disabled to understand as in Case of Infancy there the Royall Assent can bear litle weight with it but most of all in the Kings absence where either the Assent is put thereto by Commissioners that know not the Kings particular minde or the Act is done onely by the Houses in nature of Ordinances and yet these of force to binde all Parties but the King But nothing more debased the Royall Assent in these times then a trick that Edward the Third plaid in the middest of the fullest strength of his Government It was in time of War which never is time of good Husbandry and laying up nor of sober advise in laying out nor of equity in levying and collecting money for the nerves of War This forward Warrier in the heat of his Atchievements findes his strength benummed for want of money he leaves off comes home rages against his A. Bishop to whom he had committed the care of Provision for his War and the A. Bishop as hotly falls upon some of the Treasury in the Army on the one side and upon others in the Countrey whose oppressions saith he in stead of bringing in money made the people to give a stop thereto A contest hereupon thus had it was concluded by the Power of the Parliament that such men should be questioned and that the Parliament from time to time should call all Officers of State to account and thereupon ensues a calme After the Parliament ended the King repeats the matter it makes his heart sick he disgorgeth himself by a Proclamation made by advise of Nobles and Wise men as he saith and tells all the World he dissembled with his Parliament and what he did was done by duress of minde to please for the time and to gain his ends which being now had he by his Proclamation revokes what he had done in Parliament or indeavoured it And thus is England put to school to learn to dissolve three hard knots First Whether a King can dissemble with his Parliament Secondly Whether Edward 3. his dissembling assent makes a Law Lastly Whether by a Proclamation by advise of Nobles and Wise men he can Declare that he dissembled with his Parliament and therein not dissemble the Royall Assent so as to bring all the Lawes made in any Kings time into question at least during his life However the result may be its evident the Royall Assent gets no honor hereby and the Statute as little that hath suffered this Proclamation all this time to passe among the number of the Statutes in Print as a Law when as many Statutes that are Lawes of note are left out as uselesse Although in the generall the two Houses joyned in every Act Ad extra yet Ad intra and in relation one to another they had their severall operations the House of Commons intermedled more in the matter of fact the House of Lords in matter of right although in either of these there is a mutuall aspect from both In matters of judicature much rested with the Lords and therefore it is ordained that The House of Lords shall remedy all offences contrary to the Law of Magna Charta And in cases where no remedy is left nor judgment by the Law the matter shall be determined in Parliament and the King shall command execution to be done according to the judgment of the Peeres Which Lawes seeme to bee but declarative of the former Lawe and in the nature of reviving that power into Act which was formerly layd asleep and doth strongly implye that the ultimate act in judicature rested with the Lords in relation not onely to the House of Commons but also in relation to the King whose work in such cases is not to judge above or with the Peers but to execute their sentence and that carries with it a list whereby the power of a King may appeare not to be so supreame in making of the Law as some would have it for if his Judgement and Conscience be bound by the Votes of the Peers in giving a Law in Case of a particuler person where the Law was not formerly known Let others judge of the value of this Negative Vote in giving Law to the whole Kingdome It s true that this Parliament was quarrelled by the King and he kept it at a bay by a Proclamation that pretended Revocation as far as a Proclamation could revoke an Act of Parliament but it effected nothing nor did the contest last long Now though this Jurisdiction thus rested in the House of Lords in such Cases as well as in others yet is it not so Originally in them as to be wholly theirs and onely as they shall order it for the Commons of England have a right in the course and order of Jurisdiction which as the known Law is part of their liberty and in the speedy execution of Justice as well as they have right to have Justice done and therefore whereas in Cases of Error and delayes the Appeale was from the inferiour Court to the Parliament which immediately determined the matter and now the trouble grew too great by the increase of Pleas For remedy hereof a kind of Committee is made of 1 Bishop 2 Earls 2 Barrons who by the advice of the Chancellor Treasurer and the Judges shall make good judgement in all Cases of Complaint of delay in Judgement which Committee is not made by Order of the Lords alone which they might have done in case Jurisdiction had bin wholly and onely shut up in their custody but by Act of Parliament and joynt concurrence of the Commons with the Lords For as the Commons challenge speedy Execution of Justice as one of their liberties So also to be under the jurisdiction of such Judges and Courts as the Lawes in the making whereof themselves challenge a Vote do establish appoint I will conclude this Chapter with the Constitution of the Parliament in these times For the difficulties that befell between the Kings and their people or Houses of Parliament wrought two sad effects Viz. A propensity to decline calling of Parliaments so often as was used and exspected and when it assembled as great a propensity in the Members to decline their attendance by means whereof as the Historians tell us the Parliament was somtimes inforced to adjourn it self for want of number sufficient the first of these arose from want of good will in the Kings the other from want of courage and zeale in the people The first of these was fatall and destructive to good Government for though in distempered Parliaments its good to withdraw yet in distempered times its necessary to meete and gain a right understanding of all parties and therefore these times were so happy as to binde themselves by publique Acts of State to recontinue the Assembling of Parliaments For the face of the Times represented unto all that Agitations were like to be quick violent and to continue for some succession of Time It s
them Church-motes For the first of them which is sayd to be holden in the yeare 816. is called a Synod and both Preists and Deacons were there present which are no Members of Parliament consisting onely of the House of Lords and they all of them did Pariter tractare de necessarijs utilitatibus Ecclesiarum The second of them is called a Synodall Councill holden Anno 822. and yet there were then present Omnium dignitatum optimates which cannot be understood onely of those of the House of Lords because they ought all to be personally present and therefore there is no Optimacy amongst them The last of these three is called Synodale Conciliabulum a petty Synod in great letters and besides there were with the Bishops and Abbots many Wise men and in all these respects it cannot be a Parliament onely of the great Lords The next Councill said to be holden in the yeare 823. cannot also be called properly a Parliament but onely a consultation between two Kings and their Councill to prevent the invasion of the Danes and the attests of the Kings Chapplain and his Scribe doe shew also that they were not all Members of the House of Lords The Councill cited by the Opponent in the next place was holden An 838. being onely in nature of a Councill for Law or Judicature to determine the validity of the Kings Grant made to the Church of Canterbury which is no proper worke for a Parliament unlesse it befall during the fitting of the same The next is but a bare title of a Councill supposed to be holden An. 850. And not worth its room for it neither sheweth whether any thing was concluded nor what the conclusions were The worke of the next Councill alleadged to be holden An. 851. was to confirme the Charter of the Monastry of Croyland and to determine concerning affaires belonging to the Mercinies and if it had beene a Parliament for that people it might be worthy of inquiry how regularly the Arch-Bishop of Canterbury and the Bishop of London and the Ambassadors from the West Saxons could sit amongst them and attest the conclusions therein made as wel as the proper members of that Nation He commeth in the next place to a Councill holden in the yeare 855. which is more likely to be a Parliament then most of them formerly mentioned if the Tithes of all England were therein given to the Church but hereof I have set downe my opinion in the former part of the discourse And though it be true that no Knights and Burgesses are therein mentioned as the Opponent observeth out of the Title yet if the body of the Lawes be duly considered towards the conclusion thereof it will appeare that there was present Fidelium infinita multitudo qui omnes regium Chirographum Laudaverunt Dignitates vero sua nomina subscripserunt And yet the Witagen-motes in these times began to be rare being continually inrerrupted by the invasions of the Danes The three next Councills alleaged to be in the yeares 930. 944. 948. Were doubtlesse of inferiour value as the matters therin concluded were of inferiour regard being such as concerne the passing of the Kings Grants Infeodations and confirmations The Councill mentioned to be in the yeare 965. is supposed to be one and the same with the next foregoing by Sir Henry Spelman which calls it selfe a generall Councill not by reason of the generall confluence of the Lords and Laity but because all the Bishops of England did then meet The Primi and Primates were there who these were is not mentioned but its evident that the King of Scots was there and that both he and diverse that are called Ministri Regis attested the conclusions It will be difficult to make out how these should be Members of the House of Lords and more difficult to shew a reason why in the attesting of the acts of these Councills which the Opponent calls Parliaments we finde so few of the Laity that scarce twelve are mentioned in any one of them and those to descend so low as the Ministri Regis to make up the number Five more of these instances remaine before the comming in of the Normans The first of which was in the yeare 975. and in a time when no Parliament according to the Opponents principles could sit for it was an Inter regnum The two next were onely Synods to determine the difference between the Regulers and the Seculers in the Kings absence by reason that he was under age and they are sayd to be in the yeares 977 and 1009. But it s not within the compasse of my matter to debate their dates The last two were Meetings or Courts for Judicature to determine the crime of Treason which every one knowes is determinable by inferiour Courts before the high Steward or Judges and therefore not so peculiar to a Parliament as to be made an argument of its existence And thus are we at an end of all the instances brought by the Opponent to prove that Parliaments before the Norman times consisted of those whom we now call the House of Lords All which I shall shut up with two other notes taken out of the Book of Councils published by Sir Henry Spelman The first of which concerneth a Grant made by Canutus of an exemption to the Abby of Bury Saint Edmonds in a Councill wherein were present Arch-Bishops Bishops Abbots Dukes Earles Cum quamplurimis gregariis militibus cum populi multitudine copiosa votis regiis unanimiter consentientes The other taken out of the confessors Lawes which tells us that Tithes were granted to the Church A Rege Baronibus populo And thus shall leave these testimonies to debate with one another whiles the Reader may judge as seemeth most equall to himselfe Being thus come to the Norman times and those ensuing I shall more summarily proceed with the particulars concerning them because they were times of force and can give little or no evidence against the customes rightly setled in the Saxon times which I have more particularly insisted upon that the originall constitution of this government may the better appeare Now for the more speedy manifesting of the truth in the particulars following I shall pre-advise the Reader in three particulars First that the Church-motes grew more in power and honor by the aide of the Normans Law refusing the concurrence and personall presence of Kings whom at length they excluded from their Councils with all his Nobles and therefore it is the lesse wonder if we heare but little of the Commons joyning with them Secondly that the Norman way of government grew more Aristocraticall then the Saxon making the Lords the cheif Instruments of keeping Kings above and people underneath thus we meet with much noise of meetings betweene the King and Lords and little concerning the grand meetings of the Kings and the representative of the people although some footsteps wee finde even of them
Livery so long as he may live without care and spend without controll For by this time the humour of his great Grand-father budded in him he pawned his heart to young men of vast desires and some say so inordinately as he prostituted his chastitie unto them And it s no wonder if the Revenues of the Crowne are insufficient for such Masters Thiâ— the people soon felt and feared their own Free-holds for they are bound saith he not to see the Crowne deflowred for want of maintenance it s very true nor to see the Crowne deflowred of its maintenance A Parliament therefore is called in which diverse Lords associate and prepare Physick for the Kings lavish humour which being administred wrought for ten yeares after till it had purged him of his life and the Kingdome of their King It was an Act of Parliament that gave power to fourteen Lords and others to regulate the Profits and Revenues of the Crowne and to doe Justice to the People this was to continue for one whole yeare The Parasites no sooner found the effect hereof to their Cost but the King growes sicke of it and findes an Antidote to over-rule Acts of Parliament by Acts of Privy Councell declares this ill-favoured Commission voide and the Contrivers Advisers and Inforcers Traytors To make it more Majesticall he causeth the Judges to Subscribe this Order and so it becomes Law in repute This foundation thus laid he buildeth in hast an Impeachment of these Commissioners of high Treason and supposing that they would not readily stoope himselfe stoopes lower for he would put his Right to triall by battell which was already his owne by the judgement of the Masters of the Law For so they may be well called seeing they had thus Mastered it In this the King had the worst for he lost his Honour and himselfe God hath a care of common right even amongst Idolaters Then comes the Parliament of Wonders wherein the Kings Party are declared Traytors and the chiefe Judges with their Law judged by another Law The King not medled with thinks it high time to come out of his Minority and assumes the Government of the Kingdome and himselfe to himself being now three and twenty yeares of age old enough to have done well if he had cared for it But resolving to follow the way of his owne will at length it led him to his owne ruine onely for the present two things delayed it Viz. The Authority Wisedome and Moderation of his Unckles especially of the Duke of Lancaster now come out of Spain and the great affection which the King pretended to the Queen who had also gained a good opinion amongst the People The benevolent aspect of the People not for their owne advantage but for the Publick quiet procured many Parlies and interviewes between the King and People and many Lawes for the upholding of the Court and Government although both Warre Lawes Justice and Councells all are faint as all is faint in that man that hath once dismanned himself This he perceives well enough and therefore Peace he must have by any means The Queen dies himselfe being nigh eight and twenty yeares old takes a Creature like a Wife but in truth a Childe of eight yeares old and this is to get Peace with France It s no wonder if now he hunts after unlawfull game and that being ill taken brings all things out of order For abused Marriage never wants woe Civill men are now looked upon as severe Cators and his Unckles especially the Duke of Glocester with a jealous eye which accomplished his death in the conclusion The Dukes of Lancaster and Yorke forsake the Court Favorites step into their roomes The old way of the eleventh yeare is re-assumed Belknap and others are pardoned and made of the Cabinet The Pardon of the Earle of Arundell is adnulled contrary to the advise of the major part and the Arch Bishop the Earles brother is banished The Lords forsake the wilfull King still the Kings jealousie swells The Duke of Hertford is banished or rather by a hidden Providence sent out of the way for a further worke The Duke of Lancaster dies and with him all hope of moderation is gone for he was a wise Prince and the onely Cement that held the joynts of the Kingdome in correspondency And he was ill requited for all his Estate is seised upon The Duke of Hertford and his Party are looked upon by the People as Martyrs in the Common Cause and others as Royalists Extremities hasten on and Prerogative now upon the wing is towering above reach In full Parliament downe goes all the worke of the tenth and eleventh yeares Parliament which had never bin if that Parliament had continued by adjournment The King raiseth a Power which he calleth his Cuard of Cheshire men under the terror of this displaying rod the Parliament Kingdom are brought to Confession Cheshire for this service is made a Principality thus goes Counties up and Kingdoms down The Kings Conscience whispers a sad Message of dethroning and well it might be for he knew he had deserved it Against this danger he intrenches himself in an Act of Parliament That made it Treason To purpose and endeavor to depose the King or levy War against him or to withdraw his Homage hereof being attainted in Parliament And now he thought he was well guarded by Ingagement from the Parliament but he missed the right Conclusion for want of Logique For if the Parliament it self shall depose him it cannot be made a Traytor or attaint it selfe and then hath the King gain'd no more then a fals birth But the King was not thus quiet the sting of guilt still sticks within and for remedy he will unlaw the Law and gets it enacted that all Procurers of the Statute of 10. Richard the Second and the Commission and Procurers of the Kings assent thereto and hinderers of the Kings proceedings are adjudged Traitors All these reach onely the branches the root remains yet and may spring again and therefore in the last place have at the Parliament it self For by the same its further declared That the King is the sole Master of the Propositions for matters to be treated in Parliament and all gainsayers are Traitors Secondly That the King may dissolve the Parliament at his pleasure and all gainsayers are Traitors Thirdly That the Parliament may not proceed against the Kings Justices for offences by them committed in Parliament without the Kings consent and all gainsayers are Traitors These and the like Aphorismes once Voted by the Cheshire men assented unto by the Parliament with the Kings Fiat must passe for currant to the Judges and if by them confirmed or allowed will in the Kings opinion make it a Law for ever That the King and all Parliaments is Dominus fac primum and Dominus fac totum But the Judges remembred the tenth yeare and Belknaps intertainment and so dealt warily their opinion is thus
set down It belongeth to the Parliament to declare Treason yet if I were a Peere and were commanded I should agree So did Thorning under-write and thereunto also consented Rickill and Sir Walter Clopton the last being chief Justice of the Kings Bench the first chief Justice of the Common-Pleas and the second another Judge of the same Bench. The summe in plainer sense is that if they were Peeres they would agree but as Judges they will be silent And thus the Parliament of England by the first of these foure last mentioned conclusions attainted themselves by the second yeilded up their liberties by the third their lives and by the last would have done more or been lesse And to fill up the measure of all they assigned over a right of Legislative Power unto six Lords and three Commons and yet the King not content superadded that it should be Treason for any man to indeavor to repeal any of their determinations The Common-wealth thus underneath the King tramples upon all at once for having espied the shadow of a Crown fleeting from him in Ireland he pursues it leaves the noble Crown of England in the base condition of a Farme subject to strip and waste by mean men and crosses the Irish Seas with an Army This was one of Englands Climactericall years under a disease so desperate that no hope was left but by a desperate Cure by sudden bleeding in the head and cutting off that Member that is a principle of motion in the Body For it was not many moneths ere the winde of affaires changed the King now in Ireland another steps into the Throne the noise hereof makes him return afarr of inraged but the nigher he comes the cooler he growes his conscience revives his courage decayes and leaving his Army his Lordship Kingdome and Libertie behinde as a naked man submits himself to release all homage and fealtie to resigne his Crown and Dignitie his Titles and Authoritie to acknowledge himself unworthy and insufficient to reign to swear never to repent of his Resignation thus if he will have any quiet this wilfull man he must be content for the future neither to will nor desire And poore England must for a time bee contented with a dolefull condition in which the King cannot rule and the Parliament will not and the whole body like a Chäos capable of any form that the next daring spirit shall brood upon it CHAP. II. Of the State of the King and Parliament in relation of it to him and him to it A King in Parliament is like the first-born of Jacob The excellencie of Dignitie and the excellencie of Power but alone unstable as water Examples of both these we have in these two Kings Whereof the first was Crowned by the Parliament and Crowned it the latter also Crowned it but with Thornes and yet the Parliament in all held on that wise way that it neither exceeded its own bounds nor lost its own right I shall enter into the consideration of particulars under these heads First In relation more immediately to the interest of the King Secondly To the interest of the Kingdome in generall The King though higher then all the people by the head and so hath the Prerogative of Honour as the most worthy yet his strength and abilities originally doe rise from beneath otherwise he is but like a Generall without an Army the Title big but aiery and many times his person subject to so much danger that in stead of drawing the eyes of all the people to look upon him with admiration they are drawn to look to him with observation and in this respect he may be said to be lesse his own man and more the Kingdomes then any of the inferiour sort This befell in both these Kings in a speciall manner each entering upon the grand government of a Kingdome before they were able to understand the work or govern themselves and therefore were under power of Protectors for the guard of their Persons and their Education and of the Parliament for Councell and Direction in Cases relating to the Kingdome The chide of a mean man when its Parents are dead is Filus Amici but of a King is Filius Populi to be by them trained up in such manner that he may be Pater populi when he is come to age In the mean time though he be a King yet his Person like a precious Jem must not out of the ring but must be directed by Councell though under some kind of restraint the Councellors all the while no Offenders in such Cases against the Prerogative Royall And therefore though it be true that Kings grow faster then other men and sooner come to full age then they yet Edward the third now in his sixteenth yeare might not passe over Sea into France though it were for restoring of Peace but by direction of the Parliament nor is it meet in such Cases that Kings should stand upon the Prerogative of a Negative Secondly it may likewise be said that his Family is lesse his owne as he is a man then another mans For private Families are no further under the publique Law then in relation to the publique Peace to punish after breach made But the Families of Kings are looked upon by all in relation to the honour and profit of the Publique not onely because the Kings servants have by their nigh attendance upon his Person a more powerfull influence into his actions which may reflect a malevolent aspect upon the whole course of affaires if they be not better ordered that are so nigh him But more especially in regard that the government and order of the Royall Family trencheth deep upon the Honor of the Kingdome and purses of the People who are concerned to see the same accommodated sutable to the State and Port which the Nation would bear forth to the World And therefore for the Parliament to intermeddle in the Kings Family is not forrain nor new Alice Piers was a Familier if not of the Family of Edward the third yet both her selfe and others of that Family were complained of as a grievance Richard the second was once a young man and ever a young King and what Edward the third wanted onely in his youth and in his infirme old age this man ever wanted for he that knew not how to govern himselfe how much lesse could he govern his Family And if in this condition the Parliament become his Stewards to set a yearely Survey and Check upon his Servants and Family in order to good order of the same and Kingdome otherwise men must conclude it did that which was just though Richard the second and those of his minde thinke not so But this is not all Kings have not onely such as serve the outward man but some that serve their Consciences of old time called Confessors in those dayes without name for feare of Superstition yet the thing remaineth still in some well favored Chaplain and
their work is to lead the Kings Conscience in dark wayes or rather into them commonly he hath a devout outside and that is the Kings Idol but if while his eye be towards Jerusalem his minde be towards the dead Sea the King is his and then the blinde leads the blinde Like some Ignis fatuus to such as know it not No man is so well knowne by his company as Kings are by these men and these men by their Actions Although some have bin so witty as to cheat the whole generation of Mankinde by entertaining holy men to be their Chaplains themselves the mean time without any sparke of that holy Fire Yet this King was not so cunning he had a Confessor of his own choice and according to his owne heart who was complained of as a grievance and the Parliament removed him So nigh they adventured even to invade the Kings owne conscience if it may be called conscience that will acknowledge no Law but that of its owne minde Thirdly The Kings Revenue was under the check and controll of the Parliment for it befalls some Princes as other men to be somtimes poore in abundance by riatous flooding treasure out in the lesser currents and leaving the greater channells dry This is an insupportible evill because it is destructive to the very being of affaires whether for Warr or Peace For the Kings treasure is of a mixt nature much of it being intended for publique service as himselfe is a publique person And for this cause he hath Officers of severall natures attending upon this treasury Some for land some for Sea some for the generall treasure of the Kingdome some for that of the houshold and some for the privy purse the common end of all being to maintaine state in time of peace and strength against time of Warr because it s no easie matter to maintaine the just proportions for each of the said ends it is the lesse wonder that such a brave Prince as Edward the Third should Labour under want for maintenance of the Warrs and so lavish a Spendthrift as Richard the Second should Labour under more want to maintaine his port and countenance in peace And therefore though it be true that the publique treasure is committed to the King as the cheife Steward of the Realme yet it is as true that he is but a Steward and that the supreame survey of the Treasure resteth in the Parliment who are to see that the treasure be not irregularly wasted to reduce the same into order and for that end to call the Treasurers and Receivers to account to see to the punishing of such as are unfaithfull and encouraging of others that are faithfull for when by extravagant courses the Treasure is wasted by extraordinary courses it must be supplied which ever is out of the Subjects purses And in such cases it is great reason that they should observe which way the course lies of such expenses If then in such cases sometimes the Parliament hath stayed the issuing out of the Kings Revenue for some time or otherwise viewed and examined the same charged it with conditions 22 E. 3. n. 29.14 R. 2. n. 15. limitted it to certaine uses and in case of misuser refused to levy or make payments the case will be without dispute that the Parliament ordered the publique treasure as they saw most need But much more if wee consider how the greatest part of this treasure was raised Viz. Not from the old Revenues of the Crowne but by new impositions levies and assesments layd upon the people even what they pleased and in what manner they thought meet and not otherwise Aydes are lawfull if they be legally given by common consent of Parliament Taxes if legally given by Parliament are no lesse lawfull yet they must be collected in such manner and by such means as the Parliaments Order doth direct Loans of monys to the King may be made by them that will but the King must not demand them because the subject hath no means to recover the debt This trick had been lately tryed by Edward the Second much mony he got and it was repaied by the order of the Parliament But of all the rest nothing shewed more absolute authority in the publique Revenue then the care that was had of the Demesnes of the Crown for whereas the expenses of Kings grew so vast that neither the yeerly Revenue could suffice nor aides assesments and taxes could satisfie however ordinary they in these times were become rather then Kings would contiane themselves they would invade their own Demesnes by pauning selling and giving them a way either for love or mony and thus was poverty treasured up against the future both for King and Crown The Parliament espying this leake that was like to undoe all applyed a speedy remedy undoing what was done and undoing some by an act of Resumption and thereby taught Kings to looke to their honor better for the future and people also to take heed of medling with such considerated matters and to know that he that hath such in his possession hath them by a cract title that cannot bee amended but by Act of Parliament Fourthly An English King is no Out-law nor can he do any wrong though the man may he hath a double relation one as a King the other as a man and the uniting of both in one Person hath cheated many a man of his judgement in the Case of Prerogative he hath a double will and these many times contrary equally as in other Relations and in this contrariety sometimes the King overcomes the man and sometimes the man the King so as if any man the King hath much more cause to cry out O miserable Man These divers wills are generally led by diverse rules One of a man w ch many times reacheth no higher then the Affections and if the man be weak they deserve little better name then Lusts The rule of a King is Law or Councells of these in place and unto these in all prudentialls he must submit his judgement and will as he is a King nor can he doe otherwise unlesse he will presume to be wiser then his Councell Sutable hereunto doth that clause in one of the Statutes of these times conclude Viz. That the King is bound by his Oath to passe all Lawes that are for the good of the Kingdome For were the power of election or determination of the Point onely in the King then were the Oath in vain nor is the Parliament at all in case of the Kings dissent to judge of the convenience or inconvenience of Proposalls made for the good of the whole body according to that power which it exercised in these times Nor is it irrationall to inferre here from that if Law and Councell be the rule of a King then the obedience of the people unto this King must be in order to Law and Councell otherwise the disobedience cannot be
determined to be against the King but against the Man and though against the private will of the Commander yet not against the Law nor therefore can it be said illegall or unjust The Parliament in these times held forth this Doctrine plainly to the World that it is their proper work in Cases needfull to doe right to such as are wronged by the King his command is no Warrant in such Cases If a man be wrongfully imprisoned by him he shall be released and set at liberty by them Let his Act be never so authenticall under the Broad-Seale it can take no mans right away Richard the Second did his utmost to satisfie and quiet the tumultuous rabble under Cade and Straw and granted store of Manumissions to the Bond-men by Declaration and by his Letters Patents but not one of them good enough to deprive any one of the meanest of the Free-men of their rights in those Bond-men The priviledge of shewing mercy and granting pardon hath beene antiently betrusted to the King as to an Overseer of the execution of Law yet he hath not that Prerogative To have mercy on whom he will have mercy Ever since this Narion had learned to read the Bible Murder hath been excepted from mercy nor did the Law ever allow any King any Prerogative to pardon that Edward the Third did not challenge any such not onely bound thereto by his Coronation Oath but by publique Acts of State declaring the same yet because the Parliament was not alwayes sitting and Kings were ever subject to this Temptation to favour Servants by granting mercy to Malefactors a generall rule of Inhibition is made against all pardon to be granted by the King in Case of Fellony but onely in Cases allowed by advise of the Councel It s true that in the first times of Richard the Second he liked not to be thus girt in his power which he pretended was more at liberty in his Predecessors possibly he meaned King John and Edward the Second who many times did what they listed yet under his favour no Law was so shamelesse as to hold forth such a power till Richard the Seconds Law countenanced it But why doe I call it a Law which is onely a Declaration by consent of the Lords such as then were the Commons would never owne such an opinion and therefore it soone proved abortive for within three or foure yeares by publique Act of Parliament it s peremptorily declared that the Kings Pardon shall not extend to murther So as upon the whole matter its plain that it is not the Kings will though supported by the Councell of Lords and backed by the opinion of the Judges that must be a rule for the government of this Kingdome nor doth any Allegience binde obedience thereunto in Case where Justice or the liberty of the People is concerned Three things yet remain which Kings have claimed to be their own Viz. Conferring Titles of Honour and places of Trust and the Legislative power The first is but a Feather and not worthy of regard yet it is plain that these times produce many presidents of Dukes Marquesses and Earles made in Parliament and possibly it may be apparent that the first motion of any such Title of Honour did first fetch its Originall thence if not in the field But it s not worthy of the labour The second is more considerable Viz. The power of conferring places of Publique Trust This Kings have pretended unto although in course of Congruity it will be thought more meet that it belongeth rather to that cheife and grand Trust of the whole Kingdome committed to the Parliament and the Practice of these times is not much discrepant whether we regard such as are for advice or execution Of the first of these are those whom we commonly call the Privie-Councell whose advise in course toucheth first upon the Kings Person but by reflexion worketh strong impressions upon the People so far as the influence of the Kings power extends And therefore it s not beyond the Sphear of the Parliament to interpose and qualifie that influence so as it may be for the generall good of the whole Kingdome For many times Kings are either above or beneath themselves and in such Cases if the Councell be of the Kings suite he is of the deeper die and proves more Malignant to the People Edward the Third growing into great opinion in the World his Proportion exceeds his own Portion and the Peoples good wills to boote they think the fault is in the privy Councell and an Inquisition set upon it So also they doe in his fiftieth yeare when he growes downward And the like in the beginning of Richard the Seconds Reigne he being now a Youth and therefore unstable in his Resolutions and unable to make Election So as upon the whole matter if the King fall short in point of judgement or Resolution or inordinate in his Affections But more especially where they observe the Major or more considerable part of the Councell to draw towards a designe in such Cases as these the Parliament as its own duty undertooke to settle a good Councell about the Kings Person that might advise him during their Recesse For the Privy Councell is never more it selfe then when it is an Epitome of the Common Councell of the Kingdome In like manner such Officers as concern Execution of Law and Councell are as narrowly to be inquired into for if their motion be irregular it s lesse materiall what the rule be the Parliament therefore held it their duty to interpose in the Election of grand Officers of the Kingdome such as are the Chancellors Judges and Justices or to confirm or displace them or binde them by Oath the Rolls of the eighth fourteenth fifteenth and thirty sixth years of Edward the Third and the sixth tenth and eleventh years of Richard the Second do manifest this sufficiently I have done with the Subject matter or work of the Parliament in the mutuall Relation of the King and it the manner of proceeding was either joyntly with the King or without him and either joyntly with the two Houses or severally and either immediately by themselves or their Committees As touching the first its evident that in all matters wherein gain ariseth to the Crown from the people by Subsidy or otherwise the strength of the Grant by Act of Parliament resteth in the two Houses and that the Kings assent is but Pro forma as touching that matter and therefore such Grants have been made as tended in some measure to derogate either from the Kings wisedome care or fidelity yet even these have passed with the Royall Assent though the full Assent or good will of the Person of the King was not correspondent thereto as in these Cases formerly noted where Subsidies were given with Limitations and Conditions and upon rendering account to the People And it is as evident that where the Kings Person is
there was a constant body framed that were sworn to that service for some in these times were sworne both of the Grand Councell and the Privy Councell and so entered upon Record The second of these Councells was also a great Councell and probably greater then the other but this was called onely upon occasion and consisted of all sorts like a Parliament yet was none An example whereof we have in the Ordinances concerning the Staple which at the first were made by the King Prelates Dukes Earles Lords and great Men of the Kingdome one out of every County Citty and Burrough called together for that end their results were but as in point of triall for sixe moneths space and then were turned into statute-Statute-Law by the Parliament These two are Magna Concilia yet without power further then as for advise because they had no ancient foundation nor constant continuance Another Councell remaineth more private then the other of more continuall use though not so Legally founded and this is called the Kings Privy Councell not taking up a whole House but onely a Chamber or a Table signifying rather communication of Advice then power of Judicature which more properly is in Banco And yet the power of this grew as virile and royall as it would acknowledge no Peere but the Parliament and usurped the representative of it as that had bin of the whole Kingdome The ambition thereof hath ever bin great and in this most notoriously evident that as it had swallowed up the grand Councell of Lords it seldome can endure the mention of a Parliament but when Kings or Affairs are too rugged for their owne touch The platform of their power you may behold in this their Oath 1. That well and lawfully they shall councell the King according to their best care and power and keep well and lawfully his Councels 2. That none of them shall accuse each other of any thing which he had spoken in councell 3. And that their lawfull Power Aid and Councell they shall with their utmost diligence apply to the Kings rights 4. And the Crowne to guard and maintaine save and to keepe off from it where they can without doing wrong 5. And where they shall know of the things belonging to the Crowne or the rights of the King to be concealed intruded upon or substracted they shall reveale the same to the King 6. And they shall enlarge the Crowne so far as lawfully they may and shall not accouncell the King in decreasing the rights of the Crowne so farre as they lawfully may 7. And they shall let for no man neither for love nor hate nor for peace nor strife to doe their utmost as far as they can or doe understand unto every man in every Estate Right and Reason and in Judgement and doing right shall spare none neither for riches nor poverty 8. And shall take of no man without the Kings leave unlesse meat or drinke in their journey 9. And if they be bound by Oath formerly taken so as they cannot performe this without breaking that they shall informe the King and hereafter shall take no such Oathes without the Kings consent first had All which in a shorter summe sounds in effect that they must be faithfull Councellors to the Kings Person and also to his Crowne not to decrease the true Rights but to inlarge them yet all must be done lawfully And secondly that they shall doe right in Judgement to take no Fees nor any other Oath in prejudice of this The first of these concerne the Publique onely at a distance and yet the point of increasing and diminishing of the Crowne in the sixth Section is captious and may sound as if there is a Legall enlarging of the Crowne whereof he that takes the Oath is to judge A matter which onely and properly concerns the Parliament to order and determine or else farewell all liberty of the People of England The second concerneth immediately the King in his politique capacity but trencheth upon all the Laws of the Kingdome in the executive power and all the motions in the whole Kingdome either of Peace or Warre following in the reare either immediately or mediately are under this notion interested into the transaction of the Privy Councell to debate and determine the Kings judgement therein unlesse it will determine alone And how easie a thing it is for such as have power of determining the Action by the Law to slip into the determining of a Law upon the Action and so to rule by Proclamation experience taught succeeding times sufficiently Neverthelesse these times wherein Parliaments were every moment upon the wing and kept this Noble Band in awe by taking them into their Cognisance placing and displacing some or all of them directing and binding them by Oath as they saw occasion of which the Records are full and plentifull I say these times thus constituted added yet further incouragement to them by giving them powers by Statute-Law over and beyond what by ancient Custome they had obtained The King and Councell of Lords had anciently a power of Jurisdiction that hath bin in the first part of this discourse already observed yet it s very probable that it was not any select company of Lords but the whole Association for it s granted by all that they had originally a Principall hand in the jurisdiction And its hard to conceive how any private number should catch such a power if not by usurpation But the manner of acquiring is lesse materiall the principall consideration resteth upon the quality of this Jurisdiction For it is evident that much difference hath bin both concerning the place and manner of exercising this Authority In generall It must be granted that all Pleas Coram Rege were grounded upon Writs first purchased and returnable either in Banco or in Camera or in Cancellaria And no difference at all will be concerning the Jurisdiction in Banco for that was by the Course of the Common Law and the people held it one of their liberties to have one known course of Law for determining matters of right and wrong As touching these Pleas which were holden by Writs returnable in Camera they were properly said to be Coram Rege Consilio whose meeting was in the Councell Chamber in those dayes called the Star-Chamber For other returns of Writs in the Star-Chamber doe not we finde but such as were in Camera nor Prohibitions from thence but under the notion of the Kings Councell and this Camera as I said was the place of the joynt meeting of the Councell as well of those of the Chancery and Benches as of those that attended upon matters of State Now the influence of Society in point of Judicature principally aspected upon some Pleas belonging to the Crowne although even these also properly were determinable in the Kings Bench nor can I observe any rule to bound the powers of these two Judicatories but this that the Councell Table
shall be imprisoned untill he shall satisfie the Defendant of his damages And furthermore shall make Fine and Ransome to the King But because that the Defendant many times held his advantage even to extremity this course lasted not long but a new Law was made which put the power of awarding damages in such cases into the Chancellor to doe according to his discretion And thus the Chancery obtained power to award damages which they never had formerly and the Chancellor a Precedency both in the Chancery and of the Councell in the Court of Starre-Chamber and in many cases in the Exchequer by the first he had a power in matters of meum and tuum by the last in matters Mei and Regis and by the other in matters Mei and Regni A considerable man certainly he was in the motions of Government but how much more if he be made Arch Bishop of Canterbury Cardinall and Legate è Latere or Arch Bishop Lord Treasurer and Legate è Latere as these dayes had divers times seen Extraordinary advancements bestowed upon the Nobility brings Honour to the Throne but if they be not men of noted worth and uprightnesse they make the Scepter stoope by stirring up of envy in the Nobility and indignation from the People For seldome is it seene that Advancements are fed from the Crowne though they be bred from thence but either maintained by new supplies from the Peoples purses or the ruine or decay of some Offices more ancient then themselves or both And such was the condition of the Chancellor he sucked fat from beneath and blood and Spirits from the Grand chiefe Justiciar of England and so reduced that Honourable Potentate unto the Degree of chiefe Justice of the Kings Bench leaving scarcely unto him the name or title of Lord. One thing more remaineth touching the election or nomination of this Great man At the first he was no better then a Register or the Kings remembrancer or Secretary having also the Honour to advise the King in such matters as came within the circuite of the Writings in his custody and questionlesse Eo usque its sutable to all the reason in the World that he should be of the Kings sole Nomination and Election But when it befalls that in stead of advising the King his word is taken to be the rule and a Judicatory power put upon that and unto this is superadded that Honourable trust of keeping and governing the great Seale of the Kingdome with the continuall growing power occasionally conferred upon him by the Parliament He is now become no more the Kings Remembrancer but the Lord Chancellor of England and Supreame Officer of State And it seemes but reasonable that he should hold his place by publique Election as well as the Grand Justiciar whose Plumes he borrowed and other Grand Officers of State did before him For he that will have his Servant to worke for another must give the other that Honour of Electing him thereto nor was this laid aside or forgotten by these times but a claim was put in for the Election or allowance of this principall Officer amongst others the Parliament obtaining a judgement in the case by the Kings Confession and so the thing is left to the judgement of future Ages Viz. Whether a King that can do no man wrong can dissemble the Royall Assent in Parliament or declare himselfe Legally in that manner by Proclamation CHAP. V. Of Admiralls Court. THis is a third Court that maintained the Kings judicatory power in a different way from that which is commonly called the Common law and by many is therefore supposed to advance the Kings Prerogative but upon mistaken grounds It is very true that the way is different from the common rode both in its originall and in the course of proceedings nor could it other be considering the condition of the Nations and the People of the same interested in common traffique The people thus interested as much differed from the other sort of dry men if they may be so called as Sea from Land and are in nature but as march men of severall Nations that must consenter in some third way for the maintenance of commerce for peace sake and to the end that no Nation may be under any other Law then its owne The condition of the Nations in the times when civillized government began to settle amongst them was to be under the Roman Emperours who having setled one Law in the generall grounds throughout all Nations made the Sea likewise to serve under one rule which should float up and downe with it that men might know upon what tearmes they held their owne wheresoever they went and upon what tearmes to part with it for their best advantage in its originall therefore this Law may be called Imperial and likewise in the process because it was directed in one way of triall and by one law which had its first birth from the Imperiall power and probably it had not been for the common benefit of Europe to have been otherwise at other time or by other directories formed Neverthelesse this became no Gemm of Prerogative to the English Crowne for if England did comply with forraine Natives for its owne benefit it being an Iland full of the Sea and in the common rode from the most parts of Europe that border upon the Sea and of delight in Merchandise it is but sutable to it selfe and it did so comply as it saved the maine Stake by voluntary entertaining those Laws without being imposed upon by Imperiall power for the Saxons came into this Kingdome a free People and so for ought yet appeareth to me continueth to this day I say that in those first times they did take into the consideration of Parliament the regulating of the fluctuating motions of sea-Sea-laws nor were they then or after properly imposed by the Kings Edict For though it were granted that Richard the first reduced the sea-Sea-laws in the Isle of Oleron yet that the same should be done without advise of Parliament in his returne from the holy Land is to me a riddle considering what Histories doe hold forth concerning of his returne through Germany nor can that be good evidence to intitle Kings of England to a power to make and alter Laws according to their private pleasure and interest Nor doth that Record mentioned in the Institutes warrant any such matter but rather on the contrary groundeth the complaint upon laws statutes Franchises and Customes Estabilished and that this Estabilishment was by the King and the Councell This Law was of a double nature according to the Law of the Land one part concerning the Pleas of the Crowne and the other between party and party for properly the Kings authority in the Admiralty is but an authority of Judicature according to Laws established which both for processe and sentence are different from the Common Law as much as the two Elements do differ yet not different in
and honor of the Kings Person considered in his naturall capacity as he is a man I shall in the next place examine the grounds as they are severally set down and therein shall lead the Reader no further then the Reporters owne concessions Not troubling the Reader with any doubt whether this bond consists in obedience only or in that fealty and in all shall ever be mindfull of the honour of that Pen with which I have to deale First whereas it is said that English legiance is naturall and grounded upon the birth of each party within the Kings dominions and protection it needeth no debate so as the same be taken sano sensu Viz. for a qualified legiance beared of those sublimities of absolute indefinite immutable c. for otherwise if such a high strain of legiance be due from every English man by birth then all the Magna carta or laws concerning the liberties of the People come too late to qualifie the same because they cannot take away the Law of nature f. 14. a. and thus the party once born English must for ever remain absolutely obleiged to the King of England although haply he lives not two Months under his protection all his ensuing life time Secondly the legiance of an English man to his King ariseth from that civil relation between the two callings of King and subject and therefore it is not a naturall bond which cannot be taken away The first is true by the Reporters owne concessions Protectio trahit subjectionem subjecti oprotectionem so he saith fo 5. a. fo 9. b. and therefore though it be granted that Magistracy in general is from nature as he saith fo 13. a. yet of weak birth is that inference which he maketh Viz. That English allegiance is a principle in nature Unlesse it be also admitted that all men on earth that submit not to English legiance do sinne against nature The difference then will stand thus Magistracy is founded in nature therefore legiance also But English Magistracy is from civil constitution therefore is English legiance of the like nature In the next place the Reporter saith that before any municiple Law was made Kings did dare jura and he mounts as high for an example as the Trojans age by the testimony of Virgil but I beleeve he intended not much strength in this seeing its wel known by any that knows the scriptures that there were municipal laws given and that concerning the office of a King by Moses which was more ancient then those of Troy and long before the time of Virgil who neither tels us in what manner those Trojan Laws were made though the Kings gave them nor if al were according to the Reporters sense is the testimony of a Poet who somtimes useth his poetica licentia to be taken in terminis in the next place the Reporter vouches the testimony of Fortescue c. 12 13. which is as absolutely opposite to the maine point in hand as any Penn can declare for he tels us of divers sorts of Kingdomes some gotten by conquest as those of Nimrod and Belus c. But saith he there is a Kingdome politick which is by the association oâ— men by consent of Law making one cheife who is made for defence of Law and of his subjects bodies and Estates and he cannot govern by any other power and of this nature saith he the Kingdome of England is fo 30.31.32 A second peice of the foundation of this opinion of the Reporter is taken ab inane it is a vaine thing saith he to prescribe Laws but where by legiance foregoing people are bound to obey but this compared with the words of Fortescue formerly mentioned falls of it selfe to dust and therefore I shall not further inlarge concerning it Thirdly The Reporter brings in to helpe the matter the consent of the Law in elder times by certaine cases vouched to that purpose the first concerning the Legiance of Children to Parents which commeth not to this case because it is a legiance of nature and this legiance whereof we speake is yet under a litigious title And I suppose will in the conclusion be found to rest only upon a civil constitution therefore I leave that The second is that a man attainted and outlawed is neverthelesse within the Kings protection for this saith the Reporter is a Law of nature Indelibilis immutabilis and the Parliament nor Statute can take this power away fol. 13. b. 14. a. and therefore the Reporter concludes that as well the Legiance of the subject as the protection of him by the King are both of them from the Law of nature An opinion that speakes much mercy yet it seemes strange considering the penne for if it be a Law of nature and immutable for the King to protect Persons attainted then must no such Person suffer for if he be under the Kings protection that being by a Law of nature cannot be changed by any positive Law as the Reporter saith nor can the King be so bound by any such Statute but by a nonobstante he can set himselfe at liberty when he pleaseth then the issue will be this the King hath a naturall power to protect the Persons of Law-breakers from the power of the Law therefore much more their Estates and then farewell all Law but this of the Kings naturall protection I say that these are of a high straine considering what the Reporter speaketh elsewhere But to persue his instance he saith that the King hath power to protect an attainted person that if any man kill him without warrant he is a manslayer and yet this Person attainted hath lost the legall Protection It s true yet not to all intents for by the sentence of the Law his life is bound up under the Law of that Sentence Viz. That he must not suffer in other manner then the Sentence determineth nor before warrant of Execution issue forth to that end And notwithstanding the Sentence yet the Law leaveth him a liberty of Purchase or Inheritance though to the use of the Crowne and therefore in some respects the Law protects his Person so long as he lives and the Kings Naturall Protection is in vaine in such Cases Lastly suppose the King hath a power of Nonobstante if the same be allowed to him in a limited way by the Law it is no argument to prove the Kings naturall Power which is driven at under naturall Legiance much lesse if it cannot be made forth that the Law doth allow any such power of Nonobstante at all but by the iniquity of the times permitteth the same to subsist onely to avoyd Contention as it came into this Kingdome by way of Usurpation And thus I have onely discovered the Foundation of this first qualification which I shall onely leave naked supposing that no man seeing it will build at all thereupon The second property that commeth to be considered is That English Legiance is absolute fol. 5.
