncertain colour neither made by the Clergie nor Laity but spoiled between them both The intent thereof seemeth to be principally to draw on the House of Commons to pass the Law under hope of gain by the forfeitures for the penalty is like that of Felony though the crime be not expresly declared to be Felony But the intent fell short in event For first The nature of the Crime is not defined nor declared by any Law and therefore can no man by Indictment be found to be such Secondly No penalty of death hath been by any former or by this Law determined upon such as are guilty for it is not enacted by any Law that such persons shall be delivered to the Secular power c. Thirdly This Statute determining the forfeiture to be not till death and neither that nor any other Law of this Kingdom determining death then is no forfeiture determined Fourthly Though this Law taketh it for granted that Heresie and Errours belong to Ecclesiastical Cognizance yet the same allows of no further proceedings than Ecclesiastical censures Lastly By this Law there can be no proceeding but in case of Indictment for otherwise without Record no forfeiture can be therefore where no Indictment is there is no forfeiture In all which regards it is evident that the Clergie could by this Law neither get fat nor bloud And therefore at their Convocation in the next year following they took another course and ordered that three in every Parish should make presentment upon Oath of such persons as are defamed for Hereticks and the truth so far as they can learn. Which puts me in mind of a Presentment that I have seen by some of St. Mary Overies in these times Item We saine that John Stevens is a man we cannot tell what to make of him and that he hath Books we know not what they are This new course shews plainly that the former held not force as they intended it So God blasted the practices of the Clergie at this time also rendring this Law immaterial that had the form as the other missed in the form and had the matter CHAP. XVIII Of the Court of Chancery IT often befals in State-affairs that extraordinary exigencies require extraordinary remedies which having once gotten footing are not easily laid aside especially if they be expedient for Prerogative The Privy Council in the Star-chamber pretends default of the common-Common-Law both in speed and severity in Cases whereby the State is endangered The Chancery pretends default by the common-Common-Law in point of equity and moderation The people taken with these pretences make that Rod more heavy which themselves had already complained of What the Chancery was in times past hath been already shewed still it is in the growing and gaining hand First In the Judicatory power it prevailed in relation to the Exchequer exercising a kind of power to survey the proceedings thereof in cases of Commissioners distrained to account for Commissions executed or not executed For it was no easie matter to execute Commissions from the Exchequer in those times of parties nor were men willing with such unwelcome occasions between Friends and Neighbours and it may be they grew weary of embroiling themselves one against another and of being Instruments of the violent countermotions of Princes and great men Secondly It gained also upon the Admiralty which by former Laws had Jurisdiction in all cases incident upon the great Sea. But now either through neglect of the Admiral or the evil of the Times occasioning Piracies to grow epidemical the ill government upon the Sea became dangerous to the State trenching upon the Truce made between this and other Nations For a remedy whereof first Conservators of the Truce were setled in every Port who had power committed to them to punish Delinquents against the publick Truce both by Indictment at the Kings
Sixth was in view and the minds of men left unassured neither trusting much to Edward the Fourth nor he to them And after that Henry the Sixth was gone out of the way Edward the Fourth could not readily change his posture used Arguments of force and power and for the most part looked like a man in Arms with his hand on his Sword ready to draw upon the next man that stands in his way Thus are the people partly driven and partly drawn into an Oath of Allegiance unto Edward the Fourth under peril of Attainder and the Parliament assured unto him once more For immediately upon the departure of Edward the Fourth beyond Sea after Ten years of his Reign the Parliament never staying for the issue of Providence declared the Throne void of Edward the Fourth and Henry the Sixth King. The Judges likewise of the Courts of Westminster determined the same thing as may appear by the Law-Reports of those times in Print wherein reattachments were often granted by them upon discontinuance of Process by this Demise of Edward the Fourth And thus Henry the Sixth is once more King for six Months viz. from October to April at which time the Ballance turns Edward the Fourth returns gets into the Throne Henry the Sixth is again Dethroned all things are as they were and all confirmed by Act of Parliament For that Body is ever wise enough to side with Power rather than to spend much time upon fruitless Orders and Votes that will pierce no Armour and therefore like the times must needs be subject to fits of distemper at the coming in of every Tide and did build and pull down enact and disenact turn and return the English Crown from York to Lancaster and back again and in conclusion for some time did do little but undo Nor can they be justly censured herein for Councils of men are not ordained to hinder divine Providence or over-rule Fate but to foresee and close with Occasions in the most advantageous way for the publick good and when both Winds and Currents are uncertain to ride at flote till they can discern the most commodious Haven to Winter in To impute therefore fault unto the Parliament in such Cases for want of Uniformity and Immutability of Councils is somewhat like the Notion that Batchelors conceit of Wives they would have but they do not know what other 〈◊〉 an Idea of their own fancy Now if it be enquired which course prevailed in order either to the Kings Royalty or the peoples Liberty I shall answer Neither of these but the House of York prevailed to hold the Crown and might have advanced the Authority thereof had they not fall'n out amongst themselves for the spoil and Edward the Fourth was not altogether disposed thereto The success that he had in the Field and his Souldiery made him look big like a King of the greater size but Kings sleep not securely upon such Pillows When the Militia is on Horseback it is as ready to be a Guard upon the King as for him and when it is most sober not so easily governed as a Commonwealth And therefore Edward the Fourth now in Arms though he found it a hard Notion to maintain the peoples Liberty where no man is free from the Souldier yet he enclined thereto We read of a multitude of Taxations of all sorts and of Benevolences the worst of all those sorts For Souldiers must have money or if not they will have it but the King would not force things so far as his power could reach he will have Money but it shall be by order of the Parliament He might have pretended much upon the Commission of Array yet did it not but chose rather to be Lord of the Seas And because it was too great a Farm for his private Purse he prays aid of the Parliament by the way of Tumage and Poundage which was in demand nine years before the Parliament granted it And when it was granted it was with such restrictions that it is evident the King preferred the right of the Parliament therein above his private honour Secondly Titles of Honour are but windy Notions and every one knows what claim is made by Kings to have the sole interest in conferring the same This Edward the Fourth neglected so far as he interested the Parliament both in the conferring of them and resuming the same Thirdly The course of Trade was now more especially looked to not by the King and Privy Council but by the Parliament And because it was much decayed partly by reason of the ill government thereof and partly by the excessive lavishness of these times many Laws are made for remedy of both And first the Staple was setled sometimes at Calis alone sometimes at it and Middleborough and by this means England gained Trade from both Nations but the principal thanks is to be given to the interest between the King and the House of Burgundy Then course is taken for the bringing of the Staple Commodities onely to those places and the return to be made in Money and not Commodity by exchange Then for the well making of Staple-Manufactures and restraining Importation of Foreign Manufactures of such kinds Then against transporting of English Coyn and importing of Foreign Coyn other than Bullion And as touching the second grievance it seems gallantry or vanity of Apparel was a sore Disease of these times which were become times of Fashions and wherein the King led the way by his own example For he desired to be brave and that he might be more brave he passed Laws that the people should be less brave assessing a sort of Apparel for every degree and therein stooped so low as to define the fashions of their very shoes Fourthly The Parliament retained their ancient right of reducing the course of Judicature For whereas Sheriffs had hitherto holden their course of Trial of the moaner sort of Felonies and Trespasses and Offences determinable onely by Imprisonment or Fines and Amerciaments whereby mens Estates did lie under the continual pillage of these covetous and extorting Officers It was established by the Parliament that these men should have for the future only power of enquiry and to certifie at the next Sessions and there the Trial to be and Fines and Amerciaments to be set Taxed and Estreated unto the Exechequer and from thence to be levied and thereof the Sheriff give account This was a great security to the peoples Estates but gave them not a full remedy For though the Trial was now more fair yet these Officers were Judges of suspicion and had still power upon suspicion to imprison their persons and seize their Estates under colour to save them for the King in case Conviction followed For remedy hereof the Justices of the Peace have now power given them to Bail in Case of light suspicion and it is further declared that no mans Estate shall be first
