Edward the First and Edward the Second Succession 129 c. Power in Ecclesiastical matters 140 c. 145 In Civil affairs 173 c. 199 c. Knight-service amongst the Saxons 47 Marriage 91 126 159 Acquittal 93 Widows 160. L. LAnguage endeavoured to be changed by the Normans 101 Lashlight amongst the Saxons 62 Lecturers amongst the Saxons 18 Leet amongst the Saxons 48 Legierwit amongst the Saxons 62 Livery and seisin amongst the Saxons 67 London 161 Lords day maintained by the Saxons 61 By the Normans as plea of the Crown 86 Lords their Councils amongst the Saxons 38 52 From the Conquerour's till Henry the Third 107 Lorica what it is 193 Lucius 5 c. Luminaries amongst the Saxons 20 Lunacy vide Fools M. MAgna Charta 107 Renewed with the Curse 130 Stat. c. 158 Cap. 35. 152 Cap. 37. ibid. Mainpernours by the Saxons 53 54 By the Normans 94 Maims punished by the Saxons 62 Mambota amongst the Saxons 61 Mannors amongst the Saxons 46 Normans 83 Man-slaughter punished by the Saxons 61 Normans 87 After 121 Manumisson 85 Marriage-portion vide Dower Marriage vide Knights-service Merchants Mag. Charta 170 Marches amongst the Saxons 45 Normans 82 Markets amongst the Saxons 49 Normans 89 Vide Townships Marshals Courts 178 Matrimonial causes amongst the Saxons 26 Medietas linguae amongst the Saxons 57 Metropolitan amongst the Saxons 15 Micklemote amongst the Saxons 36 The Primacy of Canterbury setled there 22 Mills tythed 149 Militia amongst the Saxons 39 The Normans 95 During the Kings next ensuing 127 During Henry 3. Edward 1. Edward 2. 184 Mint amongst the Saxons Normans 85 Monastery admission 114 Mortdancester 123 163 Mortmain 152 Mortuary amongst the Saxons 20 N. NEws scandalous 182 Night-watches by the Normans 88 After 190 Nobility amongst the Saxons 33 From the Normans times 107 From King John's time 137 Normans their Title 70 c. Not Conquest 97 Novel disseisin 124 163. O. OBlations cognizance 146 Odio Atia 168 c. Officers power greater than Kings 108 Ordeal amongst the Saxons 55 Ordinaries intestate 144 Outfangtheoff amongst the Saxons 46 Ostiares amongst the Saxons 18 Oaths 153 169 P. PAlatine county amongst the Saxons 45 Parishes amongst the Saxons 22 Parliaments 75 173 Parks trespasses 183 Passage 170 Peace amongst the Saxons 62 The Normans 87 After 188 Penal Laws Saxons 60 Normans 86 After in the time of Henry 2. 120 After 179 Perjury punished by the Saxons 25 63 Peers amongst the Saxons 58 Peter-pence amongst the Saxons 20 The Normans 86 Pledges 94 Plough-Alms Saxons 20 Pope's power 12 110 114 Oppressions of the Clergie 140 Prelacy in England not till Constantine's 7. came from Rome by Austin 13 c. Suddenly grown 27 Prâ—cipe Mag. Charta 167 Priors vide Abbots Presbyters amongst the Saxons 17 Presentment amongst the Saxons 54 Priority vide Tenure Prohibitions 142 145 Protector 130 Provinces amongst the Saxons 22 Purveyance 152 165 c. Q. QUare Clausum fregit Saxon 63 Quare excommunicavit 141 Quare non admisit ibid. Quarentine 160 176 Quo warranto 152 R. RAnsom 59 162 Rape Norman 88 After 121 c. 180 Reasonable part 160 165 Vide Dower Redemption vide Ransom Redisseisn 183 Relief Norman 90 After 125 Religious houses vide Abbeys Replevy Norman 89 After 161 Richard the First 105 Romans entry 3 The Papalty with seven degrees of their Church-Officers 18 Seven sorts of Church-maintenance 22 Romescot Romesfeogh vide Heordpenny Robbery punisht by the Saxons 63 By Normans 88 After 121 122 180 190 S. SAbbath-day Saxon-Law 61 Sacriledge Saxon-Law 25 Sanctuary 87 114 150 Saxons in England mingled 56 Seal vide Deeds 67 Sheriffs Saxon 40 Extortion 172 179 Simony punished by the Saxons 26 Sorcery vide Witchery Soul-shot Saxon 20 Socage Saxon 48 Steven his government 103 Stat. Magna Charta vide Magna Charta Merton cap. 1 2 6 7. 160 Cap. 1. 176 Cap. 3. 183 Cap. 9 157 Cap. 10. 172 Cap. 11. 183 Marlbridge cap. 1 2 3. 161 Cap. 4. ibid Cap. 5. 175 Cap. 8. 183 Cap. 9. 162 Cap. 10. 142 172 Cap. 15. 162 Cap. 16. 163 Cap. 17. 176 Cap. 19. 164 Cap. 20. 163 Cap. 21. 162 Cap. 22. 162 Cap. 25. 179 188 Cap. 29. 142 West cap. 1 2 5. 143 c. Cap. 3. 181 189 Cap. 4. 176 Cap. 6. 164 Cap. 9. 181 Cap. 10. 179 Cap. 11. 168 Cap. 12. 181 Cap. 13. 180 Cap. 14. 172 Cap. 15. 182 Cap. 16. 162 Cap. 20. 183 Cap. 22. 160 Cap. 23. 179 Cap. 32. 166 Cap. 33. 172 Cap. 34. 182 Cap. 36. 178 Cap. 51. 163 Bigamy 154 c. Gloucest cap. 1. 164 Cap. 5. 160 Cap. 6. 163 Cap. 8. 179 189 Cap. 9. 168 De Religiosis 153 Westm. 2. cap. 13. 172 Cap. 16. 160 Cap. 19. 144 Cap. 24. 178 Cap. 26. 183 Cap. 29. 168 178 Cap. 30. 164 Cap. 33. 153 Cap. 44. 180 Winton 189 c. Circumspecte agatis 145 c. Quia emptores 172 De Judaismo 171 Quo Warranto 152 De vasto 160 De consultatione habenda 148 De Wardis 160 Artic. super Cart. cap. 2. 166 Cap. 3. 178 Cap. 9. 179 Cap. 12. 163 Cap. 13 14. 173 Cap. 15. 178 Cap. 18. 160 Conjunct feoffat 164 Amortizand terris 153 Asportat bonis Relig. 152 De militibus 184 Artic. Cleri 137 148 Vicecomit 137 172 179 De prisis bonis Cleri 137 152 Prerog Reg. 137 Cap. 3 13. 160 Cap. 7. 172 Cap. 9. 175 Cap. 11. 176 Cap. 14 16. 167 Sub-Deacons 18 Suit of Court 125 Vide Mannor Synods Briton 7 Saxon 23 Disadvantages to Prelacy 27 Norman 77 Without the Laity 117 Power 154 c. T. TAil Saxon Law 66 Taxes 173 Vide Free-men Tenures vide Mannor Normans changed them not 100 Tenures by several Lords priority 124 By Escheats 171 Term Saxon 68 Testament Saxon ibid. After 126 c. Thefts cognizance 121 222 Tythes original 19 Cognizance 27 Normans 86 111 148 149 Torn Saxon 41 173 Torture amongst the Saxons 55 Townships and their Courts Saxon 49 Normans 83 Treason punished by Saxons 61 After 121 Trover of Goods 89 Troth-plight 111 V. VAcancies of Churches 111 c. 115 Vacation vide Term. View of Pledges Saxon 48 Norman 83 After 164 173 Villains Saxon 34 Normans 85 Violence done to Clerks 146 Use in deeds of Conveyance Saxon 67 Usury 171 W. WArdship 92 126 160 169 Warranty Saxon 67 Wears 167 Wera wergilda Saxon 62 Weights and Measures Saxons 28 Normans 88 168 Widows vide Socage and Knight-service William the First 70 c. William Rufus 73 Wife Saxon 62 Will vide Testament Witnesses deeds Saxon 67 Witchery 25 Punished by Saxons 60 Wita Saxon 62 Worship Saxon cognizance 24 Wrecks 176. AN Historical and Political Discourse OF THE Laws Government OF ENGLAND CHAP. I. Of the BRITONS and their Government THIS is Britain or rather that part thereof in after-ages called Saxony and England from the peoples Names transplanted thither The Britons to lay aside all conceipts of Fame I take to be
the conclusion The Dukes of Lancaster and York forsake the Court Favourites step into their rooms The old way of the eleventh year is re-assumed Belknap and others are pardoned and made of the Cabinet The pardon of the Earl of Arundel is adnulled contrary to the advice of the major part and the Archbishop the Earl's Brother is banished The Lords forsake the wilful King still the King's Jealousie swells The Duke of Hertford is banished or rather by a hidden Providence sent out of the way for a further work The Duke of Lancaster dies and with him all hope of moderation is gone for he was a wise Prince and the onely Cement that held the Joynts of the Kingdom in correspondency And he was ill requited for all his Estate is seized upon The Duke of Hertford and his party are looked upon by the people as Martyrs in the Common Cause and others as Royalists Extremities hasten on and Prerogative now upon the wing is towering above reach In full Parliament down goes all the work of the tenth and eleventh years Parliament which had never been if that Parliament had continued by adjournment The King raiseth a power which he calleth his Guard of Cheshire-men under the terrour of this displaying Rod the Parliament and Kingdom are brought to Confession Cheshire for this service is made a Principality and thus goes Counties up and Kingdoms down The King's Conscience whispers a sad message of dethroning and well it might be for he knew he had deserved it Against this danger he entrenches himself in an Act of Parliament that made it Treason To purpose and endeavour to depose the King or levy War against him or to withdraw his Homage hereof being attainted in Parliament And now he thought he was well guarded by engagement from the Parliament but he missed the right conclusion for want of Logick For if the Parliament it self shall depose him it cannot be made a Traytor or attaint it self and then hath the King gained no more than a false birth But the King was not thus quiet the sting of guilt still sticks within and for remedy he will unlaw the Law and gets it enacted That all procurers of the Statute of 10 Richard the Second and the Commission and procurers of the King's assent thereto and hinderers of the King's proceedings are adjudged Traytors All these reach onely the Branches the Root remains yet and may spring again and therefore in the last place have at the Parliament it self For by the same it is further declared That the King is the sole Master of the Propositions for matters to be treated in Parliament and all gainsayers are Traitors Secondly That the King may dissolve the Parliament at his pleasure and all gainsayers are Traitors Thirdly That the Parliament may not proceed against the King's Justices for offences by them committed in Parliament without the King's consent and all gainsayers are Traitors These and the like Aphorisms once voted by the Cheshire-men assented unto by the Parliament with the Kings Fiat must pass for currant to the Judges and if by them confirmed or allowed will in the King's opinion make it a Law for ever That the King in all Parliaments is Dominus fac primum and Dominus fac totum But the Judges remembred the Tenth year and Belknap's entertainment and so dealt warily their opinion is thus set down It belongeth to the Parliament to declare Treason yet if I were a Peer and were commanded I should agree So did Thorning under-write and thereunto also consented Rickill and Sir Walter Clopton the last being Chief-Justice of the King's Bench the first Chief-Justice of the Common-pleas and the second another Judge of the same Bench. The sum in plainer sence is that if they were Peers they would agree but as Judges they would be silent And thus the Parliament of England by the first of these four last-mentioned conclusions attainted themselves by the second yielded up their Liberties by the third their Lives and by the last would have done more or been less And to fill up the measure of all they assigned over a right of Legislative power unto six Lords and three Commons and yet the King not content superadded that it should be Treason for any man to endeavour to repeal any of their determinations The Commonwealth thus underneath the King tramples upon all at once for having espied the shadow of a Crown fleeting from him in Ireland he pursues it leaves the noble Crown of England in the base condition of a Farm subject to strip and waste by mean men and crosses the Irish Seas with an Army This was one of England's Climacterical years under a Disease so desperate that no hope was left but by a desperate Cure by sudden bleeding in the Head and cutting off that Member that is a principle of motion in the Body For it was not many Moneths e're the wind of affairs changed the King now in Ireland another steps into the Throne The noise hereof makes him return afar off enraged but the nigher he comes the cooler he grows his Conscience revives his Courage decays and leaving his Army his Lordship Kingdom and Liberty behind as a naked man submits himself to release all Homage and Fealty to resign his Crown and Dignity his Titles and Authority to acknowledge himself unworthy and insufficient to reign to swear never to repent of his resignation And thus if he will have any quiet this wilful man must be content for the future neither to will nor desire And poor England must for a time be contented with a doleful condition in which the King cannot rule and the Parliament will not and the whole body like a Chaos capable of any form that the next daring spirit shall brood upon it CHAP. II. Of the State of the King and Parliament in relation of it to him and him to it A King in Parliament is like the first-born of Jacob The excellency of Dignity and the excellency of Power but alone unstable as water Examples of both these we have in these two Kings Whereof the first was Crowned by the Parliament and Crowned it the latter also Crowned it but with Thorns and yet the Parliament in all held on that wise way that it neither exceeded its own bounds nor lost its own right I shall enter into the consideration of particulars under these heads First In relation more immediately to the interest of the King Secondly To the interest of the Kingdom in general The King though higher than all the people by the head and so hath the Prerogative of Honour as the most worthy yet his strength and abilities originally do rise from beneath otherwise he is but like a General without an Army the Title big but airy and many times his person subject to so much danger that instead of drawing the Eyes of all the people to look upon him with admiration they are drawn to look to him with observation and in this
and grand Trust of the whole Kingdom committed to the Parliament And the practice of these times is not much discrepant whether we regard such as are for advice or execution Of the first of these are those whom we commonly call the Privy Council whose advice in course toucheth first upon the King's Person but by reflection worketh strong impressions upon the People so far as the influence of the King's power extends And therefore it is not beyond the Sphear of the Parliament to interpose and qualifie that influence so as it may be for the general good of the whole Kingdom For many times Kings are either above or beneath themselves and in such cases if the Council be of the King's suit he is of the deeper dye and proves more Malignant to the People Edward the Third growing into great opinion in the World his proportion exceeds his own portion and the Peoples good wills to boot they think the fault is in the Privy-Council and an Inquisition is set upon it So also they do in his fiftieth year when he grows downward And the like in the beginning of Richard the Second's Reign he being now a Youth and therefore unstable in his Resolutions and unable to make Election So as upon the whole matter if the King fall short in point of Judgment or Resolution or inordinate in his Affections but more especially where they observe the major or more considerable part of the Council to draw towards a designe in such cases as these the Parliament as its own duty undertook to settle a good Council about the King's person that might advise him during their recess For the Privy-Council is never more it self than when it is an Epitome of the Common-Council of the Kingdom In like manner such Officers as concern execution of Law and Counsel are as narrowly to be enquired into for if their motion be irregular it is less material what the rule be The Parliament therefore held it their duty to interpose in the Election of grand Officers of the Kingdom such as are the Chancellors Judges and Justices or to confirm or displace them or bind them by Oath The Rolls of the eighth fourteenth fifteenth and thirty-sixth years of Edward the Third and the sixth tenth and eleventh years of Richard the Second do manifest this sufficiently I have done with the Subject-matter or work of the Parliament in the mutual relation of the King and it the manner of proceeding was either joyntly with the King or without him and either joyntly with the two Houses or severally and either immediately by themselves or their Committees As touching the first it is evident that in all matters wherein gain ariseth to the Crown from the people by Subsidy or otherwise the strength of the Grant by Act of Parliament resteth in the two Houses and that the King's Assent is but pro forma as touching that matter and therefore such Grants have been made as tended in some measure to derogate either from the King's Wisdom care or fidelity yet even these have passed with the Royal Assent though the full Assent or good will of the person of the King was not correspondent thereto as in these Cases formerly noted where Subsidies were given with Limitations and Conditions and upon rendring account to the people And it is as evident that where the King's person is disabled to understand as in case of Infancy there the Royal Assent can bear little weight with it but most of all in the King's absence where either the Assent is put thereto by Commissioners that know not the King 's particular mind or the Act is done onely by the Houses in nature of Ordinances and yet these of force to bind all parties but the King. But nothing more debased the Royal Assent in these times than a trick that Edward the Third plaid in the midst of the fullest strength of his Government It was in time of War which never is time of good Husbandry and laying up nor of sober advice in laying out nor of equity in levying and collecting moneys for the Nerves of War. This forward Warrier in the heat of his Atchievements finds his strength benummed for want of money he leaves off comes home rages against his Archbishop to whom he had committed the care of provision for his War and the Archbishop as hotly falls upon some of the Treasury in the Army on the one side and upon others in the Country whose oppressions saith he instead of bringing in money made the people to give a stop thereto A contest hereupon thus had it was concluded by the power of the Parliament that such men should be questioned and that the Parliament from time to time should call all Officers of State to account and thereupon ensues a calm After the Parliament ended the King repeats the matter it makes his heart sick he disgorgeth himself by a Proclamation made by advice of Nobles and Wise men as he saith and tells all the World he dissembled with his Parliament and what he did was done by duress of mind to please for the time and to gain his ends which being now had he by his Proclamation revokes what he had done in Parliament or endeavoured it And thus is England put to School to learn to dissolve three hard knots First Whether a King can dissemble with his Parliament Secondly Whether Edward the Third his dissembling assent makes a Law Lastly Whether by a Proclamation by advice of Nobles and Wise men he can declare that he dissembled with his Parliament and therein not dissemble the Royal Assent so as to bring all the Laws made in any Kings time into question at least during his Life However the result may be it is evident the Royal Assent gets no honour hereby and the Statute as little that hath suffered this Proclamation all this time to pass among the number of the Statutes in Print as a Law whenas many Statutes that are Laws of not are left out as useless Although in the general the two Houses joyned in every Act Ad extra yet Ad intra and in relation one to another they had their several operations the House of Commons intermedled more in the matter of Fact the House of Lords in matter of Right although in either of these there is a mutual aspect from both In matters of Judicature much rested with the Lords and therefore it is ordained that The House of Lords shall remedy all offences contrary to the Law of Magna Charta And in cases where no remedy is left nor Judgement by the Law the matter shall be determined in Parliament and the King shall command execution to be done according to the Judgement of the Peers Which Laws seem to be but declarative of the former Law and in the nature of reviving that power into Act which was formerly laid asleep and doth strongly imply that the ultimate act in
suit and according to the course of the Admiralty by complaint saving matters of death to the cognizance of the Admiral But this was soon found defective for Justice done in the dark is many times more respective and less respected and therefore within a few years 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 Chancellor who hath power given him of 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 Seamen that the Kingdom had been almost utterly bereaved of its strength at Sea. Nevertheless all this while these Laws were but penal and not remedial for the parties wronged and therefore another Law is made to give the Chancellor and Judges power to make restitution and reparation Thirdly The Chancery gained upon the Ecclesiastical Court. For whereas by the Canon the Church-men were to be judged by their Superiours according to Ecclesiastical 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 stoln away and detained in Cloisters nor did the Church-men afford remedy in such cases A Law was made that upon complaint hereof made to the Chancellor the Provincial should be by him sent for and punished according to his discretion Lastly The Chancery encroached upon the Common Law For whereas the stirs between the two Houses of York and Lancaster began 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 engage their Estates unto the desires of such to whom they had fled for refuge and sometimes 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 Ministerial power of the Chancery this likewise was enlarged in making of Process to compel 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 suchlike offences now grown common and in need of sudden remedy Thus as the work 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 Kingdoms Judge and of such trust that although the King might make election of his own 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 Kingdoms Darling and might be more bold with the Common Law than any of his Peers CHAP. XIX Of the Courts of Crown-Pleas and Common Law. AS the Chancery on the one side did swell and increase so was the Kings-bench in an ebb the Council-Table in the Star-Chamber on the one side and the Itinerant-Courts in the Country intercepted and drew away much to their own shares making themselves fat the Kings-bench lean and the Rural Courts for Crown-Pleas almost to starve The Crown-Pleas formerly had been determinable in the Kings-bench Gaol-delivery Oyer and Terminer and many of them by Justices of the Peace Coroners and Sheriff The Gaol-delivery was afterwards united to the Judges of Assize and if one of them were a Clergy-man then to the other and chief men of the County This was useful for the Publick but not beneficial for some men and therefore they laboured for Commissions especially directed to parties that they thought would partake but these were found soon to be dangerous soon taken away and the Gaol delivery restored to the Judges of Assize as formerly The Commissions of Oyer and Terminer were sued forth upon extraordinary Emergencies and Offences wherein the State was much concerned for speedy Execution In former times both these and Gaol-deliveries were but rarely had and then granted unto some that perchance knew more of the Case than before-hand was meet to be known Edward the Third amended this Errour and ordered that no Commissions of Oyer 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 on the growing hand both for Honour Use and Power the rather because their persons are of high repute in the Benches at Westminster which are the Master-pieces of Judicature and their Iters are constant and ordinary Nevertheless the Judges of Assize though they have the Gaol-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 Parliament and which by it was altered by way of adding 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 Kingdom yet holding still forth to them a limited power to hear and determine in some Cases but in others onely to enquire and certifie as in the case of false Returns by the Sheriff of persons elected for the Parliament And also in cases concerning the Statutes of Labourers and unlawful 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 years and then by another Statute they had the power to determine such cases before themselves In like manner they had power to hear 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 signs of much confidence and trust in them and yet notwithstanding not in these nor in 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
A brief censure of the Saxon Prelatical Church-Government 27 XVI Of the Saxons Commonwealth and the Government thereof and first of the King. 29 XVII Of the Saxon Nobility 33 XVIII Of the Freemen amongst the Saxons 34 XIX Of the Villains amongst the Saxons 35 XX. Of the grand Council amongst the Saxons called the Micklemote 36 XXI Of the Council of Lords 38 XXII Of the manner of the Saxon Government in the time of War. 39 XXIII Of the Government of the Saxon Kingdom in the times of peace and first of the division of the Kingdom into Shires and their Officers 40 XXIV Of the County-court and Sheriffs Torn 41 XXV Of the division of the County into Hundreds and the Officers and Court thereunto belonging 42 XXVI Of the division of the Hundreds into Decennaries 43 XXVII Of Franchises and first of the Church-franchise 44 XXVIII Of the second Franchise called the Marches 45 XXIX Of County Palatines ibid. XXX Of Franchises of the person 46 XXXI Of Mannors ibid. XXXII Of Courts incident and united unto Mannors 48 XXXIII Of Townships and their Markets 49 XXXIV Of the Forests 51 XXXV Concerning Judges in Courts of Justice 52 XXXVI Of the proceedings in Judicature by Indictment Appeal Presentment and Action 53 XXXVII Of the several manners of extraordinary trial by Torture Ordeal Compurgators and Battle 55 XXXVIII Of the ordinary manner of Trial amongst the Saxons by Inquest 56 XXXIX Of passing Judgement and Execution 59 XL. Of the penal Laws amongst the Saxons 60 XLI Of the Laws of property of Lands and Goods and the manner of their Conveyance 64 XLII Of the times of Law and vacancy 68 XLIII An Epilogue to the Saxons Government 69 XLIV OF the Norman entrance 70 XLV Of the Title of the Norman Kings to the English Crown that it was by Election 72 XLVI That the Government of the Normans proceeded upon the Saxon principles and first of Parliaments 75 XLVII Of the Franchise of the Church in the Norman times 77 XLVIII Of the several subservient Jurisdictions by Marches Counties Hundreds Burroughs Lordships and Decennaries 82 XLIX Of the Immunities of the Saxon Freemen under the Norman Government 84 L. Recollection of certain Norman Laws concerning the Crown in relation to those of the Saxons formerly mentioned 86 LI. Of the like Laws that concern common Interest of Goods 89 LII Of Laws that concern common Interest of Lands 90 LIII Of divers Laws made concerning the execution of Justice 94 LIV. Of the Militia during the Normans time 65 LV. That the entry of the Normans into this Government could not be by Conquest 97 LVI A brief Survey of the sense of Writers concerning the point of Conquest 99 LVII OF the Government during the Reigns of Stephen Henry the Second Richard the First and John and first of their Titles to the Crown and disposition in Government 103 LVIII Of the state of the Nobility of England from the Conquest and during the Reign of these several Kings 107 LIX Of the state of the Clergie and their power in this Kingdom from the Norman time 109 LX. Of the English Commonalty since the Norman time 117 LXI Of Judicature the Courts and their Judges 118 LXII Of the certain Laws of Judicature in the time of Henry the 2. 120 LXIII Of the Militia of this Kingdom during the Reign of these Kings 125 LXIV OF the Government of Henry the Third Edward the First and Edward the Second Kings of England And first a general view of the disposition of their Government 129 LXV Of the condition of the Nobility of England till the time of Edward the Third 137 LXVI Of the state of the English Clergie until the time of Edward the Third and herein concerning the Statutes of Circumspecte agatis Articuli Cleri and of General Councils and National Synods 140 LXVII Of the condition of the Freemen of England and the Grand Charter and several Statutes concerning the same during the Reign of these Kings 158 LXVIII Of Courts and their Proceedings 177 LXIX Of Coroners Sheriffs and Crown-Pleas 179 LXX Of the Militia during these Kings Reigns 184 LXXI Of the Peace 188. THE PREFACE THe policy of the English Government so far as is praise-worthy is all one with Divine Providence wrapped up in a Vail of Kings and Wise men and thus implicitely hath been delivered to the World by Historians who for the most part read Men and wear their Pens in decyphering their Persons and Conditions Some of whom having met with ingenious Writers survive themselves possibly more famous after death than before Others after a miserable life wasted are yet more miserable in being little better than Tables to set forth the Painters Workmanship and to let the World know that their Historians are more witty than they of whom they wrote were either wise or good And thus History that should be a witness of Truth and Time becomes little better than a Parable or rather than a Nonsence in a fair Character whose best commendation is that it is well written Doubtless Histories of Persons or Lives of Men have their excellency in Fruit for imitation and continuance of Fame as a reward of Vertue yet will not the coacervation of these together declare the nature of a Commonwealth better than the beauty of a Body dismembered is revived by thrusting together the Members which cannot be without deformity Nor will it be denied but many wise and good Kings and Queens of this Realm may justly challenge the honour of passing many excellent Laws albeit it is the proper work of the Representative Body to form them yet to no one nor all of them can we attribute the honour of that Wisdom and Goodness that constituted this blessed Frame of Government For seldom is it seen that one Prince buildeth upon the foundation of his Predecessor or pursueth his ends or aims because as several men they have several Judgements and Desires and are subject to a Royal kind of self-love that inciteth them either to exceed former Precedents or at least to differ from them that they may not seem to rule by Copy as insufficient of themselves which is a kind of disparagement to such as are above Add hereunto that it is not to be conceited that the wisest of our Ancestors saw the Idea of this Government nor was it any where in precedent but in him that determined the same from Eternity For as no Nation can shew more variety and inconstancy in the Government of Princes than this especially for three hundred years next insuing the Normans So reason cannot move imagination that these Wheels by divers if not contrary motions could ever conspire into this temperature of policy were there not some primum mobile that hath ever kept one constant motion in all My aim therefore shall be to lay aside the consideration of Man as much as may be and to extract a summary view of the cardinal passes of the Government of this Kingdom and