the most part grounded upon self respects and private prudence laboured to conceale that which could not be made whole by revealing and by after consent skind over the sore as to themselves which corrupted inwardly and indangered the whole body to cure which a Law is made to restrain such late connivance in the Woman by depriving her both of her Joyncture and Inheritance which otherwise had been saved to her by such compliance as after consent unto such violations CHAP. X. Of the Course of Civill Justice during these Times HOwever the course of the Law concerning matters of the Crown passed in a troubled wave yet in matters of Common Pleas it passed in a calme and full Channell as the Reports in Print doe sufficiently witnesse nor was their any change of Principles but onely some alteration tending to a clearer manifestation of the same I will not touch upon every particular but onely upon two which reflect somewhat upon the Publique pollicy the one touching the course of Inheritance in some particular Cases the other touching pleading in the Courts of Civill Justice The first of these was occasioned from Conjuncture of Affaires the Case being such that Edward the Third had now gotten himselfe a new Kingdome unto that of England and must looke to maintaine that by Power which he obtained by force and conducing thereunto must have continuall imployment of the English in that Service as being most trusty to his Cause And that it is un reasonable that such English as had devoted themselves to his Service in this Cause and in order thereunto had transported themselves and their Families into those Forrain parts should thereby loose the benefit of Leiges in the Birth-right of their Children borne in those Forraine parts Upon consideration had hereof and of a former leading Opinion of the Lawyers and Parliament a Declarative Law was made That all Children borne without the Kings Legiance whose Father and Mother at the time of their Birth shall be under the Faith and Legiance of the King of England shall have the benefit of Inheritance within the same Legiance as other Inheritors have These are the words of the Statute and doe occasion a double observation one from the matter the other from the manner of the Expression The Subject matter is so delivered not as an Introduction of a new Law but as a Declarative of the old that lay more obscurely hidden for want of occasion to reveale it and the substance thereof resteth onely in this to enable the Children of English Natives borne beyond the Seas not the Children of those that are of Forraine birth though within the Kings Teritories in those parts as the opinion hath beene nor doth any ancient President or Case warrant the same as might be at large manifested if it might conduce to the end of this discourse and for the same cause after this Statute when as the Commons would have had a generall Naturalizing of all Infants borne beyond the Sea within the Kings Segniories the same would not be granted otherwise then according to the former Statute and the Common Law That which in the next place concerneth the manner of expression is this That a Childe is said to be borne out of the Kings Legiance and yet the Father and Mother at the same time to be of the Faith and Legiance of the King of England It seemeth to me that it intendeth onely those Children of English Parents borne within the Kings Teritories beyond the Seas because the words insuing concerning Certification of Bastardy of such Children are that the same shall be made by the Bishop of such place upon the Kings Writ directed to him which could never have passed into those places that are not of the Kings Teritories and so the Issue will be that the Legiance of those born in those parts though they are Leiges to the King yet they are not of the Legiance of the King of England but as Lord of that Teritory The other matter to be observed concerning pleading in the Courts of Civill Justice is this That whereas anciently from the Normans time till these times the pleadings were in the Norman tongue they shall be henceforth in English out of an inconvenience I beleive rather supposed then felt for though some kinde of knowledge of Law-termes may be increased thereby yet unlesse that shall be professedly studied it will breed nothing but Notions and they an overweening conceit which many times sets men to suites in Law to their owne losse like some weake influence of the Celestiall bodies that are strong enough to stirre up humours but not to expell them or draw them out However even thus in part is the reproach of Normandy rolled away like that of Egypt from the Israelites at Mount Gilgall CHAP. XI Of the Militia in these Times WArre is ever terrible but if just and well governed majesticall the one may excite resistance and defence but the other Conquers before blow given because it convinceth the judgement and so prevails upon the Conscience For that heart can never be resolute in its own defence that is at Warre with its own understanding nor can such a heart consider such a Warre otherwise then as Divine and bearing the face of an Ordinance of God and then how can the Issue be unsuccessfull It is no strange thing for Kings to miscarry in their Warres because it s rarely seen that they are under good Councell but if a Christian Councell miscarry we may conclude it extraordinary in the efficient Cause and no lesse wonderful in the issue and end Upon this ground it concerneth a Christian Nation not onely in point of Honour but of safety and continuance to settle fundamentall Lawes for War against time of War as of Peace in time of Peace Neither was England deficient herein saving that ancient times were more obscure in the particulars and these dayes revealed them at such a time wherein we may say that Edward the Third approved himself not onely King of England but of himself above the ordinary strain of expectation for being now become a famous Commander and Conquerour having also an Army inured to fight and overcome and so might have given a Law he neverthelesse received the same submitting both it and himself to the Directory of the Parliament in making a Warre with France which was three to one against him in every respect but in the Title besides the disadvantage from Scotland that lay continually beating upon his reare The like may be observed of his Warre with Scotland in both which he evidently telleth the World that he held it unreasonable to enter upon the managing of an offensive Forraine Warre without the concurrence of the common consent of the people and that not onely for the thing it selfe but also for his owne personall ingagement in the Service For a King though he be the Generalissimo yet is he so from the people and his person being of that
high value is not to be exposed to every occasion that may provoke Warre without due advice first had with the publique Councell because in his person the people adventureth as well as himself And in this manner were the Warres in France by Edward the Third and in Scotland concluded upon debate In the next place as touching the arraies of Men for Warre I finde no foot-steps of any power which was claimed as peculiar to the King therein and acknowledged by the Parliament but many instances do I meet with in the opposite all which do plainly tell us that the old shifts of Jurati and obligati ad arma could do little either in the calling of men forth or arming them for the Warr. But in case of publique defence against forrainers men were summoned upon their Legiance as anciently was used And this was by both King and Parliament fully declared and all such obligations by writing called in and damned as dishonorable to the King In forraine service the course was no lesse regular if the Warr was by especiall direction of the Parliament they likewise ordered the manner of the raising of Souldiers Viz. So many out of a County and so many out of a Burrough all which are by the expresse words of the Statute said to be granted by the Knights and Burgesses But if it was only upon the Kings particular instigation and not by order or consent of the Parliament the King in such cases being Volunteir all the Souldiers were in like manner unlesse some particular Law or Tenure otherwise obleiged them As touching the arming of Souldiers the Law was yet more certaine and particular If the Souldiers were men of estate they were armed according to the ancient rule asserted by the Statute at Winton or otherwise were especially assessed by the Parliament or by vertue of their Tenures the first of these is confirmed by Edward the third in Parliament wherein he willeth that no man shal be urged to arme himselfe otherwise then hee was wont in the times of his Ancestors Kings of England The two later were likewise confirmed by another Law made in the same Kings time whereby it was ordained that no manshall be constrained to find men of armes Hoblers nor Archers other then those which hold by such services if it be not by common consent and grant made in Parliament By men of Armes meaning those which we now call Curiasseires or compleat armed by Hoblers meaning those now called light horse-men The Archers served on foot and were Principally armed with Bowes although they had also Swords or other such offensive portable Weapons The first of these concerneth only the arming of a mans owne person the other the finding of Souldiers and arming of them and both together sufficient for the safegard of the rights and liberties of the people invaded in those times by Commissions of array and such other expressions of Prerogative Royall for as touching the arming of a mans owne Person the Statute of 1. Ed. 3. formerly mentioned is cleare in the point And though the Statute of 25. Edw. 3. doth not in the letter direct as touching the finding armes for others as is urged in his Majesties answer to the Declaration of the Parliament concerning the Commission of Array July 4. 1642. yet is it therein granted that a compleate Souldier is within the Letter of the Statute and seeing the person of the Souldier is not in the power of any private Person in such cases to command him to the service it seemeth cleare to me that the Statute must intend the arming of him with compleat armes and not the armed person of the man The souldery thus arrayed they are in the next place to be called by their Rendezvouz the Knights by summons sent to the Sheriff but the rest by Proclamation If the Knights appeare not a fine is let upon them if others runne a way from their conduct a Writt issued to the Serjeant at armes to apprehend them if they were not arrayed then the recognisances of such as undertooke the worke are estreated All plunder or spoile committed by the Soudiers in their conduct was to be satisfied by the Conductor or Commander that received their Pay or Charges for their conduct And although the charges for conduct had formerly De facto been defraied somtimes by the County by vertue of Commissions that issued forth both for the raising and conducting of them yet was this no rule nor did Edward the third claime any such duty but disclaimed it and ordained by Act of Parliament that both the pay and conduct Money should be disbursed by the King from the time of their departure from their severall Counties For to this end and for the safegard of the Realme And for the maintenance of the Warrs of Scotland France and Gascoigne The King had supply from Aids Releifs Wardships Marriages Customes and Escheats nor did the Parliament grant any particular Aide by assessment or publique Taxe but when they evidently saw the burden of Warr to be extraordinary as it befell in the Conquest of so great and potent a Realme as France was Wherein although the Taxes were many yet so well ordered were they and with that compliance from the King that the people indured them with much patience so long as the King lived Lastly in all these Cases of forraine Warrs for of such Cases onely these Laws are to be understood it was especially provided that no man should be distrained or urged against his will to goe out of his County But in Case of defensive Warr the course was otherwise for all men in such Cases are bound by the Law of Nature to defend their owne Countrey from Invasion in order to the safety of their owne Estates and habitations They were arrayed or gathered together by Commission of Array from the King armed according to the Laws formerly mentioned and not by arbitrary order of the Commissioners And by vertue of such Commissions they were drawne forth and led to places where need required Sometimes to one Coast sometimes to another yet not altogether at the Kings pleasure for the Parliament upon occasion set rules of restriction and generally exempted the North parts beyond Humber from being drawn Southward and left them as a reserve for the defence of the Marches bordering upon Scotland and sometimes ordered the Array should be executed onely in some particular Counties and other times wholy exempted the Countrey adjacent within six miles of the Sea Coast And because the King might under colour of a defence Array the People where no such occasion led the way and command them out of their Countyes a Statute is made that states the Case wherein such Array shall be the words whereof are variously set forth in the Bookes in Print whether determinatively or carelesly I cannot tell but all of them doe differ in sence one from another and
tokens and liveries utterly inhibiting the meaner sort of the people from giving of Liveries to maintain quarrells upon pain of Fine and Imprisonment and the triall to be before the Justices of Assize which it seems was in affirmance of former Lawes as by the Preamble of the Statute doth appeare though the Lawes themselves are not extant About fifteen years after it was by sad experience found that the Lords maintained quarrells by multitude of Liveries and therefore another Law was made inhibiting the Lords to give Liveries to any but their meniall Servants and it s ordered that the Justices of the Peace shall make inquiry of such offences and punish them according to their discretion A third prevention was provided against gathering together of parties after they are sorted For the humors may so abound as nothing will keep them in they must either breake out into a sore or a long sicknes of State will certainly follow To this end therefore the Statute made at Northampton is again revived expresly forbidding all Persons to ride Armed unles in some particular Cases of executing Justice or guarding the Person of the King or his Justices and such like And if men will be so adventerous as to outdare Law by publique force Troopings together and Riotous ridings Another course is taken not by Commission of the Peace but rather of Warre directed unto valiant persons in every County and they have power thereby to apprehend such Offenders and imprison them untill the Goale-delivery though no Indictment be found thereof untill the Goale-delivery shall be By this Commission therefore power is given of Posse Comitatus in nature of a Commission of Array with an additionall power of fighting and destroying so as though the King granteth the Power by the Commission yet the Parliament giveth the power to the Commission and be it a Commission for Peace or Warre it is Originally from that power The fourth and last prevention was the taking away means of continuance and supporting such Riotous wayes Viz. Castles and Goales out of the Custody of private hands and restoring them to their Counties For Goales and Castles are taken promiscuously for places of security in times of Peace to keep ill persons from going out and in times of Warre from getting in Amongst these some belonged to the King and were committed to such as he favoured who commonly in such times of Oppression and Violence grew too big for Justice usurping a Gaole-delivery and making such places of strength many times even to the innocent a Prison to keep them from the Law but unto guilty persons an Assilum to defend them against the Law And these thus belonging to the King were under no Law but of Prerogative whereas other Castles of private persons were under the yoake of the Statute 13 E. 1. For remedy of all which the Kings Castles are once more returned to the Sheriffes Custody by Act of Parliament who questionlesse hath the power to dispose of all places of Strength whether in order to Peace or Warre and could not dispose them into a more fafe and indifferent hand then the Sheriffes who is as well the Kings Officer as the Kingdomes Servant and much intrusted by the Law in the execution of its owne power And thus is this Nation now prepared for a settled Peace a Condition that is long in ripening and soon rotten unlesse it be well fenced and over-awed by a good Conscience But Richard the Second was neither so good nor so happy his Heart affected to be high but his Head could not bear it he turns giddy and runs far wide Those that would reduce him he inforces into Forrain Countries and himselfe holds on his careere over hedge and ditch into Ireland where under pretention of holding Possession of that Kingdome he lost England and whiles he playes his game in that Country another playes King by your leave in this and steps into the Throne teaching the King thereby this lesson though too late That Nonresidency is dangerous for a Preist but unto a Prince fatall unlesse his Subjests be fast to him when he is loose to them CHAP. XIII A view of the summary Courses of Henry the Fourth Henry the Fifth and Henry the Sixth in their severall Reignes HE that played this pranke was the banished Duke of Hertford sonne of John of Gaunt and by his death now become Duke of Lancaster by Title and as the times then were it proved not hard to get more For in uncertain Common-wealths it is an easie thing for a man of opinion that hath lesse then his due to get more then he ought As sonne of John of Gaunt this Duke had the peoples good wishes he a wise and a brave man and under oppression gained the more upon the people by how much they love brave men and compassionate such as suffer wrong especially from such persons from whom they all found the like measure All these concurring with the Kings absence invited the Duke to adventure himself upon the influence of the peoples favour to gain his own right and what more the people would allow him and if no more yet his Honour is saved he came for his own and attained his end Thus then he comes over without Army or Forraine power or other help saving the advice and interest of Arch-Bishop Arundell who was his Companion in suffering Partner in the Cause and no lesse welcome to the Clergy then the Duke himself was to the people and so gained power to the Duke though he brought none Upon their Arivall the aspects of all are benigne the Dukedome waits for him and in that as in a mirrour he beholds the way fair and easie yet further it pities him to see the Kingdome so torne in peices and spoyled The People knew him able and hoped him willing to amend all they offer him their Service which he accepts and therewith the Crowne so hard a thing it is for to put a stop to a Conquerour in his careere By this time was the Duke of Hertford thus become Duke of Lancaster and King of England under the name of Henry the Fourth by a designe that in the proof was more easie then commendable and which being effected cost more skill to make that seem fair which was so foul then to accomplish the thing He therefore first heaps together Titles enough to have buried the clamour of Usurpation if it would have succeeded Conquest was a Title freest from dispute whiles Power holds but it lookes better from a Forrain Enemy then one sworn to the English Crowne and therefore after that had served his turne he disclaymed it as that which was though meet enough to have yet unmeet to hold His right by Designation from his Predecessour he glanced upon but durst not adventure it too deep into the Peoples consideration whose Ancestors had formerly over-ruled the Case against King John He then stayed upon a concealed Title from a concealed Sonne of
Henry the Third of whom they who listed might be perswaded but few beleived the thing nor did himself but thence takes his flight up to a Jus Divinum or some hidden Fate that called him to the worke but even there his wings failed him and so he falls flat upon the Peoples Election De bene esse Some of these or all together might make Title enough for a great man that resolved to hold by hooke what he had got by crooke and therefore trussing them up all together he enters his claime to the Crown As comming from the blood Royall from King Henry and through the Right that God his grace hath sent me with the help of my Kinne and Freinds to recover the same which was in point to be undone for want of good Governance and due Justice The extract of all is that he was chosen by the People and Parliament then sitting And allbeit that by the Resignation of Richard the Second the Parliament might seem in strict construction of Law to be expired together with the Kings power who called them together yet did not that Parliament so apprehend the matter but proceeded not onely to definitive Sentence of Deposing him but declared themselves by their Commissaries to be the three States and Representative of the People of England maintaining thereby their subsistency by the Consistence of the Members together although their Cheif was for the present like a head in a trance till they had chosen Henry the Fourth to succeed in the Throne by this means preventing the conceit of discontinuance in the very Bud of the Notion Much like his entry was his continuance a continuall tide of Forraine and Domesticke Warre and Conspiracy enough to exercise his great Courage although he was more Wise then Warlike being loath to take up Armes for well he knew that a sick Title never sleeps but in a Bed of Peace and more loth to lay them down for besides Victory whereby he gained upon his Enemies in time of Warre he knew how to make advantage of them in time of Peace to secure his Freinds to keep others in awe to inforce such Lawes as stood with reason of State and the present posture of Affaires and where Lawes failed to fill up the period with Dictates of his owne will And upon this Account the Product was a government full of Ulcers of Blood-shed without regard of Persons whether of the Lay or Religious Order without Legall triall or priviledge of Clerke So was Arch Bishop Walden Dethroned Arch Bishop Scroope put to death and Dukes were dismounted without Conviction or Imputation saving of the Kings displeasure Taxes multiplied although begotten they were upon the Parliament like some monstrous Births shewne to the World to let it know what could be done but concealed by Historians to let it know what may not be done Yea the priviledges of Parliament invaded in point of Election A thing that none of his Predecessors ever Exemplyfied to him nor none of his Successors ever Imitated him in nor had he purposed it but that he was loath the People should know more of the Government then needs must To keep off Forrain troubles he made Peace with France for longer time then he lived yet was ever infested with the Sword of Saint Paul in behalf of Richard the Seconds Queene and with the Factions betweene the Houses of Orleance and Burgundy in which he had interested himselfe to preserve the Forraine Neighbour-hood in Parties one against another that himselfe might attend his owne Security at home He would have moved the Scots but they were already under English Banners nor could he reach so farre having so many Enemies even in his owne bosome The Welsh were big with Antiquity and Mountains of Defence they beginne to bethinke themselves of their Ancient Principality hold the Kings Armes at hard Duty till by Lawes enacted in Parliament they lost their Liberties of bearing Office Ministeriall or of Judicature of holding Castle of Convention without the Kings Licence yea of Purchase and so by degrees were brought downe from the height of a Free Principality to be starved in their Power and inferiour to a Free People And thus the Welsh on the one side the discontented Lords on the other and Mortimars Title in all so busied the King as though he lopped off the tops as they sprang up yet they sprang forth as they were lopped nor was it the Kings lot all this while to finde out the Root of All or to strike at that Lastly when time had made all troublers weary yet he stil sits upon thornes he was jealous of his Subjects jealous of his Son yea jealous of himself It being ever the first and last of his thoughts how to keep his Crowne For the most part of his Reigne he was troubled with the walking Ghosts of Richard the second ever and anon he was alive he was here he was there and so the Peoples mindes were alwayes kept at random but when all these Spirits are conjured downe Richard the seconds Ghoste is yet within Henries owne breast So ruled Henry the fourth an unhappy confident man that durst undertake more then he would did more then he ought was successfull in what he did yet never attained his end to be sure of his Crowne and quiet of minde For a plaister to this sore he turned somewhat towards Religion but shewed it more in Zeale to Church-men then workes of Piety and therefore may be thought to regard them rather as his best freinds in right of Arch Bishop Arundell then as in relation to Religion yet as if he overlooked that he desires their prayers becomes a strict observer of superstitious rights is fiery Zealous against the Lollards intends a journey into the holy Land and Warr against the Infidels the common Physick of guilty Kings in those dayes Breifly he did will to do any thing but undoe what he had done and had done more had his journey to the holy Land succeeded but whither hastned or delayed by a prophesie of the ending of his dayes falls not within my Penn to censure entring upon the worke he died in the beginning of his purposes in the midst of his feares never came to the holy Land and yet yeilded up his last breath in Jerusalem THe Parliament was then sitting and was witnesse of the death of Henry the fourth as it had beene of his entrance upon the Throne as if purposed to see to the cours of the Crowne in the doubtfull currant betweene the two Houses of Lancaster and Yorke and to maintaine their own honor in directing the Scepter according to their warranty upon a late intaile by act of Parliament yet did not all rest upon this for the Heire of Henry the fourth was a man every inch of him and meant not to Moote upon the point His Father died a King and he his Heire had the Crowne and was resolved to hold it A rough young man he
the Houses its true that sad Presidents have beene of later times in that kinde and so for want of due attendance Parliaments have been inforced to adjourn to prevent a worse inconvenience but these are infirmities better buried in silence then produced as Arguments of power seeing its evident that Kings themselves were no greater gainers thereby then an Angry man is by his passions It is true also that Kings may make Lords and Corporations that may send their Burgesses to the Parliament and thus the King may make as many as he will as the Pope did with the Bishops in the Councill of Trent yet cannot he unmake them when he pleases nor take the Members from the Parliament without attainder and forfeiture according to the knowne Law Neither can all these Instances prove that the Kings of England have the sole and supreame Power over the Parliament Nor did the Parliament in these times allow of any such Authority and therefore proceeded for the reforming of themselves by themselves in many particulars as the Statutes do hold forth And first in the point of Elections for an error in that is like an error in the first Concoction that spoiles the whole Nutriment they ordained that the Election of Knights shall be at the next County Court after the Writ delivered to the Sheriffe That in full Court betweene the houres of eight and nine in the morning Proclamation shall be made of the day and place of the Parliament That the Suters duely summoned and others there Present shall then proceed to the Election notwithstanding any Prayer or Commandement to the contrary That the names of the Persons elected whether present or absent they be shall be returned by Indenture betweene the Sheriffe and the Elizors and that a Clause to that end shall be added to the Writ of Summons This was enough to make the Sheriffe understand but not to obey till a penalty of one hundred pound is by other Lawes imposed upon him and a yeares imprisonment without Baile or Mainprise besides damages for false return in such Cases and the party so unduely returned Fined and deprived of all the wages for his service Thus the manner of Election is reduced but the Persons are more considerable For hitherto any man of English blood promiscuously had right to give or receive a Vote although his residency were over the wide World But the Parliament in the time of Henry the Fifth reduced these also whether they were such as did chuse or were chosen unto their proper Counties or else rendered them uncapable to Vote or serve for any County And the like Order was made for the Burroughs Viz. That no Person must serve for any City or Burrough nor give Vote in Electing such as shall serve for that Towne unlesse they be both Free and Resiants within that City or Burrough A Law no lesse wholsome then seasonable For the times of Henry the Fourth had taught men to know by experience That a King that hath Souldiers scattered over the Kingdome can easily sway the County-Courts and make Parliaments for their owne tooth Yet this was not enough For all Elizors though of the meanest sort yet are still able to doe as much hurt with their Vote as those of the best sort both for wisedome and publique minde can doe good by theirs This made Elections much subject to parties and confusions and rendered the Parliament much lesse considerable A remedy hereunto is provided in the minority of Henry the Sixth Viz. That no man should give his Vote in Elections in the County unlesse he hath forty shillings yearely in Free Lands or Tenements and this is to be testified upon Oath of the Party And more plainly it is ordered within two yeares after that each Elizor shall have Frank Tenement of that vallue within the same County And thus the Freemen yeilded up their liberty of Election to the Free-holders possibly not knowing what they did Neverthelesse the Parliament well knew what they did this change was no lesse good then great For first these times were no times for any great measure of Civility The Preface of the Statute shewes that the meanest held himself as good a man as the greatest in the Countrey and this tended to parties tumults and bloodshed Secondly where the multitude prevaile the meaner sort are upon the upper hand and these generally ignorant cannot judge of Persons nor Times but being for the most part led by Faction or Affection rather then by right Understanding make their Elections and thereby the Generall Councell of this Nation lesse generous and noble Thirdly there is no lesse equity in the change then policy for what can be more reasonable then that those men onely should have their Votes in Election of the Common Councell of the Kingdome whose Estates are chargeable with the publique Taxes and Assessements and with the wages of those persons that are chosen for the publique Service But above all the rest this advancing of the Free-holders in this manner of Election was beneficiall to the Free-men of England although perchance they considered not thereof and this will more clearly appeare in the consideration of these three particulars First it abated the power of the Lords and great men who held the inferiour sort at their Devotion and much of what they had by their Vote Secondly it rendered the body of the people more brave for the advancing of the Free-holder above the Free-man raiseth the spirit of the meaner sort to publique regards and under a kinde of Ambition to aspire unto the degree of a Free-holder that they may be some what in the Common-wealth and thus leaving the meanest rank sifted to the very branne they become lesse considerable and more subject to Coercive power whiles in the mean time the Free-holder now advanced unto the degree of a Yeoman becomes no lesse carefull to maintain correspondency with the Lawes then he was industrious in the attaining of his degree Thirdly by this means now the Law makes a separation of the inferiour Clergy and Cloystered people from this service wherein they might serve particular ends much but Rome much more For nothing appeareth but that these dead Persons in Law were neverthelesse Fsee-men in Fact and lost not the liberty of their Birth-right by entering into Religion to become thereby either Bond or no Free-Members of the people of England Lastly as a binding plaister above the rest First a Negative Law is made that the Persons elected in the County must not be of the degree of a Yeoman but of the most noted Knights Esquires or Gentlemen of the Countrey which tacitely implies that it was too common to advance those of the meaner sort whether by reason of the former wasting times Knights and Esquires were grown scant in number or by reason of their rudenesse in account Or it may be the Yeomanry grew now to feel their strength and meant not to be further
underlings to the great men then they are to their Fethers to were them no longer then they will make them brave Secondly the Person thus agreed upon his intertainment must be accordingly and therefore the manner of taxing in full County and levying the rate of Wages for their maintenance is reformed and settled And lastly their Persons are put under the Protection of the Law in an especiall manner for as their work is full of reflexion so formerly they had met with many sad influences for their labour And therefore a penall Law is made against force to be made upon the Persons of those workmen of State either in their going to that Service or attending thereupon making such Delinquents liable to Fine and Imprisonment and double damages And thus however the times were full of confusions yet a foundation was laid of a more uniforme Government in future times then England hitherto had seen CAHP. XV. Of the Custos or Protector Regni KIngs though they have vast dimensions yet are not infinite nor greater then the bounds of one Kingdome wherein if present they are in all places present if otherwise they are like the Sunn gone down and must rule by reflexion as the Moone in the night In a mixt common wealth they are integrall members and therefore regularly must act Per deputatum when their Persons are absent in another Ligialty and cannot act Per se Partly because their Lustre is somewhat eclipsed by another Horizon and partly because by common intendment they cannot take notice of things done in their absence It hath therefore been the ancient course of Kings of this Nation to constitute Vicegerents in their absence ' giving them severall titles and severall powers according as the necessity of affaires required Sometimes they are called Lord Warden or Lord Keeper of the Kingdome and have therewith the generall power of a King as it was with John Warren Earle of Surry appointed therunto by Edw. the first who had not onely power to command but to grant and this power extended both to England and Scotland And Peter Gaveston though a Forrainer had the like power given him by Edward the second over England to the reproach of the English Nobility which also they revenged afterward Somtimes these Vicegerents are called Lievtenants which seemeth to conferr onely the Kings power in the Militia as a Lievtenant Generall in an army And thus Richard the second made Edmund Duke of Yorke his Lievtenant of the Kingdome of England to oppose the entry of the Duke of Hertford Afterwards called Henry the fourth into England during the Kings absence in Ireland And in the mean while the other part of the Royalty which concerned the revenues of the Crowne was betrusted to the Earle of Wiltshire Sir John Bush Sir James Baggot and Sir Henry Green unto whom men say the King put his Kingdome to farme But more ordinarily the Kings power was delegated unto one under both the titles of Lord Gaurdian of the Kingdome and Lievtenant within the same such was the title of Henry Lacy Earle of Lincolne and of Gilbert De clare Earle of Glocester and of Audomar De valentia Earle of Pembroke all of them at severall times so constituted by Edward the second as by the Patent Roles appeareth So likewise did Edward the third make his Brother John of Eâ—tham twice and the black Prince thrice and Lionell Duke Clarence and his Brother Thomas each of them once in the severall passages of Edward the third beyond the Sea in the third fifth twelfth fourteenth sixteenth nineteenth and thirty third years of his reigne concerning which see the Patent Rolls of those yeares And Henry the fifth gave likewise the same title and authority to the Duke of Bedford upon the Kings voyage into France and afterward that Duke being sent over to second the King in the French Wars the Duke of Glocester obtained the same power and place But Henry the sixth added a further title of Protector and Defendor of the Kingdome and Church of England this was first given to the Duke of Bedford and afterwards he being made Regent of France it was conferred upon the Duke of Glocester And towards the later time of Henry the sixth it was granted by him to Richard Duke of Yorke This title carried along with it a power different from that of a King onely in honor and the Person so adorned may be said to sway the Scepter but not to weare the Crowne And therefore in the minority of Henry the sixth when as the Government was ordered by the Parliament and to that end a Protector was made and he wel guarded with a Privy Councill and they provided with instructions one of them was that in all matters not to be transacted ordinarily but by the Kings expresse consent the Privy Councell should advise with the Prorector but this is not so needfull in regard that it concerneth the power of executing of Lawes which by right of the liberty of the Subject is the known duty of the Scepter in whose hands soever it is holden And therefore I shall passe to the Legislative power wherein its evident that the Protectors power was no whit inferiour to the Kings power For first the Protector Ex officio by advice of the Councell did summon Parliaments by Writs even as the Kings themselves under their owne Teste and if not bear the Royall Assent yet did they direct the same and received Petitions in Parliament to them directed as to Kings and every way supplied the roome of a King in order to the perfecting publishing and inforcing of Law to Execution Secondly the Parliaments holden by Protectors and Lawes therein made are no whit inferiour to those by the King whether for Honour or Power And therefore if a Parliament be-holden by the Lord Warden and sitting the Parliament the King in person shall arrive and be there present neither is the Parliament interrupted thereby nor the power thereof changed at all though the power and place of the Wardenship of the Kingdome doth utterly vanish by the personall accesse of the King because in all Cases where the King is subservient to the Kingdome or the Common-wealth The Lord Warden in his absence is conservient unto him being in his stead and not under him for the very Place supposeth him as not because not present And this was by a Law declaratively published at such time as Henry the fifth was Regent of France and therefore by common presumption was likely to have much occasion of residence in that Kingdome and it holdeth in equall force with all other Lawes of the highest Size which is the rather to be noted because it is though under a Protector obligatory to the King and makes his personall presence no more considerable then the presence of his shadow For the King spent three whole yeares in the French Warres and during that time never saw England where
perpetuall and so gave a restraint unto the power of the King and Councell But where no Positive restraint was made by any Statute the King and Councell 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 Councell 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 Neverthelesse this power in the King is not Primitive but derived from the Parliament for they had power over the Kings Licences and Restraints in such Cases as by the severall Statutes doe appeare A third power given to the Privy Councell was a power of Summons and Processe against Delinquents in Cases of Riots Extortions Oppressions and greivous Offences the Summons to be by Privy Seale the Process Proclamations and for Non-appearance Forfeiture if the Delinquent be of the Degree of a Lord if of inferiour ranke then a Fine or Outlary 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 Cognisance in the Privy Councell to the question First it saveth the Jurisdiction of other Courts and provideth further That no matter determinable by the Law of this Realme shall be by this Act determined in other forme then after the course of the same Law in the Kings Court having determination of the same which implieth that some kindes of Riots and Extortions are of so high a nature that though determinable in the Kings 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 Realme 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 can not be had there the Lords shall immediately determine the same Lastly if the Certificate be traversed then the same shall be tried in the Kings 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 yeares and leaveth the Privy Councell to the limits of the Common Law for the future In the mean time the Privy Councell may be thought terrible and very high both by this Law and the greatnesse of the Lords Kings Unkles and Kings Brothers are Subjects indeed but of so high a Degree that if a little goodnesse of Nature or publique Spirit shine in them they soon become the Objects of Admiration from the Vulgar and gain more from them by their vicinity then the King can doe at a distance For the Commons of England by the fair demeanour of popular great men are soon won out of their very cloathes and are never more in danger to part with their liberties then when the Heaven is faire above their heads and the Nobility serve the King and flatter them Neverthelesse 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 mindfull of her contemned beauty and opposition from the Duke of Glocester against her marriage removes him out of the way gets the reines of Government into her hand and like a Woman drives on in full careere The Duke of Yorke and other Lords not liking this gallop indeavour to stop her pace but are all overborn the Duke taken prisoner and doubtlesse had pledged the Duke of Glocester but that the Heire apparent of the House of Yorke steps in to rescue and new troubles arise in Gascoigne to put an end to which the Queenes party gaines and takes the Duke of Yorkes word for his good behaviour gets this Law to passe expecting hereby if not a full settlement at Home yet at least a respite to prevent dangers from abroad during the present exigency And thus upon the whole matter the Lords and Privy Councell are mounted up by the Commons to their own mischeif CAHP. XVII Of the Clergie and Church-government during these times IT was no new thing in the World for Princes of a wounded Title to goe to the Church-men for a plaister and they are ready enough to sing a Requiem so as they may be the gainers The Princes therefore of the House of Lancaster had offended against common sense if they had not done the like themselves being not onely guilty in their Title but also by a secret Providence drawn into one interest together with the Church-men to support each other For Henry the Fourth and Arch-bishop Arundell meeting together under one condition of Banishment become Consorts in sufferings and Consorts in Honour for Society begotten in trouble is nourished in Prosperity by remembrance of mutuall kindnesses in a necessitous Estate which commonly are the more hearty and more sensible by how much other Contentments are more scant But the Arch-bishop had yet a further advantage upon the heart of Henry the Fourth though he was no man of power yet he was of great Interest exceedingly beloved of the English Clergy and the more for his Banishment sake Now whatsoever he is or hath is the Kings and the King is his the sweet influence of the Arch-Bishop and the Clergy enters into his very Soule they are his dearly beloved for the great Naturall Love as he sayes to the World they beare to him what he could he got what he got he gave to the Church Thus the Family of Lancaster becomming a mighty support unto the Clergy Romane as it was they also became as stout maintainers of the crackt Title of that younger House So was fulfilled the old Prophecy of the Oyle given to Henry the first Duke of Lancaster wherewith Henry the Fourth was anointed That Kings anointed with that Oyle should be the Champions of the Church Now for the more particular clearing of this we are to consider the Church absolutely or in relation to the Politicall Government of the People Concerning the later many things did befall that were of a different peice to the rest in regard that the Lords for the most part were for the Clergy and they for themselves but the Commons began to be so well savoured with Wicklâ—â—fs way that they begin to bid defiance to the Clergies self-ends and aimes and because they could not reach their heads they drive home blowes at their legs A Parliament is called and because the King had heard somewhat feared that the People were more learned then was meete for his purpose and that the Parliament should be too wise he therefore will
wage so as none were then compelled to enter into Service by imprest or absolute command nor is there any authority amongst all those cited in Calvins Case that doth mention any such thing but contrarily that Opinion of Thirning is expresse That the King cannot send men beyond Seas to Warres without wages and therefore no man is bound to any such Service by any absolute Legiance as the Reporter would understand the point but if he receiveth wages thereto he by that Contract binds himselfe Secondly it seemeth also to be granted that such as went voluntarily in the Kings Service ever had the Kings pay after they were out of their Counties if the King ruled by his Lawes for by the Statute formerly mentioned the King did likewise confirm the Statute of 18 Ed. 3. Stat. 2. cap. 7. which is expresse in that point and the matter in Fact also is evident upon the Records Thirdly touching the Arming of those that were thus Levied as their was a certain Law by which all men were Assessed to certain Armes either by the Service and Tenure of their Lands or by Parliament for such as were not bound to finde sufficient Armes by their Tenure according as is contained in the Statute 25 Ed. 3. Stat. 5 cap. 8. So did Henry the Fourth by the Statute formerly mentioned to be made in his time Confirm that Law of Edward the Third In the Argument of Calvins Case it is much insisted upon to prove the Legiance of an English man to the King to be absolute because he hath power to send men to Warre at his pleasure and he hath onely power to make Warre and if so then hath he absolute power in the Militia As touching the power of sending men to Warre hath been already spoken but as touching the power to make Warre there is no doubt but where a King hath made a League with another King he onely can break that League and so make Warre and that Opinion of Brian must be agreed for good in that sense But if a League be made by Act of Parliament or if the King will have Warre and the Parliament will make a League without him no authority doth in such case avouch that it is the right of the King or that he hath a Legall Power to break that League as he pleaseth Neither in the next place hath the King any right or Legall power to make War with his own Subjects as he pleaseth but is bound to maintain the Peace not onely by his Oath at his Coronation but also by the Lawes whereto he is bound if he will reign in right of an English King For every man knoweth that the grounds of the Statutes of wearing of Liveries was for the maintaining of the Publique Peace And Henry the Fourth amongst other provisions made against that trick hath this That the King shall give onely his Honourable Livery to his Lords Temporall whom shall please him and to his Knights and Esquires meniall and to his Knights and Esquires which be of his retinue and take of him their yearely Fee for Terme of Life and that no Yeoman shall take or weare any Livery of the King nor of none other Lord. And another Law was made within one yeare ensuing confirming the former and providing the Prince may give Liveries to such Lords as he pleases and to his meniall Gentlemen and that they may weare the same as in the Kings Case By both which the King and Prince are both in one Case as touching the power of giving Liveries if the one hath absolute power then hath the other the like If one be under the Directory of Law in that point then is also the other For it is clear that the King is intended by the Statute to be bound from giving Liveries and the people from wearing them otherwise then in especiall Cases and then the Conclusion will be that if the King may not give Liveries to prejudice of the Peace then may he much lesse break the Peace at his pleasure or Levy Men Armes and Warre when he shall think most meet Take then away from the King absolute Power to compell men to take up Armes otherwise then in case of Forrain Invasion power to compell men to goe out of their Counties to War power to charge men for maintenance of the wars power to make them find Armes at his pleasure and lastly power to break the Peace or doe ought that may tend thereto Certainly the power of the Militia that remaineth though never so surely setled in the Kings hand can never bite this Nation Nor can the noise of the Commission of Array Intitle the King unto any such vast power as is pretended For though it be granted that the Commission of Array was amended by the Parliament in these times and secondly that being so amended it was to serve for a President or Rule for the future yet will it not follow that Henry the Fourth had or any Successours of his hath any power of Array originally from themselves absolutely in themselves or determinatively to such ends as he or they shall thinke meete First as touching the amendment of the Commission it was done upon complaint made by the Commons as a greivance that such Commissions had issued forth as had been greivous hurtfull and dangerous And the King agrees to the amendments upon advice had with the Lords and Judges and if it be true that the amendments were in the materiall Clauses as it is granted then it seemeth that formerly a greater power was exercised then by Law ought to have been and then hath not the King an absolute power of Array for the just power of a King can be no greivance to the Subject Secondly if the Commission of Array thus mended was to serve as a rule of Array for the future then there is a rule beyond which Henry the Fourth and his Successors may not goe and then it will also follow that the power of Array is not Originally nor absolutely in the King but from and under the Rule and Law of the Parliament which rule was not made by the Kings own directions but as we are told beyond expectation alterations were made in materiall parts of the Commission and the powers in execution there whereof no complaint of greivance had been made The issue then is if the King had an Universall Power in the Array the Parliament likewise had a generall Liberty without any restriction to correct that power Lastly suppose that this power of the Parliament is executed and concluded by the Commission thus amended and that thereby the Kings Power is established yet can it not be concluded that this Power is Originally or absolutely in the King It s not absolutely in him because it is limited in these particulars First it s not continuall because its onely in case of eminent danger Secondly It s not generall upon all occasions but onely in case of a