so things were done according to his mind though he did them not And thus his Excellency seemed more eminent in finding and making instruments fitting to do his work than in doing his own work Nevertheless all this was but from hand to mouth no Fundamental Law is altered all this while If the Laws were made by Parliament the King made them not If the Judges turned the Law to the King's ear 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 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 wisdom 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 Success of Charles the Fifth the Queens Brother against the Pope and French scared the King into a jealousie of his greatness and the Emperour 's failing in courtesie to Cardinal Wolsey the King 's Achates stirred the Cardinals spirit to revenge for the loss of his hopes in the Popedom For the Cardinal finding the King's mind to linger after another Bedfellow by whom he might have a Son he made the French Embassadour his Instrument to mind the King of his unlawful Marriage with the Queen and to mention unto him Margaret D' Alanson a Princess of France both in Bloud and Beauty The King liked the notion of Divorce 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 he entred into a scrutiny concerning the condition of his Marriage wherein he had been formerly touched both by the French and Spaniards themselves upon several motions made First Between Charles the Fifth and afterwards between the Dauphine and the Lady Mary afterwards Queen Hereat the Cardinal winked all the while till the infallibility of the Chair of Rome came upon the Stage then bestirring his Wits he lodged the Case upon Appeal thither as he hoped beyond all further Appeal and so held the King there fast till himself might accomplish his own ends But the Wheel once set a running would not stay The King espies the Cardinal in his way and bears him down Then finding the fallacy of the infallible Chair he hearkens after other Doctors follows their light and being loth to hear what he expected from Rome he stopped the way to all Importation of such Merchandize as might be any ways prejudicial to the Prerogative Royal with the penalty of the loss of Land or Liberty and Fine the two latter being formerly warranted by Law. The first served as a scare for though it were but by Proclamation men might justly fear that he who was so stout against the Pope would not stick to scourge his own Subjects out of his way in the time of his heat The King thus entred the Lists both against Pope and Cardinal now under Praemuniri whereof he died meets the English Clergie thus losing their Top-gallant standing up in the Reer against him and talking at large Nevertheless the King stops not his career puts them to the rout for maintaining the power Legatine They soon submit crave pardon give a sum of Money and perfume their Sacrifice with that sweet Incense of Supream 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 fair for he was not in a posture to contest but all would do no good The Queen had appealed to Rome the Pope by Wolsey's advice makes delays The Parliament espying the advantage at once took all Appeals to Rome away and established all Sentences made or to be made within this Land notwithstanding any Act from Rome and enjoyned the English Clergie to administer the several Acts of publick Worship notwithstanding any Inhibition or Excommunication from any Forein pretended Power The grounds upon the Preamble of the Law will appear 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 than the Recognizance of the Clergie two years before this Act did hold forth Yet this acknowledgement is not absolute but in opposition to Forein pretensions Secondly That the Clergie in England having power may in matters Spiritual determine all doubts without Forein 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 dis-joyned from the Laity in these affairs 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 Tythes Oblations and Obventions So as if they will challenge such power they must thank the Parliament for it and use the same accordingly as persons deputed thereunto and not in their own right or right of their places In all this the King's Supremacy is but obscurely asserted and rather by implication shewing what in reason may be holden than 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 years ensuing or thereabout the Law is made positive The King shall be taken and accepted the onely Supream Head on Earth of the Church of England and have power to visit correct repress redress reform restrain order and amend all such errours heresies abuses offences contempts and enormities as by any manner of Spiritual Authority or Jurisdiction ought or may lawfully be reformed Which in the Preamble is said to be made to confirm what the Clergie in their Convocation formerly had recognized The corpse of this Act is to secure the King's Title the King's Power and the King's Profit As touching the King's Title it is said 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 King's Profit it cannot
in their Original Bishops were meerly Donatives from the Crown being invested by delivery of the Ring and Pastoral Staff and until King John's time the Canonical way of Election was disallowed yet King John by his Charter De communi consensu Baronum granted that they should be eligible which also was confirmed by divers publick Acts of Parliament in after-times and now by this Law last recited and with this way the King was contented for the space of Six years for the Reformation intended by the King was not done at once but by degrees and therefore though this course of Conge d'eslire was brought into use yet the Parliament being of Six years continuance a necessary thing in times of so great change of Policy began this course of Election by giving the King power to nominate and allowing of the Pope power to grant to such his Bulls or Pall at his own will otherwise they should be Consecrated by Commission without his consent And thus at the first the Pope's Concurrence was not excluded though his Negative was In this posture of affairs comes Cranmer to be consecrated Archbishop And being nominated thereunto by the King the wily Pope knowing the Kings aim meaned not to withstand lest he should lose all but granted the Pall as readily as it was desired so as Cranmer is thus far Archbishop of Canterbury without all exception yet he must go one step farther and take the old Oath to the Pope which the King allowed him to do Pro more and which he did renitente Conscientia say some and with a Salvo say others and all affirm it was done Perfunctorie like some worn Ceremonie or civil Complement Nevertheless it was not so soon turned over the Archbishop loved not the Office the King loved not Partnership in this matter and it was evident to all that no man could serve these two Masters any longer an agreement is soon concluded in Parliament to exclude the Popes Power quite out of this game and all is left to be done by the King and his Commissioners by the Law formerly propounded In all this the Pope is loser the English Clergie the savers for the Pall cost Cranmer Nine hundred Marks And the Crown is the great gainer for hereby the King got the men sure to him not onely by their own acknowledgement and submission but also by a Statute-Law And lastly by Oath which to make sure was treble twined once upon their first submission in the Kings Twentie second year when they had been under Praemuniri Secondly Soon after the decease of Queen Katherine Dowager in the Twentie sixth year which Oath was more compleat than the former containing First A Renunciation of all Fealty to the Pope or any Foreign Power Secondly An Obligation to adhere to the Cause of the King and his Successors Thirdly A Disavowing of the Pope otherwise than as another Bishop or fellow hrother Fourthly An Engagement to observe all Laws already established against the Pope's power Fifthly A Disavowing of all appeals to Rome Sixthly An Engagement to inform the King of all Messages or Bulls sent from Rome into England Seventhly An Engagement not to send or be privy to the sending of any Message to Rome for any such purpose The third Oath was that of Fealty which anciently was due to Kings and now revived to be taken by all Bishops upon their admission And thus the English Prelacie having been sworn Slaves to the Papacie ever since Becket's time are now preferred to a more Royal Service and the pursuit by Kings after their right being laid aside by the space of 300 Years is now renewed and the prey seized upon by the Lion who found it upon a better Title and in better condition by much than when at the first it was lost For it was upon some semblance of Reason that the Archbishop and Clergie gained it but being afterwards dispossessed thereof by the Pope and yet without any other shadow of Title but the power of his own gripe for the present he is the Occupant and becomes Proprietor by prescription till now the Felon being apprehended the stolen Goods are the Kings in Right and by Remitter whereunto the Parliament by the Statute adding their Conveyance establishes the same by an unquestionable Title Nevertheless their service is no less servile to this Crown than it had been to the Romish Miter formerly they asserted the Pope's Infallibility now the King's Supremacy They are now called by the King made by the King sent by the King maintained by the King whatsoever they are whatsoever they have all is the King 's He makes Bishops he makes new Bishopricks and divides or compounds the old as he pleaseth by a power given to Henry the Eighth by Parliament Which Oath was never in any Prince before or after him that I can find so as the Crown had it not but the man and it died with him The King thus loaden with Power and Honour above all his Predecessors if without proportionable Maintenance to support the one and act the other must needs consume himself as one in a Tympanie by growing great For though he was left rich by his Father's Treasure yet his Zeal to Rome in its now poor captivated condition under the Imperial power stirring up in him great undertakings abroad besides his own Pleasures and Gallantry at home exhausted that and doubtless had starved these his grand designs had he not found the hidden Treasures of the Cells and Monasteries the sight whereof so rouzed up his Spirits that he adventured upon the purchase though he knew difficulties enough to have stopped his undertakings if he had not resolved both against fear and flattery It was not done without deliberation for the thing was felt as a grievance before the Norman times and complained of in Parliament above a hundred and forty years ago and divers times since but Kings either understood not or believed not or durst not give remedy or had much else to do But now the King is beyond all his Predecessors he knows much dares do more and is at leisure He will go as far as Emperour or French King and beyond them also but would not try masteries with either for they were all Cocks of the game The first occasion that discovered the work feasible was a president made by Cardinal Wolsey whose power was enough to dissolve some petty Cells and no opposition made The King might well expect the work would be as lawful for him and not much more difficult or if any Storms ensued the people that had so long complained and felt the burthen of these excrescences of the Clergie would soon find out a way to calm them the King need do no more than speak and the people will do This opened the door but that which brought the King in was the hold the Pope had in this Kingdom by these Cloistered people who were persons dead in Law and dead to all Law but the