accused of Homicide he shall be acquitted by Twelve Lords but if of inferiour rank he shall be acquitted by Eleven of his Equals and one Lord. Thus Gods providence disposed of the pride of men to be an instrument of its own restraint For the great men ere they were aware hereby lost one of the fairest Flowers of their Garland viz. the Judicature or rather the mastership of the Life or Death of the meaner sort and thereby a fair opportunity of containing them for ever under their awe And no less remarkable was the benefit that redounded to this Nation hereby for had the great men holden this power as once they had it it might soon have endangered the liberty of the Freemen and thereby been destructive to the Fundamental Constitution of the Government of this Realm which consisteth in the just and equal participation of these Priviledges wherein all are equally concerned This was the trial wherein the people of this Nation were made happy above all other people and whereby the Freemen as they had the Legislative power so likewise had the Juridical and thereby next under God an absolute dominion over themselves and their Estates For though this course of trial was first applied to matters of Crime yet it soon also seized upon the Common-pleas which for the most part was the work of main import in the Hundred Court and suitable hereunto are the prescriptions which are extant in the Law-books of Cognizance of Pleas and Writs of Assize c. from the times of the Saxons as in that case of the Abbot of Bury amongst others doth appear CHAP. XXXIX Of passing of Judgement and Execution AFter Verdict Judgement passed according to the letter of the Law or known Custom in criminal matters according to the greatness of the offence either for death or loss of Member But if the circumstances favoured the Delinquent he was admitted to redemption of Life or Member by Fine also setled by letter of the Law and not left to the Judges discretion If the Crime reached onely to shameful penance such as Pillory or Whipping the last whereof was inflicted onely upon Bondmen then might that Penance be reduced to a Ransom according to the grain of the offence assessed in the presence of the Judge by the Freemen and entred upon the Roll and the Estreat of each Ransom severally and apart sent to the Sheriff This Ransom was paid usually unto the King and Lord and the party indamaged or his friends if the case so required according to the old German rule Pars mulctae Regi vel civitati pars ipsi qui vindicatur vel propinquis ejus This course opened indeed a way for Mercy but through corruption a Floud-gate to Wickedness in the conclusion Of Imprisonment there was little use in the eldest times afterwards it was more used not onely to secure the person to come to trial of Law for miscarriages past but sometimes to secure men against committing of future mischief especially if it more concerned the publick I find but little or no use thereof barely as a punishment nor would their Ancestors so punish their Bondmen Vinculis coercere rarum est In case of Debt or Damage the recovery thereof was in nature of elegit for the party wronged either had the offenders goods to him delivered or the value in money upon sale of the goods made by the Sheriff and if that satisfied not then the moity of the Lands was extended and so by moities so far as was possible salvo contenemento and when all was gone the Defendants Arms which were accounted as the Nether-milstone or stock of maintenance were last of all seized and then the party was accounted undone and cast upon the charity of his friends for his sustenance but the person of the man was never imprisoned as a pledge for the debt no not in the Kings case Alfred imprisoned one of his Judges for imprisoning a man in that case One punishment of death they had in cases of crime and that was by hanging or strangling and where the crime was not so great sometimes ensued loss of member or mutilation and in many such cases Excommunication pronounced indeed by the Clergy but determined by the Law which in the first conception was framed in the womb of the Legislative power in Parliament as may appear in many Laws there made nor was there in those times any question made of the cognizance thereof so long as the Clergy and Laity had charity enough to joyn in all publick Councils CHAP. XL. Of the Penal Laws amongst the Saxons PAssing the Courts and manner of proceedings till Sentence we are now come to the particular Laws that directed the Sentence and first of those that concerned criminal offences During the Saxons time the Commonwealth was in its minority the Government tender the Laws green and subject to bend according to the blast of time and occasion and according to the different dispositions of Governours Ages and People For though the Saxons were in name our first matter yet not they onely but they having once made the breach open and entred this Island it became a common receptacle of those Eastern people the Angles Danes Almains and Goths as their several Laws left with us in power do not obscurely inform us and amongst all the rest the Goths were not the least concerned herein for the Saxon King determining what people shall be holden Denizons in this Kingdom saith That the Goths ought to be received and protected in this Kingdom as sworn Brethren Kinsmen and proper Citizens of this Commonwealth Nor can any Nation upon earth shew so much of the ancient Gothique Law as this Island hath Nevertheless in this mixture of people of several Nations there being a suitable mixture of Laws as the power of any one of these people 's changed so likewise did their Laws change in power and long it was ere a right temper of one uniform Law could be setled yet in the interim these short remembrances left unconsumed by time I have subjoyned that it may appear their motions were excellent though somewhat inconstant in their practice Those times were dark and yet so far as any light appeared the people were to be honoured for their resolution in the defence thereof For there was few of the Commandments of the two Tables which they did not assert by Laws by them made the third and tenth excepted which latter commands the inward man onely and whereof God hath the sole cognizance True it is that the first Commandment containeth much of the same nature yet somewhat is visible and that they bound For whereas in those times the Devil had such power as he did prevail with some and those it may be not a few to renounce God and deliver themselves wholly to his own will they punished this crime with banishment as judging him unworthy their society that would communicate
the hands of the Clergie from whom moderation might be expected as from Friends and Neighbours and as Partners in one Ship mutual engagement to withstand the waves of Prerogative of Kings that seldom rest till they break all Banks and sometimes over-reach their own Guard and cannot return when they would And thus it fell out for many times the Pope and Clergie became Protectors of the peoples Liberties and kept them safe from the rage of Kings until the time of restitution should come and became not onely a Wall of defence to the one but a Rock of offence to the other For the Tripple-Crown could never solder with the English nor it with that the strife was for Prerogative wherein if the Clergie gained the Crown lost and no moderation would be allowed For the conquering King was scarce warm in his Throne whenas the Pope demanded Fealty of him for the Crown of England and the King 's own good Archbishop and friend Lanfrank delivered the Message as also Anselm did afterwards to William Rufus which though these Kings had courage enough to deny yet it shewed plainly that the Popes meaned no less Game than Crown-glieke with the King and people the Archbishops and Bishops holding the Cards for the Pope while in the interim he oversaw all The Norman Kings thus braved paid the Popes in their own Coin and refused to acknowledge any Pope but such as are first allowed by their concurrence Thus have we the second bravado of the canon-Canon-Law for as yet it was not so fully entered as it seemed The words of the Act of Parliament it 's true were general yet their sence was left to time to expound and the course of succeeding affairs nevertheless passed with a non obstante For whereas in those days the Clergie claimed both Legislative and Executory power in Church-matters the Normans would allow of neither but claimed both as of right belonging to the Imperial power of this Island originally and onely As touching the Legislative power it is evident that notwithstanding the Canon that had long before this time voted the Laity from having to do with Church-matters yet the Norman Kings would neither allow to the Metropolitans the power of calling Synods nor such meetings but by their lieve although it was earnestly contended for Neither could the Clergie prevail to exclude the Laity out of their Synods being assembled nor from their wonted priviledge of voting therein albeit that for a long time by Canon it had been contradicted The differences between the Clergie and the Kings concerning these and other matters grew so hot that Kings liked not to have any Synods or meetings of publick Council and Archbishop Anselm complained that William Rufus would not allow any to be called for thirteen years together Which by the file of story compared with that Epistle made up the King's whole Reign And this was questionless the cause that we find so little touch upon Parliamentary Assemblies in the Norman times Kings being too high to be controuled and Bishops too proud to obey but necessity of State like unto Fate prevails against all other interests whatsoever and the wisdom of Henry the first in this prevailed above that of his predecessors as far as their Will was beyond his For it was bootless for him to hold out against the Church that stood in need of all sorts to confirm to him that which common Right as then it was taken denied him and therefore though it cost him much trouble with Anselm he re-continued the liberty of publick Consultations and yet maintained his Dignity and Honour seemly well I shall not need to clear this by particulars for besides the publick Consultations at his entrance and twice after that for supply or aid for his Wars and the marriage of his Daughter with the Emperour it is observed that the Archbishop of Canterbury summoned a Council at Westminster but it was Authoritate Regia and that there assembled magnae multitudines Clericorum Laicorum tam divitum quam mediocrium and that upon the third day the Debate was de negotiis saecularibus nonnullis The issue of all was that some things were determinata others dilata and other matters propter nimium aestuantis turbae tumultum ab audientia judicantium profligata Out of which may be probably concluded 1. That the Laity as yet were present in Councils with the Clergie 2. That they were all in one place 3. That they all had votes and that the major number concluded the matter 4. That certain persons used to determine of the major number by the hearing and that the Votes were still clamore non calculis 5. That they held an Order in debating of affairs viz. on some days Ecclesiastical and on other days Secular 6. That all matters concluded were attested by the King who as 't is said did give his consent and by his authority did grant and confirm the same And upon the whole matter it will be probable that as yet Councils and those now called Parliaments differed not in kind although possibly there might be difference of names in regard that some might be immediately and mainly occasioned and urged by Temporal Exigences and others by Ecclesiastical but whether Temporal or Ecclesiastical the first occasion was yet in their meetings they handled both as occasion offered it self Secondly as the Clergie could not attain the sole Legislative power so neither had they the sole Juridical power in Ecclesiastical Causes for not onely in case of errour in the Ecclesiastical Courts was an Appeal reserved to the King's Court as formerly in the Saxons time but even those things which seemed properly of Ecclesiastical cognizance were possessed by the King's Court in the first instance as that of Peter pence which was a Church-tribute and might be claimed to be properly the Church-cognizance much rather than Tythes and yet by the Law of this Kingdom in the Conquerour's time it is especially provided That defaults of payment of that duty shall be amended in the King's Court and a fine for default was given to the King albeit that the Bishop was made the Collector and the Pope the Proprietor And many other particulars which were holden to be of Ecclesiastical cognizance Kings would draw them within the compass of maintaining the peace of the Church which properly belonged to them to defend and so had the cognizance of them in their own Courts and fines for invasion of the Church-rights But because this may seem but colourable and by way of flattery of the Churches right and not in opposition thereof in other things it will appear plainly that Kings were not nice in vindicating their own claim in matters which the Clergie held theirs quarto modo as namely in the case of Excommunication a Weapon first fashioned by the Church-men and in the exercise whereof themselves were in repute the onely Masters and yet in this were mastered by Kings whose Laws
in force although many of them had their original from the Saxons One God must be worshipped and one faith of Christ maintained throughout the whole Kingdom This is found amongst the Laws of the King William published by Mr. Selden and was for substance in the Saxons time saving that we find it not annexed to the Crown summarily until now so as by this Law Heresie and Idolatry became Crown-pleas And the like may be collected concerning Blasphemy concerning which it is said as of the Servant's killing his Lord that it is impardonable nor could any man offend herein but it endangered his whole estate The trial of these crimes is not found particularly set forth It might possibly be in the meeting of the Clergy and possibly in the County-court of the Torne where the Bishop was present Jura divina edocere Peter-pence Ciricksceat and Tythes must be duly paid These are all Saxon Laws united to the cognizance of the Crown as formerly hath been shewed Only the first William especially provided that in case any man worth Thirty pence in Chattels did pay four pence for his part it should be sufficient both for himself and his Retinue whether Servants or Retainers and defaults in payment of these duties were finable to the King. Invasion upon the right of Sanctuary fined This I note not so much in relation to any such Law amongst the Saxons as to the future custom which now began to alter according to the increase or wane of the Moon I do not find this misdemeanour to be formerly so much taken to heart by the Crown nor possibly would it have been at this time but that the King must protect the Church if he mean to be protected by it and it was taken kindly by the Church-men till they found they were able enough to defend their own right by themselves Amongst all the rest of Church-rights this one especially is confirmed viz. That any Delinquent shall have liberty of Sanctuary to enjoy both Life and Member notwithstanding any Law to the contrary This priviledge was claimed by the Canons but it must be granted by the Temporal power or else it could not be had and though it be true that Kings formerly did by their Charters of foundation grant such privileges in particular yet could not such Grants create such immunities contrary unto or notwithstanding any publick Law of the Kingdom and therefore the Monasteries had their foundations confirmed by Parliament or general assembly of wise men if the first foundation was not laid thereon Working upon the Feast-days punished by Fine Before this time no days for Solemn Worship of God were acknowledged by the Law of the Kingdom but the Lord's days By this all days celebrated or instituted by the Church for that purpose are defended by the civil power and breach of the holy observation of these days made enquirable and punished amongst other pleas of the Crown Breach of the Peace Bloodshed and Manslaughter punished by Fine This was the ancient Law of the Saxons and was continued without alteration till about Alfred's time whose zeal against blood caused Murther to be punished with death but the Danes bringing in a moderation if it may rightly be so called are now seconded by their kindred the Normans who will not admit of punishment by death partly because being a warlike people bloodshed might seem to rank itself under the Regiment of valour and partly because they owed much to that Title for the possession of all that they had gotten in England And to prevent scandal entring upon the rear opinion stept in that a miserable life was more penal than death and therefore in crimes of the deepest die they came to fine and loss of Member and which course prevailed most either to stop or enlarge the course of that sin was left to the disposition of such as intended to make trial But in matters of less malignancy the purss rather smarted than the body wherein they proceeded so far as to punishment of death by violence yet was not the fine to be measured by the judgment of the mercy or rigour of any person but only of the Law itself which set down in certainty both the nature and quantity of the fine and left that memorial upon record of a good mind at least to an equitable and just Government In all these cases of breach of peace the King's Court becomes possessed of the right of cognizance and the peace is now called the King's peace not so much because that it is left only to his providential care to maintain as because the fines for most of those crimes pertained to the King for otherwise there is a sort of crimes that are contra pacem vicecomitis as will be more cleared hereafter I shall conclude this subject with these three Observations First that the Laws in those ancient times of the Normans were so general as they then made no difference between places or persons but whether the peace was broken upon holy or common ground or upon a Lay-man or one in orders the Lay-power seized upon all The second is the care they had for apprehending of the offenders in this kind If the party slain were a Norman or Frenchman the Lord of the Manslayer was charged to have him forthcoming within a certain time or pay the Kings Fine of 46 Marks so long as he had wherewith to satisfie and for what remained the whole Hundred was charged But if the party slain were of any other people the Hundred was immediately charged with the Manslayer and must bring him to answer within a certain time or pay the Kings fine The third and last is the care they had to prevent breach of peace for the future first in setling of night-watches by all Cities Burroughs Castles and Hundreds in such manner as the Sheriff or chief Officers by Common-council shall advise for the best safety of the Kingdom Secondly in forbidding entertainment of unknown persons above three days without surety for their good abearance or becoming their pledge for the publick safety nor to let any persons pass away without testimony under the Ministers and Neighbours hand of their good carriage A Man committing Adultery with a Married Woman shall forfeit to his Lord the price of his life This made the crime enquirable at the common-Law as an offence contra pacem Domini but afterward it was sinable to the King and enquirable amongst the pleas of the Crown by the Law of Henry the first Force upon a Woman to the intent to Ravish her is finable but if a Rape be committed it shall be punished with loss of Member The crime and offences against this Commandment were always punished in the Temporal Courts by Fine at the least and are still in the Normans time prosecuted in the same way notwithstanding the growing authority of
with a stiff spirit and a weak mind brought sudden fire into the course of government till it consumed it self in its own flame For this King having newly slipt out of a bondage of wise Government under his Father ran the wild chase after rash desires spending his former time in inordinate love and his latter time upon revengeful anger little inferiour to rage and so in his whole government was scarce his own man. His love was a precedent of a strange nature that commanded him from all the contentments of his Kingdom to serve one man a stranger and prostitute to all manner of licentiousness meerly for some personal endowments It shews that his judgement was weak and his affections strong and in that more weak because he discovered it before he was crowned like some of the weakest of the weaker Sex the birth of whose minds are born assoon as they are conceived and speak assoon as they are born It is true that the bravery of spirit may work after absoluteness in Kings under the colour of some kind of wisdom But it is one thing to rule without Law and another to live without Rule the one dashes against the Law of an English King and may put on the name of Policy but the other destroys the Law of mankind and can bear no better name than of brutish desire All the while Gaveston was in view we find nothing concerning Commonwealth or monument of Parliament saving two Ordinances made by the King and such Lords as suted to the King's way rather than to his wants The first was that de militibus the other de frangentibus prisonam for all the King's labour was to royallize Gaveston into as high a pitch as he could and so to amaze his own eye-sight with contemplating the goodliness of his person So as Gaveston is become the Image of the King and presents his beams and influence into all parts of the Kingdom and according to his Aspect they often change and wane and yet at the best were but as in a misty night The Barons liked not this condition of State-Idolatry they were willing to adore the King but they could not bow to an Image they desired nothing more than that their King might shine in his proper glory Thrice is Gaveston banished thrice he returns the last occasioned another Civil War wherein Gaveston lost his head Thus the Lords removed the Eclipse but little the better thereby they find it a vain labour to compel the Sun to shine by force when it hath no light Though Gaveston be gone the mist of foreign Councils prevail this was bred in the Bloud fed with Bloud and ended in Bloud Through the Glass of foreign Councils all things seem of foreign colour the King to the People and the People to him The King at length begins to see himself undervalued and that it began in himself ventures himself into the Wars with Scotland to win honour goes with much splendour but returns with the greatest blot that ever English King suffered confounded abroad and slighted at home For the bravest men by ill success are lost in common opinion or to speak in a higher strain where God doth not bless man will not The King thus almost annihilated catches hold of Rome fawns on the Clergy passes to them the Ordinances of Articuli Cleri and de prisis bonis Cleri which lost the Free-men no Right although it concluded the Crown And to caress the Commons made the Statute de Vice-comitibus and the City of London likewise by the Statute de Gavelletto But God saw all sorts of men run at riot and sends in upon the Nation Plague Famine and other extraordinary Testimonies of his displeasure even to the wonderment of other Nations and this brought a kind of sobriety into Affairs made all sorts tame and for the present onely prepared them for better times For the King's time of longing again is come and he must have new Play-fellows finds the Spencers or rather was found of them they grow in honour almost beyond the reach of the Nobles but not beyond their envy and are more secure than Gaveston in this that in their first sprouting the King's Council served himself and them to keep in with the Commons by making good Laws such as the Statutes at York of Essoyns Attaints of Jurors Levying of Fines and Estreats into the Exchequer c. all of them promising good Government The Barons nevertheless liked not the Spencers greatness and being by several occasions exasperated joyn in one and occasion a new War The King aided by the Commons who yet thought better of the King than of the Barons whom they saw prejudiced rather out of self-apprehensions than the publick good prevailed against the Barons and made them the first president of death upon the Scaffold Now the Spencers are Lords alone thinking themselves above the reach of the once formidable Barons and the Commons too inferiour for their respect Thus lifted up they take a flight like that of Icarus They had so much of the King's heart as they could not spare any part thereof to the Queen and she being as loth to spare so much for them as they had retired with the Prince to a relief which they brought from beyond Sea and with whom both Lords and Commons joyn The favourites missing of their wonted wings come down faster than they ascended and together with them the King himself all of them irrecoverably Thus favourites instead of Cement between Prince and people becoming rocks of offence bring ruine sometimes to all but always to themselves The King foresaw the storm and thought it safest first to cry truce with the people and come to agreement with them by common consent for the extent of his Prerogative in certain particular cases questionable and this summed up became a Statute for future times to be a ne plus ultra between the King and people The like agreement likewise was concerning services of Tenants to their Lords and an Oath framed to vindicate them from all encroachments And something was done to calm the Clergie for the demolishing of the Templar-Knights but the wound was incurable words are not believed if actions do not succeed nor will Oaths now made to bind Kings Bishops Counsellors of State Sheriffs Mayors Bailiffs or Judges to justice nor directions for regulating of Courts nor Ordinances against false Moneys and Weights nor all of them settle the people but they adhere to the Queen burning with jealousie against the King and both her self and the Lords with rage against the Spencers The King flies and being forsaken of the people the Lords the Clergie his own Son and the Wife of his own bosom and of God himself as the most absolute abject that ever swayed the Scepter lost the same and being made a monument of Gods revenge upon inordinate desires in a King and of the English people being enraged not long surviving his