Forrain and sudden invasion and attempts Thirdly the powers are not undefined but circumscribed 1. To Array such as are Armed so as they cannot assesse Armes upon such 2. To compell those of able Bodies and Estates to be Armed and those of able Estates and not able bodies to Arme such as are of able Bodies and not Estates but this must be Juxta facultates and salvo Statu 3. Whereas they straine themselves to make the Statute of Henry the Fourth and the Commission of Array to consist with the Statutes of 13 E. 1. 1 E. 3. and 25 E. 3. thereby they affirm so many more restrictions unto this power of Array as those Statutes are remediall in particular cases yet doe I not agree to their Glosses but leave them to the debate already published concerning the same Secondly as this power was not absolutely in the King so was it not originally from themselves because they had not the Legislative Power concerning the same but the same was ever and yet is in the Parliament hereof I shall note onely three particular instances First the Militia is a Posture that extendeth as well to Sea as Land That which concerneth the Sea is the Law of Marque and Reprisall granted to such of the People of this Nation as are pillaged by Sea by such as have the Kings Conduct or publique Truce And by this Law the Party pillaged had to recompence himself upon that man that had pillaged him or upon any other Subject of that Nation in case upon request made of the Magistrate in that Nation satisfaction be not given him for his wrong it was a Law made by the Parliament whereby the Chancellor had power to grant such Letters or Commission upon complaint to him made This was grounded upon the Statute of Magna Charta concerning Free Trade which had been prejudiced by the rigour of the Conservators of the Truce against the Kings Subjects although what was by them done was done in their own defence And by which means the Forrainers were become bold to transgress and the English fearfull in their own Charge and many laid aside their Trade by Sea and thereby the strength of the Kingdome was much impaired Nor is the Equity of this Law to be questioned for if the Magistrate upon complaint made grants not releif the offence becomes Publique and the Nation chargeable in nature of an Accessory after the Fact and so the next man liable to give satisfaction and to seek for releif at home The King then hath a power to grant Letters of Marque by Sea or Land and this power is granted by Parliament and this power is a limited power onely in particular cases in regard that many times these prove in nature of the first light skirmishes of a generall War Two other Instances yet remain concerning the Order and Government of the Souldiers in the Army the one concerning the Souldiers Pay Viz. That Captains shall not abate the Souldiers Wages but for their Cloathing under peril of Fine to the King The other concerning the Souldiers service That they shall not depart from their Colours without leave before the time of their Service be expired unlesse in case of sicknesse or other good cause testified and allowed by the Captain and such as shall doe otherwise shall suffer as Fellons Which Lawes could not have holden in force had they not been made by Parliament in respect that the Penalties concern the Estates and Lives of Men which are not to be invaded but by the Law of the Land so as both Captains and Souldiers as touching the Legislative power are not under the King in his Personall Capacity but under the Law of the Parliament Lastly as the rule of War was under the Legislative power of the Parliament so was the rule of Peace for whiles Henry the Sixth was in France which was in his tenth yeare from Saint Georges day till February following The Scots propound tearmes of Peace to the Duke of Glocester he being then Custos Regni which he referred to the Order of the Parliament by whom it was determined and the Peace concluded in the absence of the King and was holden as good and effectuall by both Kingdomes as if the King had been personally present in his full capacity CHAP. XXIII A Survey of the Reignes of Edward the Fourth Edward the Fifth and Richard the Third THe reign of Henry the Sixth was for the most part in the former parts of it like fire buried up in the ashes and in the later parts breaking out into a flame In the heat wherof the Duke of York after Fealty given by him to Henry the Sixth and dispensation gotten from the Pope to break his Faith lost his life and left his Sonne the Mark-grave to pursue his Title to the Crown which he claimed by Inheritance but more especially by Act of Parliament made upon the agreement between Henry the Sixth and his Father This was Edward the Fourth who neverthelesse reserved himself to the Election of the Lords and was by them received and commended to the Commons in the Feild by which meanes he gaining the Possession had also incouragement to maintain the same yet never held himself a King of full age so long as Henry the Sixth lived which was the one half of his reigne Nor did he though he held many Parliaments scarce reach higher then at reforming of Trade which was a Theame well pleasing to the People next unto their Peace which also the King carefully regarded For although he had been a Souldier of good experience and therewith successfull yet as one loath to trust too far either the constancy of the People of his own dominion or the fortune of War with his neighbouring Princes he did much by brave countenance and discourse and yet gain'd repute to the English for valour after the dishonorable times of Henry the sixth He had much to do with a wise King of France that knew how to lay out three or foure calme words at any time to save the adventure of his Peoples blood and make a shew of Mony to purchase the peaceable holding of that which was his only by force untill the winde proved more faire to bring all that continent under one head In his Government at home he met with many crosse gales occasioned principally by his owne rashnesse and neglect of the Earl of Warwicks approved freindship which he had turned into professed enmity And so weakned his own cause thereby that he was once under Water his Kingdome disposed of by a new intaile upon the Heires of Duke Clarence and so the Earle of Warwick remained constant to the House of York though this particular King was set aside Nor did he in all this gaine any thing but a Wife who though his subject and none of the greatest family neither brought any interest unto her Lord and Husband amongst forraine Princes brought neverthelesse a Pearle which was
durst not deeply ingage either not being assured of their own Title or imployed in pursuit of other game or being of a weak Spirit were scared with the Thunder-bolt of the Popes Curse But the Laity were under another Law and such an one as by clear and unquestionable Custome had established bounds between the way of Kings and the rights of the People Neither did Kings directly invade those Borders either led thereto by a kind of Conscience in such of them as were Morally inclined or in others by a kind of fear of raising up Earth-quakes from beneath which commonly doth overthrow high Towers sooner then windes from above But now such interests are laid aside fast asleep by two Kings whereof one cared not much for fear and neither of them for Conscience For Henry the Seventh having leisure to study the Nature and contemplate the Fashion of the English Crown dislikes the Modell in some particulars It was not rich enough nor well poysed to his minde which ever was not to be poore but towards his later time to be exceeding rich as supposing that to be the onely way to be more desirable to Freinds formidable to Enemies and absolute over his People And this opinion of his missed in the main end though it attained his immediate desire for by mistaking the right way it made a rich King but not a rich Crown he delighted more in the riches of his People then in a rich People and this bred no good blood because the People thought that the Law was not on his side in that matter They suffered him to visit their purses but are loath it should prove Customary least they should loose their common right they therefore choose rather to give him power by Act of Parliament to revoke Letters Patents and Grants and make resumptions of Offices Fees Annuities and the like that he might rather repossesse his owne then possesse theirs many penall Lawes likewise of a limited and Temporary regard are made and as Cheese after a full dinner they close up all with Subsidies For it was evident to all men that the Royall mind of the King served no further then to take what was given provided that the people would give what else would be taken By this means Henry the Seventh left rich Coffers to descend to Henry the Eighth but the Crown was still the same in price In this Act of the Play the People carry away the plaudite The second Act was the Point of Allegiance wherein both parts carry themselves so cunningly as its hard to adjudge the Garland yet it may be thought the King observed it rather because he offered all the play whiles the People did onely lie at their close guard The whole Project consisted in this to gaine a more absolute Allegiance from the English to their King and because this is exemplified partly in Warre and partly in Peace that part which concerneth Warre will more properly fall under the consideration of the Militia and therefore I shall refer the same to that head in the 32. Chapter ensuing and will come to the second consideration of Allegiance in relation to Peace and therein touch upon the Kings power in making of Lawes and of Judicature according to those Lawes As touching the making of Lawes the ingenuity of Henry the Seventh could not suffer him to make any claim thereto in any Positive way yet his Actions declare that his heart was that way For being beset with troubles he could often fancy dangers and Arme himself then call a Parliament who were wise enough to grant as readily as he asked rather then to be compelled thereto so he had Lawes made according to his own will though he made them not The matter of Judicature comes next and therein he made his Judges appear and not himselfe though they did not onely represent his Person but his minde so things were done according to his minde though he did them not And thus his Excellency seemed more eminent in finding and making instruments fitting to do his work then in doing his own work Neverthelesse all this was but from hand to mouth no fundamentall Law is altered all this while if the Lawes were made by Parliament the King made them not if the Judges turned the Law to the Kings eare the Law was still the Crown though the King wore it But Henry the Eighth was no such man he had not this skill of undermining nor desired it he was tender of the least diminution of his Honour industrious in finding out the occasion and a most resolved man to remove it out of the way though it reached as high as the Triple Crown a man underneath many Passions but above fear What need â—he care for pretences his Father loved Riches he Power when he came to traverse his ground he found quickly where the Church-men trespassed upon him and began with them resting upon the wisdome of his Father and the infallibility of the Pope Henry the Eighth had taken to Wife Katherine his Brothers Dowager and continued in that condition eighteen years without wrinkle of Fame till the great successe of Charles the Fifth the Queens brother against the Pope and French scared the King into a jealousie of his greatnesse and the Emperours failing in courtesie to Cardinall Woolsy the Kings Achates stirred the Cardinals Spirit to revenge for the losse of his hopes in the Popedome For the Cardinall finding the Kings mind to linger after another Bed-fellow by whom he might have a Sonne he made the French Embassadour his instrument to mind the King of his unlawfull marriage with the Queen and to mention unto him Margaret D' Allanson a Princesse of France both in blood and beauty The King liked the Notion of Divorse but disliked the motion concerning the French Lady himself being prepossessed with a fair Object at Home the Lady Anne Bullen then attending upon the Queen and thus being moved entered into a scrutiny concerning the condition of his marriage wherein he had been formerly touched both by the French and Spaniards themselves upon severall motions made First between Charles the Fifth and afterwards between the Dauphine and the Lady Mary afterwards Queen Hereat the Cardinall winked all the while till the infallibility of the Chair at Rome came upon the Stage then bestirring his wits he lodged the Case upon appeale thither as he hoped beyond all further appeale and so held the King there fast till himself might accomplish his own ends But the wheele once set a running would not stay the King espies the Cardinall in his way and bears him down then finding the fallacy of the infallible Chair he hearkens after other Doctors followes their light and being loath to hear what he expected from Rome he stopped the way to all Importation of such Merchandize as might be any wayes prejudiciall to the Prerogative Royall with the penalty of losse of Land or Liberty and Fine the two later being formerly warranted
by Law The first served as a scare for though it were but by Proclamation men might justly fear that he that was so stout against the Pope would not stick to scourge his owne Subjects out of his way in the time of his heat The King thus entered the Lists both against Pope and Cardinall now under Praemuniri whereof he died meets the English Clergy thus loosing their top-gallant standing up in the reare against him and talking at large Neverthelesse the King stops not his carreere puts them to the rout for maintaining the power Legatine They soon submit crave pardon give a summe of money and perfume their Sacrifice with that sweet Incense of Supreame Head of the Church of England This was done not by way of Donation for the Convocation had no such power but by way of acknowledgement in flat opposition to the Jurisdiction of the Pope It became the common subject of discourse amongst all sorts but of wonderment to the Pope Yet for fear of worse he speaks faire for he was not in Posture to contest but all would do no good the Queen had appealed to Rome the Pope by Woolsies advice makes delayes The Parliament espying the advantage at once tooke all appeales to Rome away and established all sentences made or to be made within this Land notwithstanding any Act from Rome and enjoyned the English Clergy to administer the severall acts of publique worship notwithstanding any inhibition or excommunication from any forrain pretended Power The grounds upon the preamble of the Law will appeare to be two First that the King of England is supream head in rendring Justice within the Nation in all causes therein arising which is more then the recognisance of the Clergy two yeares before this Act did hold forth yet this acknowledgment is not absolute but in opposition to Forraine pretentions Secondly that the Clergy in England having Power may in matters spirituall determine all doubts without forrain help and administer such duties as to their place do belong not hereby determining that the Church-men ever had such Power by Law nor that they ought originally to have such Power They never had it for no sooner were they disjoyned from the Laity in these affaires but immediately they were under the Pope and received their Power from him And De jure they cannot challenge such power but by a positive Law such as this Law of Henry the eighth which also giveth but a restrictive and limited power Viz In matters testamentary of divorce matrimony tithes oblations and obventions So as if they will challenge such power they must thanke the Parliament for it and use the same accordingly as persons deputed therunto and not in their owne right or right of their places In all this the Kings supremacy is but obscurely asserted and rather by implication shewing what in reason may be holden then by declaration of what was making way thereby First into the opinions of men before they were enjoyned to determine their actions but within two yeares ensuing or thereabout the Law is made positive The King shall be taken and accepted the onely supreame head on earth of the Church of England and have power to visite correct represse redresse reforme restraine order and amend all such errours heresies abuses offenses contempts and enormities as by any manner of spirituall authority or jurisdiction ought or may lawfully be reformed Which in the preamble is saide to be made to confirm what the Clergy in their Convocation formerly had recognized The corps of his Act is to secure the Kings Title the Kings Power and the Kings Profit As touching the Kings Title it is sayde that in right it did formerly belong to him which is to be granted by all so far as the Power is rightly understood But as touching the Kings Profit it cannot be saide that the whole lump thereof did belong to the King because much thereof was not so ancient but De novo raised by the Popes extortion and therefore the true and reall Profits are by particular Acts of Parliament ensuing in speciall words devolved upon him The nature of this power is layd downe in this Statute under a three fold expression First it is a visitatory or a reforming Power which is executed by inquiry of offences against Lawes established and by executing such Lawes Secondly it is an ordinary jurisdiction for it is such as by any Spirituall authority maybe acted against irregularities and thus the Title of supreame Ordinary is confirmed Thirdly it is such a Power as must be regulatd by Law and in such manner as by any spirituall Authority may lawfully be reformed It is not therefore any absolute arbitrary Power for that belongs onely to the supreame Head in Heaven Nor is it any legislative Power for so the Law should be the birth of this Power and his Power could not then be regulated by the Law nor could ever Ordinary execute such a Power nor did Henry the eighth ever make claime to any such Power though he loved to be much trusted Lastly this Power was such a Power as was gained formerly from the King by forraine Usurpation which must be intended De rebus licitis and once in possession of the Crown or in right thereto belonging according to the Law for the King hath no Power thereby to confer Church-livings by Provisorship or to carry the Keyes and turn the infallible Chaire into an infallible Throne In breife this Power was such as the King hath in the Common-wealth neither legislative nor absolute in the executive but in order to the Unity and Peace of the Kingdome This was the right of the Crowne which was ever claimed but not enjoyed further then the English Scepter was able to match the Romish Keyes And now the same being restored by Act of Parliament is also confirmed by an Oath enjoyned to be taken by the People binding them to acknowledge the King under God supreame head on earth of the Church of England Ireland and the Kings Dominions in opposition to all Forraine jurisdiction And lastly by a Law which bound all the People to maintaine the Kings Title of Defender of the faith and of the Church of England and Ireland in earth the supream head under the perill of Treason in every one that shall attempt to deprive the Crowne of that title We must descend to particulars for by this it will appeare that these generall Lawes concerning the Kings refined title contained little more then matters of Notion otherwise then a generall barr to the Popes future interests And therefore the Wisdome of the State as if nothing had been already done did by degrees parcell out by severall Acts of Parliament the particular interests of the Popes usurped Authority in such manner as to them seemed best And First concerning the Legislative Power in Church government It cannot be denied but the Pope De facto had the Power of a negative vote in all
Councels and unto that had also a binding Power in making Lawes Decrees and Decretalls out of his own breast but this was gotten by plunder he never had any right to headship of the Church nor to any such Power in right of such preferment nor was this given to the King as head of the Church but with such limitations and qualifications that its evident it never was in the Crowne or rightly belonging thereto First nigh three yeares after this recognition by the Clergy in their Convocation it is urged upon them and they passe their promise In verbo sacerdotii And lastly it is confirmed by Act of Parliament that they shall never make publish or execute any new Canon or constitution provinciall or other unlesse the Kings Assent and License be first had thereto and the offences against this Law made punishable by fine and imprisonment So as the Clergy are now holden under a double bond one the honor of their Preisthood which binds their Wills and Consciences the other the Act of Parliament which bindes their Powers so as they now neither will nor can start Neverthelesse there is nothing in this Law nor in the future practise of this King that doth either give or assert any power to the King and Convocation to binde or conclude the Clergy or the People without an Act of Parliament concurring and inforcing the same And yet what is already done is more then any of the Kings Predecessors ever had in their possession A second Prerogative was a definitive power in point of doctrine and worship For it is enacted that all Determinations Declarations Decrees Definitions Resolutions and Ordinances according to Gods word and Christs Gospell by the Kings advise and confirmation by Letters Patents under the great Seale at any time hereafter made and published by the Arch-Bishops Bishops and Doctors now appointed by the King or the whole Clergy of England in matters of the Christian faith and lawfull rights and ceremonies of the same shall be by the People fully beleeved and obeyed under penalties therein comprized Provided that nothing be done contrary to the Lawes and Statutes of this Realme A Law of a new birth and not an old Law newly revived or restored This the present occasion and the naturall constitution of the Law do fully manifest The occasion was the present Perplexity of the People for in stead of the Statute Ex officio which was now taken away the six articles commonly called the six stringed whip was gotten into power by a more legall and effectuall originall The Parliament had heard the cries of the People concerning this and having two things to eye at once one to provide for the Peoples liberty and further security against forrain pretentions the other which was more difficult for the liberties of the consciences of multitudes of men of severall opinions which could not agree in one judgement and by discord might make way for the Romish party to recover its first ground and finding it impossible for them to hunt both games at once partly because themselves were divided in opinion and the bone once cast amongst them might put their own co-existence to the question and partly because the worke would be long require much debate and retard all other affaires of the Common-wealth which were now both many and weighty In this troubled wave they therefore wisely determine to hold on their course in that worke which was most properly theirs and lay before them And as touching this matter concerning doctrine they agreed in that wherein they could agree Viz. To refer the matter to the King and Persons of skill in that mistery of Religion to settle the same for the present till the Parliament had better leisure the People more light and the mindes of the People more perswaded of the way Thus the Estates and Consciences of the People for the present must indure In deposito of the King and other Persons that a kind of Interim might be composed and the Church for the present might enjoy a kind of twilight rather then lye under continuall darknesse and by waiting for the Sun rising be in a better preparation thereunto For the words of the Statute are that all must be done without any partiall respect or affection to the Papisticall sort or any other sect or sects whatsoever Unto this agreement both parties were inclined by diverse regards For the Romanists though having the possession yet being doubtfull of their strength to hold the same if it came to the push of the Pike in regard that the House of Commons wanted faith as the Bishop of Rochester was pleased to say in the House of Lords and that liberty of conscience was then a pleasing Theame as wel as libertie of Estates to all the People These men might therefore trust the King with their interests having had long experience of his Principles And therefore as supream Head they held him most meete to have the care of this matter for still this title brings on the Vann of all these Acts of Parliament On the other side that party that stood for reformation though they began to put up head yet not assured of their owne Power and being so exceedingly oppressed with the six Articles as they could not expect a worse condition but in probabililty might finde a better they therefore also cast themselves upon the King who had already been well baited by the German Princes and Divines and the outcries of his owne People and possibly might entertain some prejudice at length at that manner of woship that had its originall from that Arch enemy of his Head-ship of the Church of England Nor did the issue fall out altogether unsutable to these expectations For the King did somewhat to unsettle what was already done and abated in some measure the flame and heat of the Statute although nothing was established in the opposite thereto but the whole rested much upon the disposition of a King subject to change As touching the constitution of this Law that also shewes that this was not derived from the ancient right of the Crowne now restored but by the positive concession of the People in their representative in regard it is not absolute but qualified and limited diversly First this power is given to this King not to his successors for they are left out of the act so as they trusted not the King but Henry the eighth and what they did was for his owne sake Secondly they trusted the King but he must be advised by Councell of men of Skill Thirdly they must not respect any sect or those of the Papisticall sort Fourthly all must be according to Gods Word and Christs Gospel And Lastly nothing must be done contrary to the Laws and Statutes of this Realm And thus though they trusted much yet not all nor over long For it was but a temporary Law and during the present condition of affaires Nor did the King or People
rest upon this Law for within three yeares following another Law is made to confirme what was then already done by the King and a larger power granted to the King to change and alter as to his Wisdome shall seeme convenient Thus the Kings injunctions already set forth were established all opposall to them inhibited and the King hath a power of Lawing and Unlawing in Christs Kingdome and to stab an Act of Parliament in matters of highest concernment And the reason is the King will have it so and who dares gain-say it as Cranmer said the King loves his Queene well but his own opinion better for new things meeting with new love if it be once interrupted in the first heat turnes into a displeasure as hot as the first love nor had either party great cause to boast in their gainings for none of them all had any security but such as kept close to a good conscience All this though much more then any of his Predecessors ever attained was neverthelesse not enough till his Title was as compleat The Pope had fashioned him one now above twenty yeares old for his service done against Luther and others of that way and sent it to him as a Trophee of the victory this was Defender of the faith which the King then took kindly but laid it up till he thought he had deserved it better and therefore now he presents it to the Parliament who by a Statute annexed it to the Crown of England for ever now made triple by the Royallizing of that of Ireland amongst the rest A third Prerogative concerned the Kings Power in temporall matters and now must England look to it selfe for never had English King the like advantage over his people as this man had His Title out-faced all question Left rich by his Father trained up in the highest way of Prerogative absolute Lord of the English Clergy and of their Interest in the People of a vast spirit able to match both the Emperour and French abroad and yet more busie at home then all his Predecessors A King that feared nothing but the falling of the Heavens the People contrarily weary of civill Wars enamored with the first tastes of Peace and Pleasure whiles as yet it was but in the blushing child-hood overawed by a strange Giant a King with a Pope in his belly having the temporall Sword in his Hand the spirituall Sword at his command Of a mercilesse savage nature but a word and a blow without regard even of his bosome companions what can then the naked relation of a Subject do with such an one if providence steps not in and stops not the Lions mouth all wil be soon swallowed up into the hungry maw of Prerogative To set all on work comes Steven Gardiner from his Embassage to the Emperor sad apprehensions are scattered that the motions abroad are exceeding violent and sudden that the Emperor and French King are fast in nothing but in change according to occasion that like the Eagle they make many points before they stoop to the prey That if the motions at home do wait upon debates of Parliament things must needs come short in execution and the affaires of this Nation extreamly suffer A dangerous thing it is that the King should be at disadvantage either with the Emperour or French King for want of power in these cases of suddaine exegencies and for some small time during the juncture of these importent affaires that seeing likewise at home the point concerning Religion is comming to the Test the mindes of men are at a gaze their affections and passions are on their tiptoes It s reason the King should steare with a shorter Rudder that this care might meete with every turne of providence which otherwise might suddainly blow up the Peace and good Government of this Nation These and the like represented a faire face to that which followed and made way for the King without shame to ask what no King before him suffered ever to enter into conceit I meane a Legislative power to this effect That Proclamations made by the greater part of the King for the time being and his Councell whose names hereafter follow with such penalties as by them shall be thought meet shall be of equall force to an Act of Parliament provided it shall not extend to forfeiture of Estates or Priviledges nor to losse of Life but in cases particularly mentioned in the Law provided no Proclamation shall crosse any Statute or lawfull or laudable Custome of this Realme All which at length comes to be demanded by a formall Bill with as ill favored a preface as the matter it self which was much worse ere it was well licked in the House of Commons and when all was done proved a Bare still Whatever it was it passed in manner above said neither much to the desire of the Commons that so much was given nor to the good liking of the King that there was no more For in stead of a Legislative power which he grasped at for himself he received it in common with his Councell and so becomes ingaged neither to alter nor destroy that Brother-hood if he intended to reape any fruit of this Law leaving the point in doubt whither his gaine or losse was the greater For this Law thus made for this King these Councellors and these times and occasions can be no president to the future unlesse to informe Kings that the Parliament hath a power to give more Authority and prerogative to Kings then they or the Crowne have by common right and to give it with such limitations and qualifications as seemeth good to them And secondly that even Henry the eighth acknowledged that the Legislative power was not in the Crown nor was the Crowne capable thereof otherwise then it was conferred by the Parliament Onely Steven Gardiner might glory in this atcheivement having for the present obtained much of his ends by perswading the King that forrain Princes estranged from him not so much for his departure from the Pope as for some apprehensions they had of his departure from that way of Religion and Worship which they apprehend every Christian ought to maintaine And therefore if he meaned to gaine better correspondency amongst these Princes he must ingage more resolvedly to the fundamentalls of the Worship though he shook of some sleighter ceremonies with the Romish supremacy for he knew that they were willing enough with the later though the other could not go downe with them thus did forraine correspondency float above when as the Church as then it stood was underneath and gave the tincture to every wave And it was holden more safe by the Romish party to trust the King thus attempered with the legislative power in the Church matters then the rough Parliament whose Course steered quite wide from the Roman shore as if they never meant to look that way any more though Cranmer and the cheif Officers of State and of the Houshold
were by the Law Judges of the matter in fact as well as the King yet in the conclusion the King only was of the Quorum all this yet further appears in the penalty for by a Provisor it is moderated as to all forfeitures of Life Limb or Estate and in the conclusion extended only to Fine and Imprisonment unlesse in some cases mentioned and excepting offences against Proclamations made by the King or his Successors concerning Crimes of Heresie For it is the first clause of any positive Law that ever intimated any power in the King of such Cognisance and punishment of Heresie too weake a principle it is to settle a prerogative in the King and his Successors as supream head of the Church thus by a side winde to carry the keyes of Life and Death at their girdle and yet a better ground cannot I find for the martyrdome of diverse brave Christians in those times then this touch of a Law glancing by All which passing Sub silentio and the Parliament taking no notice thereof made way for the Statute 32. H. 8. ca. 26. Formerly mentioned to come more boldly upon the Stage This was one wound to the legislative power of the Parliament thus to divide the same Another ensues that in its consequence was no lesse fatall to that power which remained and it was wrought by some Engine that well saw that the disease then so called grew to be epidemicall amongst the more considerable party in the Kingdome that the Lady Jane Seymor now Queene was no freind to the Romanists that she was now with child which if a Sonn as it proved to be was like to be Successor in the Throne and be of his Mothers Religion and so undoe all as in the issue all came so to passe To prevent this neverthelesse they fancy a new conceit that Lawes made by English Kings in their minority are lesse considerately done then being made in riper yeares And so by that one opinion countenanced a worse which was that the Legislative power depended more upon the judgment of the King then the debates and results of the Parliament a notion that would down exceeding well with Kings especially with such an al-sufficient Prince as Henry the eight conceived himself to be upon this ground a Law is made to enable such of the Kings Successors by him appointed as shall be under the age of twenty and foure yeares when Lawes by him are made to adnull the same by Letters Patents after such Prince shall attaine the said age of twenty foure yeares Thus the Armes of the Parliament are bound from settling any Reformation let them intend it never so much a Muse is left open for the Romish Religion still to get in when the Season proves more faire The Parliament was now in its minority and gives occasion to the Reader to bewaile the infirmities of the excellency of England A fourth advance of Prerogative concerned the executive Power in the Government of the Church This had formerly much rested in the Prelacy and that upon the cheife Praelatissimo at Rome now there is found in England a Prelater then he the Pope was already heheaded and his head set upon the Kings shoulders To him it is given to nominate all Bishops and Arch-Bishops within his dominions by long desire and that the party once elected shall sweare fealty and then shall be consecrated by Commission and invested but if upon the long desire no election be certified within twelve dayes the King shal by Commission cause his own Clerke to be consecrated and invested The occasion that first brought in this President was the accesse of Cranmer to the See at Canterbury for though the head-ship had beene already by the space of two yeares translated from Rome to England and yet the course of Episcopizing continued the same as formerly it had beene I mean as touching the point of Election For though in their originall Bishops were meerely Donatives from the Crowne being invested by delivery of the Ring and pastoral staffe and untill King Johns time the Canonicall way of Election was disallowed yet King John by his Charter De communi consensu Baronum granted that they should be eligible which also was confirmed by diverse publique Acts of Parliament in after times and now by this Law last recited and with this way the King was contented for the space of six yeares for the Reformation intended by the King was not done at once but by degrees and therefore though this course of long desire was brought into use yet the Parliament being of six yeares continuance a necessary thing in times of so great change of policy began this course of Election by giving the King Power to nominate and allowing of the Pope Power to grant to such his Bulls or Pall at his owne will otherwise they should be consecrated by Commission without his consent this at the first the Popes concurrence was not excluded though his Negative was In this posture of Affaires comes Cranmer to be consecrated Arch-Bishop And being nominated therunto by the King the wily Pope knowing the Kings aime meaned not to withstand least he should loose all but granted the Pall as readily as it was desired so as Cranmer is thus far Arch-Bishop of Canterbury without all exception yet he must go one step further and take the old oath to the Pope which the King allowed him to do Pro more and which he did Renitente conscientia say some and with a salvo say others and all affirme it was done Perfunctoriè like some worne Ceremony or civill Complement Neverthelesse it was not so soone turned over the Arch-Bishop loved not the Office the King loved no partnorship in this matter and it was evident to all that no man could serve these two Masters any longer an agreement is soon concluded in Parliament to exclude the Popes Power quite out of this game and all is left to be done by the King and his Commissioners by the Law formerly propounded In all this the Pope is the looser the English Clergy the savers for the Pall cost Cranmer nine hundred markes And the Crown is the great gainer for hereby the King got the men sure to him not onely by their own acknowledgment and submission but also by a Statute Law And lastly by Oath which to make sure was treble twined once upon their first submmission in the Kings twenty second yeare when they had beene under Premuniri Secondly soone after the decease of Queene Katherine Dowager in the twenty sixth yeare which Oath was more compleat then the former containing First A Renunciation of all fealty to the Pope or any sorraine Power Secondly an obligation to adheare to the cause of the King and his Successors Thirdly a disavowing of the Pope otherwise then as another Bishop or fellow Brother Fourthly an ingagement to observe all Lawes already established against the Popes Power Fifthly A disavowing of all appeales to
As Riches increase so doe the mouths of them that eate he still stands in need of his Peoples Love Purses and Power so Divine providence orders the matter that Kings can never attaine further end of their undertakings without the aide of the people then their labour least they should be too big to be Christians and the people too mean CHAP. XXVIII Of the Condition of the Parliament in these Times THey are no good Expositors that consider their Text by peice-meale onely nor they good Historians that will tell you the bare journall of Action without the Series of occasion such as these will speak much of the Actions of Henry the Eighth what advancement he brought to the Crown and make it a compleat Monarchy wherein the King may Act what he resolveth resolve what he pleaseth and please what he lusteth when as in truth the thing is nothing so for though many of his actions in relation to particular Persons cannot be justified by any Law so in truth did they never proceed from any Law but meerly from the passion or will of the man and connivance of the people who could bear that from this King that their Ancestors would never endure under any other And yet in all the Grand concernments of the Nation the Law kept still upon the top nor did the King enter into any Competition therewith or lead the way thereunto other then by especiall allowance of the Parliament For first its evident though the King was Supream Head of the Church yet this was not like the head of a mad man led by phaney without the Law of reason or reason of Law But it was defined circumscribed and formed thereby with Qualifications and Limitations as hath been already expressed in the former Chapter Secondly it is no lesse cleare that the Legislative Power rested in the Parliament and not in the King when he was in his greatest height for as head of the Church he had no such power in Church matters or if he had such a right it was taken away by the Acts of Parliament nay when the Pope was yet possessed of this Headship the Parliament did determine the manner of the Worship of God in some particular cases as in the keeping of the Lords Day the Statute of Edward the Fourth to the honour of God did provide for the observing thereof and to the honour of God it was taken away by a Statute in the time of Henry the Eighth if the words of either Statute may be beleived But more especially after that this Headship was translated to the King the Parliament provided that the Canons should be examined and allowed by the King and thirty two Persons one part of the Clergy the other of the Temporalty chosen by the King And those that shall be assented unto and confirmed by the King and the thirty two Persons or the major part of them shall be obeyed and put in execution the residue shall be void Provided nothing shall be done contrary to the Kings Prerogative or the Lawes and Customes of this Realm So as the King had much but he had not all and what he had the Parliament gave him by a Law that was Executory all the dayes of Henry the Eighth by divers continuances and was not any power devolved to the Crowne under the Title of Supremacy nor by Vertue of the Act of Parliament concerning it but by the continuall influence from the Parliament upon the Crown as well before that Act as after derived upon it The King hath then this right of Law making but it is with the thirty two he hath it but not his Successors And lastly he hath it but by a derivative power from the Parliament and as a Committee for that service and in a word he hath the Power but the Parliament hath still the Law of that Power The second Priviledge of the Parliament hitherto concerneth onely Lawes concerning Church-government In the next place commeth to be considered the Legislative Power in point of Doctrine which doubtless issueth from the same principle of Power with the former For if the Church which as a pillar and ground holdeth forth the truth be the company of professing Beleevers then ought it not seem strange if these in their representative do intermeddle with this Power or rather duty and for the matter in fact neither did the King challenge this power nor did the Parliament make any difficulty of Conscience in executing the same and yet there were many Learned and Consciencious men of that number They therefore as touching the doctrine proceed in the same way with that formerly mentioned concerning the discipline And a Committee also is by them made of the King and Learned men to set down rules for Faith and obedience and for the order of the publique Worship of God according to the word of God and these rules are confirmed by a Statute so as the King hath a power in the point of Doctrine but it is a derivative power it is a limited power to himself and not to his Successors and to himself and others joyned with him And Lastly nothing must be done contrary to the Lawes of the Kingdome Secondly the Parliament hath not onely a right to grant and limit this power unto others but also to execute the same immediately by it self and therefore before they granted this power to this Committee whereas formerly the Pope usurped the power to be the Omega to the resolves of all Councills the Parliament intercepted that to their own jurisdiction in flat opposition to the infallibility of the Roman Chaire so farr as to Disherize some opinons which by the sentence of that infallible mouth had beene marked with that black brand of Heresie And what they did before this Act of Delegation to the King and other Committees for this worke they did afterwards as not concluding their own power by any thing that they had so don as may appear by their Censure of the translation of the Bible made by Tindall By their establishing another translation By their ordering and appointing what persons might read the same By their qualifying the six Articles and the like The Parliament then hath a power which they may grant and yet grant nothing away they may limit this power in others as they will and yet not conclude themselves And the King by accepting this limited power must disclaime both the originall and absolute right and cannot claime the same by right of head-ship or supremacy This was one great windfall which the Parliament had from the ruines of Rome not by way of usurpation but re-seisure for their possession was ancient and though they had beene dispossest yet that possession was ever under a continuall claime and so the right was saved A second that was no lesse fatall unto that See was the losse of all power over Ecclesiasticall persons in this Kingdome For whereas the Popedome had doubly rooted it self
in this Nation one way by the Regulars the other by the Seculars the Parliament by the dissolutions of Monastries c. consumed one to ashes and by breaking the fealty between the other and the Pope parted the other root and the stock asunder thence ensued the downfal of this tal Cedar in this Nation and Prelacy now left alone must fawn elsewhere or lye along a posture wherein that rank of men can never thrive Up againe they peepe and espying a King that loved to towre aloft they suddainely catch hold promising their help to maintaine his flight and so are carried up and like a Cloud borne between Heaven and Earth making the Commons beholding to them for the Kings Sunn-shine and the King for their interests in the People and for his superlative advancement above them all Now though the English Prelates may thinke their Orbe above the winds yet were they herein deceived The Parliament had power in their Election before the Pope usurped that to himself now that they are discharged Kings are possessed of them by long desire but it is not by way of restitution for Kings were never absolutely possessed of any such power but as Committees of Parliament and by delegation and concession from them and therefore must render an account to them and abide their judgment when they are thereto called Thirdly the Parliament had the disposing and ordering of all the Church Revenues as the Lawes concerning Monastries Sanctuaries Mortuaries First Fruits Tenths Annates and such like sufficiently manifesteth Fourthly the Parliament had the power of granting Licenses Dispensations and Faculties setting a rule thereunto as in case of Nonresidency and delegating the power to Committees whereof see more in the Chapter following concerning ordinary jurisdiction Fifthly the Parliament reserved the Cognisance of all appeales for finall sentence unto themselves and disposed of all the steps thereunto as unto them seemed most convenient For though it be true in some cases the Arch-Bishop of Canterbury had the definitive sentence and in other Cases the Convocation yet was this but by a temporary Law and this also granted to them by the Parliament which took it away from the Pope and never interested the Crowne therein but made the Arch-Bishop and the Convocation their immediate Delegates so long as they saw good Afterwards when they had done their work Viz. The determining the appeal and Divorce of Queen Katharine and some other matters the same hand that gave that power tooke it away and gave it not to the King or Crowne but to Delegates from the Parliament from time to time to be nominated by the King and may as wel alter the same settle the power elsewhere when they please And therefore after the appeale of the Dowager thus determined and the sentence definitive thus settled upon Delegates The Parliament neverthelesse determined the other causes of the Marriages of the Lady Anne Bullen and the Lady Anne of Cleve the jurisdiction of the Crown never intermedling therein so as upon the whole it must be acknowledged that however the King was supreame head of causes Ecclesiasticall yet had not the definitive sentence in Appeales nor absolute Supremacy but that the same was left to the Parliament Sixthly and Lastly what attempts the Parliament had met with partly from the designes of some great men that sought their own ends and partly from the endeavors of these Kings that sought their own heighth and greatnesse above their Peoples good hath beene already related and the utmost issue hath beene truly stated Viz. That the gaines have come to the Kings Persons and not to their Crowne and that therein they have put their Seale to the Law and made their submission to the Parliament as touching both their Persons and Power Add hereunto that however Henry the eighth aimed much at himself in his ends in two other maine Interests that most nighly concerned him yet the cheife gaine came to the Parliament The one concerned his owne Wife which-however so nighly related to him as next to his owne Person and under the determination of the immediate Law of God yet was so cast upon their sentence as if he durst adventure his owne Soule at their direction The other concerned the Crowne to which he ought relation above his owne person which he laid downe at the feet of the Parliament seeking to their power to fulfill his owne pleasure The ball is tossed up and downe somtimes amongst the issue betweene the King and the Lady Ann Bullen another while amongst the issue betweene him and the Lady Jane Seymor or such as the King should nominate by Letters Patents or last Will. After that to the Ladyes Mary and Elizabeth to performe conditions declared by the Kings Letters Patents or his last Will. The King then is trusted but he hath his trust from the Parliament the Crowne is intailed as it hath beene ever since Richard the seconds time but it is done by the Parliament The reversion is in the the Clouds but the right of inheritance much more The Conclusion of all is this the Parliament by serving these Kings turnes turned their turnes into their owne CHAP. XXIX Of the power of the Clergy in their Convocation THe Convocation of the Clergy like some froward Children loves not new dressing though it be a gainer thereby Before the Pope and Henry the Eighth were falne asunder their masters their minds their work all was double their Councels uncertain their Conclusions slow in Production and sleight in their Fruit and Consequence sometimes displeasing to the Pope sometimes to the King generally to themselves who naturally lingering after their own interests were compelled to feed that body that breathed in them rather then that wherein themselves breathed and so like hunted Squirrells from bough to bough were ever well tired yet hardly escaped with their owne skins in the conclusion Now Henry the Eighth tenders them better conditions both for ease and Honour and more suitable to their own Interest yet they are loath to accept because they had been slaves by prescription Formerly they were troubled with multiplicity of Summons somtimes from the King sometimes from the Pope sometimes from the Metropolitan and alwayes overdripped by a Forrain Power that they could propound nothing for the good of the Souls of themselves or others but must be blasted from without their labours lost their undertakings vain and themselves in the conclusion sit downe hoaked in their Consciences and desires Now they are at no mans call but the Kings and that by Writ both Provinciall and Legate è Latere must meddle no more Formerly it s taken for granted that Kings have no Vote in matters Ecclesiasticall though themselves be interested therein and therefore if he will accept of a Disme he must accept it Statu quo it is granted nor can he interpose his Dissent nor do they much care for his Consent But whether the King be