until general Proclamation of dismission In short therefore here is a new Militia as touching the King's Patentees they must attend the King's Person whither ever the King will lead them either within the Realm 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 doubtful expressions as if it were not meet that Henry the Seventh that loved not to yoke himself to the Law should yoke his Laws under the Laws of plain Language Or rather that he held it a point of Policy to publish his Laws in a doubtful stile that such as durst question his Laws 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 breadth 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 whenas the first Statute cometh to the point it startles from the ground of Allegiance and flies to the ground of a kind of Equity or Reason And the second resorteth to the first as its proper ground as being a supplement thereunto in Cases forgotten and so omitted though it may be rather thought that the King creeping up into his height 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 Laws being limited both in regard of time and person In regard of time for both these Laws 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 into such Advancement by purchase for Money Neither are Judges and other Officers excepted persons in the said Statutes If therefore Allegiance had been the ground of these Laws it had equally bound all who are under the Bond and no Equity could have given a general Rule of discharge unto such condition of men It had likewise bound as well formerly and afterwards as during this King's Reign and therefore whatever semblance is made therein concerning Allegiance there had been 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 Laws do hold forth-nothing that is new but a mind that Henry the Seventh had to fill his Coffers though his mind 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 than to adventure themselves and so he might get the more Money that could find pay for Souldiers more and better than they were or would be For otherwise the Patentees might by the Statute have been allowed to serve the King by their Deputies which would have done the King better service in the Wars than 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 Claim of Kings be what they will yet the matter in fact shews plainly that they never had possession of what they claimed Both these Kings pretended a Foreign War each of them once against one and the same Nation and to that end advanced to 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 Voluntiers This not onely the Records but also the Statutes do clearly set forth Some Souldiers served under Captains of their own choice 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 days were Voluntiers also and expecting favour from the Publick the rather because they devoted themselves thereto without relation to any private Captain they willingly therefore received Imprest-money And of this course the State saw a necessity both for the better choice of men and for the more publick owning of the Work. For such as had been usually levied by the Captains were fit onely 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 appear As touching the levying of the Horse although divers 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 certain number of Horses yet do none of them tell us that they shall find and maintain them armed compleatly for the Wars nor shall send them forth upon their own charge and therefore I suppose they were raised as formerly These two Kings had the happiness 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 find men that loved to ingratiate themselves and endeavour to catch their favour though with the adventure of their Lives especially if they looked after Honour and Glory which as a Crown they say pitched at the Goal 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 Captain under peril of Imprisonment and forfeiture of Goods and Chattels and the true number of the Souldiers to be maintained and listed under the like peril Fourthly As touching the Souldiers service the same course also was taken as before if they desert their Colours they should be punished as Felons and the manner of trial to be at the common-Common-Law Fifthly For Fortifications the power properly belongeth to the Supreme Authority to give order therein For the People may not fortifie themselves otherwise than in their particular Houses which are reputed every man's Castle because publick Forts are Enemies to the publick Peace unless in case of publick 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 Free-hold or exacting their
Reserve unto the King's Letters-patents Yet in that the Power is limited not onely in regard of the manner and time but of the persons and also of the Statutes that are to be repealed it is sufficient to vindicate the nature of this Prerogative if such it were to be no ways inherent but acquired by Concession But as touching the Legislative Power they would not trust it in the least manner to any other King. The Parliament had crowned Proclamations at the instance of Henry the Eighth with that Royal Title of Laws in manner as formerly hath been noted Now all Interests both of the Popish and of the reformed parties of this Nation are against it the former because they saw the King 's present way to be against them and both it and the latter because the thing it self was abominable unto the Liberties of the people and therefore it is soon taken away by Repeal and the Legislative Power is wholly re-assumed to themselves as formerly For though in matters Ecclesiastical the Power of the Crown might seem to be more pre-eminent in regard of the Supremacy and some particular powers in making Bishops by Election without Conge d'eslire yet did the Parliament neither yield or acknowledge any Legislative power to be in the Crown thereby but proceeded on in that way of the thirty and two Commissioners formerly agreed upon by them in the time of the King's Father Thus the King though an Infant was a gainer and the Crown nevertheless still the same Secondly That Crown that may be worn by an Infant may much rather be worn by a Woman whose natural endowments do far exceed the other and are not inferiour unto the most of men Of this we have two Examples in these times Queen Mary and Queen Elizabeth of several professions in matters of Religion and liable to exceptions in regard of their Sex by men of the counter-profession on both sides yet both upheld the Honour of the Crown though therein the one more especially being neither ingaged in the Roman Cause nor in the Estate of Marriage as the other was This was Queen Elizabeth in person a Woman but in mind endowed with all the perfections of a man she could not endure to abate one hairs breadth of her State and yet upon the sole regard of her Sex she submitted her Title of Supremacy to a more moderate name of Supream Governour whereas her Father would be called Supream Head as if it were not onely hazardous but hideous for a Woman to be Supream Head of the Church And for this cause would she not receive that Statute made by her Father and continued by her Brother Edward the Sixth and repealed by her Sister Queen Mary Nevertheless such as she was she had all such Jurisdictions Priviledges Superiorities and Pre-eminencies Spiritual or Ecclesiastical as by any Ecclesiastical 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 all manner of Errours Heresies Schisms 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 Foreigners and the same to be but in certain Cases and with certain Process Some Cases of Ecclesiastical Cognizance were referred to Trial at the Common Law viz. Such as concerned the publick 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 than 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 find no Jurisdiction in Cases Ecclesiastical that is absolutely setled in the Crown In matters Temporal the thing is yet more clear she never altered continued repealed nor explained any Law otherwise than 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 several 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 Judgement Fines Recoveries Attainders or other matters of Record or Trial 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 contradiction to Foreign power or the power of any particular person and not in opposition to the joynt 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 Foreign power in Cases Ecclesiastical although the same was with such qualifications as it was much more in Title and pretence than in reality and so in the conclusion neither approved her self to be good Wife good Catholick 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 Catholick 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