time and was questionless put in practice so far forth as with convenience to the Judges might be but now the convenience of the people is preferred and they must not be brought up to the King's Court but the Justices must come down to them And yet in case of difficulty the Bench where the Common-pleas are holden must determine the matter and where the time in the Iter in one County is too scant the Remanets shall be adjourned over to be tryed elsewhere in that Circuit which sheweth that the Judges itinerant had their time proportioned out to every County These Tryals also were so favoured as in the then holy times of Advent and Septuagessima or Lent they might be tried which although it was gained by Prayer made by the King to the Bishops as the words of that Law are concluded yet it shews that the Parliament had so much light as to hold the time not inherently holy but meerly sequestred by the Will of the Clergie The Plaintiffs also in Mortdancester may be divers if there be divers Heirs of one Ancestor by one Title And if there be joynt-Tenants and the Writ be against but one and the same pleaded the Writ shall abate but if joynt-Tenancy be pleaded and the Plea be false the Defendant shall be fined and imprisoned And if in the Action the Verdict be for the Plaintiff he shall recover Damages Darrein presentment shall be taken onely in the common Bank. Tryals in the common Bank or other Courts at Westminster have ever had an honourable esteem above those in the County by Nisi prius although all be equally available This might be one cause why the Titles of Churches were still retained at the common Bank whenas all other rode Circuit for that Churches affairs in those times were of high regard Speed of Tryal also was not little regarded herein for Justices by Nisi prius properly were but for enquiry till the Statute at Westm the second made them of Oyer and Terminer in the cases of Quare Impedit and Darrein presentment and gave them power to give Judgment And thus the Commons gained still in point of conveniency Free-men shall be amerced according to the degree of the fault saving to them their Free-hold and to Merchants their main Stock and to Villains their Waynage and Clergie-men shall be amerced according to their Lay-fee Barons shall be amerced by their Peers others by the Vicinage In this regard is to be had first of the persons that are to be amerced then of the parties by whom and lastly of the nature and quantity of Amercements The persons amerced are ranked into four Classes Barons Clergie Free-men and Villains But in regard of the parties by whom they are to be amerced they are but two Barons and Free-men for the Clergie Villains and Free-men are to be amerced by the Free-men of the Neighbourhood In what Courts these Amercements shall be the Stat. Marlbr tells us not before the Escheator nor other that make enquiry by Commission or Writ nor before the Justices of Assize or Oyer and Terminer but onely before the Chief Justices or Justices itinerant The Statute of Westminster adds a fifth Classis of Cities and Towns by express words which seems not so necessary unless in pillaging and oppressing times for they were taken to be within the Statute of Magna Charta though not therein named The rule of the quantity of Amercements is now set down in general and left to the discretion of the Peers or Vicinage which formerly by the Saxons were specially set down in the Law. The rule in general is with a ne plus ultra viz. not further or more than that the party amerced may spare and yet hold on in the maintenance of his course according to his degree And it must be also according to the quantity of the offence for the greatest Amercements must not be ranked with the least offences so as in every degree the main sustenance of the party is saved yea the Villains however mean they be they must have their maintenance And this sheweth that Villains had a maintenance which was under the protection of the Law and not under the gripe of their Lords to all intents unless they were the Kings Villains who it seemeth were meerly under the Kings mercy as being both their Lord and King against whom they could hold nothing as properly their own And therefore in all other cases even then the Villains were born under a kind of liberty as in the Saxons time formerly hath been declared which the Law protected against their own Lords No man shall be compelled to make repair or maintain any Bridges Banks or Causies other or otherwise than they were wont to be made repaired or maintained in the time of Henry the second The limitation to the times of Henry the second sheweth that his Justice was such as maintained the common rights of men but in the times of Richard the first and more especially of King John those Rivers Waters and Fishings formerly used in common were encroached upon enclosed and appropriated to particular mens uses which occasioned many Bridges Banks and Causies to be made and repaired to the great charge of private men all which are discharged by this Law. No Sheriff Constable Coroner or other Bayliff shall hold any Pleas of the Crown Escheators are also expressed in the old books of Magna Charta and the Abridgements however it seemeth that it is within the intent of the Law which was made to avoid the extraordinary oppression that these Officers exercised upon the people For Escheators under colour of inquiry of Estates of men would enquire of matters concerning the lives of men and Sheriffs that had power of Tryals in cases of Theft as hath been already shewn abused the same for their own benefit because in such cases they had the forfeitures This Law therefore takes away such occasions viz. from the Sheriffs and Coroners and Bayliffs or Justices other than by express commission thereto assigned all power to hold Pleas of the Crown by tryal leaving unto them nevertheless power of enquiry of which anciently they had the right If the Kings Tenant dieth supposed in arrear an Inventory shall be made of his Stock by honest men but it shall not be removed till Accounts be cleared and the overplus shall go to the Executors saving to the Wife and Children their reasonable part The first clause hereof was a Law in Henry the first 's time and a customary Law in Henry the second 's time being a remedy against an old Norman Riot of the Lord's seizure of the whole personal Estate of the party deceased under colour of a Law. The second part concerning the overplus hath this additional subjoyned in the Charter of King John If any Free man die intestate his Chattels shall be divided by his Parents and his Friends in the presence of
with certain select persons in every County did administer Justice in several Iters or Circuits so when Kings had once gotten the name of being chief in civil affairs as they had it in martial they soon left the Lords behind them who also were willing enough with their own case and had the name of doing all notwithstanding it was done by advice of the Lords and directory of Ministers or Commissioners thereto deputed And thus that Peace which formerly passed under the Titles of Pax Domini pax Vicecomitis which is pax Regni became by eminency swallowed up in that which was called the Kings Peace and the Justices called the Kings Justices and himself flattered into that Title of Fountain of Justice which belongeth onely to him that is The Most High or Chief Law-giver The manner how this honourable care of the Safety and Peace of the Kingdom was employed may be referred to a double consideration the one in execution of Justice upon Delinquents the other in preventing occasions of offence or delinquency by means whereof the publick Peace might be endangered The first was acted diversly according to the present sence of affairs for what was at first done by the Princes in their Circuits with one hundred of the Commons called Comites and that done per pagos vicosque was afterwards done by itinerant Judges sent from the King for the greatest matters and by Lords in their Leets Governours or chief Magistrates of Towns in their Courts and Sheriffs in their Torns as Judices stati for the ease of the people in matters of less moment I say I conceive it was in the Torn for I suppose no emergent Court taken up upon occasion could by the Law draw a necessity of a sudden appearance of all above twelve years of age at the same And for the same cause it seemeth that one certain Torn every year was holden for inquiries of Homicide unto which all above twelve years of age were to come except Barons Clergie and Women or otherwise all such had been bound to attendance on every Torn Nevertheless the work of the Torns continued not to hear and determine as anciently they had done For in Henry the third's time and formerly divers men had Prisons to their own use some as Palatines others as Lords of Franchise and others by power and usurpation and had the benefit of all Fines incident and by this means many were fined that deserved it not and some also that deserved worse To prevent which evil Henry the third took away that power of holding Crown-pleas And Edward the first took away their power to determine Escapes and left them onely the power of inquiry and to certifie at the next coming of the Justices But these injurious times had holden too long to be forgotten or laid aside by such cool pursuit Men were still ordinarily imprisoned and so continued oftentimes till the coming of the Justices itinerant For whereas in case of Bloudshed the Writ de odio atia was a remedy the other had no remedy but by procuring a Commission of Oyer and Terminer which ordinarily was a cure worse than the hurt As a remedy hereof Edward the first found out the new way of making Justices of Peace as may appear by the Statute at Winton which Law being purposely made for the conserving of the Peace providing for penalty of Crimes already committed as well as for the suppressing of future ordaineth That offences against that Law shall be presented to Justices assigned to enquire thereof and though these at the first might be itinerant yet it soon made way to resiant And before that Statute it seemeth the King had found out the way if that Note be true which is left revived into memory by that honourable Reporter which relating to the sixth year of Edward the first saith That then prima fuit institutio justiciariorum pro pace conservanda And yet some semblance there is that it was yet more ancient even in the time of Henry the first if I mistake not the sence of that clause in his Laws concerning Vagabonds he ordereth that they shall be carried Justiciae quae praeest although the Language be not so Clerkly as to speak the sence out Now though their Work as yet was but in tryal and they were onely trusted with power of inquiry yet it induced a new way wherein the Sheriff was not so much as intrusted to intermeddle and which not onely intermitted the course of his proceedings in such matters but also led the way to the dispoiling of the Sheriff's Torn and Lord's Leet of that little remainder that was left them of Judicatory power in matters that were against the Peace and made their Inquisitory power less regardful and eased the Justices itinerant of much of their Work in regard they were speedily to certifie up to the King and so these matters should be determined in Parliament according as those Justices were elected in Parliament who as it seems were jealous of giving the power of determining those offences into any sudden hand To sum up then the first part as touching the punishment of offences against the Peace the wheel is now in the turning the Leets and Torns begin to be slighted the labour of the Justices itinerant lessened the Commissions of Oyer and Terminer disused by the bringing in of a new Order of Justices for the Peace especially appointed and the Parliament as the supreme Providers left as the reserve for the asserting and maintenance of the same albeit that under it the power of determining much rested upon Justices or Judges that attended the King's Court after that the Common-pleas were setled and confined to a certain place The preserving of the Peace for the future consisted in preventing and suppressing Riots Routs unlawful Assemblies and in apprehending and securing of such as were actors and contrivers of such designes and other Malefactors And herein we are to consider 1. The Laws 2. The Means 3. The executive power Concerning the first there is no question to be made but that the power of making Laws for the maintenance of the Peace rested in the Parliament although endeavour possibly might be used to settle the same in the sole order of the King 's own person and therefore we find not onely the assize of Arms but generally the substance of the Statute at Winton to be formerly taken up by Proclamation by Kings predecessors to Edward the second who first that I can find put the same into force of a Law by Parliament finding by experience that Proclamations may declare the King's Mind but not command the Peoples Wills although peradventure the thing enjoyned was of ancient use and little inferiour to Custom or Common Law. Such are the Distempers of Civil Broils that bring up Peace in the rear as a reserve when their own strength is wasted rather than out of any natural inclination thereto A brief
recollection of the Laws thus ensue In case of Robbery or Felony committed and the Delinquent be not forth-coming or discovered the County or Hundred shall answer the damages Of this more may appear from the Norman and Saxon Laws the intent appeareth by the Law it self to stir up the people to use all means by pursuit with Hue and Cry and making inquisitions of the Fact with all speed in Townships Hundreds Franchises and Counties Persons suspected shall not be entertained or harboured by any Inhabitant unless he will undertake for him Of this also formerly both in the Norman and Saxon Laws Walled Towns shall keep their gates shut from Sun-set to Sun-rising The like observed in Cities Burroughs and Towns from the Feast of Ascension to Michaelmas The power of the Watch was great it might apprehend any Passenger and stay him all night and if he be a suspected person he is to be committed to the Sheriff and if an escape be made the party is to be pursued with Hue and Cry. These two last Chapters were in effect in Henry the third's time in course by way of the King's command by Writ in the 36th and 37th years of his Reign with some more particulars concerning the same High-ways through every Lordship shall be kept clear on each side by the space of 200 foot from Hedges Ditches Bushes and Vnderwood High-way herein intended are such as are from one Market-Town to another and in such were always preserved the publick peace or safety for the maintenance of Commerce and freedom of Traffick which is of such publick concernment that it hath been of very ancient institution Every man between the age of fifteen years and forty shall maintain Arms in his house according to the ancient Assize for the preserving of the Peace This Chapter brings into consideration the second thing propounded viz. the means of preserving of the Peace which are two First by maintaining Arms 2. By certifying Defaults In the first is to be considered the persons that are to be assessed 2. The Arms 3. The end The persons to be assessed to Arms are indefinitely set down and comprehend all sorts as wel bond as free and others for such are the expressions in the Commission of Henry the third But by the Assize of Henry the second none were to be armed but Free-men and they worth sixteen or ten marks in Goods at the least yet their ages are limited by this Law they must be between fifteen years and forty but by the Commission in Henry the third's time all between fifteen and sixty years of age were to be armed King John arrayed all sorts free bond and all others that have Arms or ought to have or can carry Arms and it seems by what hath been formerly noted that those that were younger than their Tenure would bear them out were accepted into service if they would offer themselves but by these courses they though under one and twenty years of age were not onely accepted but compelled to War. Under this Title we may also touch upon the persons that were the instruments to array these men or rather to arm them and these were Justices itinerant or one or more Commissioners such as the King found most meet of the service And unto these were Commissions with instructions sent and sometimes Writs were directed onely to the Sheriffs to take with them twelve Knights of the County and to go into every Hundred and call before them all such persons as by the Law ought to be assessed at Arms and to cause them to be sworn to find and maintain Arms in such manner as by the Law they then should be or formerly were assessed and sometimes the establishment of Arms were set down in those Writs and sometimes published by Proclamation For Kings found all means little enough to prevail to bring in alteration of Arms and of their service which was a thing not onely troublesome but chargeable and whereunto they could not easily prevail to bring the Free-men to consent And therefore sometimes the endeavours of Kings in such cases did not onely meet dilationem but also deletionem as the Historian's words are until the way was found out to declare an establishment by Parliament by this Statute made at Winton Now for the nature of the establishment we are to consider that the people of England were distinguished according to their Tenures into such as held by Knight-service and such as held by Socage and that none but those being Free-holders could be charged to find Arms according as by the Laws of the Norman Conquerour may appear The establishment of Arms for the Knights were established by their Tenures in certainty and therefore no need was either of Assessment or Oath to tie them to find such Arms but all the difficulty was for such as were not bound by other Tenure than as free-born Subjects all of whom do owe to their Country defence and so questionless had liberty to provide themselves of such Arms as were by common and constant use held most advantageous against the common Enemy and for the publick defence And that these were put in certainty may appear by the Law of King William formerly noted and by some instances in the Saxon Laws anciently used amongst others that Law of Aethelstane That for every Plough every man should find two compleat Horses And another Order of Aetheldred nigh eighty years aster differing from it assessed upon every eight Hides of Land a Helmet and a Coat of Mail And the Historian tells us That a Hide is a Plough-Land or so much Land as one Plough can keep in till the end of one whole year And the relief of the Noble-men of all sorts and ranks in Horses Helmets Coats of Mail Lances Shields and Swords the meanest of all which degrees being called Mediocris Thainus yielding a relief equal to the Arms of a Knight in the times whereof we now treat viz. one Horse one Helmet one Coat of Mail one Lance one Shield one Sword all comprehended under arma sua as if he had a certain proper Arms. And the Laws concerning the forfeiture of Arms do in effect affirm the thing viz. that all men were armed yet probable it is that laws were not then so often made for the enforcing this or that particular sort of Arms in regard that till the Normans time this Island was troubled but seldom with any Enemies from foreign parts that brought any new sorts of Weapons into fashion the Danes and Norwegians being no other than an old Acquaintance of theirs Neither were the Saxons as yet tamed by any Enemy so far as to beg a Peace albeit that the Danes had gotten them under But after the Norman times the English being somewhat over-matched in War inclined more to Husbandry and began to lay aside their regard of Arms and this occasioned the Kings to make Assessments of
to take Arms from the King with their pay or otherwise they must fight without Weapons I am now come to the last general point which concerneth the executive power of matters concerning the peace within this Law touching which the Statute enforceth this That Constables in every Hundred and Franchise shall have the view of Arms and shall present defaults against the Statute of Justices assigned who shall certifie the same to the King in every Parliament and the King shall provide remedy Whereby it seemeth manifest that hitherto no Law or Custom was made against any for default of Arms but onely such as held by that Tenure and therefore they had a shift to cause them to swear to maintain Arms and so might proceed upon defaults as in case of perjury and that the Parliament was still loth to set any certain rule for penalty and absolutely declined it and left it under a general periculo incumbente which it is likely men would rather eschew by obedience than adventure upon out of a daring spirit unless their case was very clear within the mercy of common reason And therefore such cases were left to special order of the Parliament rather than they would deliver such a rod as determining power was over into any uncertain hand whatever It is very true that by the opinion of some this also hath been controverted as if all the executive power had been turned out of the Parliaments Order into the directory of Edward the First which thing reacheth far for then in order thereunto the whole Militia of the Kingdom must have been under his safe command And whether it ever entred into the conceit of that King I know not but somewhat like thereunto is not obscurely urged to nourish and suggest such a kind of notion and so derive it unto his Successors upon the words of a Statute de defensione portandi armorum the English whereof I shall render out of the French as followeth It belongeth to Vs viz. Edw. 1. and from Vs by Our Royal Seigniory to defend force of Arms and all other force against Our peace at all times that We shall please and to punish according to the Laws and Vsages of this Realm such as shall oppose and to this they viz. Lords and Commons are bound Vs to aid as their good Lord always when need shall be Two things are concurrant with this which is the body of the Statute if such it be The one is the Preface or the occasion And the second is the conclusion upon the whole body of the same The preface first sets down the inscription or direction of the Law not to the people but to the Justices of his Bench and so it is in nature of a Writ or Declaration sent unto his Judges Then it sets down the occasion which was a debate between Edw. 1. and his Lords with a Treaty which was had before certain persons deputed thereto and it was accorded that at the next Parliament Order shall be taken by common consent of the King the Prelates Earls and Barons that in all Parliaments Treaties and other Assemblies which shall be had in the Kingdom of England for ever after all men shall come thereto without force and without arms well and peaceably and thence it recites that the said meeting at Parliament was had and that there the Prelates Earls Barons and Commonalty being assembled to advise upon this matter nous eiont dit saith one Copy and noâ—â— eions dit saith another Copy so as whether this was the Declaration of the King unto the Parliament or of the Parliament to the King is one doubt and a principal one it is in such a case as this Then the conclusion of all is that the King commandeth these things shall be read before the Justices in the Bench and there enrolled and this is dated the 30th of October in the Seventh year of his Reign which was Ann. 1279. So as if it were the Declaration of the King then it implieth as if it were not very well accepted of the Parliament and therefore the King would have it rest upon Record in nature of a Claim or Protestando for saving the Prerogative of the Crown But if it were the Declaration of the Parliament the King held it so precious a flower that fearing it should fade set it in a private Garden of his own that it might be more carefully nursed against the blast of Time as if the Parliament had not assented thereto or if they did meaned not to hold it forth to the world for future times to be a constant rule but onely by way of concession to ease themselves of the present difficulty in making a Law against wearing of Armour in ordinary civil affairs and so referred it to the King's care to provide against emergent breach of the peace as an expedient for the present inconveniences in affairs And it will well suit with the posture of affairs then in course for the Welsh-Wars were now intermitted and a quiet of three years ensued in the midst of which Souldiers having liberty to do nothing and that is next to naught but recreate themselves used their wonted guise as if they were not dressed that day that they were not armed nor fit for counsel unless as their Ancestors with Weapons in their hands nor worthy of the presence of a King under other notion than as a General in the field and themselves as Commanders that are never A-la-mode but when all in Iron and Steel I say to make a Law that must suddenly bind men from riding or being armed when no man thought himself safe otherwise was in effect to expose their bare necks to the next turn of the Sword of a King that they did not over-much trust and the less in regard he trusted not them I do not wonder therefore if the Parliament liked not the work but left it to the King to provide for the keeping off breaches of the Peace and promised their assistance therein Lastly supposing all that is or can be supposed viz. that the Parliament had given up the power of the Militia unto Edward the First yet it was not to all intents nor did it continue for besides the Statute of Tornaments which sheweth plainly that the ordering of Armour was in the power of the Parliament and which in all probability was made after that Law last before-mentioned the Statute at Winton made after this Law nigh six years space ordereth the use of the Trained bands in maintaining the peace and reserveth the penalties to themselves for any default committed against the said Act. And therefore notwithstanding any thing that yet appeareth to me out of any Law or History the chief Moderatorship of War and Peace within the Realm of England resteth hitherto upon the Parliament next unto God and in the King no otherwise than in order to the Publick the rule whereof can be determined by no other Judge than that which can be
intended to have no other respect than the publick good and which is the Abridgement of the large Volume of the Kingdom A Summary Conclusion ANd thus have I brought the shape of English Government rude as it is from the first off-spring of the Saxons through the rough waves of the Danish Tempests the Rocks of Norman invasion and of the Quick-sands of Arbitrary Government under Popes and Kings to the Haven much defaced it is I confess by the rage of time and yet retained the original likeness in proportion Kings first about the Norman times joyning with the Lords for their joynt interest above the ordinary pitch had mounted each other too high to be Lords over Free men Then by flattering of the Free-men into their designs hovered above them all but not being able to maintain their pitch so long as the Lords held together stooped for a party amongst them and soon obtained their desire For some Lords more ambitious than others and these again more popular than they seek several interests And thus Kings aided by their party to a Supremacy which they were never born to and raised by them into a preheminence above their Peers which neither Law nor Custom ever gave them are of Moderators in the Council of Lords become Moderators of those Councils and so they obtained all that the Lords had but no more For though both they and the Lords abused their power over the Free-men by extortion and oppression as Lords over Tenants yet could they never prevail over them as free-born Subjects to gain their consent to give their Right or the Law up to the King's beck but still the Law remained arbiter both of King and People and the Parliament Supream Expounder and Judge both of it and them For other argument hereof there will be little need besides what hath formerly appeared than what we find in Bracton who wrote in the time of Henry the Third to this effect God is superiour to the King and the Law by which he is made King and his Court viz. the Earls and Barons Earls according to their name Comites are the Kings Associates and he that hath an Associate hath a Master and therefore if the King be unbridled or which is all one without Law they ought to bridle him unless they will be unbridled as the King and then the Commons may cry Lo Jesus c. This was the judgement of that famous Lawyer of the state of an English King in Henry the Third's time I shall add hereto a concurrent testimony of a Lawyer also in Edward the First 's time Although saith he the King ought to have no equal in the Land yet because the King nor his Commissioners in case where the King intrencheth upon the right of any of his Subjects can be both Judge and Party the King by right ought to have Companions to hear and determine in Parliament all Writs and plaints of wrongs done by the King the Queen or their Children and of those wrongs especially whereof otherwise common right cannot be had Nor is this the opinion onely of Lawyers but it is the Law it self unto which the Royal assent was added and the same sealed with an Oath in the solemn stipulation made by Kings at their Coronation with the people then present in the name of the whole body the sum whereof is wont to be propounded to the King in this manner though in a different Language 1. Will you grant and keep and by your Oath confirm to the people of England the Laws and Customs to them granted by the ancient Kings of England your righteous and godly Predecessors and especially to the Clergie and People by the glorious King St. Edward your Predecessor The King's Answer I do them grant and promise 2. Will you keep to God and the Church and the Clergie and the People Peace and Concord sincerely according to your power The King's Answer I will do it 3. Do you grant to hold and keep the Laws and rightful Customs which the Commonalty of your Realm shall have chosen and to maintain and enforce them to the honour of God after your power The King's Answer I this do grant and promise In few words the King promised to keep the Laws already made the peace of his Kingdom and the Laws to be agreed upon by the Commonalty the same in substance with that of Henry the First William the Conquerour the Danish and Saxon Kings formerly had and in the foregoing discourse observed And thus is he led to the Throne in a Chain of Gold a serious memorial of the King's duty as he is a man and a glorious ornament to him as a King. If then the King be under the Law in case of direction as by stipulation he is bound if he be likewise under the Law in case of transgression to be judged by his Comites or Peers Hitherto certainly an English King is but Primas inter omnes and not supra totum and if at any time he skipped higher he afterwards fell lower for it was the lot of these times to have Lords that were bent to work the people to regard their own Liberties in which the Lords had first wrapped up their own Claims Thus come the counsels of such as have been notoriously exorbitant to be scanned and to bring these into frame all run out of frame the Barons Wars arise and thrive according as interests do concenter more or less the issue is like that of a drawn battle wherein he that continueth last in the Field is glad to be gone away and so the Title is left to be tried upon the next advantage that shall arise Yet had Kings gotten one step forwards to their designe which was in that they now had to deal with a divided Baronage It was the birth of Ambition and it was nourished by the same milk for those that side with the King are become Magnificoes next to the King's person and the sole managers of all the great affairs of State concurrent with their own designes under-board But the other Lords are in account rural standing further off and looking on at a distance are laid away as superfluous And as they themselves are out of the game of great men so grow they mindless of their interest in the great affairs yet of these there is diversity for some sport themselves in their condition others observe the irregular motions of those above and watch their own time This was the first advance of that society which was afterwards called the Privy Council being a company of choice men according to the King 's bent unto whom the consideration of all the weighty affairs of the Kingdom is committed but nothing can be concluded without the King 's fiat which regularly should follow upon the premisses according to the major vote but more ordinarily suiteth with that which best suiteth with his pleasure And now are Parliaments looked on as fatal or at the best