Martyrs more particularly set forth and no Act of Parliament positive in the point But the time is now come when nighest reformation that the thing is settled more to the prejudice of reformation then all the endeavoures foregoing like to the darknesse of the night that is at the Superlative degree when nighest break of Day A Statute is now made that indeed quite blotted out the very name of the Statute of Henry the fourth De haeretico comburendo but made compleat that Statute of 5 Rich. 2. and the other of 2 Hen. 5. both which were formerly neither good in Law nor effectuall otherwise then by Power and gave more settlement to the Ordinaries proceedings in such Cases For the Delinquent might be convict before the Ordinary by Witnesses or might be indicted at the Common Law and the indictment certified to the Ordinary as Evidence yet did the Parliament carve them out their work and in expresse words declared That opinions against the Authority and Laws of the Bishop of Rome were not Heresie and by the same reason might have done more of that kind but that was enough to tell all the World that the Parliament could define what was not Heresie although they did not then determine what was Heresie And thus the judgment of the Romane Church is called into question in one of their fundamentals and the Clergy left in a Muse concerning the rule upon which they were to proceed against this Crime The Parliament within six yeares after undertakes though somewhat unhappily to determine and define certain points of Controversie which had some relation to the Worship of God and the publique Peace and declared the contrary to these determinations to be Heresie and the punishment to be Death and Forfeiture and the triall to be before Commissioners by Jury or testimony of two Witnesses or by examination in the Ecclesiasticall Court or inquisition in the Leete or Sessions of the Peace Upon the whole matter therefore the Ordinary had a particular Power to determine Heresie but the Parliament determined such Heresies as were punishable with Death and Forfeiture by enumeration in the six Articles This was the Clergies Primmer wherin they imployed their study as making most for their designe and laid aside thoughts of all other Heresies as drie Notions or old fashions laid aside and not worthy the setting forth to common sale Secondly the Lesson concerning Marriage was no lesse difficult for the Clergy to take out They were put by their former Authority derived from abroad and their ancient rule of the Canon Law with the Kings leave they do what they do and where they doubt they take his Commission so did the Arch-Bishop of Durham in the Case betweene John and Jane Fisher in the Kings Case the determining part is put to the Parliaments Conclusion and for a rule in other Cases some persons are enabled to Marry which formerly were not Viz Masters of the Chancery and Doctors of the Civill Law and some forbidden Marriage as all Preists by the Statute of the six Articles And unto the rest concerning degrees of Consanguinity or Affinity a particular enumeration is appointed to be observed within which Marriage is declared unlawfull all other further off are made lawfull In all which regards the Cognisance of Matrimoniall Causes is theirs onely by leave Thirdly Residency and Nonresidency was a Theame formerly learned from the Canon Law in which as also in the thing it self the Clergy were the onely skilfull men The rule of the Canon Law was strict enough considering the times but it was not steel to the back The Parliament now undertakes the cause and though it gave in some respects more liberty then the Canon yet stood it better to its tackling and kept a stricter hand upon the reines then was formerly used and by giving a generall rule for Dispensation took away all arbitrary Dispensations and Licences which were formerly granted beyond all rule but that of Silver or Gold and made all practises contrary to the rule damageable to the party Thus far concerning the matters in Cognisance now touching the Power of the Keyes English Prelacy having laid aside the pretentions of Rome they put the World to a gaze to see which way they would go In the inocent infancy of Prelacy it was led by the hand by the Presbytery and would doe nothing without them afterwards having gained some degree of heighth and strength they entred themselves to be Chariot Horses to the Roman Sun till they had set all on fire now unharnest it is expected they should returne to their former wits neverthelesse forgetting their ancient yokefellowes the rurall Presbyters they stable with the King use his name sometimes but more often their owne serving him with Supremacy as he them with Authority beyond their Spheare they raise him above Parliament he them above Councills so as they do what they list let the Plebeian Presbyter wil or nill they are the onely numerall Figures and the other but Ciphers to make them Omnibus numeris absoluti Neverthelesse the Canon still remaines the same Episcopi se debent scire Presbyteros non Dominos nec debent in clerum dominari Episcopus se sedente non permittat Presbyterum stare Episcopi noverint se magis consuetudine quam dispensatione Presbyteris majores Kings may make them Lords but as Bishops they hold their former rank assigned by the Canon as Lords the King never gave them the keyes and as Bishops the Canon did not yet as under the joynt Title of Lord Bishops they hold themselves priviledged to get what power they can two things they reach at Viz. The absolute power of Imprisonment and of Excommunication in all causes Ecclesiasticall The common Law would never yeeld this some Statutes in some cases did pretend First as touching Imprisonment the Statute of Henry the fourth concerning Heresie doth lispe some such Power of what force the same Statute is hath been already observed in case of incontinency of Church-men it is more directly given them by a Statute in Henry the sevenths time before which time the Statute it self doth initimate that an Action did lye against them for such imprisonment which Law also was made uselesse by another in Henry the eighths time who gave away to Statutes for the punishing them at the common Law First with Death which continued for some Months and that being found too heavy it was punished by another Law with Forfeiture and Imprisonment And the same King likewise gave way to a law for the like punishment in case of Heresie By that Law that revoked the Statute of Henry the fourth formerly mentioned although till triall the same was bailable And thus continued till the time of Edward the sixth But as touching Excommunication it was to no purpose for them to struggle the common Law would never permit them to hold possession quietly but did examine their Authority
Chancellor hath his Conscience the Arch-Bishop brings Religion the Judges bring Law so as its probable nothing will be done but according to Justice Conscience Religion and Law a very faire mixture but that there was a Treasurer in the Case yet the successe answered not expectation the Persons offended were many times inferiour and their estates not great the Offenders more meane and of desperate fortunes for great men were too wise to try this new way or to tast of their entertainment Therefore within nine yeares the Judges of Assize are betrusted with all and that Court so continued for as many yeares more and then the King marked out one Crime amongst the rest for his owne tooth belonging to the great men onely for they onely are able to commit the Crime and to give recompence sutable to the Kings Appetite It is giving of Liveries and Retainders a sore evill in the eyes of a jealous King tending to draw the inferiour sort to honour and admire and be of the suit of those of the greater sort and then beware the Crown These therefore must be tried before the King himself and his Councell that he may know whom he is to feare and of whom to take heed And herewith is a strange power given to summon upon a meere Suspition To proceed without information To examine the Defendant upon Oath and make him his own Accuser To punish according to discretion by fine and Imprisonment and thus the King and his Councell have gotten a power under colour of Liveries and Retainders to bring the whole Kingdome to be of their Livery or else they can suspect whom they please apprehend whom they suspect put him presently to the rack of confession and so into prison till he hath satisfied both displeasure and jealousie and covetousnesse it self Never was England before now in so low a degree of thraldome bound under a double knot of self-accusing and arbitrary Censure and this out-reached not onely in matters meerly civill tending to the common Peace but was intruded also into matters Ecclesiasticall in order to the Peace of the Church All bound unto the good behaviour both in Body and Soul under perill of losse of all that a man hath deare to him in this World The plot of all this was first laid by Henry the seventh and was followed by Henry the eighth who put that into practise which his Father had in designe being led thereto by such a skilfull Guid as Cardinall Woolsie was who though of meane Birth yet of a Spirit above a King and equall to the Popedome strained the string of Prerogative to its utmost heighth and then taught the King to play thereon which he did after his blunt manner till his dying day And thus though the Clergy are brought a Peg lower and the Nobility advanced higher yet was it the pollicy of these Kings to make them all of their own Livery and Retaindership to keep them in an upper region looking on the poore Commons at a distance far below and well it was for the Commons thus to be till the influence of these blazing Stars grew cooler CHAP. XXXII Of the Militia IT may fall within the verge of opinion that the guilty Title of Henry the seventh to the Crowne of England galled his minde with jealousie the greatest part of his Reigne Whether it were that he had not declared himself so fully upon his Title by his Wife or that as yet he feared some unknown Plantagenet would arise and put his Crown to the question This made him skilfull in the point of Fortification wherein he likewise spent the greatest part of his Reigne not so much by force of Armes for he cared not much for that noise well knowing that Peace is the safer condition for a King that comes in by power but principally by way of gaining Concessions and acknowledgment from the Subjects a Musick that he much delighted to heare well knowing it would conclude those amongst them that knew too much and instruct them that knew too little and so in time he should passe for currant amongst them all It was no hard matter for the King to accomplish this the greater part of the Kingdome being pre-ingaged unto his Title and of them many depending upon him for livelyhood if he failed they must look to loose all But the present occasion urged more importantly the Title to the Crown was already put to the question by the pretentions of one that named himself Duke of Yorke And it s now high time for the Law to declare it self to direct the People in such a Case What shall the People do where Might overcomes Right or if dayes come like those of Henry the sixth wherein the Subjects should be between two millstones of one King in Title and another King in possession for whom must they take up Armes if for Edward the fourth then are they Traitors to Henry the sixth if for Henry the sixth then are they Traitors to Edward the fourth and so now if for Henry the seventh then they may be Traitors to the Duke of Yorke if for the Duke of Yorke then are they Traitors to Henry the seventh For though the Duke of Yorke was said to be but a contrivance of the House of Burgundy yet a great part both of the great men and others were of another opinion and the King himself was not very certaine of his condition for the space of six years thereby This puts the Title of allegiance and that power of the Militia to the touch at length both King and Parliament come to one Conclusion consisting of three particulars First that the King for the time being whether by right or wrong ought to have the Subjects Allegiance like to that of the wise Councellor of that brave King of Israell Whom the Lord and his People and all the men of Israell chuse his will I be And this is not onely declared by the expresse words in the Preface of the Law but also by the Kings own practise for he discharged such as aided him against Richard the third then King by pardon by Parliament but such as aided him being King by declaration of the Law Secondly that this Allegiance draweth therewith ingagement for the defence of that King and Kingdome Thirdly that the discharge of this Service whereto the Subjects are bound by allegiance ought not to be imputed unto them as Treason Nor shall any person be impeached or attainted therefore the first and the last of these need no dispute The second is more worthy of consideration in the particular words set downe in the Statute Viz. That the Subjects are to serve their Prince in his Warres for the defence of him and the Land against every rebellion Power and Might reared against him and with him to enter and abide in Service in Battell Wherein two things are to be considered the Service and the time or occasion The Service is to serve the Prince
occasion of the Death of Pope Julio is to be seen Lastly she was no good Queen not onely because she gave up the Peoples Liberties in Ecclesiasticall matters to the forrain Jurisdiction of Rome but undertook too much therein by far upon her own account and in Civil Affairs though De jure She was not inferior to any of her Progenitors yet She would have it declared by the Parliament as if the consideration of her Sex or birth had made som hesitation in her minde and when she had made all clear she commending her self thereby to the Prince of Spain with her self indangered likewise that trust of the Nation which she had received and cast such a shadow upon her own Supremacy as in many things it is hard to be discerned Lastly In her whole course uneven sometimes appearing like the eldest Daughter of Henry the Eighth at other times like a Fem covert led by the will of her Lord and Husband that wanting Supremacy himself rendred her thereby beneath her self For First She married by Act of Parliament as if She were not at her own disposing professing as much in her speech to the Londoners upon the Kentish rebellion so a difference was made between the two Sisters the marriage of the one being by advice of Parliament and the abstinence of the other against the same Nor is the same altogether irrationall for by the one the Government of the Nation is indangered and by the other otherwise Secondly By her marriage She became doubly married one way relating to her Person unto her King the other relatintog her trust unto her Councell For where a Forraine mighty King is so nigh the Helme its dangerous to trust the same to his Wife without the joynt concurrence of the Lords The matter in fact declared no less for many times She had steered quite wide had not the Lords been more stiff to their principles then She. The first yeare of her marriage was Hony-moon with her She thought nothing too dear for the King and that her self was but meanly married unless her Husband were as compleat a King in her Nation as any of her Predecessors although contrarily the higher he was advanced the meaner She became Thirdly By her marriage She adventured her Title of Supremacy of jurisdiction For Phillip as King had the Honour stile and Kingly name and so had the precedency he had to do also with the jurisdiction for by the Articles of the marriage he was to aid the Queen in her administration of the Kingdome and maintenance of the Lawes Writs and Commissions passed under his name He also sate in Parliament voted therein and joyned in the Royall Assent Lastly Joyned in the publication and execution of all Lawes To him also was Allegiance due and therefore the Crime of Treason was equally against his as the Queens Crown and Dignity saving that it was reserved to be as against him onely during the time of Coverture and yet had the Queen left issue by him it would have been a hard adventure for the Lawers to have given their opinion in that case seeing the King had been Guardian to his Children during their minority Lastly The whole power and jurisdiction resting in them both joyntly could not inable them to make or dissolve Courts at will nor conclude orders and directions in cases of Plea and conveyance nor process concerning the same I shall sum up all in this on econclusion if neither of these three had an absolute Legislative power either in matters concerning the Church or Common-Wealth if no absolute jurisdiction in case either of Life Member or Estate If they neither can create unite or alter any Court either concerning the Triall and determining the Estates of the People or their own Revenue If not alter or make any new process in Courts of Law If not order common assurances of Lands or Estates And Lastly If they have no power in determining the last appeal and definitive sentence in matters of controversy but all must rest upon the sentence by Parliament there must certainly be found out a further sense of that grand Title of Supremacy of jurisdiction power superiority pre-eminence and Authority then by the common vogue hath bin made The Title of supremacy was first formed in the behalf of Henry the eighths Claime in matters Ecclesiasticall 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 claime witness the words of the Statute in her own time But in the framing of the Oath of Supremacy in her time not only in causes Ecclesiastical but temporal which never came within the Statutes and publique Acts in Henry the sevenths 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 then the word Causes and then the Power of Queen Elizabeth in the Common-Wealth will be comprehended in these words of Supremacy to visit correct repress redress Offences and Enormities for the Supremacy in the Church and Common-Wealth is the same in Measure and what more then this I cannot understand out of any publique Act of this Nation Now in regard Offences and Enormities are properly against Lawes 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 sense for two of them speakes only the rank or degree of the Queen in government Viz. Superiority and Pre-eminence belongeth only to her and not to any other Forrain power And two other words do note her Right and Title thereto by Power and Authority committed to her And the other word denotates 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 supreame Authority in jurisdiction is no other then supream 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 as full of opinion of his own sufficiency and Power a Parliament is looked upon as an old fashion out of fashion and serve for little other then for present shift when Kings have run themselves over Head and Eares A condition that those of that high degree are extremly subject unto but where the Crown is too heavy for the wearer by reason of infirmity the
Parliament is looked upon as the cheif supporters in the maintaining both the Honour and Power of that Authority that otherwise would fall under contempt A work that must be done with a curious touch or a cleare hand or they must look for the like Censure to that of a King to a great Lord that Crowned him My Lord I like your work very well but you have left the print of your fingers upon my Crown Such was the condition of these times wherein a Child and two Women are the cheifs but ever under the correction and direction of the Common Councel in matters of common concernment Two things declare the point the course of the Title of the Crown and the order of the powers thereof The Title ever had a Law which was at the Helm although diversly expounded Kings ever loved the rule of inheritance and therefore usually strained their Pedegree hard to make both ends meet though in truth they were guilty oftentimes to themselves that they were not within the degrees The People ever loved the Title of Election and though ever they joyned it to the Royall blood and many times to the right Heire to make the same pass more currant without interruption of the first love between them and their Princes yet more often had they Kings that could not boast much of their birth-right in their first entry into their Throne Of three and twenty Kings from the Saxons time foure of the former had no Title by inheritance the two Willams Henry the first and King Steven of two others Viz. Henry the second and Richard the first had right of birth yet came in by compact The seventh which was King John had no title but election The eight Viz. Henry the third came in a Child and contrary to compact between the Nobility and the French Lewes the ninth and tenth succeeded as by unquestionable Title of discent yet the Nobles were preingaged The eleventh which was Edward the third in his entry eldest Son but not Heire for his Father was alive but his Successor was his Heire its true there were other Children of Edward the third alive that were more worthy of the Crown but they were too many to agree in any but a Child that might be ruled by themselves Three next of the ensuing Kings were of a collatterall line Their two Successors Viz. Edward the fourth and Edward the fifth were of the right line yet Edward the fourth came in by dissesin and Edward the fifth by permission Richard the third and Henry the seventh were collatterall to one another and to the right blood Henry the eighth though when he was King might claime from his Mother yet came in as Heire to his Father And if Edward the sixth was right Heire to the House of Yorke by his Grand-Mother yet cannot the Crown be said to descend upon the two Sisters neither as Heires to him nor Henry the eighth nor to one another so long as the Statute of their illigittimation remained which as touching Queen Mary was till three Months after her entry upon the Throne and as touching Queen Elizabeth for ever for that Virago provided for her self not by way of repeale as her Sister had done but more tenderly regarding the Honour of her Father and the Parliament then to mention their blemishes in Government by doing and undoing She overlooked that Act of Henry the Eighth and the Notion of Inheritance and contented her self with her Title by the Statute made by her Father in his thirty fifth yeare which to her was a meere purchase and was not ashamed to declare to all the World that She did have and hold therby and that it was high Treason for any Subject to deny that the course of the Crown of England is to be ordered by Act of Parliament And this power did the Parliament exercise not onely in ordering the course of the Crown to Queen Mary and Queen Elizabeth but during the Reign of Queen Elizabeth so far as to dis-inherit and dis-able any person who should pretend Right to the Crown in opposition to the Right of Queen Elizabeth and upon this point onely did the whole proceedings against Mary Queen of Scots depend who claimed to be and doubtless was Heir unto Henry the eighth after the determination of his right Line and yet She was put to death for pretending Right by the Common Law in opposition to the Act of Parliament True it is that this Doctrine doth not down well with those that do pretend to Prerogative aided as they say by the Act of Recognition made to King James and the Oaths of Supremacy and Allegiance which do make much parly concerning Inheritance and Heirs nevertheless it is as true that the Act of Recognition made no Law for the future nor doth the same cross the Statute of 13 Eliz. nor doth it take away the power of the Parliament from over-ruling the course of the Common Law for after Ages Nor do the Oaths of Supremacy and Allegiance hold forth any such Obligation unto Heirs otherwise then as supposing them to be Successors and in that relation onely And therefore was no such Allegiance due to Edward the sixth Queen Mary or Queen Elizabeth untill they were actually possessed of the Crown as may appear by the Oath formed by the Statute of Henry the eighth touching their Succession Nor did the Law suppose any Treason could be acted against the Heirs of Edward the sixth Queen Mary or Queen Elizabeth untill those Heirs were actually possessed of the Crown and so were Kings and Queens as by express words in the severall Statutes do appear Nor did the Recognition by the Parliament made to Queen Elizabeth declare any ingagement of the People to assist and defend her and the Heirs of her Body otherwise then with this Limitation Being Kings and Queens of this Realm as by the Statute in that behalf made doth appear And lastly had these Oaths bin otherwise understood the Crown had by the vertue of them been pre-ingaged so as it could never have descended to Queen Mary Queen Elizabeth or King James but must have remained to the Heirs of Edward the sixth for ever Secondly the same power that the Parliament exercised in ordering the course of succession in the Crown they exercised likewise in determining and distributing the Powers and Priviledges belonging to the same for these Times were full of Novelties The Crown had formerly fitted a childes head more then once but it never tried to fit a Womans head since the Saxon Times till now that it must make triall of two France might afford us a trick of the Salique Law if it might finde acceptance And the unsettled estate of the People especially in matter of Religion might require the wisest man living to sit at the Helm and yet himself not sufficient to steer a right course to the Harbour Nevertheless the Parliament having the Statute of Henry the
full wherein we have a Childe a Virgin and a married Woman to sway the Work all of them in a very unmeet condition for such a Trust and yet by the help they had they managed it well enough The power of him as King or General in the Army is all one but before it is imbodied as a King onely he may do some things in order thereto according to the Law and Custome of the Nation yet this fals under a double consideration of the time and occasion In the recess of the Parliament he is the first mover and ought to move by the advice of his Councel if occasion do provoke to Arms but if the same befall the Parlaiment then sitting no History or Record do mention that ever he moved but by their concurrent advice and direction The occasion either provoketh offensive or defensive War with other Nations or with the People of his own Nation in the case of Insurrection Examples of War with other Nations that may be called offensive Wars we have but two one in Edward the sixths time with Scotland and which was but in pursuance of a War begun by his Father and wherein the Kingdom stood ingaged in a case that concerned the publique good and safety viz. the Marriage of their King refused after promise made The other was in the time of Queen Mary with the French which somewhat reflected also upon the publique safety but more upon the dishonor of the same In none of these did either of the Supreme Powers array or raise men by Prerogative but onely such as were Volunteir in that Work And because the People were ill principled in Edward the sixths time in regard of the change of Religion he was induced to hire forrain aid out of Germany The Wars in the time of Queen Elizabeth were in order to the Defence of this Nation being ever under a malignant Aspect from abroad especially from Spain in Ireland France and the Low Countries yet were these Wars served onely by Volunteirs nor did any Commission give power of impresting men to serve against their wils in any Expedition made to any of those places as the Commissions upon Record do testifie If any Levies of Men were otherwise made or compulsory means used for such ends they are to be reckoned up amongst the errata whereof the Parliament took no notice in regard it saw the ends and issues of such reflexions in Government to be succesfull and honorable and that all was done by Councel and a Woman popularly affected and therefore less feared invasion upon their Liberties or otherwise they are to be imputed to the condition of those places being Members of the Common-wealth as the cautionary Townes in the Low Countries and the Irish Plantations were and so befall under another consideration of a defensive War in case of invasion and common danger therby or by intestine broils during which condition as it is the Kings duty to levy and array men so is it the duty of the People to be ready to assist one another in all such exegencies and to defend the publique Liberty nevertheless these Arrays are not left wholly at the Will of the King but to discretion of the Councell how far the same shall extend For never were generall Arrayes made where but one Coast was in danger and where no conquest is in pretence but only piracy or plunder But if the disease were generall as it was in the yeare 88. the Array was generall and yet it was of none but those that were of the Trained bands besides such as were Volunteir Secondly The arming of these men was also diversly there was no generall rule or Law for the arming of men since the times of Edward the first to the time of Queen Mary but the Statute at Winton the course of Tenures I mean of such men as were of the Militia of this Kingdom So as when they were raised they were raised in their own armes But for such men as passed the Seas for forrain Service as they were Volunteirs or sent over by the Parliament these were armed acccording to speciall contract But Queen Mary having gotten a safe reserve from Spaine upon all adventures and a strong Interest amongst the People by upholding the Catholique party made no bones to innovate in the point of arming of the Militia although it cost the People much more then was imposed upon their Ancestors The pattern hereof was taken from the Spanish Cabinet the Q. being loth to be inferior to her own Husband in bringing as much strength to him as he to her and both of them willing enough to appeare potent in the eyes of France that then stood in competition with them both A yoke it was yet neither the King nor Queens Will but the Parliament put it on and ere an age expired was cast off again For the better understanding see it in this Scheme Per Annum Lances Light Horse Corslets Bowes Hacquebuts Bills 1000. l. 6. 10. 40. 30. 20. 20. 1000. marks 4. 6. 30. 20. 10. 10. 400. l. 2. 4. 20. 15. 6.  200. l. 1. 2. 10. 8. 3.  100. l.  2. 3. 3. 2.  100. marks  1. 2. 2. 1.  40. l.   2. 1. 2.  20. l.   1. 1. 1.  10. l.   A Coate of Plate 1. 1.  5. l.   A Coate of Plate 1.  1. Goods 1000. marks 1. 1. 2. 4. 3.  400. l.  1. 1. 2. 1.  200. l.   1. 2. 1.  100. l.   1. 2.   40. l.   Two Coats of Plate 1.  1. 20. l.   One Coate of Plate 2.  1. 10. l.    1.  1. The Lances were to be compleatly harnised or the one half of them the Corcellets furnished with Coates of Maile and Pikes the Bowes with an Iron Cap and a sheaf of Arrowes The Hackbuts with Sallets all which was to be over and besides such Armes as men were bound unto by Tenure or Covenant with the Landlord or by vertue of the Statute 33 H. 8. ca. 5. besides town-ships which were charged with joint Armes Annuities and Coppy-holds were charged as goods If the Armes were lost in the Service the owner must make them good again The defaults were punishable with fine by the Justices of the Peace who had the view and might present them at the Sessions to be procceded upon as in other Cases Here is provision enough yet not as the Armes of the Militia of the Kingdom but as a Magazine in the hands of every particular man and as his proper goods to be imployed for the publique Service either upon sudden invasion in a defensive Warr or when the Parliament shall send them abroad And yet it is also a rule unto the Crown against arbitrary Assessments upon discretion from which it cannot recede if it mean to do right It might now very well stand with the
Justice of Queen Elizabeth to grant Commissions of Array Secundum formam Statutorum and do hurt to no man its true her Commissions of Lord Lievtenancy wanted that limitation in words yet they carried the sense for if the Crown were bound by the Law the Lord Leivtenants were much rather but the danger arose after the death of Queen Elizabeth for when King James came to the Crown under colour of pleasing the People and easing them of a burthen he pleased himself more and made the yoke upon the People much more heavy in the conclusion for where no declared Law is there the discretion of them that have the care lying upon them must be the rule thus came the Scottish blood to have pretentions to a greater Prerogative then all their Predecessors had upon this supposal that the Statute of Queen Mary took away all former Lawes of that kinde and then the taking away of the Statute of Q. Mary takes away all declared Law as to that point But more truly it may be inferred that if all Statute-Laws be taken away then the rule of Tenures at the Common Law must remain in force and no other Nevertheless this Statute of Queen Mary though in force for the present was not a generall rule for Armes in all places of this Nation for the Marches of Scotland were a peculier jurisdiction as to this point They stood in more constant need of Armes then any other part of this Nation in regard of their uncertain condition in relation to their Neighbouring jurisdiction and therfore were the Farmes of these parts generally contracted for upon a speciall reservation of Armes for each particular which being now decaied are again reduced by Queen Elizabeth to their ancient condition in the time of Henry the eighth A second thing which may come under this generall consideration of arming is the arming of places by making of Forts and Castles which was not in the immediate determinate will of the Crown to order as it pleased for though they may seem to be meanes of Peace and present safety yet they are Symptomes of Warr and in the best times are looked upon with a jealous eye especially such as are not bordering upon the Coasts Because that Prince that buildeth Castles within the Land is supposed to feare the Neighbourhood This was more especially regarded in the dayes of Phillip and Mary For when that marriage was to be solemnized it was one of the Articles to provide for the safety of such Forts and Castles as then were maintained to the end they might be preserved free from usurpation for the Use Profit Strength and Defence of the Realme onely by the naturall borne of the same And afterwards when occasion was offered for the building of more of that nature a new power is given to King Phillip and Queen Mary to re-edifie or make Forts and Castles which must be executed by Commission to the Legies for ten years and only within the Counties bordering upon Scotland and these perticularly named in the Statute so as the Crown had not power to build in all places nor to any end they pleased nor to place therein or betrust the same to whom it would Nor yet had Edward the sixth that absolute power although not ingaged in forrain interests as his sister Mary was and therefore whereas Castellanes had been made for life by Patent and so the absolute power of the Crown was barred in the free disposal of the same during such time The Parliament gave the King power to remove such as were not liked or thought faithfull to the publique interest although they gave no cause of Seisure by any disloyal act The like also may be observed of the Ships and Ordnance for they also do belong to the State as the Jewels of the Crown and therefore upon the Marriage of Queen Mary they also are by Articles preserved and saved for the use profit strength and defence of the Realm by the natural born of the same Thirdly as touching the ordering of the Souldiery the matter is not much to be insisted upon for little doubt is to be made but that power that raiseth them also ordereth them to the same ends that they are raised and therefore as the sole power of the Crown doth not the one so neither doth it the other but in cases formerly mentioned and yet in no case though the War b be never so absolutely defensive and the Souldiers raised by the Kings own and onely power yet hath not the King absolute Authority and arbitrary power in the ordering of them when they are raised but he must so behave himself to them as to Free-men according to Laws made by themselves in their Representative in Parliament and therefore are particular Laws made to that end against undue levying and discharging of Souldiers and Defaults in paying of them as also against the Souldiers departing from their Service without Licence or wasting their Arms and such as wilfully absent themselves from Musters as also for the preserving the Castles Forts Ships and Munition for War from being with-holden from their due use or from burning or destroying Lastly as touching the charge of the War and pay of the Souldies It s evident that in all offensive Wars the Souldier was paid by the Crown although they might be said in some manner to be in order to the Defence and Safety of the Nation nevertheless where the same was so apparent to the people it was the common course in these Times to have often Parliaments and often Subsidies which were no less in a good measure satisfactory to the Crown for the Charges of the War then Testimonies of the Peoples good Acceptance of the Government of Affairs and so accepted at their hands The particular Records will warrant all this For of all the Wars in these Times that of 88. excepted not any of them were ever managed at the Peoples charge by Contribution but by Retribution So happy were these Times wherein the People looking upon the Crown as under a kinde of infirmity of Childhood or Womanhood did therefore bear a kinde of compassionate regard thereunto without jealousie at Prerogative could condiscend and allow the Crown its full Grains and somewhat more yea more then was meet for some other Princes to desire or the People to give up and yet more happy were they wherein the Crown knew no interest but in dependence upon the People good and so understanding were rightly understood CHAP. XXXIX Of the Peace IT is but little that can be said of Peace in these Times wherein so little freedom was found from forrain pretentions and intestine irregularities or both and yet the People were never more resolved against the former nor secure against the later and had God to Friend in all But most apparently was this observable in the Times of Queen Elizabeth whose Government took up four parts of five of these Times whereof we
THE CONTINUATION OF AN HISTORICALL DISCOURSE OF THE GOVERNMENT OF ENGLAND Vntill the end of the Reigne of Queene ELIZABETH WITH A Preface being a Vindication of the ancient way of Parliaments in ENGLAND By Nath Bacon of Grais-Inne Esquire LONDON Printed by Tho Roycroft for Matthew Walbanck and Henry Twyford and are to be sold at Grais-Inne Gate and in Vine Court Middle Temple 1651. The Contents of the severall Chapters of this Book I. THe sum of the severall Reignes of Edward the third and Richard the second fol. 3. II. The state of the King and Parliament in relation of him to it and of it to him fol. 13. III. Of the Privy Council and the condition of the Lords f. 26. IV. Of the Chancery fol. 35. V. Of the Admirals Court. fol. 41. VI. Of the Church-mens Interest fol. 45. VII Concerning Trade fol. 64. VIII Of Treason and Legiance with some considerations concerning Calvins Case fol. 76. IX Of Courts for causes criminall with their Laws fo 92. X. Of the course of Civill Justice during these times fo 96. XI Of the Militia in these times fol. 98. XII Of the Peace fol. 108. XIII A view of the summary courses of Henry the fourth Henry the fifth and Henry the sixth in their severall Reignes fol. 115. XIV Of the Parliament during the Reignes of these severall Kings fol. 127. XV. Of the Custos or Protector Regni fol. 134. XVI Concerning the Privy Councell fol. 141. XVII Of the Clergie and Church-government during these times fol. 146. XVIII Of the Court of Chancery fol. 162. XIX Of the Courts of Crown Plas and Common Law fo 165 XX. Concerning Sheriffs fol. 168. XXI Of Justices and Lawes concerning the Peace fol. 170. XXII Of the Militia during these times fol. 175. XXIII A short survey of the Reignes of Edward the fourth Edward the fifth and Richard the third fol. 181. XXIV Of the Government in relation to the Parliament fol. 187. XXV Of the condition of the Clergie fol. 191. XXVI A short sum of the Reignes of Henry the seventh and Henry the eighth fol. 194. XXVII Of the condition of the Crowne fol. 202. XXVIII Of the condition of the Parliament in these times fol. 223. XXIX Of the power of the Clergy in the Convocation f. 229. XXX Of the power of the Clergy in their ordinary Jurisdiction fol. 232. XXXI Of Judicature fol. 241. XXXII Of the Militia fol. 245. XXXIII Of the Peace fol. 253. XXXIV Of the generall Government of Edward the sixth Queen Mary and Queen Elizabeth fol. 259. XXXV Of the Supream power during these times fol. 268. XXXVI Of the power of the Parliament during these times fol. 277. XXXVII Of the Jurisdiction Ecclesiasticall during these last times fol. 283. XXXVIII Of the Militia in these later times fol. 290. XXXIX Of the Peace fol. 297. XL. A summary Conclusion upon the whole matter fol. 300. A PREFACE CONTAINING A Vindication of the Ancient way of the Parliament OF 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 humor still drawing off and passing a harsher censure upon my intentions in my first part then I expected I doe proceede to fulfill my course that if censure will be it may be upon better grounds when the whole matter is before Herein I shall once more minde that I meddle not with the Theologicall right of Kings or other Powers but with the Civill right in fact now in hand And because some mens Pens of late have ranged into a denyall of the Commons ancient right in the Legislative power and others even to adnull the right both of Lords and Commons therein resolving all such power into that one principle of a King Quicquid libet licet so making the breach much wider then at the beginning I shall intend my course against both As touching the Commons right jointly with the Lords it will be the maine 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 finde published in a late Tractate concerning that matter and so proceede 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 Judiciall power of the Parliament rested wholly in them lastly that Knights Citizens and Burgesses of Parliament or the House of Commons were not knowne nor heard of till punier times then these This last will be granted Viz. That these severall titles of Knights Citizens and Burgesses were not known in Parliament till of later times Neverthelesse 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 the whole The first is absolutely denyed neither is the same proved by any one instance or pregnant ground in all that Book and therefore not cleerly 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 Booke are by him supposed to concerne Parliaments or generall Councils of this Nation holden by the Representative thereof whereas indeed they were either but Synodicall Conventions for Church matters whereunto the poore Commons he well knoweth might not come unlesse in danger of the Canons dint or if they did yet had no other worke there then to heare learne and receive Lawes from the Ecclesiasticks And the Lords themselves though present yet under no other notion were they then as Councell to the King whom they could not cast out of their Councell 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 ayde of the Parliament And it is no lesse true that Kings with the Lords did in their severall ages exercise ordinarily Jurisdiction in cases of distributive Justice especially after the Norman entrance For the step was easie from being Commanders in Warr to be Lords in peace but hard to lay downe that power at the foot of Justice which they had usurped in the rude times of the Sword when men labour for life rather then liberty and no lesse difficult to make a difference between their deportment in commanding of Souldiers and governing of Countrey-men till peace by continuance had reduced them to a little more sobriety Nor doth it seeme irrationall that private differences
betweene party and party should be determined in a more private way then to trouble the whole Representative of the Kingdome with matters of so meane concernment If then those Councils mentioned by the Author which concerne the Kings Grants and Infeodations and matters of Judicature be taken from the rest of the Presidents brought by him to maintaine the thing aimed at I suppose scarce one stone will be left for a foundation to such a glorying Structure as is pretended in the Title page of that Booke And yet I deny not but where such occasions have befalne the Parliament sitting it hath closed with them as things taken up by the way Fourthly It may be that the Author hath also observed that all the Records of Antiquity passed through if not from the hands of the Clergy onely and they might thinke it sufficient for them to honour their Writings with the great Titles of Men of Dignity in the Church and Common-wealth omitting the Commons as not worthy of mention and yet they might be there then present as it will appeare they were in some of the particular instances ensuing to which we come now in a more punctuall consideration The first of these by his owne words appeare to be a Church-mote or Synod it was in the yeare 673. called by the Arch-Bishop who had no more power to summon a Parliament then the Author himselfe hath And the severall conclusions made therein doe all shew that the people had no worke there as may appeare in the severall relations thereof made by Matthew Westminster and Sir Henry Spelman an Author that he maketh much use of and therefore I shall be bold to make the best use of him that I can likewise in Vindicating the truth of the point in hand For whatever this Councill was it s the lesse materiall seeing the same Author recites a president of King Aâ—thelbert within six yeares after Austins entry into this Island which was long before this Councill which bringeth on the Vann of all the rest of the Opponents instances which King called a Councill styled Commune Concilium tam Cleri quam Populi and in the conclusion of the same a Law is made upon the like occasion Si Rex populum Convocaverit c. in both which its evident that in those times there were Councils holden by the People as well as the Magnates or Optimates His next instance is in the yeare 694. which is of a Councill holden by the Great Men but no mention of the Commons and this he will have to be a Parliament albeit that he might have found both Abbatesses or Women and Presbyters to be Members of that Assembly and for default of better attested the conclusions of the same notwithstanding the Canon Nemo militans Deo c. But I must also minde him that the same Author reciteth a Councill holden by King Ina Suasu omnium Aldermannorum Seniorum Sapientum Regni and is very probable that all the Wise men of the Kingdome were not concluded within the Lordly dignity The third instance can have no better successe unlesse he will have the Pope to be allowed power to call a Parliament or allow the Arch-Bishop power to doe that service by the Popes command for by that authority this what ever it be was called if we give credit to the relation of Sir Henry Spelman who also reciteth another Councell within three leaves foregoing this called by Withered at Barkhamstead unto which the Clergy were summoned Qui cum viris utique militaribus communi omnium assensu has leges decrevere So as it seemeth in those times Souldiers or Knights were in the common Councels as well as other Great Men. In the next place he bringeth in a Councill holden in the yeare 747. which if the Arch-Bishop were then therein President as it s sayd in the presence of the King was no Parliament but a Church-mote and all the conclusions in the same doe testifie no lesse they being every one concerning Ecclesiasticall matters And furthermore before this time the Author out of whom he citeth this Councill mentioneth another Councill holden by Ina the Saxon King in the presence of the Bishops Princes Lords Earles and all the wise old Men and People of the Kingdome all of them concluding of the intermarriage between the Brittons Picts and Saxons which formerly as it seemeth was not allowed And the same King by his Charter mentioned by the same Penman noteth that his endowment of the Monastry of Glastenbury was made not onely in the presence of the Great Men but Cum praesentia populationis and he saith that Omnes confirmaverunt which I doe not mention as a worke necessary to be done by the Parliament yet such an one as was holden expedient as the case then stood Forty yeares after hee meeteth with another Councill which he supposeth to be a Parliament also but was none unlesse he will allow the Popes Legate power to summon a Parliament It was holden in the yeare 787. and had he duely considered the returne made by the Popes Legate of the Acts of that Councill which is also published by the same Author hee might have found that the Legate saith that they were propounded in publike Councill before the King Arch-Bishop and all the Bishops and Abbots of the Kingdome Senators Dukes or Captaines and people of the Land and they all consented to keep the same Then he brings in a Councill holden in the year 793. which he would never have set downe in the list of Parliaments if he had considered how improper it is to construe Provinciale tenuit Concilium for a Parliament and therefore I shall need no further to trouble the Reader therewith The two next are supposed to be but one and the same and it s sayd to be holden Anno 974. before nine Kings fifteene Bishops twenty Dukes c. which for ought appeares may comprehend all England and Scotland and is no Parliament of one Nation but a party of many Nations for some great matter no doubt yet nothing in particular mentioned but the solemne laying the foundation of the Monastry of Saint-Albans What manner of Councill the next was appeareth not and therefore nothing can be concluded therefrom but that it was holden in the yeare 796. That Councill which is next produced was in the yeare 800. and is called in great letters Concilium Provinciale which he cannot Gramatically construe to be a Parliament yet in the Preface it is sayd that there were Viri cujuscunque dignitatis and the King in his Letter to the Pope saith concerning it Visum est cunctis gentis nostrae sapientibus so as it seemeth by this and other examples of this nature that though the Church-motes invented the particular conclusions yet it was left to the Witagen-mote to Judge and conclude them There can be no question but the next three Presidents brought by the Opponent were all of