Right of Queen Elizabeth And upon this point onely did the whole proceedings against Mary Queen of Scots depend who claimed to be and doubtless was Heir unto Henry the Eighth after the determination of his Right Line and yet she was put to death for pretending Right by the Common Law in opposition to the Act of Parliament True it is that this Doctrine doth not down well with those that do pretend to Prerogative aided as they say by the Act of Recognition made to King James and the Oaths of Supremacy and Allegiance which do make much parly concerning Inheritance and Heirs Nevertheless it is as true that the Act of Recognition made no Law for the future nor doth the same cross the Statute of 13 Eliz. Nor doth it take away the power of the Parliament from over-ruling the course of the Common Law for after-Ages Nor do the Oaths of Supremacy and Allegiance hold forth any such Obligation unto Heirs otherwise than as supposing them to be Successors and in that relation onely And therefore was no such Allegiance due to Edward the Sixth Queen Mary or Queen Elizabeth until they were actually possessed of the Crown as may appear by the Oath formed by the Statute of Henry the Eighth touching their Succession Nor did the Law suppose any Treason could be acted against the Heirs of Edward the Sixth Queen Mary or Queen Elizabeth until those Heirs were actually possessed of the Crown and so were Kings and Queens as by express words in the several Statutes do appear Nor did the Recognition by the Parliament made to Queen Elizabeth declare any engagement of the People to assist and defend her and the Heirs of her Body otherwise than with this Limitation Being Kings and Queens of this Realm as by the Statute in that behalf made doth appear And lastly had those Oaths been otherwise understood the Crown had by the virtue of them been pre-engaged so as it could never have descended to Queen Mary Queen Elizabeth or King James but must have remained to the Heirs of Edward the Sixth for ever Secondly the same power that the Parliament exercised in ordering the course of Succession in the Crown they exercised likewise in determining and distributing the Powers and Priviledges belonging to the same for these times were full of Novelties The Crown had formerly sitted a Childs head more than once but it never tried to fit a Womans head since the Saxons times till now that it must make trial of two France might afford us a trick of the Salique Law if it might find acceptance And the unsetled state of the People especially in matter of Religion might require the wisest man living to sit at the Helm and yet himself not sufficient to steer a right course to the Harbour Nevertheless the Parliament having the Statute of Henry the Eighth to lead the way chose rather to pursue a Rule than to make one and soon determined the point viz. That the Crown of England with all the Priviledges thereof equally belong to a Woman in possession as to a Man or Child A bold Adventure I say it was but that Henry the Eighth was a bold Leader and yet the bolder it was if the consequence be considered For Queen Mary as a Woman brought in one new Precedent but in her Marriage a worse for she aimed not onely at a Foreign Bloud but at a Prince in Power and Majesty exceeding her own and thereby seeking advancement both to her self and her Realm endangered both The matter was long in debate between the Spanish and English and now had busied their Wits about ten years at length a Supremacy is formed suitable to the Lord and Husband of Queen Mary that could not be content to be one inch lower than her self Philip had the name of a King and Precedency and in many cases not without the Allegiance of the English. Their offences against his person equally Treason with those against the Queens own person and Indictments run Contra pacem Coronam D. Regis Reginae That in some cases he participated in the Regal Power may appear in that by the Articles he was to aid the Queen in the Administration of the Kingdom he joyned with the Queen in the Royal Assent and in Commission Letters patents and in Writs of Summons of Parliament as well as others yet in the words the Crown is reserved onely to the Queen and she must Reign as sole Queen Now if the King had broken this Agreement either the Parliament must over-rule the whole or all that is done must be undone and England must bear the burthen A Queen Regent is doubtless a dangerous condition for England above that of an Infant-King unless she be married onely to her people This was observed by Queen Elizabeth who therefore kept her self unmarried nor did the people otherwise desire her Marriage than in relation to Posterity Few of them liking any one of their own Nation so well as to prefer him so highly above themselves and fewer any Foreigner This was soon espied by Foreign Princes and the Queen her self perceiving that she was like to receive prejudice hereby in her interest amongst them signified by her Embassadors that she never meaned to stoop so low as to match with any of her Subjects but intended to make her choice of some Foreign Prince who neither by Power or Riches should be able to prejudice the interest of any of her Neighbouring Princes A pretty Complement this was to gain expectation from those abroad and better correspondency thereunto Upon this ground divers Princes conceived hopes of more interest than by trial they could find And the Arch-Duke of Austria began a Treaty which seemingly was entertained by her but her Proposals were such as silenced all those of the Austrian Interest for ever after viz. 1. That the Romish Religion should never be admitted into England 2. That no man that she married should ever wear the Title of King. 3. That no Foreigner should ever intermeddle in the Rule and Government of the Church or Commonwealth nor in the Ministry of the Church 4. That if he survived the Queen he should never challenge any Title or Interest in the Government or any Possession in England 5. She would never marry any one that she might not first see So as either she aimed at some inferiour Prince that durst not look so high or else she did but make semblance till she was nigh Forty years old and in all declared that she liked not her Sister Maries choice To these two Powers of Determining and Distributing I shall adde a third of Deputing which the Parliament exercised as formerly it had done Henry the Eighth had in Ecclesiastical matters exercised a power beyond the Law and yet by Parliament had provided positive Laws by which the same ought to have been ordered these were also confirmed in Edward the Sixth's time with some Additionals By
than a power of Non obstante in the point of obedience to the Canon-Law which by a Statute in Henry the Eighth's time is declared no Law. But let this pass as a Mole in this fair face of Church-government The Prelates are now become of the Vicinage Probi legales homines they have their Jurisdiction by Law established what they lose in breadth they gain in height and goodness of their Foundation Yet their Attire looks ill-favourably in Queen Maries eye she will have it of the old cut again and though Cardinal Pool was well seen in the Roman fashion yet when he had done all he did no more than shape a Garment to serve the present Interlude neither fit to the body nor easie to be worn and therefore after four or five turns upon the Stage it is thrown away Nevertheless during the time that England was thus dancing the Italian measure Prelacy in England held its own Domestick garb so well that neither Poole being of English bloud not much distant from the Crown and then also holding the Chair Legatine as little inferiour to the Throne would not impose too much nor Queen Mary a woman of a stout Spirit yield farther than she liked By means whereof the Prelacie looking no more to Rome than the power in Appeals and therein little more than the bare Title played Rex all the while with the people under colour of Heresie and the Canon-Law which now was again made their Rule And thus as touching their Election and Jurisdiction they were as before For Queen Mary did nothing but by single Repeal But Queen Elizabeth being true English both by Father and Mother liking not this retreat faced about routed the Roman fashion out of fashion put Prelacie to its close guard and received it upon capitulation not onely to mercy but favour and so it became her Vicar to exercise her Ecclesiastical Jurisdiction per saltum For it is hard to find by what steps they gained this pitch Henry the Eighth was Supream Head by submission of the Clergie by Resumption and by Act of Parliament and as such the power of Bishops formerly derived from Rome ceased and Henry the Eighth after restored it anew and setled the same by several Acts of Parliament which Edward the Sixth confirmed with divers additional Acts of further benefit to them as hath been already noted But Queen Mary altered all by repeal of the former Laws and so left all in Remitter as before the alteration by Henry the Eighth and did neither give or grant any Jurisdiction to the Pope Last of all comes Queen Elizabeth and by Repeal and Resumption possessed her self of Jurisdiction Ecclesiastical and granted Election of Bishops by Conge d'eslire but never granted to the Bishops Ordinary Jurisdiction by any express Act other than permission of them to continue in their former course notwithstanding that the foundation of their Jurisdiction had been altered twice and so it will be difficult for it to hold by Prescription or Custom or any other way than by a kind 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 Prelacie in Queen Elizabeths time had this honour allowed thereunto that it was upholden by Election from Ecclesiastical men and held its Jurisdiction as from it self and in the name of Bishop as Ordinary and the power of Excommunication by a saving in the Statute-law and not by express Donation notwithstanding the late Precedent in the time of Edward the Sixth to the contrary Secondly The Rule of this Jurisdiction was no less 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 Clergie were agreed upon but never confirmed by Act of Parliament And so could never bind the Subject and which in general set forth a kind of Form of Churchâ— 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 make strait or wide as they pleased Thirdly theâ— Censures now grew more sharp for whereas at the utmost formerly they â—â—uld 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 inferiour 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 Clergie 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 â—rom 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 Royal 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 the 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 is no wonder if the Churches be no gainers but like Plants spending their Natures in luxuriant Branches either are over-turned by the next blast of wind or do wither upon the least change of Skie That the whole ordering of the Church-Affairs rested originally in the Parliament no man can question considering whatever the Queen did or had therein was from the power of Acts of Parliament And that the