but as heavy dull Debates and inconvenient both for speed and secrecy which indeed are advantages for weak and unwarrantable councils but such as are well-grounded upon truth and strength of reason of State are not afraid to behold the clearest noon-day and prevail neither by speed nor secrecy but by the power of uncontrolled Reason fetcht from truth it self The Grand Council of Lords also are now no less burthensome For though they were not able to prevail against the private designes of an arbitrary Supremacy yet do they hinder the progress tell tales to the people and blot the names of those that are of that aspiring humour which once done like that of Sisyphus they have no other end of their labour than their toil Thus perished that ancient and rightly honourable Grand Council of Lords having first laid aside the publick then lost unity and lastly themselves besides the extream danger of the whole body For the sence of State once contracted into a Privy-Council is soon contracted into a Cabinet-Council and last of all into a Favourite or two which many times brings damage to the publick and both themselves and Kings into extream praecipices partly for want of maturity but principally through the providence of God over-ruling irregular courses to the hurt of such as walk in them Nor were the Clergie idle in this bustle of affairs although not very well employed for it is not to be imagined but that these private prizes plaid between the Lords Commons and King laid each other open to the aim of a forrein pretension whilst they lay at their close guard one against another And this made an Ecclesiastical power to grow upon the Civil like the Ivy upon the Oak from being Servants to Friends and thence Lords of Lords and Kings of Kings By the first putting forth it might seem to be a Spiritual Kingdom but in the blossom which now is come to some lustre it is evident to be nothing but a Temporal Monarchy over the Consciences of men and so like Cuckows laying their Eggs in nests that are none of their own they have their brood brought up at the publick charge Nevertheless this their Monarchy was as yet beyond their reach it was Prelacy that they laboured for pretending to the Pope's use but in order to themselves The Cripple espyed their halting and made them soon tread after his pace he is content they should be Prelates without measure within their several Diocesses and Provinces so as he may be the sole Praelatissimo beyond all comparison And undoubtedly thus had been before these times destroyed the very principles of the Church-Government of this Kingdom but that two things prejudiced the work The one that the Papalty was a forrein power and the other that as yet the Pope was entangled with the power of Councils if he did not stoop thereunto The first of these two was the most deadly Herb in the Pottage and made it so unsavoury that it could never be digested in this Kingdom For Kings looking upon this as an intrenchment upon their Prerogative and the People also as an intrenchment upon their Liberties both or one of them were ever upon the guard to keep out that which was without and would be ruled neither by Law nor Counsel And therefore though both Kings and People yielded much unto the importunity of these men and gave them many priviledges whereby they became great yet was their greatness dependant upon the Law of the Land and Vote of Parliament and though they had the more power they nevertheless were not one jot the more absolute but still the Law kept above their top I deny not but they in their practice exceeded the rule often and lifted themselves above their rank yet it is as well to be granted that they could never make Law to bind the Church-men much less the Laity but by conjunction of the Grand Councils both for Church and Commonwealth-affairs nor could they execute any Law in case that concerned the Liberty or Propriety of either but in a Synodical way or as deputed by the Parliament in that manner And therefore I must conclude that in these times whereof we treat the principles of Church-Government so far as warranted by Law were in their nature Presbyterial that is both in making Laws and executing them Bishops and Arch-bishops were never trusted with the sole administration of them but in and by consent of Synods in which the Clergy and Laity ought to have their joynt vote And all power more or contrary hereto was at the best an usurpation coloured by practice which was easily attained where there was a perpetual Moderatorship resting in the Bishop and over all the Pope the King Lords and Commons in the mean while being buried in pursuit of several interests elsewhere To make all semblable the Free-men met with the sad influence of these distempers as well from the King and Lords as the Clergy Kings to save their own stake from the Pope remitted of that protection which they owed to their Subjects and let in upon them a floud of oppressions and extortions from the Romish and English Clergy and so like a little ship cast out a Barrel for the Whale to pursue till it gets away But this changed no right The Lords by their parties shattered them asunder and dismembred their body by intestine broils The Clergy more craftily making some of them free Denizons of the Roman See and taking them into their protection whilst others of the Free-men at a distance were exposed as a prey to the continual assaults of those devouring times All these conspired together to deface and destroy that ancient and goodly bond of Brotherhood the Law of Decenners by which the Free-men formerly holden together like Cement in a strong Wall are now left like a heap of loose stones or so many single men scarcely escaping with their skin of Liberties and those invaded by many projects and shifts in Government of State-affairs So must I leave them until some happy hand shall work their repair both for time and manner as it shall please that great and wise Master-builder of the World. FINIS THE CONTINUATION OF THE Historical Political DISCOURSE OF THE LAWS GOVERNMENT OF ENGLAND Until the end of the REIGN of Queen Elizabeth WITH A VINDICATION Of the ancient way of PARLIAMENTS In ENGLAND LONDON Printed for John Starkey at the Miter in Fleet-street neer Temple-Bar M.DC.LXXXII THE CONTENTS OF THE Several CHAPTERS of this BOOK I. THe sum of the several Reigns of Edward the Third and Richard the Second fol. 2 II. The state of the King and Parliament in relation of him to it and of it to him fol. 9. III. Of the Privy Council and the condition of the Lords fol. 16 IV. Of the Chancery fol. 21 V. Of the Admirals Court. fol. 24 VI. Of the Church-mens interest fol. 27 VII Concerning Trade fol. 38 VIII Of Treason and Legiance with some Considerations
and Masters under Cade and Straw that might have brought the Commonwealth into a hideous Chaos had not the Lords and Great men betimes bestirred themselves and the King shewed an extraordinary spirit or rather a kind of rage that put it self forth beyond the ordinary temper of his mind Much of this mischief was imputed to Wickliff's Doctrine for it is an ordinary thing to proclaim all evils concurring with the very joynt of Reformation to be the proper fruits thereof But I look upon it as a fruit of corruption that endeavours to stop the breath of Reformation in the birth And there is somewhat of a hidden influence from above in the thing for it was not onely the Cup of England to be thus troubled but France and other places had their portion suitable The King's minority rendred him unequal unto these contrary motions he was in his Eleventh year when he entred the Throne and which was worse his years came on faster than his parts but his work posted before them all The common help of Protectors left him yet more unhappy for they were prepossessed with strong engagements of particular Interests and so were either not wise enough or not good enough for all This brought forth a third inconvenience the change of Protectorship and that change of Affairs and Interests an uncertain good that brings forth a certain evil for variety of Instruments and Interests move several ways and though the end be one the difference concerning the way many times doth as much hinder the Journey as so many blocks in the way The Protectorship was thrice changed the King's Uncles had the first essay any one of them was big enough for one Kingdom but all of them together were too great to make one Protector The Duke of Lancaster would have done well alone if he had been alone and minded that work alone but he being somewhat engaged with the Wickliffists and so entangled with the Clergy and other restless spirits and drawn off by his private aim at the Crown of Castile saw this work too much and so he warily withdrew himself leaving the Directory to a Committee of Lords a soveraign Plaister questionless where the times are whole but not for these distractions wherein even the Committee it self suffered its share Thus the breach is made the wider and for a cure of all the Government is committed into one hand wherein the Earl of Warwick acquitted himself well for he was wise enough to observe such as the people most honoured And thus passed over the two first years of the King's Reign The remainder of the King's minority was rather in common repute than in true account For the King however young took little more from the Protector than he saw meet to colour his own commands with opinion of Regularity and so his Will came to full strength before his Wisdom budded Thus lifted up he sets himself above all interests of Parliaments Protectors Counsellors Uncles Wise men and Law leaving them all to be rules for those below And so long as the King's desire is thus served he is content to be reputed a Minor and be as it were under protection of others though not under their direction and is content to continue thus until his Two and twentieth year Some might think him very moderate had he been moderate but he forbears suing out his Livery so long as he may live without care and spend without controul For by this time the humour of his great Grandfather budded in him he pawned his Heart to young men of vast desires and some say so inordinately as he prostituted his Chastity unto them And it is no wonder if the Revenues of the Crown are insufficient for such Masters This the people soon felt and feared their own Free-holds for they are bound saith he not to see the Crown deflowred for want of maintenance it is very true nor to see the Crown deflowred of its maintenance A Parliament therefore is called in which divers Lords associate and prepare Physick for the King 's lavish humour which being administred wrought for Ten years after till it had purged him of his Life and the Kingdom of their King. It was an Act of Parliament that gave power to Fourteen Lords and others to regulate the profits and Revenues of the Crown and to do Justice to the people this was to continue for one whole year The Parasites no sooner found the effect hereof to their cost but the King grows sick of it and finds an Antidote to over-rule Acts of Parliament by Acts of Privy-Council declares this ill-favoured Commission void and the Contrivers Advisers and Enforcers Traytors To make it more Majestical he causeth the Judges to subscribe this Order and so it becomes Law in repute This foundation thus laid he buildeth in haste an Impeachment of these Commissioners of High Treason and supposing that they would not readily stoop himself stoops lower for he would put his Right to trial by Battle which was already his own by the judgement of the Masters of the Law For so they may be well called seeing they had thus mastered it In this the King had the worst for he lost his Honour and himself God hath a care of common Right even amongst Idolaters Then comes the Parliament of wonders wherein the Kings Party are declared Traytors and the chief Judges with their Law judged by another Law. The King not meddled with thinks it high time to come out of his Minority and assumes the Government of the Kingdom and himself to himself being now Three and twenty years of Age old enough to have done well if he had cared for it But resolving to follow the way of his own will at length it led him to his own ruine Onely for the present two things delayed it viz. the Authority Wisdom and Moderation of his Unkles especially of the Duke of Lancaster now come out of Spain and the great affection which the King pretended to the Queen who had also gained a good opinion amongst the people The benevolent aspect of the people not for their own advantage but for the publick quiet procured many Parlies and Interviews between the King and people and many Laws for the upholding of the Court and Government although both War Laws Justice and Councils all are faint as all is faint in that man that hath once dismann'd himself This he perceives well enough and therefore Peace he must have by any means The Queen dies himself being nigh Eight and twenty years old takes a Creature like a Wife but in truth a Childe of Eight years old and this is to get peace with France It is no wonder if now he hunts after unlawful game and that being ill taken brings all things out of order For abused Marrige never wants wo. Civil men are now looked upon as severe Cato's and his Unkles especially the Duke of Gloucester with a jealous eye which accomplished his death in
respect he may be said to be less his own man and more the Kingdoms than any of the inferiour sort This befel in both these Kings in a special manner each entring upon the grand Government of a Kingdom 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 Counsel and Direction in Cases relating to the Kingdom The child of a mean man when its Parents are dead is Filius Amici but 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 Council though under some kind of restraint and the Counsellors all the while no Offenders in such cases against the Prerogative Royal. And therefore though it be true that Kings grow faster than other men and sooner come to full age than they yet Edward the Third now in his sixteenth year might not pass 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 less his own as he is a man than other mens For private Families are no further under the publick Law than in relation to the publick 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 Publick not onely because the King's servants have by their nigh attendance upon his person a more powerful influence into his actions which may reflect a malevolent Aspect upon the whole course of affairs if they be not better ordered that are so nigh him but more especially in regard that the government and order of the Royal Family trencheth deep upon the Honour of the Kingdom and Purses of the People who are concerned to see the same accommodated suitable to the State and Port which the Nation would bear forth to the World. And therefore for the Parliament to intermeddle in the King's Family is not foreign nor new Alice Piers was a Familiar if not of the Family of Edward the Third yet both her self 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 infirm old Age this man ever wanted for he that knew not how to govern himself how much less could he govern his Family And if in this condition the Parliament become his Stewards to set a yearly Survey and Check upon his Servants and Family in order to the good order of the same and Kingdom other wise men must conclude it did that which was just though Richard the Second and those of his mind think 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 these days without name for fear of Superstition yet the thing remaineth still in some well-favoured Chaplain and their work is to lead the King's Conscience in dark ways or rather into them Commonly he hath a devout outside and that is the King's Idol but if while his eye be towards Jerusalem his mind be towards the dead Sea the King is his and then the blind leads the blind Like some Ignis fatuus to such as know it not No man is so well known by his company as Kings are by these men and these men by their actions Although some have been so witty as to cheat the whole Generation of Mankind by entertaining holy men to be their Chaplains themselves the mean time without any spark of that holy Fire Yet this King was not so cunning he had a Confessor of his own choice and according to his own heart who was complained of as a grievance and the Parliament removed him So nigh they ventured even to invade the King 's own Conscience if it may be called Conscience that will acknowledge no Law but that of its own mind Thirdly the King's Revenue was under the check and controul of the Parliament for it befals some Princes as other men to be sometimes poor in abundance by riotous flooding treasure out in the lesser currents and leaving the greater channels dry This is an insupportable evil because it is destructive to the very being of affairs whether for War or Peace For the King's Treasure is of a mixt nature much of it being intended for publick service as himself is a publick person And for this cause he hath Officers of several natures attending upon his Treasury Some for Land some for Sea some for the general Treasure of the Kingdom some for that of the Houshold and some for the Privy Purse The common end of all being to maintain State in time of Peace and Strength against time of War. Because it is no easie matter to maintain the just proportions for each of the said ends it is the less wonder that such a brave Prince as Edward the Third should labour under want for maintenance of the Wars and so lavish a Spendthrift as Richard the Second should labour under more want to maintain his port and countenance in peace And therefore though it be true that the publick Treasure is committed to the King as the chief Steward of the Realm yet it is as true that he is but a Steward and that the Supreme survey of the Treasure resteth in the Parliament 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 unfaithful and encouraging of others that are faithful 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 Expences If then in such cases sometimes the Parliament hath stayed the issuing out of the King's 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. limited it to certain uses and in case of misuser refused to levy or make payments the case will be without dispute that the Parliament ordered the publick Treasure as they saw most need But much more if we consider how the greatest part of this Treasure was raised viz. not from the old Revenues of the Crown but by new Impositions Levies and Assessments laid upon the People even what they pleased and in
what manner they thought meet and not otherwise Aids are lawful if they be legally given by common consent of Parliament Taxes if legally given by Parliament are no less lawful yet they must be collected in such manner and by such means as the Parliaments Order doth direct Loans of moneys to the King may be made by them that will but the King must not demand them because the Subject hath no means to recover the debt This trick had been lately tryed by Edward the Second much money he got and it was repayed by the Order of the Parliament But of all the rest nothing shewed more absolute Authority in the publick Revenue than the care that was had of the Demesnes of the Crown for whereas the Expxences of Kings grew so vast that neither the yearly Revenue could suffice nor Aids Assessments and Taxes could satisfie however ordinary they in these times were become rather than Kings would contain themselves they would invade their own Demesnes by pawning selling and giving them away either for love or money and thus was poverty treasured up against the future both for King and Crown The Parliament espying this leak that was like to undo all applyed a speedy remedy undoing what was done and undoing some by an Act of Resumption and thereby taught Kings to look to their Honour better for the future and People also to take heed of medling with such ticklish matters and to know that he that hath such in his possession hath them by a crack'd Title that cannot be amended but by Act of Parliament Fourthly an English King is no Out-law nor can he do any wrong though the man may He hath a double relation one as a King the other as a Man and the uniting of both in one person hath cheated many a man of his judgment in the case of Prerogative He hath a double Will and these many times contrary equally as in other Relations and in this contrariety sometimes the King overcomes the Man and sometimes the Man the King so as if any man the King hath much more cause to cry out O miserable man These divers Wills are generally led by divers Rules One of a man which many times reacheth no higher than the Affections and if the man be weak they deserve little better name than Lusts. The rule of a King is Law or Councils of these in place and unto these in all prudentials he must submit his Judgment and Will as he is a King. Nor can he do otherwise unless he will presume to be wiser than his Council Suitable hereunto doth that clause in one of the Statutes of these times conclude viz. That the King is bound by his Oath to pass all Laws that are for the good of the Kingdom For were the power of Election or determination of the point onely in the King then were the Oath in vain nor is the Parliament at all in case of the King's dissent to judge of the convenience or inconvenience of Proposals made for the good of the whole body according to that power which is exercised in these times Nor is it rational to infer here from that if Law and Council be the Rule of a King then the Obedience of the People unto this King must be in order to Law and Council otherwise the Disobedience cannot be determined to be against the King but against the Man and though against the private Will of the Commander yet not against the Law nor therefore can it be said illegal or unjust The Parliament in these times held forth this Doctrine plainly to the World That it is their proper work in Cases needful to do right to such as are wronged by the King his Command is no Warrant in such Cases If a man be wrongfully imprisoned by him he shall be released and set at liberty by them Let his Act be never so authentical under the Broad Seal it can take no man's Right away Richard the Second did his utmost to satisfie and quiet the tumultuous Rabble under Cade and Straw and granted store of Manumissions to the Bond-men by Declaration and by his Letters-Patents but not one of them good enough to deprive any one of the meanest of the Free-men of their Rights in those Bond-men The priviledge of shewing mercy and granting pardon hath been anciently betrusted to the King as an Overseer of the execution of Law yet he hath not that Prerogative To have mercy on whom he will have mercy Ever since this Nation had learned to read the Bible Murther hath been excepted from mercy nor did the Law ever allow any King that Prerogative to pardon that Edward the Third did not challenge any such not onely bound thereto by his Coronation-Oath but by publick Acts of State declaring the same yet because the Parliament was not always sitting and Kings were ever subject to this Temptation to favour Servants by granting mercy to Malefactors a general Rule of Inhibition is made against all pardon to be granted by the King in case of Felony but onely in cases allowed by advice of the Council It is true that in the first times of Richard the Second he liked not to be thus girt in his power which he pretended was more at liberty in his Predecessors possibly he meaned King John and Edward the Second who many times did what they listed yet under his favour no Law was so shameless as to hold forth such a power till Richard the Second's Law countenanced it But why do I call it a Law which is onely a Declaration by consent of the Lords such as then were the Commons would never own such an Opinion And therefore it soon proved abortive for within three or four years by publick Act of Parliament it is peremptorily declared That the King's Pardon shall not extend to Murther So as upon the whole matter it is plain That it is not the King's Will though supported by the Council of Lords and backed by the Opinion of the Judges that must be a Rule for the Government of this Kingdom nor doth any Allegiance bind Obedience thereunto in case where Justice or the Liberty of the People is concerned Three things yet remain which Kings have claimed to be their own viz. Conferring Titles of Honour and Places of Trust and the Legislative Power The first is but a Feather and not worthy of regard yet it is plain that these times produce many precedents of Dukes Marquesses and Earls made in Parliament and possibly it may be apparent that the first motion of any such Title of Honour did first fetch its original thence if not in the Field but it is not worthy of the labour The second is more considerable viz. The power of conferring Places of Publick Trust This Kings have pretended unto although in course of congruity it will be thought more meet that it belongeth rather to that chief
Judicature rested with the Lords in relation not onely to the House of Commons but also in relation to the King whose work in such cases is not to judge above or with the Peers but to execute their sentence And that carries with it a List whereby the power of a King may appear not to be so Supreme in making of the Law as some would have it for if his Judgement and Conscience be bound by the Votes of the Peers in giving a Law in case of a particular person where the Law was not formerly known let others judge of the value of this Negative Vote in giving Law to the whole Kingdom It is true that this Parliament was quarrelled by the King and he kept it at a bay by a Proclamation that pretended Revocation as far as a Proclamation could revoke an Act of Parliament but it effected nothing nor did the contest last long Now though this Jurisdiction thus rested in the House of Lords in such cases as well as in others yet is it not so originally in them as to be wholly theirs and onely as they shall order it For the Commons of England have a right in the course and order of Jurisdiction which as the known Law is part of their Liberty and in the speedy execution of Justice as well as they have right to have Justice done And therefore whereas in Cases of Errour and delays the Appeal was from the inferiour Court to the Parliament which immediately determined the matter and now the trouble grew too great by the increase of pleas For remedy hereof a kind of Committee is made of one Bishop two Earls two Barons who by the advice of the Chancellor Treasurer and the Judges shall make good judgement in all Cases of Complaint of delay in Judgement which Committee is not made by Order of the Lords alone which they might have done in case Jurisdiction had been wholly and onely shut up in their custody but by Act of Parliament and joynt concurrence of the Commons with the Lords For as the Commons challenge speedy Execution of Justice as one of their Liberties so also to be under the Jurisdiction of such Judges and Courts as the Laws in the making whereof themselves challenge a vote do establish and appoint I will conclude this Chapter with the Constitution of the Parliament in these times For the difficulties that befel between the Kings and their people or Houses of Parliament wrought two sad effects viz. A propensity to decline calling of Parliaments so often as was used and expected and when it assembled as great a propensity in the Members to decline their attendance by means whereof as the Historian tells us the Parliament was sometimes enforced to adjourn it self for want of number sufficient The first of these arose from want of good will in the Kings the other from want of Courage and Zeal in the people The first of these was fatal and destructive to good Government for though in distempered Parliaments it is good to withdraw yet in distempered times it is necessary to meet and gain a right understanding of all parties and therefore these times were so happy as to bind themselves by publick Acts of State to re-continue the assembling of Parliaments For the face of the Times represented unto all that agitations were like to be quick violent and to continue for some succession of time It is therefore safe if not necessary that every eye should be open and Councils ready for every occasion A Law at length is agreed upon that A Parliament shall be holden once every year or more if need be But in Thirty years the power of this Law is wasted out of mind and the evil reviving revives also the Statute and yet they had Thirteen or Fourteen Parliaments in Thirty years space and not above Three or but once Four years distance of time between any Two of them in Succession This was the sence of the Members of the Houses in their meeting but at home they had homely conceits and it is found no less difficult to bring them to the meeting than to continue the meeting according to the Law being either loath to adventure their thoughts into the troublesome affairs of the Publick or their persons to expence and hazard But the publick must be served and therefore an Act of Parliament is made That all such Members as decline their appearance at the Parliament after Summons made shall be amerced and the Sheriffs likewise that shall neglect return of Summons And the Statute implyeth that it was no introduction of a new Law but a reviving of former Law now or lately disused or a Custom now out of custom And to take away all objection in point of charges and expences another Law was made to establish the Assessments and levying of their wages upon the Lands that anciently were chargeable therewith in whose hands soever the same shall come I shall conclude with this That the Parliament though like a Garment it sometimes covers the goodly feature and proportion of a well-composed body yet it keeps the same warm and as a Shield is first in all dangers and meets with many a knock which the body feels not this is their work and reward It is true that in the wearing it is felt heavy but it is the easier born if it be duly considered that it is better to be so cloathed than to be naked CHAP. III. Of the Privy-Council and Condition of the Lords THe latter must make way for the former for according to their personal esteem in their own Countries such is their Authority at the Board in joynt Councils And it was one point of happiness in a sad time of War that all men looked one way The Lords were much addicted to the Field and could do much with Edward the Third who was a brave Leader and more with the people who had been so long time used to the rough Trade of Souldiery that they loved not to be at home about matters of Husbandry wherein they had so little experience And having so fair a Garland in their eye as France it is no wonder if domestick designs seemed meaner or more dangerous Thus did God do England a good turn although it was made for the present thereby neither so rich or populous as it might have been in a time of Peace This French heat wasted many a tumultuous Spirit and ennobled the Fame of the King and Lords not onely abroad but won them much Honour and Repute of those that remained at home and so by congregating Homogeneals and severing Heterogeneals rendred the body of the people more Univocal which tended much to the setling of the Joynts of this distracted Nation A timely birth hereof doubtless was the peaceable entry of Richard the Second upon the Throne and quiet sitting there whilst as yet he was but a Child the Princes of the bloud many and they of generous active and