also For Kings were mistaken in the Lords who meaned nothing lesse then to serve them with the peoples liberties together with their owne which they saw wrapped up in the grosse Thirdly by this meanes the Councils of the King and Lords grew potent not onely for advise in particular occasions but in matters of judicature and declaring of Law ordering of processe in Courts of Plees which in the first framing were the workes of Wise and Learned men but being once setled become part of the liberties of every Free-man And it is not to be doubted but these Councills of Lords did outreach into things two great for them to mannage and kept the Commons out of possession of their right during the present heat of their ruffling condition yet all this while could not take absolute possession of the legislative power I now come to the remainder of the particular instances produced by the Opponent which I shall reduce into severall Categories for the more cleere satisfaction to the Reader with lesse tediousnesse First it cannot be denied but the Councill of Lords gave advise to Kings in cases of particular immergency nor is it incongruous to the course of government even to this day nor meete that the Parliament should be troubled with every such occasion and therefore the giving of advise to William the Conqueror what course he should take to settle the Lawes of England according to the instances in Councills holden An 1060. And 1070. And to gaine favour of the great men according to that in An 1106. and in the manner of endowment of the Abby of Battell as in pag 25. of the Opponents discourse and what to do upon the reading of the Popes Letter according to that in An 1114. And whether the Popes Legate should be admitted as in pag. 18. And how King Steven and Henry shall come to agreement as An 1153. And how to execute Lawes by Judges and Justices Itinerant as An 1176. And touching the manner of ingageing for a voyage by Croisado to Jerusalem An 1189. And to give answer to Embassadors of a forraine Prince pag. 25. And how King John shall conclude peace with the Pope An 1213. Where neverthelesse Math. Paris saith was Turba multa nimis I say all these might well be done by a Councell of Lords and not in any posture of a Parliament albeit that in none of all these doth any thing appeare but that the Commons might be present in every one or many of them all Secondly as touching judicature the Lords had much power therein even in the Saxon times haveing better opportunites for Knowledge and Learning especially joyned with the Clergy then the Commons in those times of deep darknesse wherein even the Clergy wanted not their share as in the first part of the discourse I have already observed Whatsoever then might be done by Judges in ordinary Courts of judicature is inferiour to the regard of the Parliament and therefore the Plea between the Arch-Bishop and Aethelstan concerning Land instanced An 1070. And betweene Lanfranke and Odo An 1071. and betweene the King and Anselme pag 15 16. and the determining of Treason of John afterwards King against his Lord and King Richard pag 23. And the difference concerning the title of a Barony between Mowbray and Scotvile pag 25. And giving of security of good behaviour by William Brawse to King John pag. 26. All these might well be determined onely before the Lords and yet the Parliament might be then sitting or not sitting as the contrary to either doth not appeare and therefore can these forme no demonstrative ground to prove that the Parliament consisted in those times onely of such as we now call the House of Lords A third worke whereby the Opponent would prove the Parliament to consist onely of the House of Lords is because hee findeth many things by them concluded touching the solemnization and the settling of the succession of Kings both which he saith were done by the Lords in Parliament or those of that House and I shall crave leave to conclude the contrary For neither is the election or Solemnization of such election a proper worke of the Parliament according to the Opponents principles nor can they prove such Conventions wherein they were to be Parliaments Not the election of Kings for then may a Parliament be without a King and therefore that instance concerning William Rufus page 16. will faile or the Opponents principles who will have no Parliament without a King The like may also be sayde of the instance concerning King Steven page 18. Much lesse can the solemnization of the election by Coronation be a proper worke for the Parliament Neverthelesse the Opponent doth well know that both the election of a King and the solemnization of such election by Coronation are Spiritlesse motions without the presence of the people and therefore though his instance page 17. concerning the election of Henry the First by the Bishops and Princes may seeme to be restrictive as to them yet it is not such in fact if Matthew Paris may be beleeved who telleth us that in the Conventus omnium was Clerus and Populus universus and might have been noted by the Opponent out of that Learned Antiquary so often by him cited if he had pleased to take notice of such matters A fourth sort of Instances concerneth matters Ecclesiasticall and making of Canons and hereof enough hath been already sayd that such worke was absolutely challenged by the Church-motes as their proper worke and therefore the Instance page 16 17. of the Councill in Henry the firsts time and the Canons made by the Bishops there and that other called by Theobald Arch-Bishop of Canterbury and instanced by the Opponent page 19. I say both these doe faile in the conclusion propounded Fifthly As touching the most proper worke of Parliaments which is the making of Lawes concerning the liberties and benefit of the people the Opponent produceth not one instance concerning the same which doth not conclude contrary to his proposall for as touching those two instances in his thirteenth page Anno 1060. they concerne not the making of Lawes but the reviving of such as had been disused formerly which might well enough be done by private Councell But as to that in his fifteenth page of the Law made by the Conquerour concerning Remigius Bishop of Lincolne although it be true that wee finde not the particular titles of Knights Citizens and Burgesses yet besides the Councill of Arch-Bishops Bishops Abbats and Princes we finde the Common Councill for so the words are Communi Concilio Concilio Archiepiscopus Episcopus Abatus omnium Principum although the Opponent would seeme to wave these words Et Concilio but putting them in a small Character and the rest in a voluminous Letter that the Readers eyes might be filled with them and overlook the other Secondly as to the instance of the Councill at Clarindon in his nineteenth page which he citeth out
of Matthew Paris Matthew Westminster and Hoveden although he pleaseth to mention the severall rankes of Great Men and those in blacke Letters of a greater size and saith That not one Commoner appeares yet Master Seldens Hoveden in that very place so often by the Opponent cited tells him that both Clerus and Populus were there Thirdly The Opponent citeth an instance of Lawes made by Richard the First in his twenty fourth page and hee setteth downe the severall ranks of Great Men and amongst the rest ingeniously mentioneth Milites but it is with a Glosse of his owne that they were Barons that were made Knights when as formerly Barons were mentioned in the generall and therefore how proper this Glosse is let others judge especially seeing that not onely Milites and Milites Gregorij but even Ministri were present in such conventions even in the Saxon times And Master Selden in the former knowne place mentioneth an Observation that Vniversi personae qui de Rege tenent in Capite sicut ceteri Barones debent interesse judicijs curiae Domini Regis cum Baronibus Fourthly He citeth in his twenty fifth page another instance in King Johns time in which after the assent of Earles and Barons the words Et omnium fidelium nostrorum are also annexed but with this conceit of the Opponents that these Fideles were those that adhered to the King against his enemies be it so for then the Commons were present and did assent or they may be saith he some specially summoned as Assistants take that also and then all the true hearted in the Kingdome were specially summoned and were there so as the conclusion will be the same In the fifth place hee citeth a strange President as he calls it of a Writt of Summons in King Johns time in his twenty seventh page wherein Omnes miletes were summoned Cum armis suis and he concludes therefore the same was a Councell of Warr. First Because they were to come armed it s very true and so they did unto the Councills in the ancient Saxon times and so the Knights of the Counties ought to doe in these dayes if they obey the Writte Duos Milites gladijs cinctas c. Secondly He saith That the Knights were not to come to Councill that is his opinion yet the Writt speakes that the Discreti Milites were to come Ad loquendum cum Rege ad negotijs regni Its true saith hee but not Ad tractandum faciendum consentiendum Its true it s not so sayd nor is it excluded and were it so yet the Opponents conclusion will not thence arise That none but the King and those who are of the House of Lords were there present The sixth and last instance mentioned by the Opponent is in his thirtieth page and concerneth Escuage granted to King John who by his Charter granted that in such cases he would summon Arch-Bishops Bishops Abbots Earles and the greater Barons unto such Conventions by speciall Writts and that the Sheriffe shall summon promiscuously all others which hold in Capite and thence hee concludes That none but the Great Lords and the Tenants in Capite whom he calls the lesser Barons were present but no Knights Citizens or Burgesses all which being granted yet in full Parliament the Citizens and Burgesses might be there For Councills were called of such persons as suited to the matter to be debated upon If for matters purely Ecclesiasticall the King and his Councell of Lords and the Church-men made up the Councill If for advice in immergencies the King and such Lords as were next at hand determined the conclusions If for Escuage the King and such as were to pay Escuage made up a Councill to ascertaine the sum which was otherwise uncertaine If for matters that concerned the common liberty all sorts were present as may appeare out of the very Charter of King John noted in my former discourse page 258. and also from an Observation of Cambden concerning Henry the third Ad summum honorem pertinet saith he Ex quo Rex Henricus tertius ex tanta multitudine quae seditiosa ac turbulenta fuit optimos quosque ad Commitia Parliamentaria evocaverit Secondly The Opponent takes that for granted that never will be Viz. That all the Kings Tenants In Capite were of the House of Lords when as himselfe acknowledgeth a difference page 28. Viz. That the Barons are summoned by Writs Sigillatim as all the Members of the House of Lords are but these are by generall summons their number great and hard it will be to understand how or when they came to be excluded from that Society I shall insist no further upon the particulars of this Tractate but demurr upon the whole matter and leave it to judgement upon the premises which might have beene much better reduced to the maine conclusion if the Opponent in the first place had defined the word PARLIAMENT For if it was a Convention without the People and sometimes without the KING as in the Cases formerly mentioned of the Elections of William Rufus and of King Steven And if sometimes a Parliament of Lords onely may be against the King and so without King or People as in the Case betweene Steven and Maud the Empresse and the case likewise concerning King John both which also were formerly mentioned possibly it may be thought as rationall for the Commons in after Ages to hold a Parliament without King or House of Lords and then all the Opponents labour is to little purpose THE CONTINUATION OF AN Historicall Discourse of the Government of ENGLAND THE former times since the Norman entry like a rugged Sea by crosse windes of arbitrary vapours in and about the Crowne and by Forraine ingagements from the holy Chaire made the true face of affaires cloudy and troublesome both for the Writer and the Reader Hence forward for the space of three hundred yeares next ensuing Kings by experience and observation finding themselves unequall to the double chace of absolute Supremacy over the Sturdy Laity and incroaching Clergy you will observe to lay aside their pretentions against the peoples Liberties and more intentively to trench upon the Spiritualty now growne to defie all Government but that of Covetousnesse Nor would these times allow further advantage to Kings in this worke they being either fainted by the tickle Title of the Crowne hovering between the two Houses of Yorke and Lancaster or drawne off to Forraine imployments as matters of greater concernment for the present well being of the Kingdome or for the spreading of the fame of such as desired to be renouned for valiant Men. It will be superfluous to recount the particular atchievements formerly attained by these Ecclesiasticall men the former Treatise hath already sayd what was thought needfull concerning that For the future I shall even premise this That the insuing times being thus blessed with a truce or stricter League between Kings and Commons the errours in
Government more readily doe appeare the corruptions in natures of men more frequently discover themselves and thereby the body of the Statute-Lawes begin to swell so bigg that I must be inforced to contract my account of them into a narrower compasse and render the same unto the Reader so farr forth onely as they shall concerne the generall streame of Government leaving those of privater regard unto every mans particular consideration as occasion shall lead him For what ever other men please to insist upon this I take for a Maxime That though the Government of a King is declared by his actions yet the Government of a Kingdome is onely manifested by ancient Customes and publique Acts of Parliament And because I have undertaken a generall Survey of the Reignes of thirteene severall Kings and Queenes of this Nation for I shall not exceed the Issue of Henry the eighth and to handle each of them apart will leave the Reader in a Wildernesse of particulars hard to comprehend in the generall summ I shall therefore reduce them all into three heads Viz. Interest of Title Interest of Prerogative and Interest of Religion the last of which swayed much the three Children of Henry the Eighth the second as much in their two Ancestors Viz. Henry the Eighth and Henry the Seventh and the first in the three Henries of Lancaster and three succeeding Kings of the House of Yorke And because Edward the Third and his Grandchilde Richard the Second doe come under none of these Interests I shall consider them joyntly as in way of Exordium to the rest although the course of the later was as different from the former as Lust falls short of a generous Spirit CHAP. I. A summ of the severall Reignes of Edward the Third and Richard the Second SEverall I may well call them because they are the most different in their wayes and ends of any two of that race that ever swayed their Scepter and yet the entrance of the first gave countenance to the conclusion of the last For the Scepter being cast away or lost by Edward the Second it was the Lot of his Son Edward the Third a Youth of fifteen yeares of age to take it up he knowing whose it was and feeling it too heavy for him was willing enough it should returne but being overswayed by Councels drawn from reason of State and pressed thereto by those that resolved not to trust his Father any more he wisely chose to manage it himselfe rather then to adventure it in another hand but that is not all for as its never seene that the Crowne doth thrive after Divorce from the Scepter but like a blasted blossome falls off at the next gale of adversity such was the issue to Edward the Second his Power once gone his Honour followed soon after he had ceased to be King and within a small time did cease to be Edward His Son thus made compleate by his Fathers spoyle had the honour to be the Repairer of the ruines that his Father had made and was a Prince which you might thinke by his story to be seldome at home and by his Lawes seldome abroad nor can it be reconciled without wonder that Providence should at once bestow upon England a couragious People brave Captaines wise Councell and a King that had the endowments of them all Otherwise it had out-reached conceit it selfe that this small Island wasted by the Barons Warrs the people beaten out of heart by all Enemies in the time of the Father should neverthelesse in the time of the Son with honour wade through so many difficulties of mighty Warrs on every side abroad and devouring Pestilence at home and yet lay a platforme of an Epulent wise and peaceable Government for future Generations Yet hee had his failings and misfortunes a great part whereof may be attributed to infirmity of Age which in the first part of his Reigne was too little and in the later part too much True it is that Governours of the Persons of Kings may in some measure supply defects of Non-age but seldome where the Governours are many and never if they be ambitious And it was this Kings fate to miscarry in both for he had in his Youth twelve Governours by constitution and they two supreame by usurpation Viz. The Queen and Mortimer till they were both consumed in the flame which themselves had kindled And this disparity wrought somewhat unsuccessefully in the Kings first Warr For the generosity of his spirit himselfe being young and active minded his Councell to advise him imployment in a Forraine Warr rather then they would adventure its motion at home least it might prove circular which is most dangerous for Government if the Prince be not under command of himselfe This first Warr was with Scotland whose power was inferiour to that of France the King young and the danger neerer and therefore though the last affront was from France that more fresh in memory and more peinant yet the King was advised to give place and speake faire till he had tryed masteries with Scotland and thereby secured his Rere This he wisely hearkened unto and met with such a successefull turne of Providence that like an O Yes before a Proclamation gives warning to Scotland that the Wheele is turned upon them and that there is somewhat more then humane motion in the matter that exasperates the English upon an enterprize so often crossed by Providence hitherto and the King also being but a Souldier in hope as yet to dare against those that had so shamefully foyled his Father and also put himselfe already once to the Retreat And yet there did concurr a kinde of necessity of second Causes for the King found the Crowne ingaged and the minds of the Scots so elate as the English mans case was not to live to Fight but to Fight to live and so imbittered against one another by the fierce Warrs under the Barrons that nothing could quench the fire but the withdrawing of the Brands into Forraine action like some angry spirits that spoyle their owne bodyes unlesse they chide or fight it out with others In the first brunt with Scotland the King gained nothing but understanding of the humours of some of his great Lords which once purged out he renues the Warr prevailes and after ten yeares stirr wherein hee became a trained Souldier against the Scots hee wann the Crosse and then goes to play his Prize in France to compleat his Crowne with the Flower De lis Which was the great worke of the rest of his Reigne in which foure parts of five was Victorious the fifth and last was declining like some Gamesters that winn at the first and for want of observation of the turning of the Dice come off loosers at the end For the King being rather satiated then satisfied with Victory and Honour returned home to enjoy what he had leaving his Son the Black Prince to pursue the Warr and to act the Souldiers alone who
now began to honour his Valour above his Fathers But the Tyde is spent the Prince of Chivalry dyes the brave Commanders wasted and the French too fickle to continue subject to the English longer then needs must tack about for another Adventure and make it plaine that France is too bigg to be Garrison'd by England and that it will cost England more to hold it then to have it His Religion was more to the purpose then of any of his Predecessors since the Norman times he reflected upon God in common events more ordinarily then the generall streame of the Clergy did in those dayes He loved if not adored devout men and their prayers and yet intentively disclaimed opinion of merits in the Creature Hee saw the Pope through and through loved him but little feared him lesse and yet lost neither Honour nor Power thereby His cheife policy at home was to be much at home great with his People and they great with him what the Parliament did he accounted well done he never questioned their Power though he was over-reached in questioning their Wisedome For he that shall preferr his owne wisedome above that of the Parliament must needs thinke himselfe extreamly Wise and so much the more to know himselfe to be such But the worst of his fate was to live to his Winter age and after fifty yeares Reigne or more to dye in his minority under the rule of a Woman of none of the best fame after hee had so long enjoyed the honour of greatest note in the Christian World in his dayes Such was not Richard the Second though the onely Son of that famous Cheiftaine the Black Prince of Wales a renouned Son of a renouned Father but as a Plant transplanted into a Savage soyle in degree and disposition wholly degenerate retained a tincture of the light inconstancy of his Mother and the luxuriousnesse of his Great Grandfather Edward the Second and running his course came to his end His entrance however by colour of Inheritance yet was a greater adventure then his Predecessors that came in by election upon the designation of his Father by his last Will say some For this man came in upon many disadvantages both of time and person The times were very troublesome the Kingdome new wrapped up in a double Warr abroad and which is worse flooded with distractions at home contracted partly by his Predecessors weaknesses in his decrepit estate partly by a new interest of Religion sprung up against the Papall Tyranny from the Doctrine of Wickleiff all which required a very wise Man and a brave Commander in both which the King fayled Religion now began to dawne through the foggs of Romish usurpations and superstitions ayded thereto by a Scisme in the triple Crowne that continued forty yeares with much virulency abroad and with as bad influence upon our Myters at home Some of whom were called Clementines others Vrbanists and yet none of them all worthy of eyther of the Names in their proper signification The Laity though lookers on yet were not quiet For though Liberty be a hopefull thing yet its dangerous to them that are not a Law to themselves especially in matter of Opinion for that arraines the rule and layes the way open to licentiousnesse And now that the Liberty from the Keyes began to be taught as a duty of Religion the inferiour sort meet with Doctrines of licentiousnesse upon mistake of the notion and will acknowledge no rule now they must be all at liberty and thus sprang up the insurrection of the Servants and Bond-men against their Lords and Masters under Cade and Strawe that might have brought the Common wealth into a hideous Chaos had not the Lords and Great Men betimes bestirred themselves and the King shewed an extraordinary spirit or rather a kinde of rage that put it selfe forth beyond the ordinary temper of his minde Much of this mischeife was imputed to Wickleiffs Doctrine for it is an ordinary thing to proclaime all evills concurring with the very joynt of Reformation to be the proper fruits thereof but I looke upon it as a fruit of corruption that indeavours to stopp the breath of Reformation in the birth and there is somewhat of a hidden influence from Above in the thing for it was not onely the Cupp of England to be thus troubled but France and other places had their portion sutable The Kings minority rendred him unequall unto these contrary motions he was in his eleventh yeare when he entred the Throne and which was worse his yeares came on faster then his Parts but his worke posted before them all The common helpe of Protectors left him yet more unhappy for they were prepossessed with strong ingagements of particular Interests and so were eyther not wise enough or not good enough for all This brought forth a third inconvenience the change of Protectorship and that change of Affaires and Interests an uncertaine good that brings forth a certaine evill for variety of Instruments and Interests move severall wayes and though the end be one the difference concerning the way many times doth as much hinder the Journey as so many blocks in the way The Protectorship was thrice changed the Kings Unkles had the first essay any one of them was bigg enough for one Kingdome but all of them together were too great to make one Protector The Duke of Lancaster would have done well alone if he had been alone and that work alone but he being somewhat ingaged with the Wickleiffists and so intangled with the Clergy and other restlesse spirits and drawne off by his private ayme at the Crowne of Castile saw this worke too much and so he warily withdrew himselfe leaving the Directory to a Committee of Lords a soveraine Plaister questionlesse where the times are whole but not for these distractions wherein even the Committee it selfe suffered its share Thus the breach is made the wider and for a cure of all the Government is committed into one hand wherein the Earle of Warwick acquitted himselfe well for he was wise enough to observe such as the people most honoured And thus passed over the two first yeares of the Kings Reigne The remainder of the Kings minority was rather in common repute then in true account For the King however young took little more from the Protector then he saw meet to collour his own commands with opinion of Regularity and so his will came to full strength before his wisdome budded Thus lifted up he sets himself above all interests of Parliament Protectors Councellors Unkles wise Men and Law leaving them all to be rules for those below And so long as the Kings desire is thus served he is content to be reputed a Minor and be as it were under protection of others though not under their direction and is content to continue thus untill his two and twentieth year Some might thinke him very moderate had hee been moderate but he forbears suing out his
therefore safe if not necessary that every eye should be open and Counsells ready for every Occasion A law at length is agreed upon that A Parliament shall be holden once every yeare or more if need be But in thirty yeares the power of this Law is wasted out of minde and the evill reviving revives also the Statute and yet they had thirteen or fourteen Parliaments in thirty yeares space and not above three or but once foure yeares distance of time between any two of them in Succession This was the sense of the Members of the Houses in their meeting but at home they had homely conceits and it s found no lesse difficult to bring them to the meeting then to continue the meeting according to the Law being either loath to adventure their thoughts into the troublesome affaires of the Publique or their Persons to expence and hazard But the Publique must be served and therefore an Act of Parliament is made That all such Members as decline their appearance at the Parliament after Summons made shall be amerced and the Sheriffes likewise that shall neglect return of Summons And the Statute implyeth that it was no Introduction of a new Law but a reviving of former Law now or lately difused or a Custome now out of Custome And to take away all Objection in point of charges and expences another Law was made to establish the assessments and levying of their Wages upon the Lands that anciently were chargeable therewith in whose hands soever the same shall come I shall conclude with this that the Parliament though like a Garment it sometimes covers the goodly feature and proportion of a well composed body yet it keepes the same warme and as a Sheild is first in all dangers and meets with many a knock which the body feels not This is their worke and reward It s true that in the wearing it is felt heavy but it is the easier born if it be duely considered that it is better to be so clothed then to be naked CHAP. III. Of the Privy Councell and condition of the Lords THe later must make way for the former for according to their Personall esteeme in their own Countries such is their Authority at the Board in joynt Councells And it was one point of happinesse in a sad time of Warre that all men looked one way The Lords were much addicted to the Feild and could doe much with Edward the Third who was a brave Leader and more with the People who had bin so long time used to the rough trade of Souldiery that they loved not to be at home about matters of Husbandry wherein they had so little experience And having so fair a Garland in their eye as France it s no wonder if Domestick designes seemed meaner or more dangerous Thus did God doe England a good turn although it was made for the present thereby neither so rich or populous as it might have bin in a time of Peace This French Heate wasted many a tumultuous Spirit and Innobled the Fame of the King and Lords not onely abroade but won them much Honour and Repute of those that remained at home and so by congregating Homogenealls and severing Heterogenealls rendered the body of the People more Univecall which tended much to the settling of the joynts of this distracted Nation A timely birth hereof doubtlesse was the peaceable entry of Richard the Second upon the Throne and quiet sitting there whiles as yet he was but a Childe the Princes of the blood many and they of generous Active and daring Spirits yet doe we not meete with a whisper in Story of any turbulent or aspiring humor in them or the People during those tenderer times of that Kings reigne But after that he came to know more in himselfe then was to be found and to outreare his abilities having some of the Lords ready at his elbow to help him these changed the Kings course although the generall part of that Noble Band kept still their Array and retaining the body of the People in due composure thereby declared themselves to be the Kings Friends though the others were Richards Favorites so as he was fain to stoop to occasion and submit to be a King that would have otherwise beene more or lesse And thus the Lords were become Supporters to the Crown Studds to the Throne and a Reserve to the People against the violent motions of an unbridled minde in their King who seeing them so united and indeavouring to break them into parties to obtain his desire lost both it and himselfe It is a degree of cleanly modesty to impute the miscarriages of unruly Kings to their Councell For however during their minority Councellors are more rightly Officers of State yet when Kings will be their owne Men their Councellors are no other then the breath of the Kings owne breast and by which a King may be more truely discerned then any man by his bosome Friends Edward the Third was a man of a publique Spirit and had a Councell suitable to his aime Richard the Second a man that desired what him pleased would have what he desired and a Councell he had that served him in all for God answers the desires of mens hearts in Judgement as well as in Mercy and a sore judgement it is both to King and People when the corrupt desires of the King are backed by a flattering Councell It must be granted that the Privy Councell of Kings hath been an old ginne of State that at a sudden lift could doe much to the furthering of the present Estate of publique Affaires Neverthelesse through the Riot of Kings their Designes generally tended to make more worke for the Parliament then to dispatch to doe much rather then well like workes for sale rather then for Master-peice and sometimes to undermine yea to outface the Parliament it selfe like some unruly servants that will put away their owne Masters Nor can it otherwise be expected unlesse the Kings elected ones be turned into the Parliaments Committee or that constant annuall Inquisition by Parliament be made into their Actions for occasionall inquiries breed ill blood though no attainder be nor are they easily undertaken whereas constancy in such Cases makes the worst to be resolved but into a matter of common course The naturall and originall power of the Privy Councell is very obscure because there are severall Degrees of them that occasionally have beene used all of whom may deserve the name of Privy Councell in regard of the Parliament which is the most publique Councell of all the rest and alwayes hath a generall interest in all Causes in the Kingdome The first of these is that which was called The Grand Councell of the King which as I thinke was not the House of Lords who are called by Summons and were onely to attend during the Parliament but a body made up of them and other wise men of his owne retinue and of this it seems
the State would trust it with and because it pretended Cognisance onely of matters of Record before them they found out a way of examining of witnesses by Commission and returning their Depositions in writing which being become a Record before them they gave their Sentence upon the whole matter without the ancient ordinary tryall Per pares It becomes a kinde of Peculiar exempting it selfe from the ordinary course in manner of triall and from the ordinary rules of Law in giving of Sentence and as a back doore for the Kings Arbitry in case of Judicature in matters of Common Pleas as the Councell Table was in Crowne Pleas they both are looked upon with a very pleasing eye of Majesty which loves not to be straite laced yet all is imbattelled under the colours of Equity Honor Conveniency and Conscience like a Monopoly that is bred under the wings of the Publique but feeds it selfe upon it That this had attained the Title of a Court so anciently as in K. Stevens time as the Honorable Reporter noteth I much question by the Title that Fleta gives it in later times nor under his favour will that Testimony cited out of the History of Ely warrant it but upon a mistaken ground of misplacing the note of distinction for I take the words to be thus translated King Etheldred determined and granted that the Church of Ely should for ever in the Kings Court hold the dignitie of the Chancery and not hold the dignitie of the Kings Court of Chancery Neverthelesse its clear that these times brought it to that condition that it might well carry that name if formerly it had not For it grew very fast both in honour and power and this not by usurpation though it did exceed but by expresse donation from the Parliament Yet is this power much darkned in the limits and extent thereof chiefly in regard that the Chancellor is betrusted with many things whereof there is no evidence for the Chancery to claim any Cognisance For he was in these times a person of many interests and relations being one of the Quorum in the Star-Chamber of the Kings Councell chief in the Chancery most commonly a Clergy man and therewith Legate è latere and in these severall Relations might act directly and yet in severall Courts And therefore though he had power with others to punish neglects of Execution of the Statutes of Wines by Act of Parliament and also of the Statute concerning Victuall and to determine matters of controversie between parties in Cases depending before the Parliament and in some matters that concern the Kings Revenue yet cannot these be said to be the proper worke belonging to the Cognisance of the Chancery but to the Chancellor by speciall Commission in another relation Allbeit I cannot deny but the Court it selfe had Cognisance in matters of as strange a nature Viz. To punish disturbances of Merchants in their trade to see to the executing of the Statutes of Purveiors and to remedy greivances contrary to other Statutes which generall words let in a wilde liberty to that Court to intermeddle in Lawes which were never intended for their touch to punish Nusances according to discretion to give remedy to Merchants upon the Statute of Staple so that its clear enough the Parliament intended it should be a Court and gave their Seale to their power of Judicature Nor as it seemeth was this any regret to the Courts of Common Law but as a thing taken for granted For the Reports tell us that if the King grants Tythes arising from without the bounds of any Parish the Patentee shall sue in the Chancery by Scire Facias and shall there proceed to issue or demurrer and then to the common Law where upon triall if the Defendant make default the Plaintiffe shall have Judgement and Execution And if the Heire 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 prohibite Spirituall Courts and Courts of common Law yea to over-rule or reverse judgements and yet the common Law held its ground when it was concerned for neither were all suites 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 Councell of the King which were also learned Judges of the Law For the Report informeth that Edward the Second had granted a Rent in Taile to the Earle of Kent who dying his Sonne 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 Councell 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 repeale the Kings Charter And whereas it was objected that the reference was to the Arch Bishop 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 appeares clearely that the Kings Councell there were learned in the Law And the same is yet more evident by the Title of Bills in those dayes exhibited in the Chancery which was directed to the Chancellor and the Kings Councell and the rule given Per tout les Justices which I rather note for the shortnesse of the forme of Bills in those dayes farre different from these times wherein the substance of the complaint however small in it selfe is oftentimes blowne out into so great a bubble that it breakes to nothing And the Statutes formerly mentioned do assert the same thing as touching the Kings Councell For though they speake of the Councell or Chancery in the English Tongue yet in the Originall the words are Conceill 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 finde Sureties to pursue the suggestions and that the processe 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 be had beene 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
confusion in stead of Law CAHP. VI. Of the Churchmens Interest BUt the Churchmens interest was yet more tarte standing in need of no lesse a lay then that of the Kings Authority for that the King is no lesse concerned therein then the People and the rather because it was now growne to that pitch that it is become the Darling of Kings and continually henceforth courted by them either to gaine them from the Papall Jurisdiction to be more ingaged to the Crowne or by their means to gaine the Papall Jurisdiction to be more favourable and complying with the Prerogative Royall The former times were tumultuous and the Pope is gained to joyne with the Crowne to keep the people under though by that means what the Crowne saved to it selfe from the people it lost to Rome Henceforth the course of Affairs grew more civill or if you will graced with a blush of Religion and it was the pollicy of these times whereof we now Treat to carry a benigne aspect to the Pope so farre onely as to stave him off from being an enemy whiles Kings drove on a new designe to ingratiate and ingage the Churchmen of their owne Nation unto its owne Crowne This they did by distinguishing the Office or Dignity of Episcopacy into the Ministeriall and Honourable parts the later they called Prelacy and was superadded for incouragement of the former and to make their work more acceptable to men for their Hospitalities sake for the maintenance whereof they had large Endowments and Advancements And then they reduced them to a right understanding of their Originall which they say is neither Jus Divinum nor Romanum but that their Lordships Power and great Possessions were given them by the Kings and others of this Realm And that by vertue thereof the Patronage and custody of the Possessions in the vacancy ought to belong to the Kings and other the Founders and that unto them the right of Election into such advancements doe belong and not unto the Pope nor could he gain other Title unto such power but by usurpation and incroachment upon the right of others But these Great men were not to be wonne by Syllogismes Ordinarily they are begotten between Ambition and Covetousnesse nourished by Riches and Honour and like the Needle in the Compass turn ever after that way Edward the Third therefore labours to winne these men heaped Honour and Priviledges upon them that they might see the gleanings of the Crowne of England to be better then the vintage of the triple Crown Doubtlesse he was a Prince that knew how to set a full value upon Churchmen especially such as were devout and it may be did somewhat outreach in that course For though he saw God in outward events more then any of his Predecessors and disclaiming all humane merits reflected much upon Gods mercy even in smaller blessings yet we finde his Letters reflect very much upon the Prayers of his Clergy and loved to have their Persons nigh unto him put them into places of greatest Trust for Honour and Power in Judicature that not altogether without cause he had thereby purchased unto his Kingdome the name and repute of being a Kingdome of Preists But all this is but Personall and may give some liking to the present Incumbents but not to the Expectants and therefore the Royall Favor extended so far in these times as to bring on the Parliament to give countenance to the Courts and Judiciary power of the Ordinaries by the Positive Law of the Kingdome although formerly the Canons had already long since made way thereto by practice I shall hereof note these few particulars ensuing Ordinaries shall not be questioned in the Kings Court for Commatation Testamentory Matters or Matrimoniall Causes nor other things touching Jurisdiction of Holy Church Things formerly bred by the Canon nourished by continuall practise allowed by Ordinance of Parliament or Grant from Kings in Parliament are now confirmed by solemne concurrence of the whole representative Body of the Kingdome to have and to hold with Warranty And yet the sense is not so generall as the words nor doth it seeme much other then a Confection made for the Arch Bishops appetite to cure a distemper between him and the King for the Civill Judge lost nothing hereby nor would the Crowne as may appear by a Law of equall Authority with the former for though an Executor or Administrator may cheat yet it tells us that Ordinaries onely can oppresse and extort from dead men and therefore in such cases doth provide remedy by inquiry and Indictment before the Kings Justices They shall have Cognisance of Vsury during the Delinquents life and the King after the Delinquents death The difference ariseth from the different end the first being to reforme the Person by Church-censures and to urge him to restitution the latter is for the Kings Fine or Forfeiture For as touching the Usurers estate the offence was in the nature of Felony forfeiting both Lands and goods to the King after the Delinquents death And it seemeth the manner was to Indict the Delinquent during his life and that stuck to him as a deadly arrow in his side till he died Nor did it lye in the power of the Ordinary by Ecclesiasticall censure so to reforme the Offender as to cleare him to the King unlesse the party offending made his peace with the King by Composition and thus the Law continued for ought appeareth to mee till the time of Henry the Eighth They shall have Cognisance of avoydance of Benefices of Right They shall certifie Bigamy and Bastardy had beyond the Sea and whether a Prior be perpetuall or dative The first of these concerning avoydance of Churches it seemeth was somewhat doubtfull in point of Practice for that the Civill Judge used to determine all manner of avoydances as well in Fact as of right but by this Statute they are restrained onely unto avoydances in Fact so as after this Statute it is holden that avoydances by death shall be tried by the Countrey but if the avoydance be by Deprivation Resignation Creation or otherwayes it shall be tried by the Ordinary because by common intendment he is more connusant of the thing then Countrey people But as touching the point of Bigamy the matter is more doubtfull in regard that commonly the marriage of a second Wife or Widow is a matter in Fact done in the face of the People and of which they take notice especially where the life of man is concerned which rather requireth the judgement of his Peires then where the outward maintenance onely is ingaged Neverthelesse because the main point is whether the Party be a Clerk or not and the same anciently rested upon the Certificate of the Ordinary It s by this Law again allowed to him to try and certifie this point of Bigamy also although the Statute of Bigamists might seeme to Intitle the civill Magistrate thereto as the Law
he made the penalty of Praemuniri to extend to all Farmores or others in nature of Bailiffs that held any Church maintenance to the use of any alien and unto all Aliens that are Purchasors of such Provisions to any use and unto all Lieges that shall in like manner purchase such Provisions But as touching such as shall accept such provisions he ordained Banishment for their Persons and Forfeiture of their Estate Notwithstanding all this the Romane Horse-leach would not so give over The King grew into displeasure with his Subjects and they with him and with one another they see the Pope still on Horseback and fear that the English Clergy their own Countrey men if not Friends and Abbettors yet are but faint and feigned Enemies to the Popes Cause Nor was it without Cause that their fear was such for as the Pope had two hands to receive so they had two hearts making show of forming blowes at the Pope but then alwayes at a distance or when without the Popes Guard and thus the Lawes begin to stammer and cannot speake so plain English as they were wont The people hereat offended resolve to put the Clergy into the Van and to try their mettle to the full At the last Parliament that Richard the Second did hold both the Lords Temporall and Spirituall are opposed one by one The Lords Temporall like themselves resolve and enter their Resolutions to defend the right of the Crowne in the Cases of Provisors although even amongst these great men all were not equally resolute for Sir William Brian had purchased the Popes Excommunication against some that had committed Burglary and he was committed to the Tower for his labour But the Prelates answer was ambiguous and with modifications which was all one to cry as men use to say Craven yet was the Statute made peremptory according to what was formerly Enacted And though the Prelates cautionary way of proceeding might be a principall reason why the Popes power held so long in England in an usurping way yet Kings also much conduced thereto by seeking too much their Personall ease above the Honour of their Place and the Popes blessings and opinion of his Favour more then their owne good or the Peoples liberty for there was no other balme for a distracted minde then that which dropped from the Popes lips In like manner Richard the Second being already at least in purpose estranged from his People sought to get freinds at Rome to hold by the Spirituall Sword what he was in danger to loose by laying aside the Sword of Justice which is the surest Tenure for Kings to hold by And though the Popedome was now under a Schisme between two Popes Clement and Vrban yet he was so farre won for Vrban that he not onely ingaged himselfe and the Parliament to determine his Election and uphold the same but also Ex abundante did by Implication allow to him an Indefinite Power to grant Provisions and so at once he lost the Die and gained a Stake that like a bubble looked faire but soon vanished away Neverthelesse these two Comrades whiles they were together resolved to make the most of each other that they could and therefore though the Popedome liked not the King yet the Pope had his love so farre as he could deny himselfe for he had already denied his Kingdome And if the Articles exhibited against the King by Henry the Fourth be true the Pope had his Faith also For that he might be rid of his reputed Enemy Arch Bishop Arundell he trusted the Pope with that Complement of making Walden Arch Bishop of Canterbury in Arundells stead which the Pope tooke so kindly as he made it a President for Provisors for the future Nor did the King stick in this one Singular but made it his Custome in passing of Lawes especially such as the King was most devoted unto to put more Confidence in the Popes Amen then in all the Prayers of his Commons with his owne Soit fait to boot The summe then will be that the Prize was now well begun concerning the Popes power in England Edward the Third made a fair blow and drew blood Richard the Second seconded him but both retired the former left the Pope to lick himself whole the later gave him a salve and yet it proved a Gangrene in the conclusion The second means used to bring down the power of the Pope in this Nation was to abate the power or height of the English Clergy for though the times were not so cleare as to espy the Root of a Pope in Prelacy yet experience had taught them that they were so nigh ingaged that they would not part And therefore first they let these men know that Prelacy was no Essentiall Member to the Government of the Kingdome but as there was a Government established before that ranke was known so there may be the like when it is gone For Edward the Third being troubled with a quarrell between the two Arch Bishops of Canterbury and Yorke concerning Superiority in bearing the Crosse and the important Affaires of Scotland so urging Summoned a Parliament at Yorke which was fain to be delaied and adjourned for want of appearance and more effectuall Summons issued forth but at the day of Adjournment none of the Clergy of the Province of Canterbury would be there and upon this Occasion the Parliament was not onely interrupted in their proceedings but an ill president was made for men to be bold with the Kings Summons in such Cases as liked not them and thereupon a Statute was made to inforce Obedience upon Citizens and Burgesses and such Ecclesiasticks as held per Baroniam Neverthelesse when the matters concerning Provisors began to come upon the Stage which was within two yeares after that Law was made the Clergy found that matter too warme for them and either did not obey the Summons or come to the Parliament or if they came kept aloofe or if not so would not Vote or if that yet order their tongues so as nothing was certainly to be gathered but their doubtfull or rather double minde These Prelates thus discovered the Parliament depended no more upon them further then they saw meet At sixe or seven Parliaments determined matters without their Advice and such as crossed the Principles of these men and therefore in a rationall way might require their Sense above all the rest had they not beene prepossessed with prejudice and parties in the matter Nor did Edward the Third ever after hold their Presence at so high Repute at such meetings and therefore Summoned them or so many of them as he thought meet for the Occasion sometimes more somtimes fewer and at a Parliament in his fourty and seventh yeare he Summoned onely foure Bishops and five Abbots And thus the matter in Fact passed in these times albeit the Clergy still made their claim of Vote and desired the same to be entered upon Record And
sore People yet many times Lawes are said to be many when as they are but one branched into many Particulars for the clearing of the Peoples understanding who usually are not excellent in distinguishing and so becomes as new Plaisters made of an old Salve for sores that never brake out before Such sore times were these whereof we now Treate wherein every touch made a wound and every wound went to the heart and made the Category of Treason swell to that bignesse that it became an individuum vagum beyond all rule but the present sence of timerous Judges and a touchy King Thus were many of the ignorant and wel meaning people in an hideous danger of the gulfe of forfeiture before they found themselves nigh the brimme All men do agree that treason is a wound of Majesty but all the doubt is where this Majesty resteth originally and what is that legiance which is due therto the breach whereof amounteth to so high a censure for some men place all Majesty in one man whom they call an absolute Monarch Others in the great men and others in the people and some in the concurrence of the King and body of the people and it is a wild way to determine all in one conclusion when as the same dependeth wholy upon the constitution of the body looke then upon England in the last posture as the rigider sort of monarchiall polititians do and Majesty will never be in glory but in the concurrence of the King and Parliament or convention of Estates so upon the whol account it wil be upon the people whose welfare is the supream Law Rome had Kings Consuls Dictators Decemviri and Tribunes long before the Orators time and he saw the foundation of an Empire or perpetuall Dictatorship in the person of the first of the Caesars any of all which might have challenged the supremacy of Majesty above the people and yet the often change of Government shewed plainly that it rested upon another pinne and the Orator in expresse words no lesse when speaking of the Majesty of that Government he allotteth it not to those in cheife command but defineth it to be magnitudo populi Romani afterwards when the pride of the Emperors was come to its ful pitch in the times of Augustus Tiberius an Historian of those times in the life of Tiberius tels us that he declared the bounds of Treason to be determined in three particular instances of treachery against the Army Sedition amongst the people and violating the Majesty of the People of Rome in al which men were not punishable for words but actions and indeavors I do not herein propound the Government of the Roman Empire as a modell for England but à majori may conclude that if the proper seat of Majesty was in the people of Rome when Emperours were in their fullest glory it s no defacing of Majesty in England to seat it upon the whole body from whom the same is contracted in the representative and so much thereof divided unto the person of the King as any one member is capable of according to the work allotted unto him These severall seats of Majesty making also so many degrees do also imply as many degrees of wounding for it s writen in nature that the offence tending to the immediate destruction of the whol body is greater then that which destroyeth any one member only and when the written Law maketh it treason to compasse the destruction of the Kings Person it leaveth it obvious to common sense that its a higher degree of Treason to compasse the destruction of the representative and above all to destroy the whole body of the People crimes that never entred into the conceit of wickednesse it selfe in those more innocent times much lesse saw they any cause to mention the penalty by any written Law Neverthelesse because many sadd examples had accurred within the memory of this present age of the danger of the person and honor of Kings and yet on the otherside they saw that in such cases of Treason the Kings honor was made of retching leather and might easily be strained within the compasse of a wound of Majesty therefore Edward the third imitating Tiberius reduced the crime of wound of Majesty in the Person of the King into certaine particular instances out of the compasse whereof the Judges of the Law in ordinary course must not determine Treason These concerne either the safety of the Person of the King or of the succession in the Royall Throne or lastly the safegard of the publique right by the board and privy seale the vallue of Mony and by persons in matters of judicature judicially presiding all of them reflecting upon the King considered in his politick capacity for otherwise many crimes might have beene mentioned more fatally reflecting upon the King in his naturall capacity which nevertheless are omitted as not worthy of so high a censure Other Treasons are left to the determination of the Parliament as occasion should offer it selfe whereof divers examples of a new stamp accurred within forty yeares next ensuing which were of a temporary regard and lived and died with the times To these two notions of Majesty and treason I must add a third called Legiance for it is that which maketh Majesty to be such indeed and lifteth it into the Throne and whereof the highest breach makes Treason and because that which hath been already sayd reflecteth upon an opinion or rather a knot of opinions for I find them not punctually adjudged in Calvins case I must a little demur to them because as their sense is commonly taken it alters the fundamental nature of the Government of this nation from a commonweal to a pure Monarchy In handling of this case the ho. Reporter took leave to range into a generall discourse of legiance although not directly within the conclusion of the case and therin first sets down the general nature therof that it is a mutual bond between an English King and his people and then more particularly sets forth the nature of this bond in the severall duties of obedience and fealty fo 5. a. and those also in their severall properties Viz. naturall absolute fo 7. a. due to the King omni soli semper fo 12. a. in his naturall and not politick capacity fo 10. a. whereas he saith this bond is natural he meaneth that its due by birth fo 7. a. By absolute if I mistake him not he meaneth that it is indefinite fo 5. b. Viz. not circumscribed by Law but above Law and before Law fo 13. a. and that Laws were after made to inforce the same by penalties fo 13. b. and therefore he concludeth that this legiance is immutable fo 13. b. and fo 14. a. Thus having stated the point as truely as I can both for the nature of legiance and the object thereof Viz. the King and not the people otherwise then in order to the safety