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 be never so absolutely defensive and the Souldiers raised by the Kings own and onely power had 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 Freemen according to the 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 License 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 witholden from their due use or from burning or destroying Lastly As touching the charge of the War and pay of the Souldiers It is evident that in all offensive Wars the Souldiers were 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 than 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 were these times wherein the people looking upon the Crown as under a kind of infirmity of Childhood or Womanhood did therefore bear a kind of compassionate regard thereunto without jealousie at Prerogative and could condescend and allow the Crown its full Grains and somewhat more yea more than was meet for some other Prince to desire or the People to give up And yet more happy were they wherein the Crown knew no interest but in dependance upon the peoples 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 Foreign pretensions and Intestine irregularities or both and yet the people were never more resolved against the former nor secure against the latter 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 now treat She was a compleat Conquerour of War and Treason and therein the true Inheritor of the Fate of her Grandfather Henry the Seventh with advantage for she out-faced all dangers by her onely presence having thereof had more experience than 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 behind her was rather likely to trip up her heels than support her Train that the Pope narrowly watched every opportunity the distance between him and the Throne being no greater than the breadth of her onely person It may well therefore admit of excuse if the Statute of the 25 of Edward the Third concerning Treasons did not give satisfaction although therein if she were sollicitous her Subjects were more Some kinds 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 engaged 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 publick 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 temporarie and in their ultimate reach tend onely to the safeguard of the Queens person in order to the intentionary sence of the Statute of 25 Edw. 3. although not within the explicite 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 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 over-look much of the Malignity of these Times than 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 Gypsies others formerly such afterwards laid aside are now revived with advantage as Conjuration and Buggery But imbezzelling 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 Man-stealers and other Crimes upon the Scotish Borders Others formerly made Felony are now unmade as that concerning Prophecies and divers formerly protected under the refuge of Clergie are now barred of that reserve such as are those that command counsel or hire others to commit petty 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. cap. 9. Pick pockets or Cut purses 8 Eliz. cap. 4. And Woman stealers 39 Eliz. cap 9. And some Crimes made Felony impeachable onely within a certain time and not upon a cool suit So as upon the whole heap of 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 inferiour note might be superadded as also of Laws of alteration and amendment of Process and Trial 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
the Opponents Instances which King called a Council stiled Commune Concilium tam Cleri quam Populi and in the conclusion of the same a Law is made upon the like occasion Si Rex Populum Convocaverit c. In both which it is evident that in those times there were Councils holden by the People as well as by the Magnates or Optimates His next instance is in the year 694 which is of a Council holden by the Great men but no mention of the Commons and this he will have to be a Parliament albeit that he might have found both Abbatesses or Women and Presbyters to be Members of that Assembly and for default of better attested the Conclusions of the same notwithstanding the Canon Nemo militans Deo c. But I must also mind him that the same Author reciteth a Council holden by King Ina Suasu omnium Aldermannorum Seniorum Sapientum Regni and it is very probable that all the Wise men of the Kingdom were not included within the Lordly Dignity The third instance can have no better success unless he will have the Pope to be allowed power to call a Parliament or allow the Archbishop power to do that service by the Pope's command for by that Authority this whatever it be was called if we give credit to the Relations of Sir Henry Spelman who also reciteth another Council within three leaves foregoing this called by Withered at Barkhamstead unto which the Clergie were summoned Qui cum viris utique militaribus communi omnium assensu has leges decrevere So as it seemeth in those times Souldiers or Knights were in the Common Councils as well as other Great Men. In the next place he bringeth in a Council holden in the year 747 which if the Archbishop were then therein President as it is said in the presence of the King was no Parliament but a Church-mote and all the Conclusions in the same do testifie no less they being every one concerning Ecclesiastical matters And furthermore before this time the Author out of whom he citeth this Council mentioneth another Council holden by Ina the Saxon-King in the presence of the Bishops Princes Lords Earls and all the wise old men and People of the Kingdom all of them concluding of the intermarriage between the Brittons Picts and Saxons which formerly as it seemeth was not allowed And the same King by his Charter mentioned by the same Penman noteth that his endowment of the Monastery of Glastenbury was made not onely in the presence of the Great Men but Cumpraesentia populationis and he saith that Omnes confirmaverunt which I do not mention as a work necessary to be done by the Parliament yet such an one as was holden expedient as the case then stood Forty years after he meeteth with another Council which he supposeth to be a Parliament also but was none unless he will allow the Pope's Legate power to summon a Parliament It was holden in the year 787 and had he duly considered the return made by the Pope's Legate of the Acts of that Council which is also published by the same Author he might have found that the Legate saith That they were propounded in publick Council before the King Archbishop and all the Bishops and Abbots of the Kingdom Senators Dukes or Captains and People of the Land and they all consented to keep the same Then he brings in a Council holden in the year 792. which he would never have set down in the List of Parliaments if he had considered how improper it is to construe Provinciale tenuit Concilium for a Parliament and therefore I shall need no further to trouble the Reader therewith The two next are supposed to be but one and the same and it is said to be holden Anno 974 before nine Kings fifteen Bishops twenty Dukes c. which for ought appears may comprehend all England and Scotland and is no Parliament of one Nation but a Party of some Nations for some great matter no doubt yet nothing in particular mentioned but the solemn laying the Foundation of the Monastery of Saint Albans What manner of Council the next was appeareth not and therefore nothing can be concluded therefrom but that it was holden in the year 797. That Council which is next produced and in the year 800 and is called in great Letters Concilium Provinciale which he cannot Grammatically construe to be a Parliament yet in the Preface it is said that there were Viri cujuscunque dignitatis and the King in his Letters to the Pope saith concerning it Visum est cunctis gentis Nostrae sapientibus so as it seemeth by this and other Examples of this nature that though the Church-motes invented the particular conclusions yet it was left to the Wittagenmote to judge and conclude them There can be no question but the next three Precedents brought by the Opponent were all of them Church-mates For the first of them which is said to be holden in the year 816 is called a Synod and both Priests and Deacons were there present which are no Members of Parliament consisting onely of the House of Lords and they all of them did Pariter tractare de necessariis utilitatibus Ecclesiarum The second of them is called a Synodal Council holden Anno 822 and yet there were then present Omnium dignitatum Optimates which cannot be understood onely of those of the House of Lords because they ought all to be personally present and therefore there is no Optimacy amongst them The last of these three is called Synodale Conciliabulum a petty Synod in great Letters and besides there were with the Bishops and Abbots many wise men and in all these respects it cannot be a Parliament onely of the great Lords The next Council said to be holden in the year 823 cannot also be called properly a Parliament but onely a Consultation between two Kings and their Council to prevent the invasion of the Danes and the attests of the Kings Chaplain and his Scribe do shew also that they were not all Members of the House of Lords The Council cited by the Opponent in the next place was holden Anno 838 being onely in nature of a Council for Law or Judicature to determine the validity of the King 's Grant made to the Church of Canterbury which is no proper work for a Parliament unless it befal during the sitting of the same The next is but a bare title of a Council supposed to be holden Anno 850 and not worth its room for it neither sheweth whether any thing was concluded nor what the Conclusions were The work of the next Council alleadged to be holden Anno 851 was to confirm the Charter of the Monastery of Croyland and to determine concerning affairs belonging to the Mercians and if it had been a Parliament for that people it might be worthy of enquiry how regularly the Archbishop of Canterbury and the