daring Spirits yet do we not meet with a whisper in story of any turbulent or aspiring humour in them or the people during those tenderer times of that King's Reign But after that he came to know more in himself than was to be found and to outreach his abilities having some of the Lords ready at his Elbow to help him these changed the King's course although the general part of that noble Band kept still their Array and retaining the body of the people in due composure thereby declared themselves to be the King's Friends though the others were Richard's Favourites so as he was fain to stoop to occasion and submit to be a King that would have otherwise been more or less And thus the Lords were become Supporters to the Crown Studds to the Throne and a Reserve to the People against the violent motions of an unbridled mind in their King who seeing them so united and endeavouring to break them into parties to obtain his desire lost both it and himself It is a degree of cleanly modesty to impute the miscarriages of unruly Kings to their Council For however during their minority Counsellors are more rightly Officers of State yet when Kings will be their own men their Counsellors are no other than the breath of the King 's own breast and by which a King may be more truly discerned than any man by his Bosom-friends Edward the Third was a man of a publick Spirit and had a Council suitable to his aim Richard the Second a man that desired what him pleased would have what he desired and a Council he had that served him in all For God answers the desires of mens hearts in Judgement as well as in Mercy and a sore Judgement it is both to King and People when the corrupt desires of the King are backed by a flattering Council It must be granted that the Privy Council of Kings hath been an old Ginn of State that at a sudden lift could do much to the furthering of the present estate of publick Affairs Nevertheless through the Riot of Kings their designes generally tended to make more work for the Parliament than to dispatch to do much rather than well like works for sale rather than for Master-piece and sometimes to undermine yea to out-face the Parliament it self like some unruly Servants that will put away their own Masters Nor can it otherwise be expected unless the King 's elected ones be turned into the Parliaments Committee or that constant annual Inquisition by Parliament be made into their actions for occasional inquiries breed ill blood though no attainder be nor are they easily undertaken whereas constancy in such cases makes the worst to be resolved but into a matter of common course The natural and original power of the Privy-Council is very obscure because there are several degrees of them that occasionally have been used all of whom may deserve the name of Privy-Council in regard of the Parliament which is the most publick Council of all the rest and always hath a general interest in all Causes in the Kingdom The first of these is that which was called The Grand Council of the King which as I think was not the House of Lords who are called by Summons and were onely to attend during the Parliament but a body made up of them and other wise men of his own Retinue And of this it seems there was a constant body framed that were sworn to that service for some in these times were sworn both of the Grand Council and the Privy-Council and so entred upon Record The second of these Councils was also a great Council and probably greater than the other but this was called onely upon occasion and consisted of all sorts like a Parliament yet was none An example whereof we have in the Ordinances concerning the Staple which at the first were made by the King Prelates Dukes Earls Lords and Great men of the Kingdom one out of every County City and Burrough called together for that end their results were but as in point of trial for six Moneths space and then were turned into statute-Statute-law by the Parliament These two are Magna Concilia yet without power further than as for advice because they had no ancient foundation nor constant continuance Another Council remaineth more private than the other of more continual use though not so legally founded and this is called the King's Privy-Council not taking up a whole House but onely a Chamber or a Table signifying rather communication of Advice than power of Judicature which more properly is in Banco And yet the power of this grew as virile and Royal as it would acknowledge no Peer but the Parliament and usurped the representative of it as that had been of the whole Kingdom The ambition thereof hath ever been great and in this most notoriously evident that as it had swallowed up the Grand Council of Lords it seldom can endure the mention of a Parliament but when Kings or Affairs are too rugged for their own touch The Platform of their power you may behold in this their Oath 1. That well and lawfully they shall counsel the King according to their best care and power and keep well and lawfully his Counsels 2. That none of them shall accuse each other of any thing which he had spoken in Council 3. And that their lawful Power Aid and Counsel they shall with their utmost diligence apply to the King 's Rights 4. And the Crown to guard and maintain save and to keep off from it where they can without doing wrong 5. And where they shall know of the things belonging to the Crown or the Rights of the King to be concealed intruded upon or substracted they shall reveal the same to the King. 6. And they shall enlarge the Crown so far as lawfully they may and shall not accounsel the King in decreasing the Rights of the Crown so far as they lawfully may 7. And they shall let for no Man neither for love nor hate nor for peace nor strife to do their utmost as far as they can or do understand unto every man in every Estate Right and Reason and in Judgement and doing right shall spare none neither for Riches nor Poverty 8. And shall take of no Man without the King's leave unless Meat or Drink in their Journey 9. And if they be bound by Oath formerly taken so as they cannot perform this without breaking that they shall inform the King and hereafter shall take no such Oaths without the King's consent first had All which in a shorter sum sounds in effect that they must be faithful Counsellors to the King's Person and also to his Crown not to decrease the true Rights but to enlarge them yet all must be done lawfully And Secondly that they shall do right in Judgement to take no Fees nor any other Oath in prejudice of this The first of these concern the publick onely at a distance and yet
the point of encreasing and diminishing of the Crown in the sixth Section is captious and may sound as if there is a legal enlarging of the Crown whereof he that takes the Oath is to judge A matter which onely and properly concerns the Parliament to order and determine or else farewel all liberty of the people of England The second concerneth immediately the King in his politick capacity but trencheth upon all Laws of the Kingdom in the executive power and all the motions in the whole Kingdom either of Peace or War following in the Rear either immediately or mediately are under this notion interested into the transaction of the Privy-Council to debate and determine the King's Judgement therein unless it will determine alone And how easie a thing it is for such as have power of determining the Action by the Law to slip into the determining of a Law upon the Action and so to rule by Proclamation experience taught succeeding times sufficiently Nevertheless in these times Parliaments were every moment upon the wing and kept this Noble Band in awe by taking them into their Cognizance placing and displacing some or all of them directing and binding them by Oath as they saw occasion of which the Records are full and plentiful I say these times thus constituted added yet further encouragement to them by giving them powers by Statute-Law over and beyond what by ancient Custom they had obtained The King and Council of Lords had anciently a power of Jurisdiction that hath been in the first Part of this Discourse already observed yet it is very probable that it was not any select company of Lords but the whole Association For it is granted by all that they had originally a principal hand in the Jurisdiction and it is hard to conceive how any private number should catch such a power if not by usurpation But the manner of acquiring is less materal the principal consideration resteth upon the quality of this Jurisdiction For it is evident that much difference hath been both concerning the place and manner of exercising this Authority In general it must be granted that all Pleas Coram Rege were grounded upon Writs first purchased and returnable either in Banco or in Camera or in Cancellaria And no difference at all will be concerning the Jurisdiction in Banco for that was by the course of the Common-Law and the people held it one of their Liberties to have one known course of Law for determining matters of right and wrong As touching these Pleas which were holden by Writs returnable in Camera they were properly said to be Coram Rege Concilio whose meeting was in the Council-chamber in those days called the Star-chamber For other returns of Writs in the Star-chamber do not we find but such as were in Camera nor Prohibitions from thence but under the notion of the King's Council and this Camera as I said was the place of the joynt meeting of the Council as well of those of the Chancery and Benches as of those that attended upon matters of State. Now the influence of Society in point of Judicature principally aspected upon some Pleas belonging to the Crown although even these also properly were determinable in the King Bench. Nor can I observe any rule to bound the powers of these two Judicatories but this that the Council-Table would pick and chuse and prohibit the Kings Bench as they pleased and to that end would order Originals out of the Chancery as they thought most meet For it is observed by Fleta that the Kings-Bench hath no jurisdiction of it self but by special Warrant that is to say by Original Writs returned thither Nevertheless it may seem that such Crimes as are contrary to common honesty or the publick profit or peace in a more exemplary way than ordinary and therefore may be called Crimina laesi Regni or against the State these I say might more properly belong to the sublime Judicature of the Council-Table as knowing better how far the publick State was interested or endamaged in such Cases than the other Judges that were experienced onely in ordinary matters of a more private concernment To recite the particular Cases upon record concerning racing of Records Forgeries and other crimes of Falshood Conspiracies Combinations to abate and level the prices of Commodities Riots and such-like will be supersluous In all which and others of that Cognizance the Sentence exceeded not Fine and Imprisonment or Ransom Neither yet were the Common pleas so rural but the Council Table could relish them also and digest them well enough and therefore did not stick to prohibit the Courts of Common-Law under colour of a strange maxime That it is neither just nor honest for a man to be sued at the Common-Law for a matter depending before the King and his Council No though the Court of Common-law had the precedency And therefore although the right of Tythes being depending at the Common-Law the Archbishop in opposition to the Jurisdiction sueth before the Kings Council and the proceedings at the Law are thereby stayed And no wonder for the Council-Table challenged to hold the ballance of all Courts of Law within their own Order and so if any doubt concerning the Jurisdiction depended the Council-Table gave the word and all stooped thereto But enough of the Subject-matter the manner follows a new form of Process is taken up that the Common-Law and ancient Custom never knew and which grew so noisom to the people that complaints are made thereof as of common grievance and remedies are thereto applied by the Laws of these times For whereas by the Grand Charter nothing could be done in Judgement but according to the Laws of the Land and in affirmance thereof a Law was made in these times that no Accusation nor Attachment nor forejudging of Life or Member nor seisure of Lands Tenements Goods or Chattels should be against the form of the Grand Charter and Law of the Land This course of affairs grew so stale that amongst other innovations a trick of a new kind of Trial is brought forth by suggestions upon Articles exhibited against any man before the Council-Table and thereupon issued forth Attachments against the party complained of by means whereof and other courses for they could also sequester much vexation arose unto the people Hereunto upon complaints multiplied a remedial Law is made whereby it is Enacted That all such suggestions made shall be carried to the Chancellor Treasurer and the King 's Grand Council and the Informer shall find Surety to prosecute with effect and to incur the like penalty intended for the Defendant if the Plaintiff's proofs be not compleat and then the Process of Law shall issue forth and the Defendant shall not be taken against the form of the Great Charter that is he shall not be taken until first the fault appear upon Record by Presentment or by due Process or by original Writ
way is different from the common Road both in it's original and in the course of proceedings nor could it otherwise be considering the condition of the Nations and the people of the same interested in common Traffique The people thus interested as much differed from the other sort of Dry men if they may be so called as Sea from Land and are in nature but as March-men of several Nations that must concentre in some third way for the maintenance of Commerce for peace-sake and to the end that no Nation may be under any other Law than its own The condition of the Nations in the times when civilized Government began to settle amongst them was to be under the Roman Emperours who having setled one Law in the general grounds throughout all Nations made the Sea likewise to serve under one rule which should float up and down with it that men might know upon what terms they held their own wheresoever they went and upon what terms to part with it for their best advantage In its original therefore this Law may be called Imperial and likewise in the Process because it was directed in one way of Trial and by one Law which had its first birth from the Imperial power and probably it had not been for the common benefit of Europe to have been otherwise at other time or by other directories formed Nevertheless this became no Gem of Prerogative to the English Crown for if England did comply with forrein Natives for its own benefit it being an Island full of the Sea and in the common Road from the most parts of Europe that border upon the Sea and of delight in Merchandise it is but suitable to its self and it did so comply as it saved the main Stake by voluntary entertaining those Laws without being imposed upon by Imperial power For the Saxons came into this Kingdom a free people and so for ought yet appeareth to me continueth to this day I say that in those first times they did take into the consideration of Parliament the regulating of the fluctuating motions of sea-Sea-laws nor were they then or after properly imposed by the King's Edict For though it were granted that Richard the First reduced the sea-Sea-Laws in the Isle of Oleron yet that the same should be done without advice of Parliament in his return from the Holy land is to me a Riddle considering what Histories do hold forth concerning his return through Germany nor can that be good evidence to entitle Kings of England to a power to make and alter Laws according to their private pleasure and interest Nor doth that Record mentioned in the Institutes warrant any such matter but rather on the contrary groundeth the complaint upon Laws Statutes Franchises and Customs established and that this Establishment was by the King and the Council This Law was of a double nature according to the Law of the Land one part concerning the pleas of the Crown and the other between party and party for properly the King's Authority in the Admiralty is but an Authority of Judicature according to Laws established which both for process and sentence are different from the Common-Law as much as the two Elements do differ yet not different in the power that made them I shall leave the particulars to be enquired into by them that shall mind it elsewhere and only touch so much as shall reflect upon the main Government This power was executed by Deputies diversly according as the times and opportunities were for War or Peace and either transitu or portu What was done in time of War or whilst the Ship is out of the English Seas comes not to our purpose and therefore I shall not meddle with that further than this that in the first times Kings were wont to divide the work of Judicature and of War into several hands The power of War and Peace they committed unto men of approved Courage and Skill in that service and therefore generally not to the men of highest rank who had neither Mind nor Skill for a work of such labour dyet and danger This power passed under divers names sometimes by grant of the custody of the Sea-coasts sometimes of the parts and Sea coasts sometimes by being made Captain of the Sea-men and Mariners and sometimes Admiral of the Ships It was a great power and had been much greater but that it suffered a double diminution the one in the time for three or four years commonly made an end of the command of one man and at the best it was quam diu Regi placuerit the other diminution was in circuit of the power for all the Maritine Coasts were not ordinarily under the power of one man but of many each having his proper precinct upon the South or North East or Western shores and under the Title of Admiral in the times of Edward the First and forwards who brought that Title from the Holy Land. Nevertheless about the end of the times whereof we now Treat the custody of the whole Sea began to settle in one hand under the Title of Admiral of the English Seas and the place was conferred upon men of the greatest rank and so continued ever afterward The power of Jurisdiction or Judicature all this while remained distinct and it seems was setled in part in the power of the Sheriff and Justices For by the Law the Sheriff and Justices had cognizance of matters between the high water and the low water mark and what was done Super altum mare was within the directory of the Admiral these were but few things and of small consideration the principal of them being concerning War or Peace and those only within the English Seas But after Edward the Third had beaten both the French and Spaniards at Sea the people grew much more towards the Sea and became so famous that the greatest Lords thought the Regiment of Sea-affairs worthy of the best of their Rank and were pleased with the Title of Admiral whilst they left the work to others and so the Admiral became a person of more honour and less work than he had been formerly The greatness of the honour of this place thus growing soon also began to contract greatness of power beyond what it had formerly and this was principally in matter of Jurisdiction For not contented with the power of a chief Justice of War and Peace within the Seas which was his proper dominion the Lord Admiral gained the same within the low water mark and in the main streams below the next Bridge to the Sea and in all places where Ridels were set and yet these places were within the body of the County Nor did he endeavour less to gain in matters of distributive Justice for although he had a legal Jurisdiction in things done upon the Sea so far as to defend order determine and cause restitution to be made in cases of damage done unjustly yet was it no less difficult to keep
certain Cases vouched to that purpose the first concerning the Legiance of Children to Parents which cometh not to this case because it is a Legiance of Nature and this Legiance whereof we speak is yet under a litigious Title And I suppose will in the conclusion be found to rest onely upon a Civil constitution therefore I leave that The second is That a man attainted and outlawed is nevertheless within the King's protection for this saith the Reporter is a Law of Nature Indelebilis immutabilis and neither Parliament nor Statue can take this power away fol. 13. b. 14. a. And therefore the Reporter concludes That as well the Legiance of the Subject as the Protection of him by the King are both of them from the Law of Nature An opinion that speaks much mercy yet it seems strange considering the Pen for if it be a Law of Nature and immutable for the King to protect persons attainted then must no such person suffer for if he be under the King's protection that being by a Law of Nature cannot be changed by any positive Law as the Reporter saith nor can the King be so bound by any such Statute but by a non obstante be can set himself at liberty when he pleaseth and then the issue will be this The King hath a natural power to protect the persons of Law-breakers from the power of the Law therefore much more their Estates and then farewel all Law but this of the Kings natural Protection I say that these are of a high strain considering what the Reporter speaketh elsewhere But to pursue his instance he saith That the King hath power to protect an attainted person That if any man kill him without warrant he is a Man-slayer and yet this person attainted hath lost the legal protection It is true yet not to all intents for by the Sentence of the Law his life is bound up under the Law of that Sentence viz. That he must not suffer in other manner than the Sentence determineth nor before Warrant of Execution issue forth to that end And notwithstanding the Sentence yet the Law leaveth him a liberty of Purchase or Inheritance though to the use of the Crown and therefore in some respects the Law protects his person so long as he lives and the King 's natural Protection is in vain in such cases Lastly suppose the King hath a power of Non ohstante if the same be allowed to him in a limited way by the Law it is no Argument to prove the King's natural power which is driven at under natural Legiance much less if it cannot be made forth that the Law doth allow any such power of Non obstante at all but by the iniquity of the times permitteth the same to subsist onely to avoid Contention as it came into this Kingdom by way of Usurpation And thus I have onely discovered the Foundation of this first Qualification which I shall onely leave naked supposing that no man seeing it will build at all thereupon The second Property that cometh to be considered is That English Legiance is absolute fol. 5. b. fol. 7. a. which is a word of a vast extent serving rather to amaze men's apprehensions than to enlighten them And therefore the Reporter did well not to trouble himself or the Reader in the clearing or proof thereof but lest the point rather to be believed than understood nor shall I in the Negative For God himself can have no other Legiance from an Englishman than absolute Legiance and Kings being as other men subject to erre especially in this point of Prerogative are much rather subject thereto being misled by such Doctrines as these are The Scripture determines this point and cuts the knot in sunder The third property of English Legiance which the Reporter insisteth upon is that it is indefinite which he explaineth to be Proprium quarto modo so as it is both Vniversal and Immutable fol. 5. b. fol. 12. and neither defined by Time Place or Person As touching the Time and Person the Reporter enlarged not at all therefore I shall onely leave the Reader to chew upon the point supposing himself in the first times of Edward the Fourth when Henry the Sixth was then alive and let him resolve to which of them his Legiance had been due considering them both in their natural capacity as the Reporter would have it But as touching the place it is reported that English Legiance is not onely due from an English man to an English King in England but in all places of the Kings Dominions though otherwise Forem as to the power of the Law of England Yea saith the Reporter as far as the Kings power of protection doth extend And yet this had not been enough if the Premises be granted For if this Legiance whereof we speak be absolute and omni soli semper then it is due to the King from an English man ubivis Gentium Nevertheless to take the Reporter in a moderate sence it is worth consideration whether English Legiance in the days of Edward the Third extended as far as the Kings power of Protection whenas he had the Crown of France in a Forein right to that of England In this the Reporter is extreamly positive upon many grounds which he insisteth upon First he saith that Verus and Fidelis are qualities of the mind and cannot be circumscribed within the predicament of Vbi and upon this ground he might conclude that this Legiance is due to the King from an English man all the world over as well as in all the King's Dominions But concerning the ground it may be denied for though simply in it self considered as a notion Verity or Fedility are not circumscribed in place yet being qualities of the Soul and that being in the Body in relation thereunto it may be in the predicament of Vbi for where-ever that Body and Soul is there is Faith and Truth according to its model which though not absolute and indefinite yet if according to the Laws of the place wherein the man is he is truly said to be Verus Fidelis Secondly The Reporter argueth that the King's Protection is not local or included within the bounds of England therefore also is not the Legiance for Protectio trahit Legiantiam Legiantia Protectionem Had this reason been formed into a Syllogisim it had appeared less valuable for the Protection of an English King qua talis of an English man is local and included within the bounds of the Kingdom But if the same King be also King of France or Duke of Aquitane and an English man shall travel into those parts he is still under the same King's protection yet not as King of England but as King of France or Duke of Aquitane Otherwise let the party be of France or Aquitane or England all is one he must be whether French or English under an unlimited absolute Protection without regard had