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 of the Case Neverthelesse I rather thinke 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 Kings Naturall Capacity and not to his Politique 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 Naturall Capacity therefore the Subjects swear to him in his Naturall Capacity This reason was intended to be taken from Relatives and then it should have been thus A King doth sweare to his Subjects in their Naturall Capacity therefore Subjects sweare to a King in his Naturall 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 Naturall Capacity yet not Terminative more then the Oath of the Tenant to his Lord which this Author pleaseth to couple with the mutuall dependence between King and Subject fol. 4. b. 5. a. Nor doth the Oath of an English man binde him to the Obedience of all or any Commands which the King shall give in relation onely to his Naturall Capacity or in opposition to his Politick Capacity Nor will the Reporter himself allow that the Politique Capacity of the King can be separate from his Naturall Capacity fol. 10. And yet it is evident that a King may in his Naturall Capacity command that of which in his Politique 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 Naturall 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 Naturall 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 Naturall Person of a King as he is King neither is their any other difference between the murther of a King and a private Man but onely in regard of the Place and Office of a King which makes the murther of him Treason for which cause all Indictments that doe conclude Contra Legiantiae debitum doe as well also conclude Contra Coronam Dignitatem c. The third reason is this A body politique can neither make nor take Homage 33. H. 8. Bro. tit Fealty Therefore cannot the King in his Politique Capacity take Legiance The first must be granted onely sub modo for though it cannot take Homage immediately yet by the means of the Naturall Capacity it may take such service and therefore that Rule holds onely where the Body Politique is not aggregate and not one person in severall Capacities for the Tenant that performes his service to his Lord performs the same to his Lord in his Naturall Capacity but it is in relation to his Politique 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 Kings naturall Person hath right in the Crowne by Inheritance therefore also in the Legiance of the Subject This is the strength as nigh as I can collect of that which is set down as a sixth reason but I make it the fourth because the third as I conceive is but an illustration of the second and the fifth is upon a supposall of a Fides ficta whereas that Faith of an English Subject which is according to Law is the truer of the twaine But to the substance of this fourth reason If the first be granted yet the Reporter cannot attain his conclusion for the King may in his Naturall Capacity have right to the Crowne by Inheritance and yet not right in the Legiance of his Subjects otherwise then in right of the Crowne As in the Case of Lord and Tenant the Lord may inherite the Lordship in his naturall Capacity but the Service is due to him as Lord and not as by Inheritance in the Service in the abstract And though it be granted that the Legiance to a King is of a higher strain then that of a Tenant to his Lord fol. 4. b. 5. a. Yet doth the Reporter bring nothing to light to prove them to be of a different Nature in this regard The fifth and last reason that commeth to consideration is from a Testimony of the Parliament for it is said That this damnable Tenet of Legiance to the King in his Politique Capacity is condemned by two Parliaments But in truth I can finde but one under that Title that mentioneth this Opinion and that is called Exilium Hugonis which in summe is nothing else but Articles containing an enumeration of the particular offences of the two Spencers against the State and the Sentence thereupon The offences are for compassing to draw the King by rigor to govern according to their wills for withdrawing him from hearkning to the advice of his Lords for hindering of Justice and Oppression and as a means hereunto They caused a Bill or Scedule to be published containing that Homage and Legiance is due to the King rather in relation to the Crowne then absolutely to his Person because no Legiance is due to him before the Crowne be vested upon him That if the King doe not govern according to Law the Leiges in such case are bound by their Oath to the Crown to remove him either by Law or Rigor This is the substance of the Charge and upon this exhibited in the Lords House the Lords super totam materiam banish them before their Case is heard or themselves had made any appearance thereto So as to the matter of this Scedule which contains an Opinion suitable to the Point in hand with some additionall aggravations the Parliament determineth nothing at all but as to the publishing of the same to the intent to gather a party whereby they did get power to act other enormities mentioned in the Charge and in relation to these enormities the Lords proceeded to Sentence of banishment all which was done in the presence of the King and by his disconsent as may appear by his discontent thereat as all Historians of those Affaires witnesse and it is not probable that the King
from the Truth some of the common Books have the words thus None shall be destrained to goe out of their Counties unlesse for cause of necessity and of sudden coming of Strangers or Enemies into the Kingdome Others reade it thus But where necessity requireth and the coming of strange Enemies into the Kingdome The Kings answer to the Parliaments Declaration concerning the Commission of Array would reade it thus Vnlesse in case of Necessity or of sudden coming of strange Enemies c. But the words in the Roll are these Et que nulls ne soient distresses d'aller hors de les Countees Si non pur Cause de necessity de suddaine venue des Stranges Enemies en Reqaulme In English thus word for word And that none be destrained to goe out of the Counties if not for cause of Necessity of sudden coming of strange Enemies into or in the Kingdome which words determine the Point That none shall be by Commission of Array drawn out of their County but in case of Necessity And secondly that this Case of Necessity is onely the coming of strange Enemies into or in the Kingdome so as probably the Invasion must be actuall before they be drawn out of their Counties and not onely feared and it must be a sudden Invasion and not of publique note and common fame foregoing for then the ordinary course either of Parliament or otherwise must be used to call those that are bound by Statute or Tenures or Volunteires to that Service seeing every Invasion is not so fatall as to require a Commission for a Generall Array Against what hath been thus noted the judgement of Sir Edward Coke in Calvins Cafe lies yet in the way who affirmeth that the Subjects of England are bound by their Legiance to goe with the King in his Warres as well within the Realme as without and this Legiance he telleth us is that Naturall Legiance which he saith is absolute and Indefinite c. and not Locall which if not so then were not the English bound to go out of England an inference that is neither necessary nor is the thing affirmed certain It is not necessary because English men may be bound to goe out of England by vertue of their Tenures particular Contract or else by speciall Act of Parliament and not by vertue of that Naturall Legiance which in Truth is no where Now for the maintenance of the Point the Reporter alledgeth two Statutes affirming the thing and Common practice and lastly Authorities of the Judges of the Common Law As touching the Statutes one in Henry the Sevenths time and the other in Edward the Sixths time I shall speake of them in the succeeding times when we come at them for they are no Warrant of the Law in these times whereof we now treat much lesse is the modern practice of these later dayes a Demonstration of the Law in the times of Edward the Third nor of the Nature of the Law in any time seeing that it is obvious to times as well as particular Persons to doe and suffer things to be done which ought not so to be and therefore I shall for the present lay those two Considerations aside But as touching the Opinions of the Judges of the Common Law two Cases are cited in the Affirmative which seeme in the Negative and the rest conclude not to the Point The first of the two cases is the opinion of Justice Thirning in the time of Henry the Fourth word for word thus A Protection lies for the Defendant in a Writ upon the Statute of Labourers and yet the Defendant shall not have such matter by way of Plea Viz. That the King hath retained him to goe beyond the Sea for the King cannot compell a man to goe out of the Kingdome That is as the Reporter saith Not without Wages intimating thereby that if the King shall tender wages to any man he must goe whither the King shall please to send him which is not onely destructive to the opinion of Thirning concerning the Plea but also though granted is destructive to the Reporters judgement in the main point For if an English man may refuse to goe without wages then is he not bound to goe by any naturall absolute Legiance as the Reporter would have it And as touching the second Case which is Bigots and Bohuns Case it cleareth the same thing for it was resolved that they ought to goe but in manner and form according to the Statutes then is not the ground in the absolute Legiance for that is not qualified but in the Positive Statute-Law which tieth onely in manner and form and that by voluntary consent in Parliament The rest of the Cases do neither conclude the main point nor the particular thing that the Reporter intendeth for he would imply to the Reader that English men were anciently used to be imprested for the Warres in France and hereunto he voucheth one Authority out of ancient Reports of Law in Edward the Thirds time one authority in the time of Henry the Fourth and three in the time of Henry the Sixth none of all which doe speake one word concerning impresting and that in Edward the hird doth imply the contrary for the Case is that in a Praecipe quod reddat a Protection was offered by the Defendant as appointed to goe beyond Sea with the Duke of Lancaster and the Plaintiffes Councell alledged that the Defendant had been beyond Sea with the Duke and was returned To this the Defendants Councell answered that the Duke was ready to return again and for this cause the Protection was allowed Yet a Quere is made upon this ground that it might be that the Defendant would not goe over with him nor was it proved that he would which sheweth plainly the party was not imprested for then the thing had not been in his power to will or nill The last instance that the Reporter produceth is that of Forinsecum Servitium or Forrain Service and that seemerh to be Knight Service to be performed abroad But this falleth short of the Reporters intention in three respects First though it belongeth to the King yet not to him onely but to other cheif Lords so saith Bracton Secondly it is not due from every English man And lastly it is a Service due by vertue of Tenure and then the Conclusion will be That which is due by Tenure of Lands is not due by naturall and absolute Legiance and so this Forrain Service arising meerly by compact and agreement between Lord and Tenant and not by the naturall duty of an English born Subject which is the thing that the Reporter driveth at in all this discourse will be so far from maintaining the Reporters opinion as it will evidently destroy the same And thus the Posture of this Nation in the Feild remaineth regular in the rule what ever hath been said against it notwithstanding that in the very instant of Action there may be some
feminine Spirit which they sent over into England to be their Queen and in one Civill Warre shedding more English blood by the English Sword then they could formerly doe by all the men of France were revenged upon England to the full at the English mens own charge For what the English gain by the Sword is commonly lost by discourse A Kingdome is never more befooled then in the Marriage of their King if the Lady be great she is good enough though as Jezabell she will not either reverence her Husband obey her Lord and King nor regard his People And thus was this Kingdome scourged by a marriage for the sinne of the Wise men that building upon a false Foundation advised the King in the breach of Contract with the Earle of Arminiacks Daughter And thus the King also for that hearkning to such Councell he murthered the Duke of Glocester that had been to him a Father yeilded up his Power to his Queen A Masterlesse and proud Woman that made him like a broken Idol without use suffered a Recovery of his Crown and Scepter in the Parliament from his owne Issue to the Line of Yorke then renewing the Warre at his Queens beck lost what he had left of his Kingdome Countrey and Liberty and like the King that forgot the kindnesse of Jehojada lost his life by the hand of his Servant CHAP. XIV Of the Parliament during the Reignes of these Kings THe interest of the Parliament of England is never more Predominant then when Kings want Title or Age The first of these was the Case of Henry the Fourth immediately but of them all in relation to the pretended Law of the Crown but Henry the Sixth had the disadvantage of both whereof in its due place The pretended Law of the Crown of England is to hold by Inheritance with power to dispose of the same in such manner by such means and unto such persons as the King shall please To this it cannot be denied divers Kings had put in their claimes by devising their Crowne in their last Will but the successe must be attributed to some Power under God that must be the Executor when all is done and which must in Cases of Debate concerning Succession determine the matter by a Law best known to the Judge himselfe Not much unlike hereunto is the Case of Henry the Fourth who like a Bud putting up in the place of a fading Leafe dismounts his Predecessor First from the Peoples regard and after from his Throne which being empty some times he pretending the resignation of his Predecessor to him other whiles an obscure Title by descent his Conscience telling him all the while that it was the Sword that wrought the worke But when he comes to plead his Title to Forrain Princes by Protestation laying aside the mention of them all he justifies upon the unanimous consent of the Parliament and the People in his own onely Person And so before all the World confessed the Authority and power of the Parliament of England in disposing of the Crown in speciall Cases as a sufficient barr unto any pretended right that might arise from the House of Mortimar And yet because he never walks safely that hath an Enemy pursuing him still within reach he bethinks himself not sure enough unlesse his next Successors follow the dance upon the same foote to this end an Act of Parliament leades the tune whereby the Crowne is granted or confirmed to Henry the Fourth for life and intailed upon his Sonnes Thomas John and Humphrey by a Petition presented 5. Hen. 4. Thus Henry the Fourth to save his owne stake brought his Posterity into the like capacity with himselfe that they must be Kings or not subsist in the World if the House of Yorke prevailes and so he becomes secured against the House of Yorke treading on his heeles unlesse the Parliament of England shall eat their owne word However for the present the House of Lancaster hath the Crown intailed and the Inheritance is left in the Clouds to be revealed in due time For though this was the first president of this kinde yet was it not the last wherein the Parliament exercised a Power by Grant or Confirmation to direct the Law and Course of the Crown as they pleased The due consideration hereof will make the things that follow lesse strange For the Parliament according to occasion as the Supreame power of this Kingdome exercised Supreame Jurisdiction in order to the safety of the Kingdome as if no King had beene to be found in issuing forth Writs under the great Seale concluding of matters without the Royall assent treating of Peace with Forrain Nations and of other matters and determining their Resolves before discovery made to the King of their Councells making Ordinances and ruling by them 3 H. 6. n. 29. 2 H. 6. n. 27. 8 H. 6. n. 12. referring matters determinable in Parliament to be determined according to their directions Authoritate Parliamenti Confirming Peace made by the King protesting against Peace made without or against their consent making Ambassadours with power to ingage for the Kingdome making Generals of the Army Admiralls at Sea Chancellors Barons and Privy Councellors and giving them instructions 8 H. 4. n. 73. 76. 31. 5 H. 4. n. 57. 31 H. 6. n. 21. and binding them to observance upon Oath 11 H. 4. n. 19.39 Ordering the Person of the King denying his power of Judicature in Parliament and ordering his Houshold and Revenue besides many other particulars Now if such as these things were thus done not by one Parliament which possibly might be overwayed by Factions but by the course of a Series of Parliaments that mightily laboured against Faction and unworthy ends and aimes that man shal determin the same to be unjust or indiscreet should himself first be determined to be very just and exceeding wise Nor was the Parliament partiall in all this but being in a way of Reformation it set upon the work of reforming it selfe Some that are very zealous in the point of Arbitrary and absolute Government of Kings in this Nation and all in other amongst other grounds rest upon this one That an English King hath power to call Parliaments and dissolve them to make and unmake Members as he shal please I do easily grant that Kings have many Occasions and Opportunities to beguile their People yet can they do nothing as Kings but what of right they ought to doe They may call Parliaments but neither as often or seldome as they please if the Statute-Laws of this Realme might take place Nor if they could is that power necessarily and absolutely arising from Supremacy seeing it is well known that such power is betrusted by the Superiour States in other Nations to the Inferiour who dayly attend on publique Affaires and therefore can discern when the generall Conventions are most necessary As touching the dissolving of Parliaments against the wills of
neverthelesse in that interim three Parliaments had been holden one by the Duke of Bedford and two by the Duke of Glocester in the last of which this Law was made And in truth if wee looke upon this title of the Kingdomes Guardianship in its bare lineaments without lights and shadows it will appeare little better then a Crown of feathers worne onely for bravery and in nothing adding to the real ability of the governing part of this Nation Neither were the persons of these Magnificoes so wel deserving nor did the Nation expect any such matter from them Edward the first was a wise King and yet in his absence chose Edward the second to hold that place he being then not above fourteen yeares of age afterwards Edward the seconds Queen and the Lords of her party were wise enough in their way and yet they chose Edward the third to be the Custos regni then not fourteen yeares old his Father in the meane time being neither absent from the Kingdome nor deposed but onely dismissed from acting in the adminstration of the Government Edward the third follows the same example he first makes his Brother John of Eltham Custos regni and this he did at two several times once when he was but eleven yeares old afterwards when hee was about fourteene Then he made his Sonne the Black Prince upon severall occasions three times Lord Warden of the Kingdome once he being about nine yeares old and againe when he was eleven yeares old and once when about fourteen yeares old Lastly Edward the third appointed his son Lionell Duke Clarence unto this place of Custos regni when as he was scarce eight years old all which will appeare upon the comparing their ages with the severall Rolls of 25 E 1. and 3 5 12 14 16 19 E 3. If therefore the worke of a Custos regni be such as may be as wel done by the infants of Kings as by the wisest Councellor or most valiant man it is in my opinion manifest that the place is of little other use to this Common-wealth then to serve as attire to a comely Person to make it seeme more faire because it is in fashion nor doth it advance the vallue of a King one graine above what his personall endowments doe deserve Hitherto of the title and power the next consideration will be of the original Fountain from whence it is derived wherein the presidents are cleare and plaine that ordinarily they are the next and immediate ofspring of Kings if they be present whithin the foure seas to be by them enabled by Letters Patents or Commission But whether present or absent the Parliament when it sate did ever peruse their authority and if it saw need changed inlarged or abridged both it and them Thus was the Duke of Glocester made Lord Warden in the time of Henry the fifth he being then in France in the roome of the Duke of Bedford the like also in Henry the sixths time when as the King was young for then the Parliament made the Duke of Bedford Lord Warden and added unto that title the title of Protector Afterward at the Dukes going over into France they committed that Service to the Duke of Glocester if I forget not the nature of the Roll during the Duke of Bedfords absence and with a Salvo of his right Nor unlike hereunto was the course that was taken by the Parliament in these sullen later times of Henry the sixth whereof more hereafter in the next Paragraph Lastly the limitation of this high power and title is different according to the occasion for the Guardianship of the Kingdome by common intendment is to endure no longer then the King is absent from the helme either by voluntary deserting the worke or imployment in forrain parts though united they be under the Government of the same King together with this Nation such as are these parts of France and Ireland and Scotland then under the English fee This is apparent from the nature of that statute of Henry the fifth formerly mentioned for if there was need to provide by that Statute that the Kings Arrivall and Personall Presence should not dissolve the Parliament assembled by the authority of the Custos regni then doth it imply that the personall presence of the King by and upon his Arrivall had otherwise determined the Parliament and that authority whereby it sate But the presidents are more cleare all of them generally running in these or the like words In absentia Regis or Quamdiu Rex fuerit in partibus transmarinis It is also to be granted that the Kings will is many times subjoyned thereunto as if it were in him to displace them and place others in his absence yet doe I finde no president of any such nature without the concurrence of the Lords or Parliament and yet that the Parliament hath ordered such things without his consent For when Richard the First passing to the Holy Land had left the Bishop of Ely to execute that place during his absence in remote parts the Lords finding the Bishop unfaithfull in his Charge excluded him both from that place and Kingdome and made the Kings Brother John Lord Warden in his stead But in the Case of the Protectorship which supposeth disability in the Person of the King the same by common intendment is to continue during the Kings disability and therefore in the Case of Henry the Sixth it was determined that the Protectorship doth Ipso Facto cease at the Kings Coronation because thereby the King is supposed able to govern although in later times it hath not so beene holden For Kings have been capable of that Ceremony as soon as of the Title and yet commonly are supposed to be under the rule of necessity of Protectorship till they be fourteen years of age or as the Case may be longer For although Henry the Sixth was once thought ripe when he was eight yeares old yet in the issue he proved scarce ripe for the Crowne at his two and twentieth yeare Neverthelesse the default of Age is not the onely incapacity of Kings they have infirmities as other men yea more dangerous then any other man which though an unpleasant tune it be to harp upon yet it is a Theame that Nations sometimes are inforced to ruminate upon when God will give them Kings in his wrath and those also over to their own lusts in his anger In such Cases therefore this Nation sometimes have fled to the refuge of a Protector and seldome it is that they can determine for how long When Henry the Sixth was above thirty yeares old Richard Duke of Yorke was made Protector and Defendor of the Realme and of the Church It was done if the Record saith true by the King himselfe Autoritate Parliamenti It was further provided by the Parliament that though this was to continue Quamdiu Regi placuerit yet the Duke should hold that place till the Kings Sonne Edward should come
to yeares of discretion and shall Declare that he will take that place upon himself The ground hereof is said to be that the King was Gravi infirmitate detentus which could not be intended of any bodily distemper for neither doth any such thing appeare by any Author or Record Nor if such had been yet had it been an irrationall thing in the Parliament to determine the same upon the Princes discretion and acceptance of the Charge upon himselfe It seemeth therefore that it was Gravis infirmitas Animi and that this way of the Parliament tended to a tacite sliding him out of the Government of the Kingdome by a moderate Expression of a Generall incapacity in his Person The Conclusion of all that hath beene said concerning this Title is double One that both the Custos Regni and Protector are not subsistent but consistent with that of a King because it supposes a King under incapacity Secondly that they tend to teach the people a necessity of having one Cheife although it may in truth seem to be but a tricke of State like some pretty carved Cherubims in the Roofe of a building that doe seeme to beare it up when as in truth it is the Pillers that supporteth both it and them CHAP. XVI Concerning the Privy Councell NAtions doe meet with their Exigencies as well as Persons and in such condition Resolutions taken up by sudden Conceit are many times more effectuall then more mature deliberations which require more time in composing are more slow in Conclusion let slip opportunities and fall short of Expectation in the end Such are the wayes of debate in the Grand Representative of the Kingdome Add hereunto that in putting the Lawes in execution greater discretion is required then can enter into the head of any one man and greater speed then can stand with debate amongst many And therefore it is beyond all doubt that the Conventicles of Councell are no lesse necessary in their Degree then the Assembly of the Estates of this Nation in their Grand Convention Yet with this Caveat that one Genius may move in both for otherwise the motions of Government must needs be inconstant inconsistent and like that of an Hipocrite one way abroade another way at home neither comfortable to it selfe nor confiding to others and therefore cannot these privater Councells by any proportion of Reason be better Constituted then by the Representative it selfe that it may be a Creature made in its owne Image one and the same with the Image of the maker This was the wisedome and the practise of these times more ordinarily then in the former for the Parliament was no lesse jealous of the power of Henry the Fourth then of the infirmities of Henry the Sixth nor more assured in the aimes of any of them all then themselves were in their own title to the Crown Neither was this sufficient for the Parliament looked upon themselves as a body that somtimes must retire to rest and upon the privy Councel as watch-men subject to change and therefore they not onely give them instructions but ingage them unto observance Their instructions were somtimes occasionall but some more generall of which I shall instance onely in two which were to be of everlasting regard First that they should hold no Pleas before them that is to say at the Councell table or at the privy Councell nor before any of them unlesse as Judges in the Chancery Exchequer or Benches at Westminster so as whatsoever miscarriages were had by the privy Councell in Cases of judicature in the Star-Chamber formerly are now reduced The second rule was this that no dispatches should be made at the Councell table of any matters there agitated but by generall consent Unity gives life to action carrying therewith both Authority and Power and when all is done must derive its originall from without and in all good ends from above And therefore as a seale to all the rest it was wisely done by the Parliament to draw the minds of the Privy Councell together and to present them joyntly before God by an oath oblieging themselves to a solemn and constant observance of their instructons and to persevere therein for the unchangeable God can onely stamp a lasting Image upon the minde and bind the same that is so subject to change to an unchangeable Law whereby the People may be made as happy for continuance as for Righteousnesse and Peace The privy Councell thus settled dressed and girt becomes of high esteeme both for trust and honorable imployment in great matters The Mint is the very Liver of the Nation and was wont to be the cheife care of the Parliament it selfe in all the dimensions thereof now the Mint is two wayes considered Viz either in the vallue of the Mettall and Mony or in the coynage The first of these things most immediatly concurring therewith the Parliament still retaines to its owne immediate Survey such as are the inhibiting of exportation of Gold and Silver and of melting of Coyne into Plate or Bullion the regulating of the currant of Forraine Coyne the reducing of Money both Eorrain and Domestick imbased by Counterfeiture clipping washing c. The regulating of allay of Gold and Silver the regulating exchange and such like concerning all which the Reader may please to peruse the Statutes 2 H. 4. cap. 5 6 11 13. 4 H. 4. cap. 16. 3 H. 5. Stat. 1. 4. cap. 6. 9. cap. 11. And 2 H. 6. cap. 6. The second Consideration touching the Mint concerned the election and government of the Officers touching the Mint and Exchange or the places where they shal be holden which with some other matters of inferiour Nature were left to the Order of the Privy Councell either with the King or alone in Case of the Kings absence or disability A second power given to the Privy Councell was in point of Trade and Merchandize formerly they had somewhat to doe therein but still the Parliament set out their bounds in Richard the Seconds time the people had liberty of trade in some Commodities by way of Exportation but the Privy Councell might restrain them upon inconvenience to the Publique Now the same is confirmed and though it concerned Corne onely yet it was a President that led the way to a much larger power in the Trade of the Staple Commodities of this Iland to inlarge or straiten it as they thought meet and so they became in a fair way to have a principall power over the Revenues and Riches of this Nation But this lasted not long for within ten yeares these Licences of Transportation cost the Merchant so much as he could make little gaines of all his care and paines and therefore a rule is set to a generall allowance of all Transportation of Corn till the price of Wheat came to a Noble and Barly at three shillings and no longer This being first made Temporary was afterwards made
have a Parliament wherein the People should have no more Religion then to beleive nor Learning then to understand his sense nor wisedome then to take heed of a Negative Vote But it befell otherwise for though it was called the Lack-learning Parliament yet had it well enough to discern the Clergies inside and Resolution enough to enter a second claime against the Clergies Temporalties and taught the King a Lesson That the least understanding Parliaments are not the best for his purpose For though the wisest Parliaments have the strongest sight and can see further then the King would have them yet they have also so much wisedome as to look to their own skins and commonly are not so venterous as to tell all the World what they know or to act too much of that which they doe understand But this Parliament whether wise or unwise spake loud of the Clergies superfluous Riches and the Kings wants are parallel'd therewith and that the Church-men may well spare enough to maintaine fifteen Earles fifteen hundred Knights six thousand two hundred Esquires and one hundred Hospitalls more then were in his Kingdome This was a strong temptation to a needy and couragious Prince but the Arch-Bishop was at his elbow the King tells the Commons that the Norman and French Cells were in his Predecessors time seized under this colour yet the Crowne was not the richer thereby he therefore resolves rather to add to then diminish any thing from the maintenance of the Clergy Thus as the King said he did though he made bold with the Keyes of Saint Peter for he could distinguish between his owne Clergy and the Romane The People are herewith put to silence yet harbour sad conceits of the Clergy against a future time which like a hidden fire are not onely preserved but increased by continuall occasions and more principally from the zeal of the Clergy now growing fiery hot against the Lollards For that not onely the People but the Nobles yea some of the Royall blood were not altogether estranged from this new old way whether it was sucked from their Grand-Father Duke John or from a Popular strain of which that House of Lancaster had much experience I determine not These were the Dukes of Bedford and Glocester Bedford was first at the Helme of Affaires at home whiles the King acted the Souldiers part in France as ill conceited of by the Clergy as they sleighted by him At a Convocation once assembled against the Lollards the Duke sent unto their Assembly his Dwarfe as a great Lollard though he was a little Man and he returned as he went even as Catholique as any of them all Non tam dispectus à Clero quam ipse Clerum despiciens atque eludens This and some other sleights the Clergy liked not they therefore finde a way to send him into France to be a Reserve to his Brother And in his roome steps forth Humphrey Duke of Glocester that was no lesse coole for the Romane way then he Henry the Fifth was not more hearty in Romes behalf for although he was loath to interrupt his Conquest abroad with contests at home yet he liked not of advancements from Rome insomuch as perceiving the Bishop of Winchester to aspire to a Cardinals Hat he said that he would as well lay aside his own Crowne as allow the Bishop to take the Hat Nor was he much trusted by the Clergy who were willing he should rather ingage in the Wars with France then minde the Proposalls of the Commons concerning the Clergies Temporalties which also was renued in the Parliament in his dayes Above all as the Lancastrian House loved to looke to its own so especially in relation to Rome they were the more jealous by how much it pretended upon them for its favour done to their House And therefore Henry the Fourth the most obleiged of all the rest looked to the Provisors more strictly then his Predecessors had and not only confirmed all the Statutes concerning the same already made but had also provided against Provisors of any annuall Office or Profit or of Bulls of Exemption from payment of Tythes or from Obedience Regular or Ordinary and made them all punishable within the Statute and further made all Licenses and Pardons contrary thereto granted by the King void against the Incumbent and gave damages to the Incumbent in such vexations for the former Lawes had saved the right to the true Patron both against Pope and King And thus the English Kings were Servants to the Church of England at the charges of Rome whiles the Popedome being now under a wasting and devouring Scisme was unable to help it selfe and so continued untill the time of Henry the Sixth at which time the Clergy of England got it selfe under the power and shadow of a Protector a kinde of Creature made up by a Pope and a King This was the Bishop of Winchester so great a Man both for Birth parts of Nature Riches Spirit and Place as none before him ever the like for he was both Cardinall Legate and Chancellour of England and had gotten to his aide the Bishop of Bathe to be Lord Treasurer of England Now comes the matter concerning Provisors once more to be revived First more craftily by collogueing with the Nobility who now had the sway in the Kings minority but they would none An answer is given by the King that he was too young to make alteration in matters of so high Concernment yet he promised moderation The Clergy are put to silence herewith and so continue till the King was six yeares elder and then with Money in one hand and a Petition in the other they renue their Suit but in a more subtill way For they would not pretend Roâ—e but the English Churches liberties they would not move against the Statutes of Praemuniri but to have them explained it was not much they complained of for it was but that one word Otherwhere which say they the Judges of the Common Law expound too largely not onely against the Jurisdiction of the Holy Sea but against the Jurisdiction of the English Prelacy which they never intended in the passing of those Lawes Their Conclusion is therefore a Prayer That the King will please to allow the Jurisdiction of their Ecclesiasticall Courts and that Prohibitions in such Cases may be stopped But the King either perceiving that the Authority of English Prelacy was wholly dependent on the Sea of Rome and acted either under the shadow Legatine or at the best sought an Independent power of their own Or else the King doubting that the calling of one word of that Statute into question that had continued so long might indanger the whole Law into uncertainty declined the matter saving in the moderation of Prohibitions Thus the English Clergy are put to a retreat from their reserve at Rome all which they now well saw yet it was hard to wean them The Cardinall of Winchester was a
great Man and loath to lay down his power but his own Tribe grew weary of him and his Power For the greater some Church-men are unlesse they be better then men the inferiour and better Church-men are worse then men at length therefore the Cardinall is Un-Legated and that Power conferred upon the Arch-Bishop of Canterbury a Man formerly well approved but by this very influence from Rome rendered suspected which he perceiving protested against the Exercise of the Jurisdiction Legatine without the Kings allowance and so mannerly crept into the Chaire The English Kings and Clergy having thus attained the right discerning of each other begin to take up a new way of Policy which was to hold nothing of the Popedome but the forme of Worship and Discipline but as touching Jurisdiction they held it a high point of wisedome either to fetch it nigh at home or to be silent in the matter having now found a main difference between the Popes Will and the Church Law and therefore as formerly the Convocation and Parliament joyned in excluding of Forrainers from Church-livings under the Notion of Intelligencers to Enemies abroade So neither now will they allow any Provisions for English men and upon this ground the Deane and Chapter of Yorke refused to admit the Bishop of Lincolne to the Sea of Yorke although designed he was thereto by Pope Martin and he the Darling of Nations being by joynt consent advanced to the Triple Crowne that had been formerly tripled amongst three Popes and troubled all Europe And whereas during the Tripapalty much money had been Levied here in England to serve for the recovery of the Popedome to one of English Interest Now by joynt consent the same is seized upon and stopped as fewell from the fire and spent by Henry the Fifth in the recovery of a Kingdome in France that should have beene imployed in recovery of a Popedome at Rome these things concurred to give a wound to the Popedome that was never cured to this day Neverthelesse the English Clergy was no looser by all this but gained in the whole summe for as it made them more depending on the Crowne so it made the Crowne more fast to them from which they had received more reall immunities and power then the Pope ever did or was able to give them and might expect to receive many more What Personall respects these three Kings shewed them hath been already touched Henry the sixth added one favour which made all the rest more considerable hitherto they had used to meete in Convocation as upon the interest of Rome and little notice was taken of them now the Nation owns them and in some respects their worke and it is granted That the Clerkes of Convocation called by the Kings Writ and their Meniall Servants shall have such priviledge in comming tarrying and going as the Members of the Parliament have So as though they be not Members yet they are as Members if they assemble by the Kings Writ and not onely by the power of the Legate or Metropolitan The antiquity of this Court is great yet not so great as hath beene supposed nor is it that Court of the Ordinary called the Church Gemot mentioned in the Lawes of Henry the first as not only the work thereof therein set down doe sufficiently declare but also its evident that in Henry the seconds dayes the Grand Councells of this Kingdome were Joyntly mixed both of Clergy and Laity nor could the Clergy shut the Laity from their Councels till about the times of Richard the first or King John From which time forward the Laity were so far from protecting of them till these times now in hand that all their care was to keep them from violating the liberty of the People That they were many times notwithstanding called together by the Kings Writ before these times hath been also cleared by another Penn. That their worke at such times was to advise concerning such matters as should be propounded to them by the King in Parliament their summons do shew the particulars whereof for the most part concerned supplies of Mony from the Churchmen and yet somtimes matters of great moment were debated therein as in a Convocation summoned by Henry the Fifth in his ninth year the pre-eminence of Pope Eugenius above the Councill of Bazill was debated and as much as they could determined the same the credit of their decisions in former times I beleeve was not much amongst the People because the men were looked upon with an evil eye Now that the Parliament seemeth to owne them in thier way and to protect them their determinations are somewhat The Churchmen espy their opportunity and whiles the benevolent influence of the State is in its first heat they improve it in this manner The times were now come about wherein light began to spring forth conscience to bestirr it selfe and men to study the Scriptures This was imputed to the idlenesse and carlesnesse of the Clergy who suffered the mindes of young Schollers to luxuriate into errors of Divinity for want of putting them on to other Learning and gave no incouragement to studyes of human Literature by preferring those that were deserving The Convocation taking this into consideration do decree that no person should excercise any jurisdiction in any Office as Vicar-generall Commissary or Officiall or otherwise unlesse he shall have first in the University taken degrees in the civill or canon Law A shrewd trick this was to stop the growth of the study of Divinity and Wickleifs way and to imbellish mens mindes with a kind of Learning that may gaine them preferment or at least an opinion of abilityes beyond the common straine and dangerous to be medled with like some Gallants that weare Swords as badges of Honour and to bid men beware because they possibly may strike though in their own persons they may be very Cowards and no less mischeivously intended was this against the rugged common Law a rule so nigh allyed to the Gospel way as it favoreth liberty and so far estranged from the way of the civill and canon Law as there is no hope of accommodation till Christ and Antichrist have fought the feild Thus much of the Church of England in relation to the State now as it is absolutely considered in regard of the severall degrees of Persons therein Although these three Kings were much indeered to the English Clergy yet the difference between the Laity and them growing high the Kings principall care is now to keep an even hand between them both for he that will back two Horses at once must keep them even or put his joints to the adventure First Henry the fourth granteth that no more shall be payed to Rome for the first fruits of Arch-Bishops and Bishops then hath been anciently used The occasion hereof was to prevent the horrible mischeif and damnable custome of Rome for such are the very words of that Statute unto which the
Clergy gave their Vote if not the first vote and therefore certainly did neither beleeve nor honor that infallible Chaire as their owne Mother nor did they beare her yoake further then their owne benefit and reason of State did require for though the immediate benefit of this Law did descend upon the Prelacy yet it also much concerned the interest both of the honor and benefit of the Nation that the Clergy should not be at the Popes pleasure to tax and assesse as he thought good Secondly Henry the fifth added unto the Prelacy some kinde of increase both of Honour and Power Viz. To visit Hospitalls that were not of the Kings owne foundation and to reforme abuses there for the Patrons either had no Power to punish or will or care to reform them and thus upon the point although they lost a right yet they gained ease Thirdly the same King confirmed by a Statute unto Ordinaries the Cognisance of accompts of Executors for their Testators Estates which formerly was granted by the Canon Law but they wanted power to execute and a right to have and receive In all these the Clergy or Prelacy were the immediate gainers In as many other things the People were made gainers and yet the Clergy were no loosers otherwise then like the Kite that prey which was none of their owne First they refused formerly to grant copies of Libells either thereby to hinder the course of Prohibitions or to make the copies the more dear and Mony more Cheap with them Henry the fifth finding this a greivance to the People passeth a Law that all Ordinaries shall grant the copies of Libells at such time as by Law they are grantable Secondly as the Probate of Wills had anciently belonged to the Ordinary by the Canon Law and formerly also confirmed to them by the Parliament so it also regulated and setled the Fees for such Service But the Clergy having been ever under the nouriture of their Mother Rome that loved to exceed they likewise accounted it their liberty to take what they could get but the nigher they come to ingage with Kings in their government according to Law the more reformed they grow Formerly Edward the third had setled their Fees but they would not hold to the rule now the Law is redoubled by Henry the fifth with a penalty of treble dammages against delinquents Furthermore the very Preists could not containe their Paternosters Requiems Masses and such wares they had ingrossed and set thereof what price they pleased The Market was risen to that height that Edward the third undertooke to set a rate upon those commodities but that also would not hold long Henry the fifth he sets a certaine Stipend somewhat more then Edward the third had done and yet lesse then the Preists had formerly Lastly some Lawes were made wherein the Common-wealth gained and the Church were loosers First whereas the Church-men formerly held all holy things proper and peculiar to their owne Cognisance especially such as concerned the worship of God the Parliament now began to be bold with that and never asked leave It had now for a long time even since the Saxon times been the unhappy condition of this Church of England amongst others to decay continually in Piety and right devotion but through the light that now revived and Gods goodnesse it in these times came to passe that the People did entertain some sense of their duty towards God more then formerly and begin to quarrell the abuses done to the Lords day in the manner of the keeping thereof London hath the honor for beginning this reformation by an Act of their Common Councell The Parliament within seven yeares after that ingage the whole Kingdome in that service though therewith also are adjoyned other holy Feasts then holden And all Faires and Markets are injoyned to cease on that day under paine of forfeiture of Goods exposed to sale excepting Victuall and excepting the foure Sundayes in Harvest And thus though places had their consecration allowed by the Parliament and immunity from trading in Faires and Markets by the space of 160. yeares before this time yet that time which God by his owne Law had reserved to his owne selfe never came under regard to be allowed till now and yet not by the motion of the Clergy nor by their furtherance for by their thrusting in the holy dayes they made them equal with the Lords day and in Harvest time superiour by preserving them in force when as the Lords dayes were set aside So God had somewhat of these men but the Pope more Secondly as the Church-men lost in the former so the Prelacy in this that follows The Prelates had long since obtained the triall of Bastardy and therein could straine themselves so far as to put the Case of inheritance into danger where the point otherwise was cleare enough and this grew to that height that it indangered the disinheriting of the heires of the Earle of Kent It is therefore now provided that before the Ordinary in such Cases Proceed to triall Proclamations shall be made in Chancery to summon all pretenders of Interests or Titles to come before the Ordinary to make their Allegations and all trials of Bastardy otherwise made shall be voide so as whatever the Canon did the Parliament would not trust to the Ordinaries Summons nor allow of their power in any other manner then the Parliament thought meet One thing more remaineth wherin the true Church of Christ seemed to lose and yet gained and the Clergy joyning with the King seemed to gain and yet lost this was the point of worship which had long stumbled the mindes of the People and was now growne to that strength that nothing but an Act of Parliament can keep it under This opinion concerning worship was at the first so young that it was not yet baptized with any proper name but called Opinion contrary to the Church determinations or Catholique faith And against this the Clergy now stormed more then ever formerly because it was grown to such a height as if it meaned to over-top theirs To this end they procure an Act to passe That all Preachers Teachers Writers Schoolemasters Favorers or notoriously defamed Persons for the maintenance of such opinions shall be upon conviction before the Ordinarie according to the Canons imprisoned in the Diocessans Prison Fined according to the Diocessans discretion If upon Conviction he shall not abjure or shall relapse he shall be delivered unto the Seculer Power and be burned And that Preachers without Licence of the Diocessan should be restrained Concerning which Law I shall first shew what change in the Lawes of this Kingdome was endeavoured and what was really effected First it is an undeniable ground that no Free-man can be put to answer before any Judge but upon Presentment or other matter of Record foregoing and by due Processe of Law and yet it hath been ruled that strong