Bishop of London and the Embassadors from the West-Saxons could sit amongst them and attest the Conclusions therein made as well as the proper Members of that Nation He cometh in the next place to a Council holden in the year 855 which is more likely to be a Parliament than most of them formerly mentioned if the Tithes of all England were therein given to the Church but hereof I have set down my opinion in the former part of the Discourse And though it be true that no Knights and Burgesses are therein mentioned as the Opponent observeth out of the Title yet if the body of the Laws be duly considered towards the Conclusion thereof it will appear that there was present Fidelium infinita multitudo qui omnes regium Chirographum laudaverunt Dignitates verò sua nomina subscripserunt And yet the Wittagenmotes in these times began to be rare being continually interrupted by the invasions of the Danes The three next Councils alleadged to be in the years 930 944 948. were doubtless of inferiour value as the matters therein concluded were of inferiour regard being such as concern the passing of the Kings Grants Infeodations and Confirmations The Council mentioned to be in the year 965 is supposed to be one and the same with the next foregoing by Sir Henry Spelman which calls it self a General Council not by reason of the general confluence of the Lords and Laity but because all the Bishops of England did then meet The Primi and Primates were there who these were is not mentioned but it is evident that the King of Scots was there and that both he and divers that are called Ministri Regis attested the Conclusions It will be difficult to make out how these should be Members of the House of Lords and more difficult to shew a reason why in the attesting of the Acts of these Councils which the Opponent calls Parliaments we find so few of the Laity that scarce Twelve are mentioned in any one of them and those to descend so low as the Ministri Regis to make up the number Five more of these instances remain before the coming of the Normans The first of which was in the year 975 and in a time when no Parliament according to the Opponents principles could sit for it was an Inter-Regnum The two next were onely Synods to determine the difference between the Regulars and the Seculars in the King's absence by reason that he was under age and they are said to be in the year 977 and 1009. But it is not within the compass of my matter to debate their dates The last two were Meetings or Courts for Judicature to determine the Crime of Treason which every one knows is determinable by inferiour Courts before the high Steward of Judges and therefore not so peculiar to a Parliament as to be made an Argument of its existence And thus are we at an end of all the instances brought by the Opponent to prove that Parliaments before the Norman times consisted of those whom we now call the House of Lords All which I shall shut up with two other Notes taken out of the Book of Councils published by Sir Henry Spelman The first of which concerneth a Grant made by Canutus of an exemption to the Abbey of Bury Saint Edmunds in a Council wherein were present Archbishops Bishops Abbots Dukes Earls Cum quamplurimis gregariis militibus cum populi multitudine copiosa votis regiâ—s unanimiter consentientes The other taken out of the Confessor's Laws which tell us that Tythes were granted to the Church A Rege Baronibus Populo And thus I shall leave these Testimonies to debate with one another whilst the Reader may judge as seemeth most equal to himself Being thus come to the Norman times and those ensuing I shall more summarily proceed with the particulars concerning them because they were times of Force and can give little or no evidence against the Customs rightly setled in the Saxon times which I have more particularly insisted upon that the Original Constitution of this Government may the better appear Now for the more speedy manifesting of the truth in the particulars following I shall pre-advise the Reader in three particulars First that the Church-motes grew more in Power and Honour by the aid of the Normans Law refusing the concurrence and personal presence of Kings whom at length they excluded from their Councils with all his Nobles and therefore it is the less wonder if we hear but little of the Commons joyning with them Secondly That the Norman way of Government grew more Aristocratical than the Saxon making the Lords the chief Instruments of keeping Kings above and People underneath and thus we meet with much noise of meetings between the King and Lords and little concerning the grand meetings of the Kings and the Representative of the People although some foot-steps we find even of them also For the Kings were mistaken in the Lords who meaned nothing less than to serve them with the Peoples Liberties together with their own which they saw wrapped up in the gross Thirdly By this means the Councils of the King and Lords grew potent not onely for advice in particular occasions but in matters of Judicature and declaring of Law ordering of Process in Courts of Pleas which in the first framing were the works of the Wise and Learned men but being once setled become part of the Liberties of every Freeman And it is not to be doubted but these Councils of Lords did outreach into things too great for them to manage and kept the Commons out of possession of their right during the present heat of their ruffling condition yet all this while could not take absolute possession of their Legislative power I now come to the remainder of the particular instances produced by the Opponent which I shall reduce into several Categories for the more clear satisfaction to the Reader with less tediousness First It cannot be denied but the Council of Lords gave advice to Kings in cases of particular emergency nor is it incongruous to the course of Government even to this day nor is it meet that the Parliament should be troubled with every such occasion and therefore the giving of advice to William the Conquerour what course he should take to settle the Laws of England according to the instances in Councils holden An. 1060 and 1007. and to gain favour of the great men according to that in Anno 1106. and in the manner of endowment of the Abbey of Battel as in pag. 25 of the Opponents Discourse and what to do upon the reading of the Pope's Letter according to that in Anno 1114. And whether the Pope's Legate should be admitted as in pag. 18. And how King Stephen and Henry shall come to an Agreement as Anno 1153. And how to execute Laws by Judges and Justices Itinerant as Anno 1176. And touching the manner of ingaging for a Voyage
by Croisado to Jerusalem Anno 1189. And to give answer to Embassadors of a Foreign Prince pag. 25. And how King John shall conclude Peace with the Pope Anno 1213. Where nevertheless Matth. Paris saith was Turba multa nimis I say all these might well be done by a Council of Lords and not in any posture of a Parliament albeit that in none of all these doth any thing appear but that the Commons might be present in every one or many of them all Secondly As touching Judicature the Lords had much power therein even in the Saxon times having better opportunities for Knowledge and Learning especially joyned with the Clergie than the Commons in those times of deep darkness wherein even the Clergie wanted not their share as in the first part of the Discourse I have already observed Whatsoever then might be done by Judges in ordinary Courts of Judicature is inferiour to the regard of the Parliament and therefore the Plea between the Archbishop and Ethelstan concerning Land instanced Anno 1070. And between Lanfrank and Odo Anno 1071. And between the King and Anselme pag. 15 16. And the determining of the Treason of John afterwards King against his Lord King Richard pag. 23. And the difference concerning the title of a Barony between Mowbray and Scotvile pag. 25. And giving of security of good behaviour by William Brawse to King John pag. 26. All these might well be determined onely before the Lords and yet the Parliament might be then sitting or not sitting as the contrary to either doth not appear and therefore can these form no demonstrative ground to prove that the Parliament consisted in those times onely of such as we now call the House of Lords A Third work whereby the Opponent would prove the Parliament to consist onely of the House of Lords is because he findeth many things by them concluded touching the solemnization and the setling of the Succession of Kings both which he saith were done by the Lords in Parliament or those of that House and I shall crave leave to conclude the contrary For neither is the Election or Solemnization of such Election a proper work of the Parliament according to the Opponents principles nor can they prove such Conventions wherein they were to be Parliaments Not the Election of Kings for then may a Parliament be without a King and therefore that instance concerning William Rufus pag. 16 will fail or the Opponents Principles who will have no Parliament without a King. The like may also be said of the instance concerning King Steven pag. 18. Much less can the Solemnization of the Election by Coronation be a proper work for the Parliament Nevertheless the Opponent doth well know that both the Election of a King and the Solemnization of such Election by Coronation are Spiritless motions without the presence of the people and therefore though his instance pag. 17 concerning the Election of Henry the First by the Bishops and Princes may seem to be restrictive as to them yet it is not such in fact if Matthew Paris may be believed who telleth us that in the Conventus omnium was Clerus and Populus universus and might have been noted by the Opponent out of that Learned Antiquary so often by him cited if he had pleased to take notice of such matters A Fourth sort of Instances concerneth matters Ecclesiastical and making of Canons and hereof enough hath been already said that such Work was absolutely challenged by the Church-motes as their proper Work and therefore the Instance pag. 16 17. of the Council in Henry the First 's time and the Canons made by the Bishops there and that other called by Theobald Archbishop of Canterbury and instanced by the Opponent pag. 19. I say both these do fail in the Conclusion propounded Fifthly as touching the most proper Work of Parliament which is the making of Laws concerning the Liberties and Benefit of the people the Opponent produceth not one instance concerning the same which doth not conclude contrary to the Proposal for as touching those two instances in his Thirteenth page Anno 1060 they concern not the making of Laws but the reviving of such as had been disused formerly which might well enough be done by a private Council But as to that in his Fifteenth page of the Law made by the Conquerour concerning Remigius Bishop of Lincoln although it be true that we find not the particular Titles of Knights Citizens and Burgesses â—yet besides the Council of Archbishops Bishops and Princes we find the Common Council for so the words are Communi Concilio Concilio Archiepiscoporum Episcoporum Abatum omnium Principum although the Opponent would seem to wave these words Et Concilio by putting them in a small Character and the rest in Great Letters that the Readers eyes might be silled with them and overlook the other Secondly As to the instance of the Council at Clarindon in his Nineteenth page which he citeth out of Matthew Paris Matthew Westminster and Hoveden although he pleaseth to mention the several ranks of Great Men and those in black Letters of a greater size and saith That not one Commoner appears yet Mr. Selden's