are not of the Legiance of the King of England but as Lord of that Territory The other matter to be observed concerning pleading in the Courts of Civil Justice is this That whereas anciently from the Normans time till these times the pleadings were in the Norman Tongue they shall be henceforth in English out of an inconvenience I believe rather supposed than felt For though some kind of knowledge of Law-terms may be encreased thereby yet unless that shall be professedly studied it will breed nothing but Notions and they an over-weening conceit which many times sets men to Suits in Law to their own loss like some weak influence of the Celestial Bodies that are strong enough to stir up humours but not to expel them or draw them out However even thus in part is the reproach of Normandy rolled away like that of Egypt from the Israelites at Mount Gilgal CHAP. XI Of the Militia in these times WAR is ever terrible but if just and well governed Majestical the one may excite resistance and defence but the other conquers before blow given because it convinceth the Judgment and so prevails upon the Conscience For that heart can never be resolute in its own defence that is at War with its own understanding nor can such a heart consider such a War otherwise than as Divine and bearing the face of an Ordinance of God and then how can the Issue be unsuccessful It is no strange thing for Kings to miscarry in their Wars because it is rarely seen that they are under good Counsel but if a Christian Counsel miscarry we may conclude it extraordinary in the efficient cause and no less wonderful in the issue and end Upon this ground it concerneth a Christian Nation not onely in point of honour but of safety and continuance to settle fundamental Laws of War against time of War as of Peace in time of Peace Neither was England deficient herein saving that antient times were more obscure in the particulars and these days revealed them at such a time wherein we may say that Edward the Third approved himself not onely King of England but of himself above the ordinary strain of expectation For being now become a famous Commander and Conquerour having also an Army inured to fight and overcome and so might have given a Law he nevertheless received the same submitting both it and himself to the Directory of the Parliament in making a War with France which was three to one against him in very respect but in the Title besides the disadvantage from Scotland that lay continually beating upon his Rear The like may be observed of his War with Scotland in both which he evidently telleth the World that he held it unreasonable to enter upon the managing of an offensive Foreign War without the concurrence of the common consent of the People and that not onely for the thing it self but also for his own Personal Engagement in the Service For a King though he be the Generalissimo yet is he so from the People and his Person being of that high value is not to be exposed to every occasion that may provoke War without due advice first had with the publick Council because in his Person the People adventureth as well as himself And in this manner were the Wars in France by Edward the Third and in Scotland concluded upon debate In the next place as touching the Arrays of Men for War I find no foot-steps of any power which was claimed as peculiar to the King therein and acknowledged by the Parliament but many instances do I meet with in the opposite all which do plainly tell us that the old shifts of Jurati and Obligati ad arma could do little either in the calling of men forth or arming them for the War. But in case of publick defence against Foreigners men were summoned upon their Legiance as anciently was used And this was by both King and Parliament fully declared and all such Obligations by writing called in and damned as dishonourable to the King. In foreign service the course was no less regular if the War was by special direction of the Parliament they likewise ordered the manner of the raising of Souldiers viz. so many out of a County and so many out of a Burrough all which are by the express words of the Statute said to be granted by the Knights and Burgesses But if it was onely upon the King 's particular instigation and not by order or consent of the Parliament the King in such case being Voluntier all the Souldiers were in like manner unless some particular Law or Tenure otherwise obliged them As touching the arming of Souldiers the Law was yet more certain and particular If the Souldiers were men of Estate they were armed according to the ancient rule asserted by the Statute at Winton or otherwise were especially assessed by the Parliament or by virtue of their Tenures The first of these is confirmed by Edward the Third in Parliament wherein he willeth that no man shall be urged to arm himself otherwise than he was wont in the times of his Ancestors Kings of England The two latter were likewise confirmed by another Law made in the same Kings time whereby it was ordained That no Man shall be constrained to find Men of Arms Hoblers nor Archers other than those which hold by such services if it be not by common consent and grant made in Parliament By Men of Arms meaning those which we now call Curiassieres or compleat armed by Hoblers meaning those now called light Horse-men The Archers served on Foot and were principally armed with Bows although they had also Swords or other such offensive portable Weapons The first of these concerneth onely the arming of a man 's own person the other the finding of Souldiers and arming of them and both together sufficient for the safeguard of the Rights and Liberties of the People invaded in those times by Commissions of Array and such other expressions of Prerogative Royal for as touching the arming of a man 's own person the Statute of 1 Edward 3. formerly mentioned is clear in the point And though the Statute of 25 Edward 3. doth not in the latter direct as touching the finding Arms for others as is urged in his Majesty's Answer to the Declaration of the Parliament concerning the Commission of Array July 4. 1642. yet is it therein granted that a compleat Souldier is within the Letter of the Statute and seeing the person of the Souldier is not in the power of any private person in such cases to command him to the service it seemeth clear to me that the Statute must intend the arming of him with compleat Arms and not the armed person of the man. The Souldiery thus arrayed they are in the next place to be called to their Rendezvouz the Knights by Summons sent to the Sheriff but the rest by Proclamation If the Knights appear
not a Fine is set upon them if others run away from their Conduct a Writ issued to the Serjeant at Arms to apprehend them if they were not arrayed then the Recognizances of such as undertook the work are estreated All plunder or spoil committed by the Souldiers in their Conduct was to be satisfied by the Conductor or Commander that received their Pay or Charges for their Conduct And although the Charges for Conduct had formerly de facto been defrayed sometimes by the County by virtue of Commissions that issued forth both for the raising and conducting of them yet was this no rule nor did Edward the Third claim any such duty but disclaimed it and ordained by Act of Parliament That both the Pay and Conduct-money should be disbursed by the King from the time of their departure from their several Counties For to this end and for the safeguard of the Realm and for the maintenance of the Wars of Scotland France and Gascoign the King had supply from Aids Reliefs Wardshipâ— Marriages Customs and Escheats Nor did the Parliament grant any particular Aid by the Assessment or publick Tax but when they evidently saw the burthen of War to be extraordinary as it befel in the Conquest of so great and potent a Realm as France was Wherein although the Taxes were many yet so well ordered were they and with that compliance from the King that the people endured them with much patience so long as the King lived Lastly in all these Cases of Foreign Wars for of such Cases onely these Laws are to be understood it was especially provided That no man should be distrained or urged against his will to go out of his County But in case of defensive War the course was otherwise for all men in such cases are bound by the Law of Nature to defend their own Country from Invasion in order to the safety of their own Estates and Habitations They were arrayed or gathered together by Commission of Array from the King armed according to the Laws formerly mentioned and not by Arbitrary order of the Commissioners And by virtue of such Commissions they were drawn forth and led to places where need required Sometimes to one Coast sometimes to another yet not altogether at the Kings pleasure for the Parliament upon occasion set rules of Restriction and generally exempted the North-parts beyond Humber from being drawn Southward and left them as a reserve for the defence of the Marches bordering upon Scotland and sometimes ordered the Array should be executed onely in some particular Counties and other times wholly exempted the County adjacent within six miles of the Sea-coast And because the King might under colour of a defence array the people where no such occasion led the way and command them out of their Counties a Statute is made that states the Case wherein such Array shall be the words whereof are variously set forth in the Books in print whether determinatively or carelesly I cannot tell but all of them to differ in sence one from another and from the Truth Some of the common Books have the words thus None shall be distrained to go out of their Counties unless for cause of necessity and of sudden coming of Strangers or Enemies into the Kingdom Others read it thus But where necessity requireth and the coming of strange Enemies into the Kingdom The Kings Answer to the Parliaments Declaration concerning the Commission of Array would read it thus Vnless in case of Necessity or of sudden coming of strange Enemies c. But the words in the Roll are these Et que nulls ne soient distresses d'aller hors de les Countees si non pur Cause de necessity de suddaine venue des Stranges Enemies en Reyaulme In English thus word for word And that none be distrained to go out of the Counties if not for cause of Necessity of sudden coming of strange Enemies into or in the Kingdom which words determine the point That none shall be by Commission of Array drawn out of their County but in case of necessity And secondly that this case of necessity is onely the coming of strange Enemies into or in the Kingdom so as probably the Invasion must be actual before they be drawn out of their Counties and not onely feared and it must be a sudden Invasion and not of publick note and common fame foregoing for then the ordinary course either of Parliament or otherwise must be used to call those that are bound by Statute or Tenures or Voluntiers to that service seeing every Invasion is not so fatal as to require a Commission for a General Array Against what hath been thus noted the judgement of Sir Edward Coke in Calvin's Case lies yet in the way who affirmeth that the Subjects of England are bound by their Legiance to go with the King in his Wars as well within the Realm as without and this Legiance he telleth us is that natural Legiance which he saith is absolute and indefinite c. and not local which if not so then were not the English bound to go out of England an inference that is neither necessary nor is the thing affirmed certain It is not necessary because English men may be bound to go out of England by vertue of their Tenures particular Contract or else by special Act of Parliament and not by vertue of that natural Legiance which in truth is nowhere Now for the maintenance of the point the Reporter alledgeth two Statutes affirming the thing and common practice and lastly Authorities of the Judges of the Common Law. As touching the Statutes one in Henry the Seventh's time and the other in Edward the Sixth's time I shall speak of them in the succeeding times when we come at them for they are no Warrant of the Law in these times whereof we now treat much less is the modern practice of these later days a demonstration of the Law in the times of Edward the Third nor of the nature of the Law in any time seeing that it is obvious to times as well as particular persons to do and suffer things to be done which ought not so to be and therefore I shall for the present lay those two Considerations aside But as touching the Opinions of the Judges of the Common Law two Cases are cited in the Affirmative which seem in the Negative and the rest conclude not to the point The first of the two Cases is the opinion of Justice Thirning in the time of Henry the Fourth word for word thus A Protection lies for the Defendant in a Writ upon the Statute of Labourers and yet the Defendant shall not have such matter by way of Plea viz. That the King hath retained him to go beyond the Sea for the King cannot compel a man to go out of the Kingdom that is as the Reporter saith Not without Wages intimating thereby that if the King shall tender Wages to
from the gripe of the Clergie on the other who hitherto held the Cognizance of the Markets in Weights and Measures to themselves This model so pleased all men that Richard the Second that was pleased with nothing but his own pleasure gave unto the Justices of Peace yet further power to execute the Statute at Northampton against riotous ridings and to settle the Wages of Labourers and Servants to punish unlawful Huntings by the meaner sort of people and regrators of Wool false Weights in the Staple unlawful wearing of Liveries and unlawful Fishings contrary to the Statute at Westminster 2. Thus was the power of Justices of Peace grown to that heighth in these and other things that it undermined not onely the Council-Table and Kings Bench but the Commissions of Gaol-delivery and of Oyer and Terminer so far forth as their work was much less than formerly For Neighbours in cases of crime are better trusted with the Lives and Estates of men than Strangers so as in all this the people are still the gainers The manner of Judicature by these Justices of the Peace still remains nothing appears by any Statute in these times that one Justice of the Peace might do alone but record a forcible Detainer although questionless in point of present security of the Peace and good Behaviour by the intent of the Statutes he might do many things but in Cases of Oyer and Terminer all must be done in publick Sessions which the Justices of the Peace had power to hold by Commission onely until the Thirty sixth year of Edward the Third and ever after that they held their Sessions by vertue of the Statutes and had power to determine divers things in their Sessions according to discretion These were remedies after the Fact now see what preventing Physick these times afforded One thing that much irritated the spirits of men into discontents was false News or slanderous reports raised and spread amongst the great men For in these Times the Lords were of such a considerable power as the vexation of one Lord proved the vexation of a multitude of the meaner sort And though the Statute of Westminster the 1. formerly had provided against such Tales yet it touched onely such as concerned discord between the King and people although by implication also it might be construed to extend further But Richard the Second willing to live in quiet that he might enjoy his pleasure would have the people know their duties in plain words and agreed to a Law That all such as published such false News tending to sow strife between the Great men should be imprisoned until the first mover was found and if he were not found then the Relator should be punished by advice of the Council So much power was then given to the Council whatever it was Thus the seed was choked or was so intended to be though every passion was not thus suppressed For some angers conquer all fear and will hold possession come what will. In the next place therefore provision is made against the first Actings in sorting of parties by Tokens and Liveries utterly inhibiting the meaner sort of the people from giving of Liveries to maintain quarrels upon pain of Fine and Imprisonment and the Trial to be before the Justices of Assize which it seems was in affirmance of former Laws as by the Preamble of the Statute doth appear though the Laws themselves are not extant About Fifteen years after it was by sad experience found that the Lords maintained quarrels by multitude of Liveries and therefore another Law was made inhibiting the Lords to give Liveries to any but their menial Servants and it is ordered that the Justices of the Peace shall make enquiry of such offences and punish them according to their discretion A third prevention was provided against gathering together of Parties after they are sorted For the humours may so abound as nothing will keep them in they must either break out into a sore or a long sickness of State will certainly follow To this end therefore the Statute made at Northampton is again revived expresly forbidding all persons to ride armed unless in some particular cases of executing Justice or guarding the person of the King or his Justices and suchlike And if men will be so adventurous as to outâ—dare Law by publick force Troopings together and riotous Ridings another course is taken not by Commission of the Peace but rather of War directed unto valiant persons in every County and they have power thereby to apprehend such Offenders and imprison them until the Gaol-delivery though no Indictment be found thereof until the Gaol-delivery shall be By this Commission therefore power is given of Posse Comitatus in nature of a Commission of Array with an additional power of fighting and destroying so as though the King granteth the Power by the Commission yet the Parliament giveth the Power to the Commission and be it a Commission for Peace or War it is originally from that power The fourth and last prevention was the taking away means of continuance and supporting such Riotous ways Viz. Castles and Gaols out of the Custody of private hands and restoring them to their Counties For Gaols and Castles are taken promiscuously for places of security in times of Peace to keep ill persons from going out and in times of War from getting in Amongst these some belonged to the King and were committed to such as he favoured who commonly in such times of Oppression and Violence grew too big for Justice usurping a Gaol delivery and making such places of strength many times even to the innocent a Prison to keep them from the Law but unto guilty persons an Asylum to defend them against the Law. And these thus belonging to the King were under no Law but of Prerogative whereas other Castles of private persons were under the yoke of the Statute 13 E. 1. For remedy of all which the Kings Castles are once more returned to the Sheriff's Custody by Act of Parliament who questionless have the power to dispose of all places of strength whether in order to Peace or War and could not dispose them into a more safe and indifferent hand than the Sheriff's who is as well the King's Officer as the Kingdoms Servant and much intrusted by the Law in the execution of its own power And thus is this Nation now prepared for a setled Peace a condition that is long in ripening and soon rotten unless it be well fenced and over-awed by a good Conscience But Richard the Second was neither so good nor so happy his Heart affected to be high but his Head could not bear it he turns giddy and runs far wide Those that would reduce him he enforces into Foreign Countries and himself holds on his career over Hedge and Ditch into Ireland where under pretension of holding possession of that Kingdom he lost England and whilst he plays
his game in that Country another plays King by your leave in this and steps into the Throne teaching the King thereby this Lesson though too late That Non-residency is dangerous for a Priest but unto a Prince fatal unless his Subjects be fast to him when he is loose to them CHAP. XIII A View of the Summary Courses of Henry the Fourth Henry the Fifth and Henry the Sixth in their several Reigns HE that played this prank was the banished Duke of Hertford Son of John of Gaunt and by his death now become Duke of Lancaster by Title and as the Times then were it proved not hard to get more For in uncertain Commonwealths it is an easie thing for a man of opinion that hath less than his due to get more than he ought As Son of John of Gaunt this Duke had the peoples good wishes he a wise and a brave man and under oppression gained the more upon the people by how much they love brave men and compassionate such as suffer wrong especially from such persons from whom they all found the like measure All these concurring with the King's absence invited the Duke to adventure himself upon the influence of the peoples favour to gain his own right and what more the people would allow him and if no more yet his Honour is saved he came for his own and attained his end Thus then he comes over without Army or Foreign Power or other help saving the advice and interest of Archbishop Arundel who was his Companion in suffering Partner in the Cause and no less welcome to the Clergie than the Duke himself was to the people and so gained power to the Duke though he brought none Upon their arrival the Aspects of all are benign the Dukedom waits for him and in that as in a Mirrour he beholds the way fair and easie yet further it pities him to see the Kingdom so torn in pieces and spoiled The people knew him able and hoped him willing to amend all they offered him their Service which he accepts and therewith the Crown So hard a thing it is for to put a stop to a Conquerour in his career By this time was the Duke of Hertford thus become Duke of Lancaster and King of England under the name of Henry the Fourth by a design that in the proof was more easie than commendable and which being effected cost more skill to make that seem fair which was so foul than to accomplish the thing He therefore first heaps together Titles enough to have buried the clamour of Usurpation if it would have succeeded Conquest was a Title freest from Dispute whilst Power holds but it looks better from a Foreign Enemy than one sworn to the English Crown and therefore after that had served his turn he disclaimed it as that which was though meet enough to have yet unmeet to hold His right by Designation from his Predecessor he glanced upon but durst not adventure it too deep into the peoples consideration whose Ancestors had formerly over-ruled the Case against King John. He then stayed upon a concealed Title from a concealed Son of Henry the Third of whom they who listed might be perswaded but few believed the thing nor did himself but thence takes his slight up to a Jus Divinum or some hidden Fate that called him to the work but even there his Wings failed him and so he falls flat upon the Peoples Election De bene esse Some of these or all together might make Title enough for a great Man that resolved to hold by hook what he had got by crook and therefore trussing them up all together he enters his claim to the Crown As coming from the Bloud Royal from King Henry and through the Right that God his Grace hath sent me with the help of my Kin and Friends to recover the same which was in point to be undone for want of good Governance and due Justice The extract of all is that he was chosen by the People and Parliament then sitting And albeit that by the Resignation of Richard the Second the Parliament might seem in strict construction of Law to be expired together with the Kings power who called them together yet did not that Parliament so apprehend the matter but proceeded not onely to definitive Sentence of deposing him but declared themselves by their Commissaries to be the Three States and Representative of the People of England maintaining thereby their subsistency by the consistence of the Members together although their Chief was for the present like a head in a Trance till they had chosen Henry the Fourth to succeed in the Throne by this means preventing the conceit of discontinuance in the very Bud of the Notion Much like his entry was his continuance a continual tide of Foreign and Domestick War and Conspiracy enough to exercise his great Courage although he was more wise than warlike being loth to take up Arms for well he knew that a sick Title never sleeps but in a Bed of Peace and more loth to lay them down For besides Victory whereby he gained upon his Enemies in time of War he knew how to make advantage of them in time of Peace to secure his Friends to keep others in awe to enforce such Laws as stood with reason of State and the present posture of Affairs and where Laws failed to fill up the period with Dictates of his own Will. And upon this account the Product was a Government full of Ulcers of Bloudshed without regard of persons whether of the Lay or Religious Order without Legal Trial or priviledge of Clerk. So was Archbishop Walden dethroned Archbishop Scroop put to death and Dukes were dismounted without Conviction or Imputation saving of the Kings displeasure Taxes multiplied although begotten they were upon the Parliament like some monstrous Births shewn to the World to let it know what could be done but concealed by Historians to let it know what may not be done Yea the Priviledges of Parliament invaded in point of Election A thing that none of his Predecessors ever exemplified to him nor none of his Successors ever imitated him in Nor had he purposed it but that he was loth the People should know more of the Government than needs must To keep off Foreign Troubles he made Peace with France for longer time than he lived yet was ever infested with the Sword of St. Paul in behalf of Richard the Second's Queen and with the Factions between the Houses of Orleans and Burgundy in which he had interested himself to preserve the Foreign Neighbourhood in Parties one against another that himself might attend his own security at home He would have moved the Scots but they were already under English Banners nor could he reach so far having so many Enemies even in his own bosom The Welsh were big with Antiquity and Mountains of Defence they begin to bethink themselves of their Antient Principality hold the Kings Arms at hard duty
eat their own word However for the present the House of Lancaster hath the Crown entailed and the Inheritance is left in the Clouds to be revealed in due time For though this was the first precedent of this kind yet was it not the last wherein the Parliament exercised a Power by Grant or Confirmation to direct the Law and Course of the Crown as they pleased The due consideration hereof will make the things that follow less strange For the Parliament according to occasion as the Supream Power of this Kingdom exercised Supream Jurisdiction in order to the safety of the Kingdom as if no King had been to be found in issuing forth Writs under the Great Seal concluding of matters without the Royal Assent treating of Peace with Foreign Nations and of other matters and determining their Resolves before discovery made to the King of their Counsels making Ordinances and ruling by them 3 H. 6. n. 29. 2 H. 6. n. 27. 8 H. 6. n. 12. referring matters determinable in Parliament to be determined according to their directions Authoritate Parliamenti confirming Peace made by the King protesting against Peace made without or against their consent making Embassadours with power to engage for the Kingdom making Generals of the Army Admirals at Sea Chancellors Barons and Privy Counsellors and giving them instructions 8 H. 4. n. 73. and 76. and 31. 5 H. 4. n. 57. 31 H. 6. n. 21. and binding them to observance upon Oath 11 H. 4. n. 19 39. ordering the person of the King denying his power of Judicature in Parliament and ordering his Houshold and Revenue besides many other particulars Now if such as these things were thus done not by one Parliament which possibly might be overswayed by Factions but by the course of a Series of Parliaments that mightily laboured against Faction and unworthy ends and aims that man who shall determine the same to be unjust or indiscreet should himself first be determined to be very just and exceeding wise Nor was the Parliament partial in all this but being in a way of Reformation it set upon the work of reforming it self Some that are very zealous in the point of Arbitrary and Absolute Government of Kings in this Nation and in all other amongst other grounds rest upon this one That an English King hath power to call Parliaments and dissolve them to make and unmake Members as he shall please I do easily grant that Kings have many Occasions and Opportunities to beguile their People yet can they do nothing as Kings but what of right they ought to do They may call Parliaments but neither as often or seldom as they please if the Statue-Laws of this Realm might take place Nor if they could is that power necessarily and absolutely arising from Supremacy seeing it is well known that such power is betrusted by the Superiour States in other Nations to the Inferiour who dayly attend on publick Affairs and therefore can discern when the general Conventions are most necessary As touching the dissolving of Parliaments against the wills of the Houses it is true that sad precedents have been of later times in that kind and so for want of due attendance Parliaments have been enforced to adjourn to prevent a worse inconvenience but these are infirmities better buried in silence than produced as Arguments of power seeing it is evident that Kings themselves were no greater gainers thereby than an angry man is by his passions It is true alâ—o that Kings may make Lords and Corporations that may send their Burgesses to the Parliament and thus the King may make as many as he will as the Pope did with the Bishops in the Council of Trent yet cannot he unmake them when he pleases nor take the Members from the Parliament without attainder and forfeiture according to the known Law. Neither can all these Instances prove that the Kings of England have the sole and supreme power over the Parliament Nor did the Parliament in these times allow of any such Authority and therefore proceeded for the reforming of themselves by themselves in many particulars as the Statutes do hold forth And first in the point of Elections for an errour in that is like an errour in the first Concoction that spoils the whole Nutriment they ordained that the Election of Knights shall be at the next County-Court after the Writ delivered to the Sheriff That in full Court between the hours of eight and nine in the morning Proclamation shall be made of the day and place of the Parliament That the Suters duly summoned and others there present shall then proceed to the Elections notwithstanding any Prayer or Commandment to the contrary That the names of the persons elected whether present or absent they be shall be returned by Indenture between the Sheriff and the Elizors and that a Clause to that end shall be added to the Writ of Summons This was enough to make the Sheriff understand but not to obey till a penalty of one hundred pound is by other Laws imposed upon him and a years imprisonment without Baibor Mainprise besides damages for false return in such cases and the party so unduly returned fined and deprived of all the Wages for his service Thus the manner of Election is reduced but the persons are more considerable for hitherto any man of English bloud promiscuously had right to give or receive a Vote although his Residency were over the wide World. But the Parliament in the time of Henry the Fifth reduced these also whether they were such as did chuse or were chosen unto their proper Counties or else rendred them uncapable to vote or serve for any County And the like Order was made for the Burroughs That no person must serve for any City or Burrough nor give vote in Electing such as shall serve for that Town unless they be both free and resiants within that City or Burrough A Law no less wholsom than seasonable For the times of Henry the Fourth had taught men to know by experience That a King that hath Souldiers scattered over the Kingdom can easily sway the County-courts and make Parliaments for their own Tooth Yet this was not enough for all Elizors though of the meanest sort yet are still able to do as much hurt with their Vote as those of the best sort both for wisdom and publick mind can do good by theirs This made Elections much subject to parties and confusions and rendred the Parliament much less considerable A remedy hereunto is provided in the minority of Henry the Sixth viz. That no man should give his Vote in Elections in the County unless he hath forty shillings yearly in free Lands or Tenements and this is to be testified upon Oath of the party And more plainly it is orderded within two years after that each Elizor shall have Frank-Tenement of that value within the same County