uncertain colour neither made by the Clergy nor Laity but spoyled between them both The intent thereof seemeth to be principally to draw on the House of Commons to passe the Law under hope of gain by the forfeitures for the penalty is like that of Fellony though the Crime be not expresly declared to be Fellony But the intent fell short in event For first the nature of the Crime is not defined nor declared by any Law and therefore can no man by Indictment be found to be such Secondly no penalty of death hath been by any former or by this Law determined upon such as are guilty for it s not enacted by any Law that such Person shall be delivered to the Seculer power c. Thirdly this Statute determining the forfeiture to be not till death and neither that nor any other Law of this Kingdome determining death then is no forfeiture determined Fourthly though this Law taketh it for granted That Heresie and Errors belong to Ecclesiasticall Cognisance yet the same allowes of no further proceedings then Ecclesiasticall Censures Lastly by this Law there can be no proceeding but in case of Indictment for otherwise without Record no forfeiture can be therefore where no Indictment is there is no forfeiture In all which regards its evident that the Clergy could by this Law neither get fat nor blood and therefore at their Convocation in the next yeare following they tooke another course and ordered that three in every Parish should make presentment upon Oath of such Persons as are defamed for Hereticks and the truth so farre as they can learn which puts me in minde of a Presentment that I have seene by some of Saint Mary-Overies in these times Item we saine that John Stevens is a man we cannot tell what to make of him and that he hath Bookes we know not what they are This new course shewes plainly that the former held not force as they intended it So God blasted the practises of the Clergy at this time also rendering this Law immateriall that had the form as the other missed in the form and had the matter CHAP. XVIII Of the Court of Chancery IT often befalls in State Affaires that extraordinary Exigencies require extraordinary remedies which having once gotten footing are not easily laid aside especially if they be expedient for Prerogative The Privy Councell in the Star-Chamber pretending default of the Common Law both in speed and severity in Cases whereby the State is indangered The Chancery pretends default by the Common Law in point of equity and moderation The People taken with these pretences make that rod more heavy which themselves had already complained of What the Chancery was in times past hath been already shewed still it is in the growing and gaining hand First in the Judicatory power it prevailed in relation to the Exchequer exercising a kinde of Power to survay the proceedings thereof in Cases of Commissioners distrained to account for Commissions executed or not executed for it was no easie matter to execute Commissions from the Exchequer in those times of Parties nor were men willing with such unwelcome occasions between Freinds and Neighbors and it may be they grew weary of imbroyling themselves one against another and of being Instruments of the violent counter-motions of Princes and great Men. Secondly it gained also upon the Admiralty which by former Lawes had Jurisdiction in all Cases incident upon the great Sea but now either through neglect of the Admirall or the evill of the times occasioning Piracies to grow Epidemicall the ill government upon the Sea became dangerous to the State trenching upon the Truce made between this and other Nations For a remedy whereof first Conservators of the Truce were settled in every Port who had power committed to them to punish Delinquents against the Publick Truce both by Indictment at the Kings suite and according to the course of the Admiralty by complaint saving matters of death to the Cognisance of the Admirall But this was soon found defective for Justice done in the dark is many times more respective and lesse respected and therefore within a few yeares it is provided that Offenders against the Kings Truce upon the Sea or in any of the Ports shall be proceeded against in the Chancery before the Chancellour who hath power given him calling to his Assistance some of the Judges to execute the Statute of 2 H. 5. foregoing by a handsome contrivance For that Statute was once and again suspended for the rigour that was used by the former Conservators who being Borderers upon the Sea for their own peace spared as few as they could which had so discouraged the Sea-men that the Kingdome had been almost utterly bereaved of its strength at Sea Neverthelesse all this while these Lawes were but penall and not remediall for the Parties wronged And therefore another Law is made to give the Chancellour and Judges power to make restitution and reparation Thirdly the Chancery gained upon the Ecclesiasticall Court for whereas by the Canon the Church-men were to be judged by their Superiours according to Ecclesiasticall and Ordinary Jurisdiction and the iniquity of the times was again returned to that height that Parents could not enjoy their own Children but the little ones were allured stolne away and detained in Cloysters nor did the Church-men afford remedy in such Cases A Law was made that upon complaint hereof made to the Chancellor the Provinciall should be by him sent for and punished according to his discretion Lastly the Chancery incroached upon the Common Law For whereas the stirs between the two Houses of Yorke and Lancaster beganne to rise Men made their dwellings in places of security and strength Women likewise and other persons flying thither for refuge especially such of them as had most to lose these were contrary to the Law of common honesty urged to ingage their Estates unto the desires of such to whom they had fled for refuge and some times compelled to marry before they could gain their liberty It was now provided that all such complaints should be heard and determined by the Chancellor Secondly as touching the Ministeriall power of the Chancery this likewise was inlarged in making of Processe to compell appearance in cases of forcible Entries Murders Manslaughters Robberies Batteries Assemblies in nature of Insurrections Riots and Plunder committed by Servants upon their Masters goods before their Masters death and such like Offences now growne common and in need of sudden remedy Thus as the worke and power of the Chancery grew so did the Place and Person of the Chancellor grow more considerable raised now from being the Kings Secretary for no better was he in former times to be the Kingdomes Judge and of such Trust that although the King might make election of his owne Secretary yet the Parliament would first know and allow him that must be trusted with the power over the Estates of so
many of the People And therefore did in these times both place and displace him as they saw expedient In a word he is become the Kingdomes Darling and might be more bold with the Common Law then any of his Peeres CHAP. XIX Of the Courts of Crowne Pleas and Common Law AS the Chancery on the one side did swell and increase so was the Kings Bench in an Ebb the Councill Table in the Star-Chamber on the one side and the Itenerant Courts in the Countrey intercepted and drew away much to their own shares Making themselves fat the Kings Bench leane and the Rurall Courts for Crown Pleas almost to starve The Crown Pleas formerly had been determinable in the Kings-Bench Goale-Delivery Oier and Terminer and many of them by Justices of the Peace Coroners and Sheriffe The Goale-Delivery was afterwards united to the Judges of Assize and if one of them were a Clergy man then to the other and cheif men of the County This was usefull for the Publique but not beneficiall for some men and therefore they laboured for Commissions especially directed to parties that they thought would partake but these were found soone to be dangerous soone taken away and the Goale-Delivery restored to the Judges of Assize as formerly The Commissions of Oier and Terminer were sued forth upon extraordinary immergencies and offences wherein the State was much concerned for speedy Execution In former times both these and Goale-Deliveries were but rarely had and then granted unto some that perchance knew more of the Case then before hand was meete to be known Edward the Third amended this errour and ordered that no Commissions of Oier and Terminer should issue forth but unto Commissioners named by the Court and not by the party complaining But the Judges of Assize are now in the growing hand hoth for Honour Use and Power the rather because their Persons are of high repute in the Benches at Westminster which are the Master-peices of Judicature and their Iters are constant and ordinary Neverthelesse the Judges of Assize though they have the Goale-Delivery annexed to them yet have they not that absolute power of the Kings-Bench but are still under the rule of their Commission which is not alterable but by Parliament and which by it was altered by way of adding of new powers as new crimes arose that required the eye of the State to provide and so the Judges of Assize by degrees grew to be the ordinary Administrators of Justice throughout the Kingdome yet holding still forth to them a limited power to heare and determine in some Cases but in others onely to inquire and certifie as in the Case of false returns by the Sheriffe of persons elected for the Parliament And also in Cases concerning the Statutes of Labourers and unlawfull games and pastimes in which case the Certificate is to be made to the Chancellor And also in Cases concerning Liveries contrary to the Statutes wherein the Certificate is to be made to the Kings-Bench which power in this last Case continued in that manner by the space of thirty yeares and then by another Statute they had the power to determine such cases before themselves In like manner they had power to heare and determine cases of falshood in counterfeiting and corrupting of money by washing clipping c. And also defaults committed by Sheriffs Bayliffs and their Officers against the Statutes of forcible Entries and of wearing of Liveries as aforesaid These were signes of much confidence and trust in them and yet notwithstanding in these nor none of these were the Penalties by Fine left to the Arbitry of the Judges no nor to the Justices of the Kings-Bench but were by the very Letter of the Law determined Nor would the Parliament trust these men with doing Justice in the cases aforesaid in their own Counties where they dwelled nor did it think expedient to allow the cheif Justice of the Kings Bench unto that Service in any of them all but onely once in the County of Lancaster and then onely at the Kings pleasure otherwise it was to be as was used by the space of one hundered yeares foregoing possibly because his power was too great to be trusted amongst the People Lastly the Judges of Nisi prius were anciently made by Edward the First by whom also the Assizes were setled at certain times of the yeare and afterwards by the Statute at Yorke the Nisi prius in smaller cases was granted before one Justice of the Bench where the Plea dependeth and one substantiall man of the County but those of greater concernment were to be had before two Justices of that Bench or in case they were wanting then before Justices of the other Bench or in default of them before the cheif Baron if he were a man of Law and in default of that before the Judges of Assize Therefore in those dayes the Justices of the Benches in their Iters in the Counties divided in their power Some being for Assizes others for Nisi prius and in some times and cases some were for both For in those times of Edward the Third Judges of Assize had power to inquire in some matters that concerned the Crowne or to try Nisi prius nor were these powers united till in Henry the Sixths time Justices of Nisi prius had the power of Oier and Terminer annexed to them in all cases of Fellony and Treason What was formerly provided by Edward the Third and Richard the Second for Instruction to these Judges and to binde them thereto by solemne Oath I shall not particularly mention but shall leave the consideration of the Originall of the whole Judicature of this Nation unto the Readers observation upon the Premises CHAP. XX. Concerning Sheriffs HEnry the Fourth after a small rest in his Throne though he alwayes sate loose sought after the civill Peace as the corner Stone of his subsistence and that by a way of Justice which found more acceptance with the Vulgar then the common Education of the greater number in these times could promise for the worst of men cannot endure to suffer injustice though themselves will doe it Now because where Kings are reputed to be the Fountain and Life of Justice Sheriffs may be reputed to be the breath thereof and by their irregularities doe render the Government of the King as loathsome as unsavoury breath doth the Person whose it is Therefore Henry the Fourth chose rather to be a looser in his Farme-Rents of the Sheriffwicks then to occasion the Sheriffs to save their bargains by oppression And to this end he tooke away the course of forming of Sheriffwicks and made the Sheriffs bare accountants for the Annuall profits and as touching the casuall profits the Sheriffe discharged himselfe upon Oath This was a good security to the King but yet the People was not herewith satisfied For though the Sheriffs might not take to Farme yet what they
more of that now they devise a way to spoile and prey for themselves and yet neither to rob nor break house To this end they would scatter little Scrolls in writing requiring the party that they intended to prey upon to leave so much Money upon such a day at such a place and this was Sub paena of burning the parties house and goods which many times did insue upon default made this practise was at once made Treason to prevent the grouth of such an evill And the like was done with Robberies and Manslaughters contrary to the Kings Truce and Safeconduct As many or more new Fellonies were also now created One was the cutting out of mens tongues and plucking out of eyes a strange cruelty and that shewed the extreame savagenesse of those times so much the more intollerable by how much the poore tortured creature could hardly be either eye or eare witnesse of the truth of his own wrong A second Fellony was the customary carrying of Wooll or Wool-fells out of the Realme to other places except Callis Another Fellony concerneth Souldiers which I refer over to the next Chapter The last was Servants plundering their Masters Goods and absenting themselves if upon Proclamation made they appeare not this was also made Fellony In the next place as touching forcible entries and riots the remedies so often inculcated and new dressed shew plainly the nature of the times These kind of crimes commonly are as the light Skirmishes in the beginning of a War and follow in the conclusion also as the faintings of a battell fought till both sides be weary I shall not enter into each particular Statute diverse of them being little other then as asseverations annexed to a sentence to add credit and stirr up minding in men that otherwise would soone forget what is sayd or done The remedies formerly propounded are now refined and made more effectuall First in regard of speed which is as necessary in these forces as the stopping of the breaches of waters in the first Act and therefore one Justice of the Peace may proceed upon a holder by force or breaker of the Peace with a Continuando but Riots are looked upon as more dangerous and the first opposition had need be more stiffe least being uneffectuall aggravates the violence and therefore it s required that two Justices and the Sheriffe should joyne in the worke to carry one the worke with more Authority and Power And what they cannot do in the punitive part they must certifie to the King and his Councel or to the Kings Bench if traverse be made So as though the Power of the County be annexed to the Sheriffe Jure ordinario to maintaine the peace yet the Parliament did delegate the same upon Justices as it thought most expedient To maintaine and recover the Peace when it s broken shewes more Power but to prevent the breach shewes more Wisdome and therefore to all the rest the Wisdome of these times provided carefully First for Guards and Watches according to the Statute at Wint and committed the care thereof to the Justices of the Peace And secondly against the gendring of partyes for its commonly seene that such as are admired for excellecies of Person are so far adolized of some as that their gestures actions and opinions are observed tokens of favour though never so small are desired from such and the Idoll likes it well gives Points Ribbons it may be Hats and with these men are soon gained to be Servants in the fashion and not long after to be servants in Action be it War or Treason or any other way This manner of cheat the former times had been too well acquainted with Knights and Esquires are not feared in times where the word Lord carries the wonderment away their offences against the Statutes of Liveries are all great though in themselves never so small and therefore are sure of Fine and Ransome and it s well if they escape a yeares Imprisonment without baile or mainprize Lords may weare the Kings Livery but may give none Knights and Esquires may weare the Kings Livery in their attendance upon his Person but not in the Countrey The King and Prince may give Liveries to Lords and meniall Servants The summe is that Liveries may be given by the more publique Persons for State not to make parties and Men may weare Liveries in token of Service in Peace and not in Armes One thing must be added to all which may concern triall in all Viz. A Law was now made that Noble Ladies shall be tried by their Peeres a Law now of the first stamp and strange it is that it never came before now into the breast of the Law but that it came now it is not strange no meaner Person then the Dutches of Glocester is first charged with Treason when that could not appear then for Necromancy very fitly that she might be tried by the Ecclesiasticall way of witnesses She is found guilty and a Sentence of Penance and imprisonment or banishment passed thereupon after such a wilde way as both Nobles and Commons passed this Law for the Vindication of that Noble Sexe from such hudling trialls for the future CHAP. XXII Of the Militia during these times THe Title of Henry the Fourth to the Crown was maintained principally by his Tenures which the Courtiers call Knight-Service but the Common People force of Armes and that which destroyed many a man was the principall means of his subsistence Otherwise its clear that his Title was staring naught nor could he outface Mortimars Title without a naked Sword which he used warily for he had Enemies enough to keep his Sword in hand and Freinds enough to keep it from striking at randome for coming in by the Peoples favour he was obleiged to be rather remisse then rigorous yet his manner of comming was by the Sword and that occasioneth men much to debate about his absolute power in the Militia as supposing that what power he had other Kings may De jure challenge the same and let that be taken for granted though it will not necessarily follow in true reasoning And let it also be taken for good that Henry the Fourth entered the Throne by his Sword yet is there not any Monument in Story or Antiquity that favoureth any absolute right in him over the Militia but the current is I think somwhat clear against it First because Henry the Fourth De Jure could not compell men to serve beyond the Seas but raised them by contract and therefore by Act of Parliament he did confirme the Statute 1 Ed. 3. Stat. 2. cap. 5. which Statute was purposely made to that end And the same also is countenanced by another Statute made in these times whereof we now Treat by the words whereof appeareth that the Souldiers for the Forrain Service were levied by Contract between them and the Captain who undertooke to Levy them by
his ends Thus in one Parliament for he could hold no more he gave such content as even to wonderment he could as soone finde an army in the feild to fight for him as the most meritorious of his Predecessors His ill title made him very jealous and thereby tought his best freinds to keep at a distance after which time few escaped that came within his reach and so he served Gods judgement against his adjutants though he understeod it not Amongst the rest the Duke of Buckingham his great Associate both in the Butchery of the two young Princes and usurpation of the Royall Scepter he lived till he had laid the Foundation of better times in the Person of Henry the seventh and then received his reward But an ill Conscience must be continually fed or it will eat up its owne wombe The Kings minde delivered from feare of the Sonnes of Edward the Fourth now dead torments himselfe with thoughts of his Daughter alive ashamed he is of Butchery of a Girle he chooseth a conceit of Basterdizing the Children of Elizabeth Graye that calleth her self Queen of England but this proved too hard to concoct soon after that he goes a contrary way The Lady Elizabeth Graye is now undoubted Wife of Edward the Fourth and her eldest Daughter as undoubted Heire to the Crown And so the King will now be contented to adventure himself into an incestuous Marriage with her if his own Queen were not in the way onely to secure the Peace of the Kingdome which he good King was bound in Conscience to maintain though with the perill of his owne Soule and in this zeale of his Conscience his Queen soon went out of the way and so Love is made to the young Lady But Henry Earle of Richmond was there before and the Lady warily declined the choice till the golden Apple was won which was not long after accomplished the King loosing both the Lady his Crowne and owne life together put an end to much wickednesse and had the end thereof in Bosworth-Feild CHAP. XXIV Of the Government in relation to the Parliament THe seasons now in Tract were of short continuance lives passed away more speedily then years and it may seem uselesse to inquire what is the nature of the Government in such a time when as the greatest work was to maintain life and soul together and when all is done little else is done For though the Title of the House of Yorke was never so clear against that of Lancaster yet it had been so long darkned with a continuall Succession of Kings of the Red-Rose that either by their merit had gained a Throne in the Peoples hearts or by their facility had yeilded their Throne up to the Peoples will as it proved not easie to Convince them that liked well their present Lot and were doubtfull of change or to make them tender of the right of Edward the Fourth above their own quiet Above threescore years now had England made triall of the Government of the Lancastrian Princes and thereof about thirty years experience had they of Henry the Sixth they saw he was a gentle Prince On the other side Edward the Fourth newly sprung up out of a Root watered with blood himself also a Man for the Feild This might well put the minds of the People to a stand what to think of this Man whose nature and ends are so doubtfull and brought nothing to commend him to the good wills of the People but his bare Title which the common sort usually judge of according as they see it prosper more or lesse Add hereunto that Divine Providence did not so clearly nor suddenly determine his secret purpose concerning this change by any constant successe to either part by means whereof the one half of Edward the Fourths reign was spent while as yet Henry the Sixth was in veiw and the minds of men left unassured neither trusting much to Edward the Fourth nor he to them and after that Henry the Sixth was gone out of the way Edward the Fourth could not readily change his posture used Arguments of force and power and for the most part looked like a Man in Armes with his hand on his sword ready to draw upon the next man that stands in his way Thus are the People partly driven and partly drawn into an Oath of Allegiance unto Edward the Fourth under perill of Attainder and the Parliament assured unto him once more For immediately upon the departure of Edward the Fourth beyond Sea after tenne yeares of his Reign the Parliament never staying for the issue of Providence declared the Throne void of Edward the Fourth and Henry the Sixth King The Judges likewise of the Courts at Westminster determined the same thing as may appear by the Law Reports of those times in Print wherein Re-attachments were often granted by them upon discontinuance of processe by this Demise of Edward the Fourth And thus Henry the Sixth is once more King for six moneths Viz. from October to Aprill at which time the ballance turns Edward the Fourth returns gets into the Throne Henry the Sixth is again Dethroned all things are as they were and all confirmed by Act of Parliament For that Body is ever wise enough to side with power rather then to spend much time upon fruitless Orders and Votes that will peirce no Armour and therefore like the times must needs be subject to fits of distemper at the comming in of every Tide and did build and pull down Enact and disenact turn and return the English Crown from Yorke to Lancaster and back again and in conclusion for some time did do little but undo Nor can they be justly censured herein for Councells of men are not ordained to hinder Divine Providence or over-rule Fate but to foresee and close with occasions in the most advantageous way for the Publique good and when both winds and Currents are uncertain to ride at flote till they can discern the most commodious Haven to Winter in To impute therefore fault unto the Parliament in such Cases for want of Uniformity and Immutability of Councells is somewhat like the Notion that Batchelours conceit of Wives they would have but they do not know what other then an Idea of their own Fancy Now if it be inquired which course prevailed in order either to the Kings Royalty or the Peoples Liberty I shall answer neither of these but the House of Yorke prevailed to hold the Crown and might have advanced the Authority thereof had they not falne out amongst themselves for the spoyle and Edward the Fourth was not altogether disposed thereto The successe that he had in the Feild and his Souldiery made him look big like a King of the greater size but Kings sleep not securely upon such pillowes when the Militia is on hors-back it is as ready to be a Guard upon the King as for him and when it is most sober not so easily governed as a Common-wealth And
therefore Edward the Fourth now in Armes though he found it a hard Notion to maintain the Peoples Liberty where no man is free from the Souldier yet he inclined thereto we reade of multitude of Taxations of all sorts and of benevolences the worst of all those sorts for Souldiers must have money or if not they will have it but the King would not force things so far as his power could reach he will have money but it shall be by Order of the Parliament He might have pretended much upon the Commission of Array yet did it not but chose rather to be Lord of the Seas and because it was too great a Farm for his private purse he prayes aid of the Parliament by the way of Tonnage and Poundage which was in demand nine yeares before the Parliament granted it and when it was granted it was with such restrictions that it is evident the King preferred the right of the Parliament therein above his private Honour Secondly Titles of Honour are but windy Notions and every one knowes what claim is made by Kings to have the sole interest in conferring the same this Edward the Fourth neglected so far as he interested the Parliament both in the in the conferring of them and resuming of the same Thirdly the course of Trade was now more especially looked to not by the King and Privy Councell but by the Parliament and because it was much decayed partly by reason of the ill Government thereof and partly by the excessive lavishnesse of these times many Lawes are made for remedy of both And first the Staple was settled sometimes at Callis alone sometimes at it and Middleburrough and by this means England gained Trade from both Nations but the principall thanks is to be given to the interest between the King and the House of Burgundy Then course is taken for the bringing of the Staple Commodities onely to those places and the return to be made in money and not commodity by exchange Then for the well making of Staple Manufactures and restraining Importation of Forrain Manufactures of such kinds Then against transporting of English Coyn and Importing of Forrain Coyn other then Bullion And as touching the second greivance it seems gallantry or vanity of Apparrel was a sore disease of these times which were become times of Fashions and wherein the King led the way by his own example for he desired to be brave and that he might be more brave he passed Lawes that the People should be lesse brave assessing a sort of Apparrell for every degree and therein stooped so low as to define the fashions of their very shooes Fourthly the Parliament retained their ancient right of reducing the course of Judicature for whereas Sheriffs had hitherto holden their course of triall of the meaner sort of Fellonies and Trespasses and Offences determinable onely by Imprisonment or Fines and Amerciaments whereby mens Estates did lie under the continuall pillage of these covetous and extorting Officers It was established by the Parliament that these men should have for the future onely power of inquiry and to certifie at the next Sessions and there the Triall to be and Fines and Amerciaments to be set taxed and estreated unto the Exchequor and from thence to be levied and thereof the Sheriff to give account this was a great security to the Peoples estates but gave them not a full remedy for though the Triall was now more fair yet these Officers were Judges of suspition and had still power upon suspition to imprison their persons and seize their Estates under colour to save them for the King in case Conviction followed For remedy hereof the Justices of the Peace have now power given them to Bail in Cases of light Suspition and it is further declared that no mans Estate shall be first seized till Conviction and Attainder first be had And because Estheators grew no lesse burdensome in their way it was therefore Ordered that no man shall be allowed in such Office unlesse he hath Lands to the vallue of twenty pounds per annum and that he shall be responsable for such wrong done by himself or by his Deputy and Farmer Thus Edward the Fourth quitted himself like a King in many regards but soon ran himself out of breath gave his Lamp to his Sonne that was too weake to hold it a Third snatches it away and for two yeares carrying it exceeding well yeilded up all incroached Royalty to the People and his Crown and Life to his Successor CHAP. XXV The Condition of the Clergy IF any gains were had in these uncertain times the Church-men might seem to have them having now this advantage that the Commonalty was distracted with uncertain Interests of the Succession of the Crown And themselves onely united under the Popedome now freed from all Schisme and the Popedome mannaged by Sixtus the Fourth who had the hap to be accounted more vertuous then any of his Predecessors had been and to have all the Christian Princes wholly at his Devotion And lastly both the Clergy and the Kings were now joyntly ingaged against the rising power of Religion then called Heresie in order whereunto the Clergy leading the way had the applause of them that followed upon an implicite Faith that whatsoever was done was exceeding well done Nor was it wisdome for Kings that sate loose in their Thrones to stumble the good Opinions of so considerable party towards them And therefore Edward the Fourth in his first entrance granted to the Clergy that which could never be by them obtained from any of the foregoing Kings Viz. Free liberty of Process in all Cases Ecclesiasticall and in Tythes of Wood above twenty yeares growth and in Case they were troubled upon the Statutes of Provisors they should have their remedy in the Chancery against those Judges and their proceedings in such Cases to be there Cancelled This was done by Charter and was sufficient to shew what the desire of the Clergy and the intention of the King was Viz. At once to favour the Church and under colour of favour done to the Clergy â—o cancell both Common and Statute Lawes of the Kingdome by the power of the Chancellors Decree neverthelesse all this was but the Kings breath the policie changed never a whit the more For the Common Law held on its course not onely in Cases depending before the holy Chair but also even before the Bishop of the Diocess at home so as neither the King was concluded from his Suit nor the party endammaged from his Action by any such Charter And so far was the Judges of the Common Law from being bound by the Chancery in such Cases that they professed they would not delay to grant the Habeas Corpus to deliver any Prisoner by Decree of the Chancellor in any Case triable at the Common Law Much lesse did the Parliament favour these men so far as to give them
any countenance in any way of gain upon themselves but rather made bold with what the Church-men in former times challenged as their own and upon this Account whereas formerly it had inhibited Fairs and Markets upon the Lords Day Now it inhibited the sale of Boots Shooes c. upon that day though done never so privately which they did at the first onely within the City of London and three miles thereof I suppose it was made onely by way of Triall it being dangerous in such times to give a stop to all England at once otherwise it might be wondered why Gods Honour should be better regarded in London then all the Realm besides Of this Inchroachment we finde no complaint made by the Church-men another touched them to the quick although it befell onely the Archbishopricke of Yorke Hitherto that so held ordinary Jurisdiction over all the Bishops of Scotland as being their Provinciall Now it is disclaimed by them all and they are backed therein by their King under pretence of great inconvenience to his Bishops in their so far travells but in truth not unlike to Jeroboam though he pretended it was too much for them yet he thought it unsafe for himself that his Bishops should owe Canonicall obedience to the Subject of another Prince and upon this ground prevailed with Pope Sixtus the Fourth to make the Divorse and left it to future Ages to try the validity thereof if they would This is all that I shall observe of the Government of these three Kings whose Reigns in the whole exceeded not twenty six yeares and their compleat power therein not much above half so many CHAP. XXVI A short summ of the Reignes of Henry the Seventh and Henry the Eighth THe course of English policy hitherto wandering in the different Currents springing from the double head of Monarchy and Democracy and in them likewise often tossed up and down partly by the blasts of windy Titles and Pretentions and partly by the raging Tides from the Roman Sea now begin to come to Anchor within veiw of Shore Happy England if the same prove good Harbarage for a fainting Nation Two Kings now undertake the Stearage the worke of the first was to still the Winds the other the Seas and so to bring the Adventure safe home Henry the Seventh hapned upon a good preparative for this work in that he delivered the Kingdom from a Tyrant whose irregular and bloody way was so odious to the People that it set a foil upon his Successors Government and made his Wisdom Vallour and Justice appear greater then possibly it was His Vallour made way for the other two he had enough thereof to serve a wise Man in case of Extremitie at other times he made more use of his Majesty then Manhood being confident that the People knew not where to mend themselves but would be at his Devotion so long as he was better then his Predecessor though he cared not how little His Wisdome was his greatest part of which upon all occasions he made the greatest improvement he could without reflecting upon Conscience or Religion whereof he had tasted no more then would render him a civill man whereunto his Education did lead the way thus though his Vallour brought him to the Crown yet it was his wisdome that settled him in the Throne For though he loved himself so well that he was loath to pretend allowance of any access of Forrain help to his own atcheivement in his Title or that he was guilty in the least manner in his Entry upon the Throne yet to keep danger far off he provided one guard for his Person and many for his Title That of his Person he pretended onely as a Ceremony of State brought from the French Court and yet its strange that it went so well down with a Free People For that Prince that will keep guards about his Person in the midst of his own People may as well double them into the pitch of an Army whensoever he pleases to be fearfull and so turn the Royall power of Law into force of Armes but it was the French Fashion and the Kings good hope to have all taken in the best sense His Title setting aside the saying of Phillip the hardy That Kingdomes onely belong to them that can get them would hardly endure the touch till Pope Inocent by his Bull confirmed the Crown to him to hold by a sixfold right Viz. Of Inheritance of Warre of Espousals of Election of gift by Parliament and lastly of Pontificiall Benediction which the King liked marvellous well and the rather because his Title by marriage was buried up in the middle and so made the lesse noyse For though it was his best guard yet he liked not that it should be so reputed least his Title should seem rather conferred upon him then gained by him and so should hold by a Woman or at the best by the Courtesie of England if the Peoples favour should so far extend the Law in that Point by both which he holds the Honour of a compleat English King diminished His Title by Inheritance is much disputable if the right Heires of John of Gaunt be inquired after and much more that of Warre for although that brought the Possession yet no right or Title but by wrong which may indeed be plaistred over by Election or Act of Parliament but then he must be Tenant to the People As touching the Pontificiall Benediction himselfe tooke that but as a redundancy that might sway with the Clergy and do his Title no hurt Neverthelesse what severally they cannot do by joynt concurrence he accounts so fully done as if he were a King against all the world and more yet is he not sure enough but as one jealous is more tender so is his eye ever upon his Title there is his guard and regard as if it were the outworks of his Crown which once lost the Crown cannot hold out long In this work he minded so much his greatnesse that he lost the repute of his goodnesse then casting his eye upon the government and finding it of a mixt temper wherein if Royalty prevails not popularity will like a good Souldier whiles his strength is full he sallies upon the peoples liberties in regard of their persons with such cunning conveyance as he taught the people to dance more often and better to the tune of Prerogative and Allegiance then all his Predecessors had done nor did the People perceive it til they were over their shoos and then they clearly saw their condition and that it was in vaine for them to wrangle with their own acts of which more particularly in the next Chapter The Legiance of persons of the People once gained their Estates more easily follow and therefore though in the former he wrought by Ambuscado in this he may be more brave and charge them in the Van yet this also he did by degrees first by light Skermishes of borrowing smaller sums of
Rome Sixthly an ingagement to informe the King of all Messages or Bulls sent from Rome into England Seventhly An ingagement not to send or be privy to the sending of any message to Rome for any such purpose The third oath was that of fealty which anciently was due to Kings and now revived to be taken by all Bishops upon their admission And thus the English Prelacy having beene sworn slaves to the Papacy ever since Beckets time are now preferred to a more Royall service and the persuit by Kings after their right being laid a side by the space of 300. yeares is now renued and the prey seised upon by the Lion we found it upon a better title and in better condition by much then when at the first it was lost for it was upon som semblance of reason that the Arch-Bishop and Clergy gained it but being afterwards dispossessed thereof by the Pope and yet without any other shadow of Title but the Power of his own gripe for the present he is the occupant and becomes Proprietor by prescription Till now the felon apprehended the stolne goods are the Kings in right and by Remitter whereunto the Parliament were by the Statute adding their conveiance establishes the same by an unquestionable Title neverthelesse their service is no lesse servile to this Crown then it had beene to the Romish Miter formerly they asserted the Popes infallibility now the Kings supremacy They are now called by the King made by the King sent by the King maintained by the King whatsoever they are whatsoever they have all is the Kings He makes Bishops he makes new Bishop-ricks and divides or compounds the old as he pleaseth by a power given to Henry the eighth by Parliament which oath was never in any Prince before or after him that I can finde so as the Crown had it not but the man and it died with him The King thus loaden with Power and Honour above all his Predecessors if without proportionable maintenance to support the one and act the other must needs consume himself as one in a Tympany by growing great For though he was left rich by his Fathers Treasure yet his Zeale to Rome in its now Poor captived condition under the Imperiall power stirring up in him great underrakings abroad besides his own pleasures and gallantry at home exhausted that and doubtlesse had starved these his grand designes had he not found the hidden Treasures of the Cells and Monastries the sight whereof so rouzed up his Spirits that he adventured upon the purchase though he knew difficulties enough to have stopped his undertakings if he had not resolved both against feare and flattery It was not done without deliberation for the thing was felt as a greivance before the Norman times and complained of in Parliament above a hundred and forty years ago and diverse times since but Kings either understood not or beleeved not or durst not give remedy or had much else to do But now the King is beyond all his Predecessors he knowes much dares do more and is at leisure he will go as far as Emperour or French King and beyond them also but would not try masteries with either for they were all Cocks of the game The first occasion that discovered the wroke feasible was a president made by Cardinall Woolsie whose Power was enough to dissolve some petty Cells and no opposition made The King might well expect the worke would be as lawfull for him and not much more difficult or if any stormes ensued the People that had so long complained and felt the burthen of these excrescences of the Clergy would soon find out a way to Calme them the King need do no more then speake and the people will do This opened the doore but that which brought the King in was the hold the Pope had in this Kingdome by these Cloystered People who were persons dead in Law and dead to all Law but the Canon and upon this account the Kings Ancestors had possessed themselves of the Cells in the hands of Forrainers in times of War and now a deadly feud is stirred betweene Henry the eighth and the Pope their holy Father the Children cannot expect to thrive when as their Father is cast out of doores and so all must out together yet the manner is observable they must not be cast out but must go out the inferiour and greater part are dead persons have learnt obedience they can neither bark nor bite and therefore they may sleep and what is don must be don with such of them as are alive Upon a Visitation these are brought under the Test and found in such a condition that they had better give way and voluntarily surrender then abide the triall Once more the smallest are picked out whiles the greater stand by and wonder but either do not foresee or in dispaire of altering the Kings resolution do nothing but expect the sad hour which within four yeares comes upon them all every one of them choosing rather to surrender and expect the Kings mercy for maintenance during life then adventure against the dint of his Justice and Power and so loose all for they were ill befreinded amongst all sorts of the People Thus came the personall Estate and Stock of these Houses to the Kings immediate Treasury and their yearly maintenance to the disposing of the Crowne which might have advanced the same well nigh to the value of two hundred thousand pounds yearly but that the King intended to let the People enjoy the fat as well as he that they might be mutually engaged to maintain hold of the prey that they had joyntly gotten Out of all which neverthelesse the Crowne had a small rent or service annuall for the acknowledgement of their tenure besides the first fruits of the spirituall dignities and the tenths both which he formerly had already obtained The first whereof was but casuall and occasionall in the payment arising onely at the entrance of the party into his promotion and which was gained by the Pope from Edward the first although at his Parliament at Carleile in his thirty fourth yeare he withstood the same This was above three hundred and twenty thousand pounds in the whole summ The later was annuall and amounted to above thirty thousand pounds And thus the Popes Usurpaons are turned into duties to the Crowne but were much lessened in regard that these Cells and Monastries were accounted amongst these Ecclesiasticall promotions which by their dissolution fell off in that account Neverthelesse the advancement that might by a parcimonious King have beene made of the fall of this Ceder was such that the Crowne might have been rendred of it self absolute and al-sufficient But Henry the eighth was not thus minded the affairs of Europe were gotten into a high pitch Princes generally over active Henry the eight inferior to none of them what comes in goes out and he is a rare example of that Divine proverb
concerned or not concerned what they conclude they must maintain Vi Clavibus although in right his Prerogative is above theirs Now by the Statute the Kings Vote is asserted and a Negative Vote restored and himself made as well Head of the Convocation as the Church nothing can passe there without his Concurrence nor come to the Consideration of the Parliament without his pleasure and thus the King hath a double Vote in every Church Ordinance One as in the Parliament to passe the same as an Act of Parliament of which I conceive the Opinion of that Honourable Judge is to be understood the other as a Member of the Convocation to passe their advices to the Parliament and therefore he might either sit in person amongst them or by his Vicar as Henry the Eighth did by the Lord Cromwell By the First the whole Kingdome was ingaged By the Second the Convocation onely and that as a Court onely and not the representative of the Clergy because as they had a Spirituall relation so also they had the Common right of Free-men and therefore could not be bound without the Common consent of the Free-men Thirdly as their power of Convention and power in Vote so their Originall right of Law making suffered a change formerly they depended wholly upon a Divine right which some settled Originally in the Pope others in the Prelacy and some in the Clergy But now they sit by a derivative power from the Act of Parliament from which as from their Head they receive life and power Fourthly they suffered some change in the very work of their Convention for though formerly they claimed power to meddle onely with Ecclesiasticall matters yet that Notion was ambiguous and they could many times explicate it more largely then naturally It is not to be denied but the matters concerning the Service and Worship of God are of Spirituall consideration but that such should be so strictly deemed to lie in the way of Church-men onely is to bring all Spirits within the Verge of Ecclesiasticall Jurisdiction and to leave the Civill power to rule onely dead Carkases much lesse can any other thing which by prescription hath not been of Ecclesiasticall Cognisance be called Spirituall But to come to particulars because generalls edifie not The Convocation claimed formerly power as Originally from it self to impose rules for government upon Church-men and Church-Officers and upon the Laity so far as extended to their Service of God And also to charge the Estates of the Clergy and concerning Matrimoniall and Testamentary Causes They claimed also a power to determine Doctrine and Heresies Yet De Facto divers of these they never acted in that right wherein they claimed to hold Cognisance First as touching the charging of the Estates of the Clergy If it was for the Kings Service they were ever summoned by the Kings Writt yet was not their Act binding immediately upon the passing of the Vote till the Parliament confirmed the same and therefore the old form of granting of Dismes was Per Clerum Communitatem as by the pleading in the Abbot of Walthams Case appears for without their concurrence they had no power to charge any Free-man nor to levy the same but by their Church Censures which would stand them in no stead And in this the Convocation suffered no alteration either in right or power by the change thus wrought by Henry the Eighth Secondly as touching imposing Lawes upon the Laity in points of Worship and Doctrine its evident though they claimed such power they had it not for when all is done they were contented at length to get the Support of the Statute-Lawes of this Kingdome as may appear in the particular Lawes concerning the Lords Day and proceedings against Heretiques setling the Popedome in the time of the great Scisme c. But now all Title of claim is quite taken from them and all is left in the Supream Legislative power of this Nation as formerly hath been already manifested Thirdly as touching Matrimoniall causes their former power of making Lawes concerning them and Testamentary causes is now absolutely taken away onely concerning Matrimoniall matters they had so much of the Judicatory power concerning the same put upon them as might well serve the Kings own turn and that was for determining the matter between himself and the Lady Katharine Dowager depending before Arch-bishop Cranmer For the King supposed the Pope a party and therefore meaned not that he should be his Judge And thus though the Clergy had acknowledged the King to be their Supream Head yet in this he was content to acknowledge their Supremacy above him to judge between himself and his Queen and in other matters concerning himself So as upon the whole matter the Convocation were gainers in some things in other things they were onely loosers of that which was none of their owne CHAP. XXX Of the power of the Clergy in their Ordinary Jurisdiction THose Spirits are truely degenerate that being sensible of misery cannot stir up desires of change although the way thereto lies open before them and this shewes the nature of the Romish yoke that it lay upon the Spirits of Men did intoxicate and make them drunk with their condition otherwise the Usurpations Oppressions Extortions and Incroachments of the Popedome upon the Bishops Sphear and the People under their charge could never have provoked such complaynings amongst all sorts in severall Ages from time to time And now that Henry the Eighth undertakes to set them free so as they would acknowledge his Supremacy they all are struck dumb till a Premuniri taught them to speak and so were scared into a better condition then they would have had and into a more absolute Estate of Jurisdiction then they received from their Predecessors The Pope had now usurped a power supra ordinary over all Appeals gained the definitive Sentence to the Roman See and had holden this power by the space of foure hundred years and the King finding the root of all the mischeif to his Crown from abroad springing from that Principle meaned not to dispute the point with the Casuists but by one Statute took away all Appeals to Rome and determined Appeals from the Bishops Court in the Arch-Bishops Court and the Appeals from the Arch-Bishops Commissary in the Court of Audience So as though in the Kings own Case the Convocation had the last blow yet in matters concerning the Subjects the Arch-Bishop was either more worthy or more willing with that trust For though the Convocation might have as well determined all as well as the Pope yet for dispatch sake of a multitude of Appeals now depending at Rome and to prevent long attendance on the Convocation that now had much to doe in matters of more publick nature the utmost Appeal in such Cases is made Provinciall This whether priviledge or prejudice the Ecclesiasticall Causes gained above the Civill whose definitive Sentence was reserved to the