Hoveden in that very place so often by the Opponent cited tells him that both Clerus and Populus were there Thirdly The Opponent citeth an instance of Laws made by Richard the First in his Twenty fourth page and he setteth down the several Ranks of Great Men and amongst the rest ingeniously mentioneth Milites but it is with a Gloss of his own that they were Barons that were made Knights whenas formerly Barons were mentioned in the general and therefore how proper this Gloss is let others judge especially seeing that not onely Milites and Milites Gregarii but even Ministri were present in such Conventions even in the Saxon times And Mr. Selden in the former known place mentioneth an Observation that Vniversi personae qui de Rege tenent in Capite sicut caeteri Barones debent interesse judiciis curiae Domini Regis cum Baronibus Fourthly He citeth in his Twenty fifth page another instance in King John's time in which after the assent of Earls and Barons the words Et omnium fidelium nostrorum are also annexed but with this conceit of the Oponents that these Fideles were those that adhered to the King against his Enemies be it so for then the Commons were present and did assent or they may be saith he some specially summoned as Assistants take that also and then all the true-hearted in the Kingdom were specially summoned and were there so as the conclusion will be the same In the fifth place he cited a strange Precedent as he calls it of a Writ of Summons in King John's time in his Twenty seventh page wherein Omnes Milites were summoned Cum armis suis and he concludes therefore the same was a Council of War. First Because they were to come armed It is very
Land as without they would be faithful to their Lord King William and in every place to keep with all fidelity his Lands and Honours together with him and against Enemies and Strangers to defend It is the self-same in substance with the fealty that the Saxons made to their Kings as will appear by the parallelling them both together The Saxons were sworn to defend the Kingdom against Strangers and Enemies together with their Lord the King and to preserve his Lands and Honours together with him with all faithfulness so as by the Saxon way the Allegiance first terminated on the Kingdom and then as in order thereunto upon the King with his Lands and Honours But the Norman either wholly omitted the first as needless to be inserted in a municipal Law it self being a Law in nature or else includeth all within the words Lands and Honours taking the same in a comprehensive sence for the whole Kingdom and so made up the sum of the Saxon fealty in fewer figures Which may seem the more probable of the twain because little reason can be rendred why the King should restrain that defence to his private Lands if he claimed all by Conquest whenas all equally concerned him or why he should exclude the publick whenas both himself and all he had was embarqued therein and it might subsist without him but contrarily not he without it appeareth not to my understanding nor did the thing enter into the King's purpose if the file of his purposes be rightly considered For speaking concerning Castles Burroughs and Cities which are in nature limbs of the Common-wealth he saith that they were built for the defence of the people and Kingdom Was this the service of Walls and Fortifications and not much rather of men within those places of strength Certainly the plain English is that in time of breach of publick quiet and peace the Subjects were bound to defend the Kingdom and in order thereto the people of the same and of the King 's right included in the publick defence else it were a strange conclusion that each man in particular and in their own personalone was bound to defend the King 's right but being imbodied the Kingdom And yet more clearly it 's apparent in that the service of the order of Knight-hood which was the chief strength of the Nation in those days was determined upon the service of the King and defence of the Kingdom or which is more plain for the service of the King in or for defence of the Kingdom as the Statute of Mortmain expounds the same But not to force the King's sence by argument if the King had purposely omitted that clause of the Kingdoms safety as of inferiour regard to his own personal interest it was one of his rashest digressions wherein he soon espied his errour for in the midst of his strong and conquering Army he held himself unassured unless he had a better foundation than that which must change with the lives of a few at the utmost And therefore besides the Oath of fealty formerly mentioned he established a Law of Association that all free men should be sworn Brethren 1. To defend the Kingdom with their lives and fortunes against all enemies to the utmost of their power 2. To keep the peace and dignities of the Crown 3. To maintain right and justice by all means without deceit and delay Joyn then these two Oaths together viz. that of fealty and this of fraternity and it will easily appear that the Allegiance of the English to the Norman Kings was no other than what might stand with Brotherhood and tender regard of the publick above all and differing from the Saxon fealty onâ—y in this that that was in one Oath and this in two Wherefore whatsoever respects steered in the rear of the King's course it is less material so long as the van was right albeit that the sequel will prove not much different from the premises as will appear in the foot of the whole account Thus entred the first Norman upon the Saxon Throne and as he had some colour of right to countenance his course so had his Son his Fathers last Will and yet he had as little right as he This was William Rufus that was of his Fathers way but of a deeper dye and therefore might well be called William Rufus or William in grain He was exceeding happy in the fear or favour of the people for he had nothing else to make room for his rising True it is he had the good will of his Father but he was dead and probably the people as little regarded it as he did them Nor was it ever observed that the English Crown was of so light account as to pass by devise of cestui que use and therefore though it was designed to him from his Father yet both right and possession was left to the people to determine and maintain The Clergy first led the way having first taken a recognizance of him for his good behaviour towards them which he assured as far as large promises and protestations would serve the turn and within one year after standing in need of the favour of the Commons to maintain possession against his Brother Robert he gave them as good security as the Clergy had which he kept in such manner that it was a wonder that one of so small interest in the Title but what he had by the peoples lieve and favour should rule in such manner and yet die a King the favour of the people being like a Meteor that must be continually fed or it soon goes out and falls for evident it is that the right of inheritance was his elder Brother Roberts who was the braver man and more experienced Souldier and upon these principles had obtained the love of the Norman Barons the flower of his Fathers Chivalry and the liking of the Clergy after they had found by experience the emptiness of their hope in his Brother William and was every way so superiour to his Brother in advantages as we are left to believe that William got the day without any other ground but only that God would so have it It is true the English stuck close to him but how they were gained or contained Writers speak not but tell us of his promises which also they tell us were vain and never had issue further than would stand with his profit Exit William Rufus and in comes his younger Brother Henry the first of that name a Prince that excelled in wisdom and by it ruled his courage which served him so far as his aims and ends reached his Title was no better than his Fathers or Brothers but rather worse for he had no colour of last Will to propound him to the people and his elder Brother Robert was still alive and by his service of the Church in the War of Jerusalem might merit that respect of the Clergy as not to permit him to
redemption of their Captive King for Knighting of the Kings Son and for his Daughters Marriage because these three might be due by the Common-Law the two latter by custom the former by common right although mentioned from the late disaster of King Richard which King John might with shame enough remember and expect the same measure from the censure of an unquiet conscience I shall not enter into debate concerning the omission hereof in the later Charters possibly it might seem a tautology Nor concerning the restriction as if it did imply that the Burgesses had Vote only in cases of general assesments but shall leave it to the consideration of the Reader No Distress shall be taken for greater service or other matter than is due Distresses are in nature no other than a summons in act or the bringing of a man to answer by seizure of part of his Goods and it was used by the Saxons as hath been shewed and because the rich men under colour of seeking their right many times sought for wrong and though they could not prevail in the issue yet prevailed so far that the Defendant could not escape without charge and hinderance therefore the Law provided a Writ of remedy against unjust vexation which Glanvil remembreth us of and yet because that remedy also carried with it matter of charge and disturbance to the Plaintiff and so the remedy might be worse than the disease therefore the Law defined distresses by circumstances of person matter time and place under penalties of fine and amercement besides the recompence to the party first it must not be taken but by leave from the Kings Court unless in case of matters due by common right and upon complaint made by the Plaintiff The King sent out a Summons in this manner Henricus Rex Ang. Hominibus Abbatis de Ramsey salutem Precipio quod cito juste reddatis Abbati Domino vestro quicquid ei debetis in censu firma debitis placitis quod si nolueritis ipse vos inde constringat per pecuniam vestram And in all cases of matters due by common right the distress never was done in an arbitrary way but by Judicial Act in the Lord's Court. Secondly no distress for suit shall be made out of the Fee nor against any person but such as are of that Fee. Nor shall any distress be made in the King's High-way or open street but by the King's Officer and special Writ because distress is incident to service and that is due as from the Fee and therefore by common right the same must be recovered from the Fee and such as owe