in the French Wars the Duke of Gloucester obtained the same power and place But Henry the Sixth added a further Title of Protector and Defender of the Kingdom and Church of England this was first given to the Duke of Bedford and afterwards he being made Regent of France it was conferred upon the Duke of Gloucester And towards the latter time of Henry the Sixth it was granted by him to Richard Duke of York This Title carried along with it a power different from that of a King onely in honour and the person so adorned may be said to sway the Scepter but not to wear the Crown And therefore in the minority of Henry the Sixth whenas the Government was ordered by the Parliament and to that end a Protector was made and he well guarded with a Privy Council and they provided with Instructions one of them was That in all matters not to be transacted ordinarily but by the King 's express consent the Privy Council should advise with the Protector But this is not so needful in regard that it concerneth the power of executing of Laws which by right of the liberty of the Subject is the known duty of the Scepter in whose hands soever it is holden And therefore I shall pass to the Legislative Power wherein it is evident that the Protector 's power was no whit inferiour to the King's power For First the Protector Ex Officio by advice of the Council did summon Parliaments by Writs even as the Kings themselves under their own Test and if they did not bear the Royal Assent yet did they direct the same and received Petitions in Parliament to them directed as to Kings and every way supplied the room of a King in order to the perfecting publishing and enforcing of Law to Execution Secondly the Parliaments holden by Protectors and Laws therein made are no whit inferiour to those by the King whether for Honour or Power And therefore if a Parliament be holden by the Lord Warden and sitting the Parliament the King in person shall arrive and be there present neither is the Parliament interrupted thereby nor the power thereof changed at all though the power and place of the Wardenship of the Kingdom doth utterly vanish by the personal access of the King because in all places where the King is subservient to the Kingdom or the Commonwealth the Lord Warden in his absence is conservient unto him being in his stead and not under him for the very place supposeth him as not because not present And this was by a Law declaratively published at such time as Henry the Fifth was Regent of France and therefore by common presumption was likely to have much occasion of residence in that Kingdom aâ—â— it holdeth in equal force with all other Laws of the highest size which is the rather to be noted because it is though under a Protector obligatory to the King and makes his personal presence no more considerable than the presence of his shadow For the King spent three whole years in the French Wars and during that time never saw England where nevertheless in that interim three Parliaments had been holden one by the Duke of Bedford and two by the Duke of Gloucester in the last of which this Law was made And in truth if we look upon this Title of the Kingdoms Guardianship in its bare Lineaments without lights and shadows it will appear little better than a Crown of Feathers worn onely for bravery and in nothing adding to the real ability of the governing part of this Nation Neither were the persons of these Magnificoes so well deserving nor did the Nation expect any such matter from them Edward the First was a wise King and yet in his absence chose Edward the Second to hold that place he being then not above fourteen years of age Afterwards Edward the Second's Queen and the Lords of her party were wise enough in their way and yet they chose Edward the Third to be their Custos Regni then not fourteen years old his Father in the mean time being neither absent from the Kingdom nor deposed but onely dismissed from acting in the administration of the Government Edward the Third follows the same example he first makes his Brother John of Eltham Custos Regni and this he did at two several times once when he was but Eleven years old afterwards when he was about Fourteen Then he made his Son the Black Prince upon several occasions three times Lord-Warden of the Kingdom once he being about Nine years old and again when he was Eleven years old and once when about Fourteen years old Lastly Edward the Third appointed his Son Lionel Duke of Clarence unto this place of Custos Regni when as he was scarce Eight years old all which will appear upon the comparing their Ages with the several Rolls of 25 E. 1. 3 5 12 14 26. 19 E. 3. If therefore the work of a Custos Regni be such as may be as well done by the Infants of Kings as by the wisest Counsellor or most valiant man it is in my opinion manifest that the place is of little other use to this Commonwealth than to serve as an attire to a comely person to make it seem more fair because it is in fashion nor doth it advance the value of a King one grain above what his Personal endowments do deserve Hitherto of the Title and Power the next consideration will be of the original Fountain from whence it is derived wherein the Precedents are clear and plain that ordinarily they are the next and immediate Off-spring of Kings if they be present within the four Seas to be by them enabled by Letters-Patents or Commission But whether present or absent the Parliament when it sate did ever peruse their Authority and if it saw need changed enlarged or abridged both it and them Thus was the Duke of Gloucester made Lord Warden in the time of Henry the Fifth he being then in France in the room of the Duke of Bedford The like also in Henry the Sixth's time when as the King was young for then the Parliament made the Duke of Bedford Lord Warden and added unto that Title the Title of Protector Afterward at the Duke's going over into France they committed that service to the Duke of Gloucester if I forget not the nature of the Roll during the Duke of Bedford's absence and with a Salvo of his right Not unlike hereunto was the course that was taken by the Parliament in these sullen later times of Henry the Sixth whereof more hereafter in the next Paragraph Lastly The limitation of this high power and Title is different according to the occasion for the Guardianship of the Kingdom by common intendment is to endure no longer than the King is absent from the Helm either by voluntary deserting the work or employment in Foreign parts though united they be under the Government of the same King together
from without and in all good ends from above And therefore as a Seal to all the rest it was wisely done by the Parliament to draw the mindes of the Privy Council together and to present them joyntly before God by an Oath obliging themselves to a solemn and constant observance of their instructions and to perievere therein For the unchangeable God can onely stamp a lasting Image upon the mind and bind the same that is so subject to change to an unchangeable Law whereby the people may be made as happy for continuance as for Righteousness and Peace The Privy Council thus setled dressed and girt becomes of high esteem both for Trust and honourable Employment in great matters The Mint is the very Liver of the Nation and was wont to be the chief care of the Parliament it self in all the dimensions thereof Now the Mint is two ways considered viz. either in the value of the Metal and Money or in the Coinage The first of these and things most immediately concurring therewith the Parliament still retains to its own immediate Survey such as are the inhibiting of exportation of Gold and Silver and of melting of Coyn into Plate or Bullion the regulating of the current of Foreign Coyn the reducing of money both Foreign and Domestick imbased by Counterfacture Clipping Washing c. the regulating of Allay of Gold and Silver the regulating Exchange and such like concerning all which the Reader may please to peruse the Statutes 2 H. 4. cap. 5 6 11 13. 4 H. 4. cap. 16. 3 H. 5. Stat 1. 4. cap. 6. 9. cap. 11. and 2 H. 6. cap. 6. The second Consideration touching the Mint concerned the election and government of the Officers touching the Mint and Exchange or the places where they shall be holden which with some other matters of inferiour nature were left to the Order of the Privy Council either with the King or alone in case of the King's absence or disability A second power given to the Privy Council was in point of Trade and Merchandize Formerly they had somewhat to do therein but still the Parliament set out their bounds In Richard the Second's time the people had liberty of Trade in some Commodities by way of Exportation but the Privy Council might restrain them upon inconvenience to the publick Now the same is confirmed and though it concerned Corn onely yet it was a Precedent that led the way to a much larger power in the Trade of the Staple Commodities of this Island to enlarge or straiten it as they though meet And so they became in a fair way to have a principal power over the Revenues and Riches of this Nation But this lasted not long for within ten years these Licenses of Transportation cost the Merchant so much as he could make little gains of all his care and pains and therefore a rule is set to a general allowance of all Transportation of Corn till the price of Wheat came to a Noble and Barley at Three shillings and no longer This being first made Temporary was afterwards made Perpetual and so gave a restraint unto the power of the King and Council But where no positive restraint was made by any Statute the King and Council seemed to have the sole power left unto them to open and shut the passes of Trade as they pleased For whereas the Commodity of Butter and Cheese was made Staple the King and Council had power to stop the sale thereof notwithstanding that the Law gave full liberty to the Subjects to bring all their Staple-Commodities to the Staple Nevertheless this power in the King is not primitive but derived from the Parliament for they had power over the Kings Licenses and Restraints in such cases as by the several Statutes do appear A third power given to the Privy Council was a power of Summons and Process against Delinquents in cases of Riots Extortions Oppressions and grievous Offences The Summons to be by Privy-Seal the Process Proclamations and for Non-appearance Forfeiture if the Delinquent be of the degree of a Lord if of inferiour rank then a Fine or Out-lawry At the first view the Statute hath an ill favoured Aspect as if it raised up a new Court of Judicature but the time is to be considered with the occasion for it was made for the securing of the peace in a turbulent time And besides the Law carrieth along with it two restrictions which puts the right of Cognizance in the Privy Council to the question First It saveth the Jurisdiction of other Courts and provideth further That no matter determinable by the Law of this Realm shall be by this Act determined in other form than after the course of the same Law in the Kings Court having determination of the same which implieth that some kinds of Riots and Extortions are of so high a nature that though determinable in the Kingsâ—Court yet are they to be determined before the Lords In the next place this Law provideth That such offences as are determinable by the Law of the Realm that is by Jury shall still be so tried Secondly If Conviction be upon Confession or by Certificate in case where by reason of parties and partakings Inquisition by Jury cannot be had there the Lords shall immediately determine the same Lastly If the Certificate be traversed then the same shall be tried in the King 's Bench. But there is another Restriction that undoeth all in effect in point of right because what this Law setleth therein it setleth but for seven years and leaveth the Privy Council to the limits of the Common Law for the future In the mean time the Privy Council may be thought terrible and very high both by this Law and the greatness of the Lords Kings Unkles and Kings Brothers are Subjects indeed but of so high a degree that if a little goodness of nature or publick spirit shine in them they soon become the Objects of admiration from the Vulgar and gain more from them by their vicinity than the King can do at a distance For the Commons of England by the fair demeanour of popular great men are soon won out of their very Cloaths and are never more in danger to part with their Liberties than when the Heaven is fair above their heads and the Nobility serve the King and flatter them Nevertheless as I said the season must also be considered of this power thus by this Law contracted for what the Lords gained not by their popularity the Queen did with her power who now mindful of her contemned beauty and opposition from the Duke of Gloucester against her Marriage removes him out of the way gets the reins of Government into her hand and like a Woman drives on in full career The Duke of York and other Lords not liking this gallop endeavour to stop her pace but are all over-born the Duke taken prisoner and doubtless had pledged the
otherwise than in especial Cases And then the conclusion will be that if the King may not give Liveries to the prejudice of the Peace then may he much less break the Peace at his pleasure or levie Men Arms and War when he shall think most meet Take then away from the King absolute power to compel men to take up Arms otherwise than in case of Foreign Invasion power to compel men to go out of their Counties to War power to charge men for maintenance of the Wars power to make them find Arms at his pleasure and lastly power to break the Peace or do ought that may tend thereto and certainly the power of the Militia that remaineth though never so surely setled in the Kings hand can never bite this Nation Nor can the noise of the Commission of Array entitle the King unto any such vast power as is pretended For though it be granted that the Commission of Array was amended by the Parliament in these times and secondly that being so amended it was to serve for a Precedent or Rule for the future yet will it not follow that Henry the Fourth had or any Successor of his hath any power of Array originally from themselves absolutely in themselves or determinatively to such ends as he or they shall think meet First As touching the amendment of the Commission it was done upon complaint made by the Commons as a grievance that such Commissions had issued forth as had been grievous hurtful and dangerous And the King agrees to the amendments upon advice had with the Lords and Judges And if it be true that the amendments were in the material clauses as it is granted then it seemeth that formerly a greater power was exercised than by Law ought to have been and then hath not the King an absolute power of Array for the just power of a King can be no grievance to the Subject Secondly If the Commission of Array thus mended was to serve as a rule of Array for the future then there is a rule beyond which Henry the Fourth and his Successors may not go and then it will also follow that the power of Array is not originally nor absolutely in the King but from and under the Rule and Law of the Parliament which rule was not made by the Kings own directions but as we are told beyond expectation alterations were made in material parts of the Commission and the powers in execution there whereof no complaint of grievance had been made The issue then is If the King had an Universal power in the Array the Parliament likewise had a general liberty without any restriction to correct that power Lastly Suppose that this power of the Parliament is executed and concluded by the Commission thus amended and that thereby the Kings power is established yet can it not be concluded that this power is originally or absolutely in the King. It is not absolutely in him because it is limited in these particulars First It is not continual because it is onely in case of eminent danger Secondly It is not general upon all occasions but onely in cases of a Foreign and sudden Invasion and attempts Thirdly The powers are not undefined but circumscribed 1. To Array such as are armed so as they cannot assess Arms upon such 2. To compel those of able Bodies and Estates to be armed and those of able Estates and not able Bodies to arm such as are of able Bodies and not Estates but this must be Juxta facultates and salvo Statu 3. Whereas they strain themselves to make the Statute of Henry the Fourth and the Commission of Array to consist with the Statutes of 13 E. 1. 1 E. 3. and 25 E. 3. thereby they affirm so many more restrictions unto this power of Array as those Statutes are remedial in particular cases yet do I not agree to their Glosses but leave them to the debate already published concerning the same Secondly As this power was not absolutely in the Kings so was it not originally from themselves because they had not the Legislative power concerning the same but the same was ever and yet is in the Parliament Hereof I shall note onely three particular instances First The Militia is a posture that extendeth as well to Sea as Land That which concerneth the Sea is the Law of Marque and Reprizal granted to such of the people of this Nation as are pillaged by Sea by such as have the King's Conduct or publick Truce And by this Law the party pillaged had power to recompence himself upon that man that had pillaged him or upon any other Subject of that Nation in case upon request made of the Magistrate in that Nation satisfaction be not given him for his wrong it was a Law made by the Parliament whereby the Chancellour had power to grant such Letters or Commission upon complaint to him made This was grounded upon the Statute of Magna Charta concerning Free Trade which had been prejudiced by the rigour of the Conservators of the Truce against the Kings Subjects although what was by them done was done in their own defence And by which means the Foreigners were become bold to transgress and the English fearful in their own Charge and many laid aside their Trade by Sea and thereby the strength of the Kingdom was much impaired Nor is the equity of this Law to be questioned for if the Magistrate upon complaint made grants not relief the offence becomes publick and the Nation chargeable in nature of an Accessory after the Fact and so the next man liable to give satisfaction and to seek for relief at home The King then hath a power to grant Letters of Marque by Sea or Land and this power is granted by Parliament and this power is a limited power onely in particular cases in regard that many times these prove in nature of the first light skirmishes of a general War. Two other instances yet remain concerning the Order and Government of the Souldiers in the Army the one concerning the Souldiers pay Viz. That Captains shall not abate the Souldiers Wages but for their Clothing under peril of Fine to the King. The other concerning the Souldiers service That they shall not depart from their Colours without leave before the time of their service be expired unless in case of sickness or other good cause testified and allowed by the Captain and such as shall do otherwise shall suffer as Felons Which Laws could not have holden in force had they not been made by Parliament in respect that the penalties concern the Estates and Lives of men which are not to be invaded but by the Law of the Land. So as both Captains and Souldiers as touching the Legislative power are not under the King in his personal capacity but under the Law of the Parliament Lastly As the rule of War was under the Legislative power of the Parliament so was the rule of
them to put up beyond his place and to bid adieu to the advice of all the rest but he gets the uppermost seat in the King's Head makes a Foot-stool of the King's Heart and then it is two to one that the people in such cases must bear the greater burthen For whoever first said it he said most true That Prerogative in the hand of a King is a Scepter of Gold but in the hand of a Subject it is a Rod of Iron The Reign of this King Henry the Eighth serves us with much experience of this kind for if the consideration of the Affairs of this Government should be divided the same would be double the one under the Regiment of Cardinal Wolsey the other of the King by Cromwel Cranmer Gardiner and others interchangeably I call that of Wolsey a Regiment for he was in the nature or condition of a Pro-Rex during the Kings Juvenility This fortune thus super-induced upon a Cardinal raised from mean degree to be Legate à Latere courted by Foreign Princes slattered by the Emperour with Titles of Son and Cousin made him lead a dance that the King however active he was is put to his career to hold him company which the King perceiving tripped up his heels and left the Archbishop the Chancellour the Cardinal the Legate and many more with him lying on the ground No pride like to that of the Clergie whose parts are more sublime and apprehensions clear If God addeth not a superiour Work to rule over all a little honour will blow up all with powder The King having thus matched the Cardinal forgot his former natural pace and once in a heat could cool no more till death cooled him He knew by experience that the Cardinal could over-awe the people why should not the King do as much if the Lords stooped to the Cardinal why not much rather to the King The Cardinal pulled down reared up turned square to round why should he be less than his Subjects Such conceits as these soon wound up the Kings mind to that height that it is death to him to stoop one inch lower to more moderate advice though he loved their persons never so well but all must be content with the weight of his arm though it were no small one and yet in point of Religion affairs tended to a kind of Reformation all this while CHAP. XXVII Of the State of the Crown THat the Crown of England now abounded more in Flowers than Crosses the Face of Story doth hold forth to ordinary Observation and yet few are satisfied either in the true nature of the particular advantages or in the manner how they were obtained or in the continuance I must therefore make a little stop upon them because in the true discerning of them the discovery of the nature of the Government in latter days doth much depend Hitherto the Crown came short of absolute power over the people upon two grounds in observation one relating to the Clergie the other to the Laity The Church-men were heretofore under a Foreign power and a Foreign Law against which Kings durst not deeply engage either not being assured of their own Title or employed in pursuit of other game or being of a weak Spirit were scared with the Thunder-bolt of the Pope's Curse But the Laity were under another Law and such an one as by clear and unquestionable Custom had established bounds between the way of Kings and the Rights of the People Neither did Kings directly invade those Borders either led thereto by a kind of Conscience in such of them as were morally enclined or in others by a kind of fear of raising up Earthquakes from beneath which commonly do overthrow high Towers sooner than Winds from above But now such interests are laid aside fast asleep by two Kings Whereof one cared not much for Fear and neither of them for Conscience For Henry the Seventh having leisure to study the Nature and contemplate the Fashion of the English Crown dislikes the Model in some particulars It was not rich enough nor well poised to his mind which ever was not to be poor but towards his latter time to be exceeding rich as supposing that to be the onely way to be more desirable to Friends formidable to Enemies and absolute over his People And this opinion of his missed in the main end though it attained his immediate desire For by mistaking the right way it made a rich King but not a rich Crown He delighted more in the riches of his People than in a rich People And this bred no good blood because the People thought that the Law was not on his side in that matter They suffered him to visit their Purses but are loth it should prove customary lest they should lose their Common Right They therefore chose rather to give him power by Act of Parliament to revoke Letters-Patents and Grants and make resumptions of Offices Fees Annuities and the like that he might rather repossess his own than possess theirs Many Penal Laws likewise of a limited and Temporary regard are made and as Cheese after a full Dinner they close up all with Subsidies For it was evident to all men that the Royal mind of the King served no further than to take what was given provided that the People would give what else would be taken By this means Henry the Seventh left rich Coffers to descend to Henry the Eighth but the Crown was still the same in price In this Act of the Play the People carry away the plaudite The second Act was the point of Allegiance wherein both parts carry themselves so cunningly as it is hard to adjudge the Garland yet it may be thought the King observed it rather because he offered all the play whilst the People did onely lie at their close guard The whole project consisted in this to gain a more absolute Allegiance from the English to their King. And because this is exemplified partly in War and partly in Peace that part which concerneth War will more properly fall under the consideration of the Militia and therefore I shall refer the same to that head in the 32 Chapter ensuing and will come to the second consideration of Allegiance in relation to Peace and therein touch upon the Kings power in making of Laws and of Judicature according to those Laws As touching the making of Laws the ingenuity of Henry the Seventh could not suffer him to make any claim thereto in any positive way yet his actions declare that his heart was that way For being beset with troubles he could often fancy dangers and arm himself then call a Parliament who were wise enough to grant as readily as he asked rather than to be compelled thereto So he had Laws made according to his own Will though he made them not The matter of Judicature comes next and therein he made his Judges appear and not himself though they did not onely represent his person but his mind
be said that the whole lump thereof did belong to the King because much thereof was not so ancient but De novo raised by the Pope's extortion and therefore the true and real profits are by particular Acts of Parliaments ensuing in special words devolved upon him The nature of this power is laid down in this Statute under a threefold expression First It is a visitatory or a reforming power which is executed by enquiry of Offences against Laws established and by executing such Laws Secondly It is an ordinary Jurisdiction for it is such as by any Spiritual Authority may be acted against Irregularities And thus the Title of Supream Ordinary is confirmed Thirdly It is such a power as must be regulated by Law and in such manner as by any Spiritual Authority may lawfully be reformed It is not therefore any absolute Arbitrary Power for that belongs onely to the Supream Head in Heaven Nor is it any Legislative Power for so the Law should be the birth of this power and his power could not then be regulated by the Law nor could every Ordinary execute such a power nor did Henry the Eighth ever make claim to any such power though he loved to be much trusted Lastly This Power was such a Power as was gained formerly from the King by Forein Usurpation which must be intended De rebus licitis and once in possession of the Crown or in right thereto belonging according to the Law. For the King hath no power thereby to confer Church-livings by Provisorship or to carry the Keys and turn the infallible Chair into an infallible Throne In brief this power was such as the King hath in the Commonwealth Neither Legislative nor Absolute in the executive but in order to the Unity and Peace of the Kingdom This was the Right of the Crown which was ever claimed but not enjoyed further than the English Scepter was able to match the Romish Keys And now the same being restored by Act of Parliament is also confirmed by an Oath enjoyned to be taken by the people binding them to acknowledge the King under God supream head on earth of the Church of England Ireland and the Kings Dominions in opposition to all forein Jurisdiction And lastly by a Law which bound all the people to maintain the Kings Title of Defender of the Faith and of the Church of England and Ireland in Earth the supream Head under the peril of Treason in every one that shall attempt to deprive the Crown of that Title We must descend to particulars for by this it will appear that these general Laws concerning the Kings refined Title contained little more than matters of Notion otherwise than a general bar to the Popes future interests And therefore the Wisdom of the State as if nothing had been already done did by degrees parcel out by several Acts of Parliament the particular interests of the Popes usurped Authority in such manner as to them seemed best And first concerning the Legislative Power in Church-Government It cannot be denied but the Pope De facto had the power of a Negative vote in all Councils and unto that had also a binding power in making Laws Decrees and Decretals out of his own breast but this was gotten by plunder he never had any right to headship of the Church nor to any such Power in right of such preferment nor was this given to the King as Head of the Church but with such limitation and qualifications that it is evident it never was in the Crown or rightly belonging thereto First Nigh three years after this Recognition by the Clergy in their Convocation it is urged upon them and they pass their promise In verbo Sacerdotii And lastly It is confirmed by Act of Parliament That they shall never make publish or execute any new Canon or Constitution Provincial or other unless the Kings Assent and License be first had thereto and the offences against this Law made punishable by Fine and Imprisonment So as the Clergy are now holden under a double Bond one the honour of their Priesthood which binds their Wills and Consciences the other the Act of Parliament which binds their powers so as they now neither will nor can start Nevertheless there is nothing in this Law nor in the future practice of this King that doth either give or assert any power to the King and Convocation to bind or conclude the Clergy or the People without an Act of Parliament concurring and inforcing the same And yet what is already done is more than any of the Kings Predecessors ever had in their possession A second Prerogative was a definite power in point of Doctrine and Worship For it is enacted that all Determinations Declarations Decrees Definitions Resolutions and Ordinations according to Gods Word and Christs Gospel by the Kings Advice and Confirmation by Letters-patent under the Great Seal at any time hereafter made and published by the Archbishops Bishops and Doctors now appointed by the King or the whole Clergie of England in matters of the Christian Faith and lawful Rites and Ceremonies of the Same shall be by the People fully believed and obeyed under penalties therein comprised Provided that nothing be done contrary to the Laws and Statutes of this Realm A Law of a new birth and not an old Law newly revived or restored This the present occasion and the natural constitution of the Law do fully manifest The occasion was the present perplexity of the people for instead of the Statute Ex officio which was now taken away the Six Articles commonly called the Six-Stringed Whip were gotten into power by a more legal and effectual Original The Parliament had heard the cries of the People concerning this and having two things to eye at once one to provide for the Peoples Liberty and further security against Foreign pretensions the other which was more difficult for the liberties of the Consciences of multitudes of men of several Opinions which could not agree in one judgement and by discord might make way for the Romish party to recover its first ground And finding it impossible for them to hunt both games at once partly because themselves were divided in opinion and the bone once cast amongst them might put their own co-existence to the question and partly because the work would be long require much debate and retard all other affairs of the Commonwealth which were now both many and weighty In this troubled wave they therefore wisely determine to hold on their course in that work which was most properly theirs and lay before them And as touching this matter concerning Doctrine they agreed in that wherein they could agree viz. To refer the matter to the King and persons of skill in that mystery of Religion to settle the same for the present till the Parliament had better leisure the people more light and the minds of the people more perswaded of the way Thus the Estates and Consciences of