Parliament And thus is the Arch-Bishop made Heire to the Pope in the greatest priviledge of a Pope to be chief Judge on Earth in matters Ecclesiasticall within his own Province A trick that in my opinion much darkened the Glory of the Kings Title of Supream Head which the Church-men had formerly offered up to the Honour of the Crown of this Realm For be it so that the Title is in the Crown by Remitter yet cannot the same carry along with it any more then a lawfull power and whether all the Popes former power allowed him by the Canon or gained by Usurpation and Custome shall be said a lawfull power or whether the power of Review by Appeal shall be derived to the Crown under the generall Notion of Supremacy upon the Clergies submission is to me a doubt albeit I must give Honour to the Judgement in Print in regard that after the submission of the Clergy the matter concerning the Divorce of the Lady Katharine Dowager came before the Pope by Appeal and there depended the King himself also waiting upon that See for Justice and a definitive Sentence in that matter and thereby acknowledged the Popes power De facto Notwithstanding the Clergies foregoing submission and being occasioned by the delay at Rome he procured this Statute concerning Appeals to be made whereby at one breath he took the Appeals to Rome away and settled them as formerly hath been mentioned all which was done two years before the Title of Supremacy was annexed or declared for to be to the Crown by Act of Parliament And therfore as to me it appears the power of supream Cognisance of appeals was not in actuall possession of the Crown by the Clergies submission so was it actually vested in the Arch-Bishop before the Title of Supremacy was confirmed by Act of Parliament and so it never was in the Crowne actually possessed much lesse had the Crown the same by Remitter For the Kings turn once served by the Convocation and the matter of the Divorce of Queen Katharine settled the King perceiving the slow Progresse of the Convocation the Members of the same not being yet sufficiently tuned to the present Affairs And moderate Arch-Bishop Cranmer likewise foreseeing that the Odium of these Definitive Sentences would be too great for him to bear another Appeal is provided more for the Honour of the Crown to be from the Arch-Bishop to Delegats to be appointed by the King his Heirs and Successors so as though their Nomination be the Kings yet their power is deduced immediately from the Parliament which took the same from the Arch-Bishop and conferred it upon them A second advantage not inferiour hereto which the Arch-Bishop gained out of the ruines of the Popedome was the power of Licenses and Dispensations or Faculties In the Pope it was a transcendent power without any rule but what was tuned to him by the Bird in his own breast and was the ground of much license or rather licentiousnesse in the World But in the Arch-Bishop they seem to be regulated To be First in Causes not repugnant to the Law of God Secondly such as are necessary for the Honour and Security of the King Thirdly such as were formerly wont to be remedied at the See of Rome yet in truth left as much scope for the Conscience of the Arch-Bishop to walk in as the Pope had in former times a large Teather and greater priviledge then ever the Crown had by which although the King himself be like Saul higher by the head then all the People yet in many things Samuel is higher then he The moving cause hereof is not difficult to find out the King had but lately married the Lady Anne Bullen a thing that many startled at and the King himself not extreamly resolved in he would therfore have his way like that of the Zodiack broad enough for Planetary motion of any one that could not contain himself within the Eccliptick line of the Law and so shipped over the Popes power to the Chair of Canterbury and had made a Pope in stead of an Arch-Bishop but that the man was not made for that purpose What the Ordinary Jurisdiction got or lost wee come in the next place to observe First they had still their Courts and Judiciary power but upon what right may be doubted Their first foundation was laid by the Civill power of a Law in the time of William the first Norman King yet the power of the Pope and Bishop growing up together they came to hold the Power of the Keyes by a Divine right and so continued untill these times of Henry the Eighth wherein they have a Retrospect to the Rock from whence they were first hewen and many seem to change their Tenure and therewith therefore are in right to change the Style of their Courts and Title of summons but the times not being very curious and the worke of Reformation but in fieri the more exact lineaments must be left to time to finish and beautifie A greater blow did light upon the Lawe of these Courts which was left as doubtfull as the Canons all which are now put to the question and to this day never received full resolution but were left to the Parliament to determine them at leisure and in the meane time to the Judges of the common Law to determine the same Lawfull or Unlawfull as occasion should require Neverthelesse the Courts still hold on their course according to their old Lawes and Customes for their forme of proceedings some say by prescription yet more rightly by permission it being a difficult matter to make prescription hold against a Statute Law As touching the matters within their Cognisance the Law settled some and unsettled others First as touching Heresie the Church-men formerly thought scorne the Lay Magistrate should intermeddle but not being able to stop the growth thereof by their Church-Censures prayed aid of the Civill Magistracy so by degrees arose the penalties of Imprisonment and burning which brought the whole matter into Cognisance before the Civill Magistrate because no Free-man might be proceeded against for losse of Life or Liberty but by the Lawes of the Nation and for this cause the Civill Magistrate granted the Writ of Habeas corpus and releived many times the party Imprisoned wrongfully or granted prohibition as they saw cause And therefore it cannot be saide rightly that the sole or supreame Cognisance of this Crime of Heresie belonged to the Clergy before these times Nor did their proceedings upon the Writ of Burning Warrant any such thing partly because till these times the Canon Law was the best ground that these proceedings had and the course therein was not so Uniforme as to permit the Title of a Custome to warrant the same Conviction being sometimes by jury sometimes according to the Canon somtimes before the Ordinary sometimes before the Convocation sometimes before the King sometimes before speciall Delegates as the Histories of the
not so fill he would have Souldiers but they must be his Patentees not for any skill or valour in them above others but he hoped they would compound with him for Licenses to absent rather then to adventure themselves and so he might get the more Money that could finde pay for Souldiers more and better then they were or would be for otherwise the Patentees might by the Statute have beene allowed to serve the King by their Deputies which would have done the King better Service in the Warrs then themselves could have done and for this very purpose much use was made of these Statutes as well by Henry the seventh as Henry the eighth both for Licenses and Pardons for composition in such Cases as their Records do plentifully shew Secondly let the Claime of Kings be what they will yet the matter in fact shew plainly that they never had possession of what they claimed Both these Kings pretended a Forraine-Warr each of them once against one and the same Nation and to that end advanced unto one place with their Armies although the one went in good earnest the other in jest Their Armies were not gathered by Prerogative but of Volunteirs this not only the Records but also the Statutes do clearly set forth Some souldiers served under Captaines of their own choise and therefore the Law inflicteth a penalty upon such Captains as bring not their number compleat according to their undertaking other Souldiers are levied by Commission by way of imprest which in those dayes were Volunteirs also and expecting favour from the publique the rather because they devoted themselves thereto without relation to any private Captaine willingly therefore received imprest Money And of this course the State saw a necessity both for the better choise of men and for the more publique owning of the worke For such as had been usually levied by the Captaines were fit only to fill up room and make up the number and yet many times there was a failing in that also and this manner of raising the Infantry was continued by Henry the eighth as by the like Law in his time may appeare As touching the levying of the Horse although diverse Statutes were made for the maintenance of the breed of Horses and Persons of all degrees of ability were assessed at the finding and maintaining of a certaine number of Horses yet do none of them tell us that they shall finde and maintaine them armed compleatly for the Warrs nor shall send them forth upon their own charge and therefore I suppose they were raised as formerly these two Kings had the happinesse to be admired the one for his shrewd cunning Head the other for a resolute and couragious Heart And it was no hard matter to finde men that loved to ingratiate themselves and indeavour to catch their favour though with the adventure of their Lives especially if they looked after Honour and Glory which as a Crowne they saw pitched at the Goale of their Actions Thirdly Concerning the pay of the Souldier the Law was the same as formerly the same was ascertained by the Statute-Law the payment was to be made by the Captaine under perill of imprisonment and forfeiture of Goods and Chattels and the true number of his Souldiers to be maintained and listed under the like perill Fourthly As touching the Souldiers service the same course also was taken as before if they dissert their Colours they shall be punished as Felons and the manner of tryall to be at the Common Law Fifthly For Fortifications the power properly belongeth to the supream Authority to give order therein For the people may not fortifie themselves otherwise then in their particular Houses which are reputed every mans Castle because publique Forts are enemies to the publique peace unlesse in case of publique danger concerning which private persons can make no determination And furthermore no Fortifications can be made and maintained without abridgement of the Common liberty of the people either by impairing their Freehold or exacting their labour or other Contribution none of which ought to be done but by publique Law and therefore when the Inhabitants of the County of Cornwall were to make defence against Invasion and Piracy from the Coast of Little Brittaine in regard they were a long slender County and upon sudden surprisals people could not so readily flock together for their joint defence they obtained an act of Parliament to give them power to fortifie the Sea coasts according to the direction of the Sheriff and Justices of the Peace Lastly Warrs once begun must be maintained at the charge of the undertakers If they be the Kings own Wars he must maintaine them out of his owne Treasury till the benefit of them doe prove to the common good and in such cases the charges have been sometimes provided before the work by Act of Parliament and sometimes after Henry the Seventh and Henry the eighth both of them at their severall times went to Boloigne with their Armies Henry the seventh with an intent to gaine profit to himselfe by an advantagious peace and had his ends therein and was ashamed to aske ayde of the people towards the charges of that Warr. Henry the Eighth went upon his owne charge also with his Army trusting to the Parliament for consideration to be had of his imployment wherein his expectation did not faile and in his absence made Queen Katharine Generall of all the Forces of England in his absence and gave her power with other five Noble Personages to take up Money upon Loane as occasion should require and to give security for the same for the maintaining and raising of Forces if need should require as is more particularly set forth in the Patent Rolls of these times Neverthelesse the Warr at Sea Infra quatuor maria was ever reputed Defensive as to the Nation and under the publique charge because no Warr could be there but an Enemy must be at hand and so the Nation in eminent danger and therefore the maintenance of the Navy Roiall in such cases was from the publique Treasury To conclude therefore If the Parliament and Common Law in all these cases of Levies of men for Warr payment of Souldiers and their deportment in cases of Fortifications and of maintenance of Warrs at Sea and the deportment of such as are imployed therein I say if they give the Law and carry the supream directory then certainely the Law rules in that which seemes most Lawlesse and though Kings may be cheife Commanders yet they are not the cheife Rulers CHAP. XXXIII Of the Peace PEace and Warr originally depend upon the same power because they relate each to other as the end to the meanes and receive motion from one and the same fountaine of Law that ruleth both in Peace and Warr It is very true that severall Ages hitherto have been troubled with arbitrary exhalations and these very times whereof we now treat are not altogether cleare
obtained their part of the honour of that day yet in the consequence they lost Callis the last foot that the English had in France henceforth England must be content with a bare Title As this was deserved so was it also reserved by the Queen to make the World beleeve that she died for greif therefore as a Mother of her Countrey although her bodily disease contracted by a false Conception wherein she beguiled both her self and the World concurred thereto In sum the worst that can be said of her is this That she was ill principled and the best that she acted according to her principles and so lived an uncomfortable Life shaped a bloudy Reigne and had but a dim Conclusion The Night was now spent and Queen Elizabeth like the morning Star rising into the Throne sent forth the benignant Influence of both her Predecessors and many waies excelled them both she was begotten in a heat against Rome wherein also she was borne and trained up by her Father and Brother Edwards Order and saw enough in her Sisters course to confirme her therein For Queen Mary was not very Catholique in her Throne though she was in her Oratory Nevertheless Queen Elizabeths Course hereunto was very strange and might seem in outward respects to lead her quite wide for her youth was under a continuall yoke her Mother dead whiles she was at the breast her Father owning her no further then as his Child born of a rebellious Woman never intending her for the Crown so long as any hope was left of any other with her age the yoke grew more heavy her Brother Edward being but of the half blood except in point of Religion might repect her at a distance beyond his Mothers family but this lasted not long her Sister Mary comes next of a stranger blood to her then her Brother was looking ever back upon her as one too nigh her heele and more ready to tread upon her Traine then support it the difference in Religion between them two added yet further Leven and this occasioned from her Sister to her many sowre reflections bitter words harsh usage concluding with Imprisonment and not without danger of Death All which Queen Elizabeth saw well made the lesse noise in Religion walked warily and resolved with patience to indure the brunt for she might perceive by her Fathers Will that her way to the Crown if ever she arived at the end must be through a feild of blood and though she knew her change of Religion might make the way more plain yet God kept her in a patient waiting untill the set time was come Thus passing over her Minority with little experience of youthfull pleasures she had the happiness to have the lesse sense of youthfull lusts which meeting with naturall Endowments of the larger size rendred her the goodliest mirror of a Queen Regent that ever the Sun shone upon God adding thereto both Honour and continuance above all that ever sate in that Throne Her entrance was with more joy to others then her self for she kept her pace as treading amongst thornes and was still somwhat reserved even in matters of Religion though she was known to be devout She had observed that the hasty pace both of her Brother and Sister brought early troubles before either of them were well setled in their Throne And therefore whereas her Sister first set up the Masse and then indeavoured to settle it by disputes she contrarily first caused the point to be debated and thereby gained liking to lay it aside It s true the moderatorship in that dispute was imposed upon a Lay man as their term is but his work being to hold the Disputants to order in debate and not to determine the point in Controversie which thing was left to the Auditory might therefore more rationally be done by him then censured by any Historian that shall undertake to judg them all The first step thus made one made way for another till the whole became levened her proceedings against Opposers were with much lenity rather overlooking then looking on and such as stood more directly in her path she would rather set a side then trample down And be faire to all without respect to difference of Religion that would be faire to her Much of her happinesse depended upon Election of her Councell more in observing their advice that whether she did rule or were ruled or did rule by being ruled might deserve some consideration This she did to give satisfaction to such as took prejudice at her Sex rather then out of any sense of imbecility in her own intellectuals for therein she equalled the best of her Predecessors and in learned Endowments exceeded them all Generally she was of a publique minde if not populer she loved to be seen of the People and yet kept her distance Her Sex taught her to use her tongue much and her education to use it well and wisely That with a reserved carriage was her Scepter winning thereby applause from the inferiour sort and awe from the greater· A wise man that was an eye witnesse of many of her Actions and of those that succeeded her many times hath said That a Courtier might make a better meale of one good look from her then of a good gift from some other King Anothet felicity She had beyond others of her place She loved not to be tied but would be knit unto her People To them She committed her confidence under God and they to her their cheifest Treasure on Earth Viz. Their hearts to her Parliament which was the most considerable party that She had to deale with She could personate Majesty equall to any Emperour and advise commend yea and chide if She saw occasion And yet ever had a trick to come off with a kinde conclusion without blur of Honour So as of thirteen Parliaments called during her Reigne not one became abortive by unkindness and yet not any one of them passed without Subsidy granted by the People but one wherein none was desired And sometimes the aid was so liberall that She refused the one half and thanked the People for the remnant a courtesie that rang loud abroad to the shame of other Princes She would often mention her Prerogative and yet not hold her self wise enough either to interrupt the Judges in their way nor the Bishops in theirs Abeit She spared not also as She saw occasion to check the best of them for their irregularities She had no Beloved yet entertained Favorites at a cheaper rate and in better order then Kings use to do for She had a preferment within her power beyond the reach of them all and passion also soon at command or rather somtimes beyond command Yet if calmely taken it ever proved good for that party that suffered in the conclusion However her love She held under her own power and therein excelled her Forefathers She had the President of her Sister that adventured upon a Prince for her
Bed and missed what she expected and lost what She had and thereby learned to call into question the possibility for her to gaine the private contentments of a married Life and therewith maintain her publique Interest in the Kingdome and therefore resolved rather to sit alone then to sit below and to refuse the help of any Consort rather then to part with any one jot of her Interest in the people So She remained above the People and her self and thereby enjoyed both But Custom in Government growing together with infirmities of age made her Regency taste somwhat stale and spiritless and gave occasion to mens Mindes to wander after the next Successor before She had been nine years Queen this scrutiny was once begun but it received a faire answer of delay because it was then taken as don in love now the apprehensions hereof according to her age are more sad She thinks them weary of her and therupon She is weary of her self and them She supposes She can no longer give them content the Lords have the power they will not be ruled and such like dark thoughts working upon an aged body weakned with other infirmities wasted her spirits and hastned a conclusion unto a weary life her self not unwilling herewith and her Courtiers lesse who expecting more from Successors then they find lived to disdesire and unwish their former choise by late repentance thus making the ending of her dayes the renewing of her Reign in the hearts of all that observed her alive or consider her now dead in the written Registers of her Fame CHAP. XXXV Of the Supreme Power during these Times THe Supreme Power but ere while monstrous in the two former Kings times for Greatness now suffers as great a diminution over-shadowed by infancy woman-hood and Coverture and gives the People breath to beware for the future Ne potentes si nocere velint non possent nevertheless the loss was only of the Hydropical humor and the Government came forth more clearly like it self In the point of Infancy Edward the sixth bears it forth being the seventh President of Infancy ruling under Protectorship since the Norman times yet beyond all the rest in managing his Supremacy in Church matters which none of them all did ever ingage upon before him English Prerogative and Supremacy are Notions of a sublime Nature and commonly looked upon as the holy Mount at the Delivery of the Law at a great distance for fear of death or undoing and yet it is such a thing as a childe may handle without hurt done either to the Estates Persons or Consciences of any Man because it s presupposed he does nothing but what the Law first dictates by his Councel unto him There is then no infancy in the Crown though in the Person because the wisedom of the Crown is not intended to rest in one Person but in the Councels of many who are equally wise whether the Person of the King be old or young And that Statute made by Henry the eighth by which this King had power by his Letters Patents after the age of 24 years to adnull any Act of Parliament made by him before that time was not grounded either upon Principles of Law or general Reason of State but upon some particular Circumstances of the state of the Affairs as then they stood and therefore is this power limited onely to such Heirs or Assignees of Henry the eighth to whom the Crown shall come by his appointment Nor did it ever thrive to that desired end whereto it was intended for upon the entry of Edward the sixth the Councels changed and the Parliament took this Statute away as scandalous to the fundamental Government of the Nation and in stead of the power of Adnulling allowed of the power of Repealing yet so as untill such time of Repeal the said Statutes and all Acts thereupon done shall for ever be deemed warrantable and good This was too much but that the Times were yet in Equi lubrio and men were loath to part with their Interests which they did hang upon that Power of Reserve unto the Kings 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 Kings present way to be against them and both it and the later 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 destire yet did the Parliament neither yeild 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 Kings 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 Indowments do far exceed the other and are not inferior unto the most of men of this we have two Examples in these Times Queen Mary and Queen Elizabeth of severall 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 honor 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 minde indowed with all the perfections of a man she could not indure 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 Supreme Governour whereas her father would be called Supreme Head as if it were not onely hazardous but hideous for a Woman to be Supreme Head of the Church and for this cause would she not revive 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
eighth to lead the way chose rather to pursue a Rule then to make one and soon determined the point viz. That the Crown of England with all the Priviledges thereof equally belong to a Woman in possession as to a Man or Childe A bold Adventure I say it was but that Henry the eighth was a bold Leader and yet the bolder it was if the consequence be considered for Queen Mary as a Woman brought in one new President but in her Marriage a worse for she aimed not onely at a forrain blood but at a Prince in Power and Majesty exceeding her own and thereby seeking advancement both to her self and her Realm indangered both The matter was long in debate between the Spanish and English and now had busied their wits above ten years at length a Supremacy is formed sutable to the Lord and Husband of Queen Mary that could not be content to be one inch lower then her self Philip had the name of a King and precedency and in many cases not without the Allegiance of the English Their offences against his person equally Treason with those against the Queens own person and Indictments run Contra pacem coronam D. Regis Reginae That in some cases he participated in the Regal Power may appear in that by the Articles he was to aid the Queen in the Administration of the Kingdom he joyned with the Queen in the royall Assent and in Commissions Letters Patents and in Writs of Summons of Parliament as well as others yet in the words the Crown is reserved onely to the Queen and she must reign as sole Queen Now if the King had broken this Agreement either the Parliament must over-rule the whole or all that is done must be undone and England must bear the burthen A Queen Regent is doubtless a dangerous condition for England above that of an Infant King unless she be married onely to her People This was observed by Queen Elizabeth who therefore kept her self unmarried nor did the People otherwise desire her Marriage then in relation to Posterity Few of them liking any one of their own Nation so well as to prefer him so highly above themselves and fewer any Forrainer This was soon espied by forrain Princes and the Queen her self perceiving that she was like to receive prejudice hereby in her interest amongst them signified by her Embassadours that she never meaned to stoop so low as to match with any of her Subjects but intended to make her choise of some forrain Prince who neither by Power or Riches should be able to prejudice the interest of any of her neighbouring Princes A pretty Complement this was to gain expectation from those abroad and better correspondency thereunto Upon this ground divers Princes conceived hopes of more interest then by triall they could finde And the Arch-duke of Austria began a Treaty which seemingly was entertained by her but her Proposals were such as silenced all those of the Austrian Interest for ever after viz. 1. That the Romish Religion should never be admitted into England 2. That no man that she married should ever wear the Title of King 3. That no Forrainer should ever intermeddle in the Rule and Government of the Church or Common-wealth nor in the Ministry of the Church 4. That if he survived the Queen he should never challenge any Title or Interest in the Government or any Possession in England 5. She would never marry any one that she might not first see So as either she aimed at some inferior Prince that durst not look so high or else she did but make semblance till she was nigh fourty years old and in all declared that she liked not her Sister Maries choise To these two Powers of Determining and Distributing I shall add a third of Deputing which the Parliament exercised as formerly it had done Henry the eighth had in Ecclesiastical matters exercised a Power beyond the reach of Law and yet by Parliament had provided positive Laws by which the same ought to have been ordered these were also confirmed in Edward the sixths time with some Additionals By these particular Commissioners were appointed for the making of Ecclesiastical Constitutions and the King himself had a power Episcofactory without Conge deslire They likewise limited the power of Ecclesiastical Courts altered their Process reformed their Censures even that grand Censure of Excommunication it self The like or much more may be said of their deputing power in Civil Affairs as well inlarging the Kings power as in abridging the same for whereas some of the Successors of Henry the 8. had power by vertue of his Letters Patents after 24 years of age to annull any Act of Parliament by them made before that Age. In the time of Edward the sixth notwithstanding the Proviso in that Law and although Edward the sixth was not then twelve years old yet the Parliament repealed all and restored to Edward the sixth onely that power for the time to come but not to any of his Successors and whereas Henry 8. had gained to himself his Successors a Legislative Power by Proclamation the Parliament in Edward the sixths time took the fame quite away and reduced Proclamations into their former sober posture The like may be observed of the power of the Parliament in ordering the Lives Members and Estates of the People in matters criminal and in making and altering Courts of Justice and bounding their power altering their Process abridging their Terms for Judicature reforming Errors in pleading amending common Conveyances and Assurance as in passing Fines with Proclamations their course in the County Palatine Limitations of Prescription fraudulent Deeds Recoveries by Collusion c. in all which the Crown had no power but in and by the Parliament Many particulars more might be added if the matter so required for the Statutes are more full in these later Times then formerly and may soon lead us beyond a just Period in so clear a matter CHAP. XXXVII Of Jurisdiction Ecclesiastical in these last Times IN the general and in relation to the forrain Jurisdiction of Rome it was like a Childe in an Ague under Fits of Heat and Cold but in it self under the Prelacy still growing in stature though not in strength Edward the sixth came in like a storm that tore up Episcopacy by the Roots yet a Top-Root remained intire with the stock bearing shew of a kinde of Divinity that though bared of the old Soile of the Papacy yet transplanted into the new Mould of Royalty soon conveyed a new life which made the stock still flourish and grow into a better condition then formerly it had Their Legislative power in matters concerning their own interest though in outward view seeming their own yet was doubly disturbed from the Pope and the King who though many times opposed one another yet evermore were both of them in opposition to the Church with the greater bitterness by their
the People However unequall it may seem yet both that and other advantages were gained by the House of Lords after the seperation was once made as many of the ancient Statutes by them only made do sufficiently hold forth which although in the generall do concern matters of Judicature wherin the Lords originally had the greatest share yet other things also escaped the Commons Vote which in after ages they recovered into their consideration again And the condition of the People in those times did principally conduce hereunto For untill the Norman times were somwhat settled the former ages had ever been uncertain in the changes between War and Peace which maintained the distance between the Lords and their Tenants and the Authority of the one over the other savouring of the more absolute command in War And after that the Sword was turned into the plough-share the distance is established by compact of Tenure by Service under perill of default although in a different degree for the Service of a Knight as more eminent in War so in Peace it raised the minde to regard of publique Peace but the Service of the plough supporting all is underneath all yet still under the common Condition of free men equally as the Knight Peace now had scarcely exceeded its minority before it brought forth the unhappy birth of Ambition Kings would be more absolute and Lords more Lordly the Commons left far behinde seldom come into mention amongst the publique Acts of State and as uselesse set aside this was the lowest ebb that ever the Commonage of England indured which continued till Ambition brought on contention amongst the great men and thence the Barons Warrs wherein the Commons parting asunder some holding for the King who promised them Liberty from their Lords others siding with the Lords who promisied them Liberty from the King they became so minded of their Liberties that in the conclusion they come off upon better advantage for their Liberties then either King or Lords who all were Loosers before their reckoning was fully made These Wars had by experience made the King sensible of the smart of the Lords great Interest with the People and pointed him to the pin upon which the same did hang to take which away a Designe is contrived to advance the value of the Commoners and to levell the Peerage that they both may draw in one equall yoke the Chariot of Prerogative The power of the Commons in publique Councells was of some efficacy but not much Honour for their meetings were tumultuary time brought forth a cure hereof the flowers of the People are by Election sent to the Representative and so the Lords are matched if not over-matched the People lesse admiring the Lords and more regarding themselves This was but a dazle an eclips ensues for Kings having duely eyed the Nature of Tenures between the Lords and Commons look upon it as an out-work or block-house in their way of approach Their next endeavour is therefore to gain the Knighthood of England within the compass of their own Fee and so by priority to have their Service as often as need should require by a trick in Law as well for their own safety in time of War as for their benefit in time of Peace This was a work of a continuing Nature and commended to Successors to accomplish by degrees that the whole Knighthood of England is become no more the Lords till Kings be first served and thus the power of the People is wholly devolved into the Kings Command and the Lords must now stand alone having no other foundation then the affections of the People gained by beneficense of Neighbourhood and ordinary society which commonly ingratiates the inferiour rank of men to those of higher degree especially such of them as affect to be popular Henry the seventh found out this sore and taught his Successors the way to avoid that occasion of jealousy by calling up such considerable men to attend the Court without other wage but fruitlesse hopes or under colour of Honour to be had by Kings from the presence of such great men in their great Traines or of other Service of speciall note to be done onely by men of so high accomplishment And by this meanes Lordship once bringing therewith both Authority and Power unto Kings before Kings grew jealous of their greatness in these later dayes is become a meer jelly and neither able to serve the Interest of Kings if the People should bestir themselves nor their own any longer henceforth the Commons of England are no mean Persons and their representative of such concernment as if Kings will have them to observe him he must serve them with their Liberties and Lawes and every one the publique good of the People No mans work is beneath no mans above it the best Honour of the Kings work is to be Nobilis servitus as Antigonus said to his Son or in plain English supreame Service above all and to the whole I now conclude as I found this Nation a Common-Wealth so I leave it and so may it be for ever and so will it be if we may attain the happinesse of our Fore-Fathers the ancient Saxons Quilibet contentus sorte propria A Table of the Principall Matters conteined in this Book A A Betting of Felony made Felony 299 Administration granted to the next of the Kindred 51 Admirals power from the Parliament 41. formerly under many brought into one 42. once gained jurisdiction to the high water-mark 44. and his Power regulated by Law ibid. over Sea-men Ports and Ships 44 Allegiance according to Law 18. vide Supremacy the nature thereof in general 79. its not natural 79 89. not absolute or indefinite 82. not to the King in his natural capacity 86. it obligeth not the People to serve in forrain War 10â— it is due to the person of the King for the time being 246 279. what it is in time of War and relation thereunto 247. Henry the seventh and Henry the eighth indeavoured to advance it in relation to the Crown but effected it not 204. Appeals in cases Ecclesiastical restrained from Rome and given in the Kings case to the Convocation and in the cases of the People the Archbishop afterwards to the Delegates and were never setled in the Crown 227 233. vide Archbishop Archbishop hath the lawfull power of the Pope in Appeals and Dispensations Licenses and Faculties 233. the Archbishop of York looseth his jurisdiction over the Scottish Bishops 193 Arrays Commission of Array 178 vide War Assent of the King to Acts of Parliament serveth onely to the execution of the Law and not to the making thereof 21 Association of the People for the common safety before the Statute inabling the same 298 B. BAstardy not to be determined by the Ordinary before Summons to the Pretendors of Title to be heard 156 Bench the Kings Bench at Westminster abated in power by the Commissions of Oyer and Terminer and Gaol delivery
92 165 Benevolence first used by Edward the fourth 184. taken away by Richard the third 185. taken up again by Henry the seventh 196 Bishops not impeachable before the civil Magistrate 49. their Temporalties to be neither seised nor wasted in the vacancy 50. vide Ordinary Buggery made Felony 299 C. CAnons their power anciently in debate 61. such as are not according to the Law are taken away 236 Castles and Gaols restored to the County 113. vide Forts and Fortifications Chancery once an Office afterwards a Court 35. the power grows by Act of Parliament 36 162. the manner of the Proceedings 38. Keeper of the great Seal increaseth in power 162 Chancellor elected by the Parliament 39 Cheshire made a Principality 11 Children carried into Cloisters remedied 163 Clergy priviledged from Arrest 52. discharged of purveyance and free quarter 52. their Temporalties in question 63. the Commons love not their persons 147. their first declining from Rome in the matter of Provisors 150. they gain free process in matters Ecclesiastical 192. their defection from Rome and submission to the Crown 206 Clergy upon Triall but once allowed 257. in some cases disallowed 250 298 Commissioners Ecclsiastical 288. High Commission ibid. Conjuration vide Witchcraft Conservators of the Truce 162 Constables Court vid. Marshals Court Convocation established by Parliament 151. it then undertook great matters but much more after the Clergies forsaking the Pope 229 Councels the Privy Councel ordered by Parliament 21 33 141. of use for suddain motions 27. their Oath 29. and jurisdiction 31. and power 142 Magnum Concilium or the grand Councel of Lords 28 Crown intitled not by Discent 128 277. but intailed 128. vide 188. Womanhood 270. Coverture 273 Custos Regni a formality of State under the Parliaments Order 134. many times conferred upon Children 137. and upon a Woman 252 D. DElegates though named by the King yet by Authority of the Parliament 227 Defender of the Faith 213 Dispensations Licenses and Faculties never in the Crown but by the Parliament given to the Archbishop under Limitations 234 238 Duels ordered by the Martiall as Subservient to the Common Law 108 E. EDward the third his Reign 3. his Title upon Entry by Election ibid. Edward the fourth his Reign though had Title of Inheritance yet entred by Election 181 Edward the fifth approached the Crown by Inheritance but never put it on 184 Edward the sixth his Reign his Title and Possession did meet though he was a Childe and his Sister Mary grown in age 259 Ecclesiastical power vide Prelacy and Prelates Elizabeth Queen her Reign 264. her Title by Election 278 Englishire taken away 95 Episcopacy vide Prelates and Prelacy Errors vide Heresie Exchange ordered by the statute 75 Excommunication 271. the Writ de excommunicato capiendo ordered 289. vide Parliament exportation 72 F. FAlse News punished 112 Felony by riding in armed Troops 95 113 172 257 299 First-fruits regulated 153. taken away from Rome 222 Forcible Entries 173 Forts Fortificacations and Castles ordered by Parliament 252 295 G. GAol-delivery by the Judges of the Benches 92 165. vide Judges Gaols regulated 113 254 Guard for the Kings Person brought in by Henry the seventh 195 Gipsies made Felons 299 H. HEnry the fourth his Reign doubtfull in his Title but rested upon Election chosen by Parliament sitting when there was no King 116 c. Henry the fifth his Reign his Title by an Intail by the Parliament 119 c. Henry the sixth his Reign his Title by the Intail last mentioned though a Childe he is admitted to the Crown 123 c. Henry the seventh first settled a constant Guard his sixfold Right to the Crown and his gaining Prerogative in the Person and Estates of the People ibid. 194 c. Henry the eighth his natural Endowments 199 c. his power in the matters Ecclesiastical 206 c. in Tempoporals 213 c. H. HEresie and Error in Doctrine under the cognisance of the Civil Magistrate 62 156. not punishable by death by Law till Henry the eighths time 216 236. the Writ De Heretico comburendo hath no legal ground in any of those former Times 63 158 161 216 236. Honors vide Parliament Hospitals visited by the Prelacy 154 I. IMportation 70 Judges of Assize 165 244 Jurisdiction Ecclesiastical not originally in the Prelacy nor absolutely 235 Justices of the Peace their residency and quality their number various their work also 109 171. one Justice 112. and the settling of their Sessions ibid. their power to take Bail 254 K. KIngs vide Parliament Allegiance Supremacy Militia L. LAbourers their Work and Wages 70. ordered by the Justices of the Peace 110 Lancaster the Princes of that House freinds to the Clergy in policy 146 Laws made by the Successors of Henry the eighth during their minority annulled 217. Ecclesiastical Laws vide Parliament Leiges by Birth though not born within the Allegiance of England 97 Liveries and Tokens inhibited to the Lords 112 177. and limited in the Kings person 177. means of jealousie between the King and his People 244 Libels in the Spiritual Court to be delivered in Copies upon demand 154 Licenses vide Dispensations Lords their power and jurisdiction in the Parliament 23. in Councel 29 242 Lunacy no impediment in Triall of Treason 258 M. MAry Queen her Reign 261. her Title by Election 278. she prejudiced her Supremacy by Marriage 275 Marque and Reprisal 279 Martials Court 107 Matrimonial Causes after the Reformation by Henry the eighth in the Cognisance of the Clergie by leave 238 Militia 98 175 245 290 vide War Mint 74 142. vide Parliament Monastries dissolved 220 maintained by Henry the fourth 147 Money out of England to Rome stopped 54 N. NAvy Royall as Forts for the publique safety maintained at the publique charge 253 Nisi prius 167 Non-residency 238 Noble Ladies Triall 174 O. OYer Terminer 92 165 Ordinary not to be questioned in the Civil Courts for things under Ecclesiastical jurisdiction 47 49. hath Cognisances of Vsury 47. of Avoidances Bigamy and Bastardy 48. grant Administration 51. visit Hospitals and call Executors to account 154. hath power to fine and imprison 157 239. to keep Courts but the Authority doubtfull 235. have Cognisance of the Heresie 156 236. Matrimony Non-residency 236. In Queen Elizabeths time their jurisdiction left in doubt 286 c. Oath ex Officio first brought in by the Church-men in matters Ecclesiastical 157. afterwards by the Parliament into the Star-chamber in cases criminal 244 P. PArdon of Crimes not absolutely in the King 19 Parliament without the King consisting of three States 117. without the Clergie 58 Parliaments power in ordering of the Crown 127 228 277 In ordering the Kings Person by Protectors 14. vide Protector In ordering their children In ordering their Family 15 129 In ordering their Revenues 16 129 115 In ordering their Councel 141 In the Militia vide Militia and War In conferring places of Honor and Trust
20 39 In ordering the Mint vide Mint In making Ecclesiastical Laws Concerning Church-Government 224 c. 208 281 Concerning Doctrine 211 224 236 c. Concerning Worship 224 Concerning Church-censures 240 In granting Licenses and Dispensations 234 In final Appeals 227 In ordering it self 24 130 In judicature 25 190 Parliament not inconstant though mutable 188 Peace Justices and their Sessions 109 c. 170 c. 253 c. 297 c. Penal Laws executed to get money 184 196 Pleadings in English 98 Popes power in England abated 56 c. vide Ordinary Supremacy Arch-bishop Prelacy not favoured by the Canon 239. their power since the time of Queen Mary 283. their dignity and power distinguished 46 58 Preists Wages 70 155 Praemunire and Provisors 54 58 c. 151 Proclamations made equal to Laws 214. altered 269. Protectors variety of them makes a doubtfull Government 4 8 123 Purveyance regulated 53 65 R. RAvishment consented to forfeits Jointure 96 Requests Court established by Cardinal Woolsey 241 Richard the second his Reign 6. endeavours to over-rule the Parliament but failed in the Conclusion 11 Richard the thirds Reign 184. his Title by Vsurpation and Murder ibid. Riots 173 S. SAnctuaries changed into fewer priviledged places 257 Servants imbesselling Felony 258 299 Sheriffs Courts regulated 254. Election of Sheriffs 93. Farm of the County 168. continuance in service ibid. Extortion ibid. Souldiers vide War Staple â—72 c. â—90 Star-chamber 31 c. 242 Stealers of Men and Women Felony 299 Supremacy supreme Head 206. certainly not absolute or arbitrary power nor a Legislative power 208 c. Supreme Governour 270. in causes Ecclesiastical 270 c. in Temporal ibid. T. TEnths and first-fruits 222 Torniament 108 Tonnage and Poundage 189 Trade 64 190 Treason 76. c. By thoughts by marriage and counterfeiture 255 256. tryed where the King will 258. Petty Treason 94. W. WAles subdued by Henry the fourth 118. Vnited to the English Crowne by Henry the eighth 241 Warr by advice of Parliament 98 175. Levying of men 101 176 248 290. Jurati obligati ad arma taken away 100. Arming of men 100 290. Conduct to their Rendezvous 101. Runing from their Colours 101 180 296. Plunder satisfied 101. Their pay 176.251 296. Offensive and defensive 291. Watches inquired into by Justices of the Peace 173. Wickleif 60. Wills probate 154. Witchcraft made Felony 257 299. FINIS Pag. 126. Concil Britt Pag. 212. Ibid. pa. 194. Ibid. pa. 242.245 Pag. 219. Pag. 300. Pag. 321. Concil Brit. Pag. 328. Concil Brit. Pag. 334. Concil Brit. Pag. 350. Concil Brit. Pag. 480. Concil Britt Pag. 490. Pag. 534. Pag. 621. Pag. 23. Mr. Seldens Title of Honor. Tit. Honor Pag. 703. Tit. Honor Pag. 703. Littlet lib. 2. cap. 3. Britt Pa. 122. Antiq. Brit. Rich. 2. The. lib. 4. Cap. 21. Hist Eccles Ang. Antiq. Brit. â—62 11. Rich. 2. n. 8.13 21. Rich. 2. cap. 9. 21. Rich. 2. cap. 3. 1 E. 3. Stat. 1. 9 Rich. 2. n. 31. 11 Rich. 2. n. 23. 5 Rich. 2. n. 17 18. 2 Kich 2. n. 12. 9 Rich. 2. n. 4. or 41. 14 E. 3. n. 6. 27 E. 3. n. 8. 9 R. 2. n. 40. 15 E. 3. n. 16. 14 E. 3. cap. 20. 25 E. 3. n. 16. 1 E. 3. vet 1. 1 Rich. 2. n. 48. 25 E. 3. Provisor 21 E. 3. n. 64. 3 Rich. 2. n. 83. 2 Rich. 2. n. 38. 15 E. 3. n. 6 7. 1. E. 3. Ver. 1. 15 E. 3. cap. 3. 11 Rich. 2. n. 11.12.15.17 5 Rich. 2. n. 8.12.13 10. E. 3. cap. 2. 14 E. 3. c. 15. 2 E. 3. cap. 2. 13 Rich. 2. Sr. 2. cap. 1. 11 Rich. 2. n. 3.6 21 Rich. 2. n. 35. 14 E. 3. n. 55. 50 E. 3. n. 10. 1 Rich. 2. n. 5â— 3 Rich. 2. n. 34. 5 Rich. 2. n. 17 18.28 6 Rich. 2. n. 19. 37 E. 3. n. 34. 1 Rich. 2. n. 5. 5 Rich. 2. n. 75. 15 E. 3. c. 3. Antiq. Britt Eccles 15 E. 3.50 15 E. 3. c. 1. 15 E. 3. c. 3 4. 14 E. 3. cap. 5. Walsing An. 1315. 4 E. 3. cap. 14. 36 E. 3. c. 10. 1 Rich. 2. c. 4. 12 Rich. 2. cap. 12. 16. E. 3. Memb. 5. in Dors 27 E. 3. Stat. 2 28 E. 3. cap. 13. Mag. Cart. Vet. 20. Ass pl. 52. 41 E. 3. Rat. Clauâ— 16 Rich. 2. Memb. 11. in Dors Fleta li. 2. cap. 34. 38 E. 3. Rot. Pat. Ps 1. Memb. 13. 39 E. 3. Ps 1. M. 13.42 E. 3. Rot. claus Memb. 8. in Dors 2 Rich. 2. Rot. Pat. Ps 1. 12 Rich. 2. cap. â— 43 Ass pl. 38. Co. Instit 4. c. 5. 22 Ass pl. 75. 13 Rich. 2.12 Tit. Prohibition 5 E. 3. cap. 9. 37 E. 3. c. 17. 25 E. 3. c. 4 5. 42 E. 3. c. 3. 4. 1 Rich. 2. n. 87. Fabian Vit. Hen. 3. ann 1141. 43. Ass pl. 38. 43. Ass pl. 38. Miror cap. 4. Sect. 2. Fleta lib. 2. cap. 13. Fleta lib. 2. cap. 13. Sect. 8. Instit 4. c. 8. fol. 78. 4 E. 3. cap. 12. 9 E. 3. cap. 1. 14 E. 3. cap. 5. 27 E. 3. cap. 26. 36. E. 3. c. 9. cap. 13. 12 Rich. 2. c. 12. 27 E. 3. c. 24. 22 Ass pl. 25. Bro. scire fac 154. 24 E. 3.73 43 Ass pl. 32. 24 E. 3. pl. 35. 39 E. 3. fo 14. 21 E. 3. fo 47. 43. Ass pl. 35. 37 E. 3. cap. 27. 38 Ed. 3. c. 9. 17 Rich. 2. cap. 6. 43 Ass pl. 32. 15 E. 3. n. 10.15 15 E. 3. c. 3. 10 Rich. 2. n. 16.10 Instit 4. cap. 22. fol. 142. 144. Gloss fol. 16. 15 Rich. 2. c. 3. Dier 15. 16. El. mic pl. 2. 8 E. 3. Coronn 199. 13 Rich. 2. cap. 5. 15 Rich. 2. cap. 5. 25 Rich. 2. cap. 3. 2 Rich. 2. cap. 4. 25 E. 3. Stat. 6. 15 E. 3. cap. 6. 22 Ass pl. 70. 45 E. 3.24 Fus consultat 5. 31 E. cap. 4. 25 E. 3. Stat. 3. cap. 9. 15 E. 3. c. 5. Miror Just cap. 5. Sect. 1. 51 H. 3. petit cleri Artic. 16. 50 E. 3. n. 158. 6 Rich. 2. n. 57. 14 Rich. 2. n. 24. Instit 3. cap. 70. 6 Ed. 3. coram Rege Rot. 130. Porff 25 E. 3. c. 8. pro clero â—8 E. 3. cap. 2. â—5 E. 3. St. 2. 9 Rich. 2. c. 4. Bro. quar imp 85. 8 E. 3. 8. 18 E. 3. cap. 1. 14 E. 3. cap. 2. 25 E. 3. c. 6. 44 E. 3. fol. 35 36. Per Thorpe 7 H. 4. fol. 41. Per Gascoigne 31 E. 3. c. 11. West 2. cap. 19. 5 E. 3. c. 5. 1 Rich. 2. c. 15 14 E. 3. Stat. 3. cap. 1. Westm 1. cap. 1. Stat. de prisis 1 Rich. 2. c. 3. 4 E. 3. cap. 6. 5 E. 3. cap. 3. Rot. Parl. 10. E. 3. Arch. Reg. 18 E. 3. tit 38. Fox 388 25 E. 3. Stat. 5. cap 22. Fox Sect. 1. 27 E. 3. c. 1. Antiq. Brit. Eccles 247. 21 E. 3. fol. 40 38 E. 3. cap. 1. Rot. Parl. 51. E.