service in the same but the High-way or open street are more properly a Franchise belonging to the King although the Soil haply may be the Lords And therefore it was an old Law that they should be under the King's safeguard Sit pax publica per communes vias and no violence must be there tolerated but by the King 's special Writ which presupposeth the especial notice taken by the King of the nature of the occasion A moderation also must be observed in the taking of the distress for it must not be excessive and also in keeping thereof for if the owner will he may replevy the same according to the ancient course and the Sheriff must grant replevy if it be demanded although formerly no replevy was without special Writ and yet that also not always readily obeyed for the times were such as the Lords were bold with the King's Courts and Ministers and refused the order of the Law. Now in such cases wherein the matter concerned contempt of the King's Authority a Fine was set upon the Offender but in case it concerned onely a Tort done to the party he was amerced The one is called Redemption because the penalty otherwise must lie upon the person if it be not redeemed by pecuniary Fine the other is called Amercement which is originally a satisfaction unto the party wronged by recompence out of the personal Estate of the Delinquent Thirdly as touching the matter of the distress it must not be of Plough beasts or Sheep unless in case of damage fesant if other distress may be had for the Law had a care of such Cattel as were most of publick concernment and which was the main stock of subsistence so far as Justice would allow And therefore the unjust taking of any man's Cattel by any person whatsoever is liable to the same penalties that unjust distresses are Fourthly concerning the using of the distress it must not be sold no not in the King's case till fifteen days be past after it is taken nor must it be carried out of the County but it must be so impounded as the owner may come to feed it and it must be discharged if the owner give security of satisfaction before the return of the Writ Fifthly the intent of the distresses must be that which is just and therefore not for other suit than by the Feoffment is due or else by Prescription and in case many are joyntly seized the suit shall be by one and the rest shall contribute Nor must any man be compelled to shew his Title to his Land by distress The Common-pleas shall be holden in one certain place The Office of Judge of the Common-pleas was in my opinion distinct and several from that of the Crown-pleas nor though one and the same man might execute both Authorities doth it therefore follow that it was by one and the same power as if being Judge he had thereby power in all matters of the Common-pleas and also of the Crown For though it be true that Bracton saith The King hath one proper Court wherein are the Chief Judges which both by his own Testimony and Briton's also did hear and determine Causes of all sorts yet is it true also that it was by Appeal or Writ of Errour as in case of false Judgment and that the King had plures curias which doubtless had their proper work And in the time of Henry the second it is clear that six were especially assigned for the Common-pleas throughout the whole Realm and yet by another especial Commission or Letters-Patents the same men might also have power to determine matters of the Crown as at this day in their several Circuits This Law therefore doth not as I conceive work any alteration but onely in this that whereas formerly the Judges of Common-pleas attended on the King's Court continually as all other Judges did and whither the King removed they did the like which was a great uncertainty and grievance unto the Commons henceforth they are fixed to a certain place Assize of Novel Disseisin and Mortdancester shall be determined in the proper County onely and by the Justices itinerant sent by the King or his Chief Justices The Law was so declared in Henry the second 's
which followed and made way for the King without shame to ask what no King before him suffered ever to enter into conceit I mean a Legislative power to this effect That Proclamations made by the greater part of the King for the time being and his Council whose names hereafter follow with such penalties as by them shall be thought meet shall be of equal force by an Act of Parliament provided it shall not extend to the forfeiture of Estates or Priviledges nor to loss of Life but in cases particularly mentioned in the Law Provided no Proclamation shall cross any Statute or lawful or laudable Custom of this Realm All which at length comes to be demanded by a formal Bill with as ill-favoured a Preface as the matter it self which was much worse e're it was well liked in the House of Commons and when all was done proved a Bare still Whatever it was it passed in manner abovesaid neither much to the desire of the Commons that so much was given nor to the good liking of the King that there was no more For instead of a Legislative power which he grasped at for himself he received it in common with his Council and so becomes engaged neither to alter nor destroy that Brotherhood if he intended to reap any fruit of this Law leaving the point in doubt whether his Gain or Loss was the greater For this Law thus made for this King these Counsellors and these times and occasions can be no Precedent to the future unless to inform Kings that the Parliament hath a power to give more Authority and Prerogative to Kings than they or the Crown have by common Right and to give it with such limitations and qualifications as seemeth good to them And secondly That even Henry the Eighth acknowledged that the Legislative power was not in the Crown nor was the Crown capable thereof otherwise than it was conferred by the Parliament Onely Steven Gardiner might glory in this Atchievement having for the present obtained much of his ends by perswading the King that Forein Princes estranged from him not so much for his departure from the Pope as for some apprehensions they had of his departure from that way of Religion and Worship which they apprehend every Christian ought to maintain And therefore if he meaned to gain better correspondency amongst these Princes he must engage more resolvedly to the Fundamentals of the Worship though he shook off some slighter Ceremonies with the Romish Supremacy for he knew that they were willing enough with the latter though the other could not go down with them Thus did Forein Correspondency float above whenas the Church as then it stood was underneath and gave the tincture to every Wave And it was holden more safe by the Romish party to trust the King thus attempered with the Legislative power in the Church-matters than the rough Parliament whose course steered quite wide from the Roman shore as if they never meant to look that way any more though Cranmer and the chief Officers of State and of the Houshold were by the Law Judges of the matter in fact as well as the King yet in the conclusion the King onely was of the Quorum All this yet further appears in the penalty for by a Proviso it is moderated as to all forfeitures of Life Limb or Estate and in the conclusion extended onely to Fine and Imprisonment unless in some cases mentioned and excepting offences against Proclamations made by the King or his Successors concerning Crimes of Heresie For it is the first Clause of any positive Law that ever intimated any power in the King of such Cognizance and punishment of Heresie Too weak a principle it is to settle a Prerogative in the King and his Successors as Supream Head of the Church thus by a side-wind to carry the Keys of Life and Death at their Girdle and yet a better ground cannot I find for the Martyrdom of divers brave Christians in those times than this touch of a Law glancing by All which passing Sub silentio and the Parliament taking no notice thereof made way for the Statute 38 H. 8. c. 26. formerly mentioned to come more boldly upon the Stage This was one wound to the Legislative power of the Parliament thus to divide the same Another ensues that in its consequences was no less fatal to that power which remained and it was wrought by some Engine that well saw that the Disease then so called grew to be epidemical amongst the more considerable party in the Kingdom that the Lady Jane Seymor now Queen was no friend to the Romanists that she was now with Child which if a Son as it proved to be was like to be Successor in the Throne and be of his Mothers Religion and so undo all as in the issue all came so to pass To prevent this nevertheless they fancy a new conceit that Laws made by English Kings in their minority are less considerately done than being made in riper years And so by that one opinion countenanced a worse which was that the Legislative Power depended more upon the judgement of the King than the debates and results of the Parliament a notion that would down exceeding well with Kings especially with such an all-sufficient Prince as Henry the Eighth conceived himself to be Upon this ground a Law is made to enable such of the Kings Successors by him appointed as shall be under the age of Twenty and four years when Laws by him are made to adnul the same by Letters-patents after such Prince shall attain the said age of Twenty four years Thus the Arms of the Parliament are bound from setling any Reformation let them intend it never so much a Muse is left open for the Romish Religion still to get in when the Season proves more fair The Parliament was now in its minority and gives occasion to the Reader to bewail the infirmities of the excellencie of England A fourth advance of Prerogative concerned the Executive Power in Government of the Church This had formerly much rested in the Prelacy and that upon the chief Praelatissimo at Rome now there is found in England a greater Prelate than he the Pope was already beheaded and his head set upon the Kings shoulders To him it is given to nominate all Bishops and Archbishops within his Dominions by Conge d'eslire and that the party once elected shall swear Fealty and then shall be consecrated by Commission and invested but if upon the Conge d'eslire no Election be certified within Twelve days the King shall by Commission cause his own Clerk to be consecrated and Invested The occasion that first brought in this President was the access of Cranmer to the See at Canterbury for though the Headship had been already by the space of Two years translated from Rome to England yet the course of Episcopizing continued the same as formerly it had been I mean as touching the point of Election For though