which followed and made way for the King without shame to ask what no King before him suffered ever to enter into conceit I mean a Legislative power to this effect That Proclamations made by the greater part of the King for the time being and his Council whose names hereafter follow with such penalties as by them shall be thought meet shall be of equal force by an Act of Parliament provided it shall not extend to the forfeiture of Estates or Priviledges nor to loss of Life but in cases particularly mentioned in the Law Provided no Proclamation shall cross any Statute or lawful or laudable Custom of this Realm All which at length comes to be demanded by a formal Bill with as ill-favoured a Preface as the matter it self which was much worse e're it was well liked in the House of Commons and when all was done proved a Bare still Whatever it was it passed in manner abovesaid neither much to the desire of the Commons that so much was given nor to the good liking of the King that there was no more For instead of a Legislative power which he grasped at for himself he received it in common with his Council and so becomes engaged neither to alter nor destroy that Brotherhood if he intended to reap any fruit of this Law leaving the point in doubt whether his Gain or Loss was the greater For this Law thus made for this King these Counsellors and these times and occasions can be no Precedent to the future unless to inform Kings that the Parliament hath a power to give more Authority and Prerogative to Kings than they or the Crown have by common Right and to give it with such limitations and qualifications as seemeth good to them And secondly That even Henry the Eighth acknowledged that the Legislative power was not in the Crown nor was the Crown capable thereof otherwise than it was conferred by the Parliament Onely Steven Gardiner might glory in this Atchievement having for the present obtained much of his ends by perswading the King that Forein Princes estranged from him not so much for his departure from the Pope as for some apprehensions they had of his departure from that way of Religion and Worship which they apprehend every Christian ought to maintain And therefore if he meaned to gain better correspondency amongst these Princes he must engage more resolvedly to the Fundamentals of the Worship though he shook off some slighter Ceremonies with the Romish Supremacy for he knew that they were willing enough with the latter though the other could not go down with them Thus did Forein Correspondency float above whenas the Church as then it stood was underneath and gave the tincture to every Wave And it was holden more safe by the Romish party to trust the King thus attempered with the Legislative power in the Church-matters than the rough Parliament whose course steered quite wide from the Roman shore as if they never meant to look that way any more though Cranmer and the chief Officers of State and of the Houshold were by the Law Judges of the matter in fact as well as the King yet in the conclusion the King onely was of the Quorum All this yet further appears in the penalty for by a Proviso it is moderated as to all forfeitures of Life Limb or Estate and in the conclusion extended onely to Fine and Imprisonment unless in some cases mentioned and excepting offences against Proclamations made by the King or his Successors concerning Crimes of Heresie For it is the first Clause of any positive Law that ever intimated any power in the King of such Cognizance and punishment of Heresie Too weak a principle it is to settle a Prerogative in the King and his Successors as Supream Head of the Church thus by a side-wind to carry the Keys of Life and Death at their Girdle and yet a better ground cannot I find for the Martyrdom of divers brave Christians in those times than this touch of a Law glancing by All which passing Sub silentio and the Parliament taking no notice thereof made way for the Statute 38 H. 8. c. 26. formerly mentioned to come more boldly upon the Stage This was one wound to the Legislative power of the Parliament thus to divide the same Another ensues that in its consequences was no less fatal to that power which remained and it was wrought by some Engine that well saw that the Disease then so called grew to be epidemical amongst the more considerable party in the Kingdom that the Lady Jane Seymor now Queen was no friend to the Romanists that she was now with Child which if a Son as it proved to be was like to be Successor in the Throne and be of his Mothers Religion and so undo all as in the issue all came so to pass To prevent this nevertheless they fancy a new conceit that Laws made by English Kings in their minority are less considerately done than being made in riper years And so by that one opinion countenanced a worse which was that the Legislative Power depended more upon the judgement of the King than the debates and results of the Parliament a notion that would down exceeding well with Kings especially with such an all-sufficient Prince as Henry the Eighth conceived himself to be Upon this ground a Law is made to enable such of the Kings Successors by him appointed as shall be under the age of Twenty and four years when Laws by him are made to adnul the same by Letters-patents after such Prince shall attain the said age of Twenty four years Thus the Arms of the Parliament are bound from setling any Reformation let them intend it never so much a Muse is left open for the Romish Religion still to get in when the Season proves more fair The Parliament was now in its minority and gives occasion to the Reader to bewail the infirmities of the excellencie of England A fourth advance of Prerogative concerned the Executive Power in Government of the Church This had formerly much rested in the Prelacy and that upon the chief Praelatissimo at Rome now there is found in England a greater Prelate than he the Pope was already beheaded and his head set upon the Kings shoulders To him it is given to nominate all Bishops and Archbishops within his Dominions by Conge d'eslire and that the party once elected shall swear Fealty and then shall be consecrated by Commission and invested but if upon the Conge d'eslire no Election be certified within Twelve days the King shall by Commission cause his own Clerk to be consecrated and Invested The occasion that first brought in this President was the access of Cranmer to the See at Canterbury for though the Headship had been already by the space of Two years translated from Rome to England yet the course of Episcopizing continued the same as formerly it had been I mean as touching the point of Election For though
in their Original Bishops were meerly Donatives from the Crown being invested by delivery of the Ring and Pastoral Staff and until King John's time the Canonical way of Election was disallowed yet King John by his Charter De communi consensu Baronum granted that they should be eligible which also was confirmed by divers publick Acts of Parliament in after-times and now by this Law last recited and with this way the King was contented for the space of Six years for the Reformation intended by the King was not done at once but by degrees and therefore though this course of Conge d'eslire was brought into use yet the Parliament being of Six years continuance a necessary thing in times of so great change of Policy began this course of Election by giving the King power to nominate and allowing of the Pope power to grant to such his Bulls or Pall at his own will otherwise they should be Consecrated by Commission without his consent And thus at the first the Pope's Concurrence was not excluded though his Negative was In this posture of affairs comes Cranmer to be consecrated Archbishop And being nominated thereunto by the King the wily Pope knowing the Kings aim meaned not to withstand lest he should lose all but granted the Pall as readily as it was desired so as Cranmer is thus far Archbishop of Canterbury without all exception yet he must go one step farther and take the old Oath to the Pope which the King allowed him to do Pro more and which he did renitente Conscientia say some and with a Salvo say others and all affirm it was done Perfunctorie like some worn Ceremonie or civil Complement Nevertheless it was not so soon turned over the Archbishop loved not the Office the King loved not Partnership in this matter and it was evident to all that no man could serve these two Masters any longer an agreement is soon concluded in Parliament to exclude the Popes Power quite out of this game and all is left to be done by the King and his Commissioners by the Law formerly propounded In all this the Pope is loser the English Clergie the savers for the Pall cost Cranmer Nine hundred Marks And the Crown is the great gainer for hereby the King got the men sure to him not onely by their own acknowledgement and submission but also by a Statute-Law And lastly by Oath which to make sure was treble twined once upon their first submission in the Kings Twentie second year when they had been under Praemuniri Secondly Soon after the decease of Queen Katherine Dowager in the Twentie sixth year which Oath was more compleat than the former containing First A Renunciation of all Fealty to the Pope or any Foreign Power Secondly An Obligation to adhere to the Cause of the King and his Successors Thirdly A Disavowing of the Pope otherwise than as another Bishop or fellow hrother Fourthly An Engagement to observe all Laws already established against the Pope's power Fifthly A Disavowing of all appeals to Rome Sixthly An Engagement to inform the King of all Messages or Bulls sent from Rome into England Seventhly An Engagement not to send or be privy to the sending of any Message to Rome for any such purpose The third Oath was that of Fealty which anciently was due to Kings and now revived to be taken by all Bishops upon their admission And thus the English Prelacie having been sworn Slaves to the Papacie ever since Becket's time are now preferred to a more Royal Service and the pursuit by Kings after their right being laid aside by the space of 300 Years is now renewed and the prey seized upon by the Lion who found it upon a better Title and in better condition by much than when at the first it was lost For it was upon some semblance of Reason that the Archbishop and Clergie gained it but being afterwards dispossessed thereof by the Pope and yet without any other shadow of Title but the power of his own gripe for the present he is the Occupant and becomes Proprietor by prescription till now the Felon being apprehended the stolen Goods are the Kings in Right and by Remitter whereunto the Parliament by the Statute adding their Conveyance establishes the same by an unquestionable Title Nevertheless their service is no less servile to this Crown than it had been to the Romish Miter formerly they asserted the Pope's Infallibility now the King's Supremacy They are now called by the King made by the King sent by the King maintained by the King whatsoever they are whatsoever they have all is the King 's He makes Bishops he makes new Bishopricks and divides or compounds the old as he pleaseth by a power given to Henry the Eighth by Parliament Which Oath was never in any Prince before or after him that I can find so as the Crown had it not but the man and it died with him The King thus loaden with Power and Honour above all his Predecessors if without proportionable Maintenance to support the one and act the other must needs consume himself as one in a Tympanie by growing great For though he was left rich by his Father's Treasure yet his Zeal to Rome in its now poor captivated condition under the Imperial power stirring up in him great undertakings abroad besides his own Pleasures and Gallantry at home exhausted that and doubtless had starved these his grand designs had he not found the hidden Treasures of the Cells and Monasteries the sight whereof so rouzed up his Spirits that he adventured upon the purchase though he knew difficulties enough to have stopped his undertakings if he had not resolved both against fear and flattery It was not done without deliberation for the thing was felt as a grievance before the Norman times and complained of in Parliament above a hundred and forty years ago and divers times since but Kings either understood not or believed not or durst not give remedy or had much else to do But now the King is beyond all his Predecessors he knows much dares do more and is at leisure He will go as far as Emperour or French King and beyond them also but would not try masteries with either for they were all Cocks of the game The first occasion that discovered the work feasible was a president made by Cardinal Wolsey whose power was enough to dissolve some petty Cells and no opposition made The King might well expect the work would be as lawful for him and not much more difficult or if any Storms ensued the people that had so long complained and felt the burthen of these excrescences of the Clergie would soon find out a way to calm them the King need do no more than speak and the people will do This opened the door but that which brought the King in was the hold the Pope had in this Kingdom by these Cloistered people who were persons dead in Law and dead to all Law but the
Canon And upon this account the King's Ancestors had possessed themselves of the Cells in the hands of Foreigners in times of War and now a deadly feud is stirred between Henry the Eighth and the Pope their holy Father The Children cannot expect to thrive whenas their Father is cast out of doors and so all must out together Yet the manner is observable they must not be cast out but must go out the inferiour and greater part are dead persons have learnt obedience they can neither bark nor bite and therefore they may sleep and what is done must be done with such of them as are alive Upon a Visitation these are brought under the Test and found in such a condition that they had better give way and voluntarily surrender than abide the Trial. Once more the smallest are picked out whilst the greater stand by and wonder but either do not foresee or in despair of altering the King's Resolution do nothing but expect the sad hour which within Four years comes upon them all every one of them chusing rather to surrender and expect the King's Mercie for maintenance during life than adventure against the dint of his Justice and Power and so lose all for they were ill befriended amongst all sorts of the people Thus came the personal Estate and Stock of these Houses to the Kings immediate Treasury and their yearly maintenance to the disposing of the Crown Which might have advanced the same well-nigh to the value of Two hundred thousand pounds yearly but that the King intended to let the people enjoy the fat as well as he that they might be mutually engaged to maintain hold of the Prey that they had joyntly gotten Out of all which nevertheless the Crown had a small rent or service annual for the acknowledgement of their Tenure besides the First-fruits of Spiritual Dignities and the Tenths both which he formerly had already obtained The first whereof was but casual and occasional in the payment arising onely at the entrance of the party into his Promotion and which was gained by the Pope from Edward the First although at his Parliament at Carlisle in his Thirty fourth year he withstood the same This was above Three hundred and twenty thousand pounds in the whole sum The latter was Annual and amounted to above Thirty thousand pounds And thus the Popes Usurpations are turned into duties to the Crown but were much lessened in regard that these Cells and Monasteries were accounted amongst these Ecclesiastical Promotions which by their dissolution fell off in that account Nevertheless the advancement that might by a parcimonious King have been made of the fall of this Cedar was such that the Crown might have been rendred of it self absolute and all-sufficient But Henry the Eighth was not thus minded the Affairs of Europe were gotten into a high pitch Princes generally over-active Henry the Eighth inferiour to none of them what comes in goes out and he is a rare example of that divine Proverb As Riches increase so do the Mouths of them that eat he still stands in need of his peoples Love Purses and Power So Divine Providence orders the matter that Kings can never attain further end of their undertakings without the aid of the people than their labour lest they should be too big to be Christians and the people too mean. CHAP. XXVIII Of the condition of the Parliament in these Times THey are no good Expositors that consider their Text by piece-meal onely nor they good Historians that will tell you the bare Journal of Action without the Series of Occasion Such as these will speak much of the actions of Henry the Eighth what advancement he brought to the Crown and make a compleat Monarchy wherein the King may act what he resolveth resolve what he pleaseth and please what he lusteth whenas in truth the thing is nothing so For though many of his actions in relation to particular persons cannot be justified by any Law so in truth did they never proceed from any Law but meerly from the passion or will of the man and connivance of the people who could bear that from this King that their Ancestors would never endure under any other And yet in all the grand concernments of the Nation the Law kept still upon the top nor did the King enter into any competition therewith or lead the way thereunto other than by especial allowance of the Parliament For first It is evident though the King was Supream Head of the Church yet this was not like the head of a mad man led by phancy without the Law of reason or reason of Law But it was defined circumscribed and formed thereby with Qualifications and Limitations as hath been already expressed in the former Chapter Seondly It is no less clear that the Legislative Power rested in the Parliament and not in the King when he was in his greatest height For as Head of the Church he had no such power in Church-matters or if he had such a right it was taken away by the Acts of Parliament Nay when the Pope was yet possessed of this Headship the Parliament did determine the manner of the Worship of God in some particular cases as in the keeping of the Lord's Day the Statute of Edward the Fourth to the Honour of God did provide for the observing thereof and to the Honour of God it was taken away by a Statute in the time of Henry the Eighth if the words of either Statute may be believed But more especially after that this Headship was translated to the King the Parliament provided that the Canons should be examined and allowed by the King and Thirty two persons one part of the Clergie the other of the Temporalty chosen by the King. And those that shall be assented unto and confirmed by the King and the Thirty two persons or the Major-part of them shall be obeyed and put in execution the residue shall be void Provided nothing shall be done against the Kings Prerogative or the Laws and Customs of this Realm So as the King had much but he had not all and what he had the Parliament gave him by a Law that was executory all the days of Henry Eighth by divers continuances and was not any power devolved to the Crown under the Title of Supremacie nor by vertue of the Act of Parliament concerning it but by the continual influence from the Parliament upon the Crown as well before that Act as after derived upon it The King hath then this right of Law making but it is with the Thirty two he hath it but not his Successors And lastly he hath it but by a derivative power from the Parliament and a Committee for that service And in a word he hath the Power but the Parliament hath still the Law of that Power The second Priviledge of the Parliament hitherto concerneth onely Laws concerning Church-Government In the next place cometh to be considered
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 for the Truth be the company of professing Believers then ought it not to seem strange if these in their representative do intermiddle 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 Conscientious 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 publick 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 Laws of the Kingdom Secondly The Parliament hath not onely a right to grant and limit this power unto others but also to execute the same immediately by its 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 Councils the Parliament intercepted that to their own Jurisdiction in flat opposition to the infallibility of the Roman Chair so far as to disherize some Opinions which by the sentence of that infallible mouth had been marked with that black brand of Heresie And what they did before this Act of Delegation to the King and other Committees for this work they did afterwards as not concluding their own power by any thing that they had so done 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 fix 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 disclaim both the Original and absolute Right and cannot claim the same by right of Headship or Supremacie This was one great Windfal which the Parliament had from the ruines of Rome not by way of Usurpation but re-seizure For their possession was ancient and though they had been dispossest yet that possession was ever under a continual claim and so the right was saved A second that was no less fatal unto that See was the loss of all power over Ecclesiastical persons in this Kingdom For whereas the Popedom had doubly rooted it self in this Nation one way by the Regulars the other by the Seculars the Parliament by the dissolutions of Monasteries c. consumed one to ashes and by breaking the fealty between the other and the Pope parted the other root and the stock asunder and thence ensued the down fall of this tall Cedar in this Nation and Prelacie now left alone must fawn elsewhere or lie along a posture wherein that rank of men can never thrive Up again they peep and espying a King that loved to towre aloft they suddenly catch hold promising their help to maintain his flight and so are carried up and like a Cloud born between Heaven and Earth making the Commons beholding to them for the Kings Sunshine and the King for their interests in the people and for his superlative advancement above them all Now though the English Prelates may think their Orb 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 Conge d'eslire 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 judgement when they are thereto called Thirdly The Parliament had the disposing and ordering of all the Church-Revenues as the Laws concerning Monasteries Sanctuaries Mortuaries First fruits Tenths Annates and suchlike sufficiently manifesteth Fourthly The Parliament had the power of granting Licenses Dispensations and Faculties setting a Rule thereunto as in case of Non-residency and delegating the power to Committees whereof see more in the Chapter following concerning ordinary Jurisdiction Fifthly The Parliament reserved the Cognizance of all Appeals for final 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 Archbishop 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 Crown therein but made the Archbishop 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 Katherine and some other matters the same hand that gave that power took it away and gave it not to the King or Crown but to Delegates from the Parliament from time to time to be nominated by the King and may as well alter the same and settle the power elsewhere when they please And therefore after the Appeal of the Dowager thus determined and the Sentence definitive thus setled upon Delegates the Parliament nevertheless 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 Supreme Head of causes Ecclesiastical yet had he not the definitive sentence in Appeal 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 designs of some great men that sought their own ends and partly from the endeavours of these Kings that sought their own height and greatness above their peoples good hath been already related and the utmost issue had been truly stated viz. That the gains have come to the Kings persons and not to their Crown and that therein they have put their Seal 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 main interests that most nighly concerned him yet the chief gain came to the Parliament The
once concerned his own Wife which however so nighly related to him as next to his own person and under the determination of the immediate Law of God yet was so cast upon their Sentence as if he durst adventure his own Soul at their direction The other concerned the Crown to which he ought relation above his own person which he laid down at the feet of the Parliament seeking to their power to fulfil his own pleasure The Ball is tossed up and down sometimes amongst the issue between the King and the Lady Anne Bullen another while amongst the issue between him and the Lady Jane Seymor or such as the King should nominate by Letters-Patents or last Will. After that to the Ladies Mary and Elizabeth to perform conditions declared by the King's Letters-Patents or his last Will. The King then is trusted but he hath his trust from the Parliament the Crown is intail'd as it hath been ever since Richard the Second's time but it is done by Parliament The reversion is in the Clouds but the right of Inheritance much more The Conclusion of all is this The Parliament by serving these Kings turns turned their turns into their own CHAP. XXIX Of the power of the Clergie in their Convocation THe Convocation of the Clergie like some froward Children loves not new dressing though it be a gainer thereby Before the Pope and Henry the Eighth were faln asunder their masters their minds thâ—â—r work all was double their Councils uncertain their Conclusions â—ow 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 bodie that breathed in them rather than that wherein themselves breathed and so like hunted Squirrels from bough to bough were ever well tired yet hardly escaped with their own 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 sometimes from the King sometimes from the Pope sometimes from the Metropolitan and always over dripped by a Forein 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 down choaked in their Consciences and Desires Now they are at no man's call but the King 's and that by Writ Provincial and Legate à Latere must meddle no more Formerly it is taken for granted that Kings have no Vote in matters Ecclesiastical 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 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 pass 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 pass the same as an Act of Parliament of which I conceive the Opinion of the Honourable Judge is to be understood the other as a Member of the Convocation to pass 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 Cromwol By the first the whole Kingdom was engaged By the Second the Convocation onely and that as a Court onely and not the representative of the Clergie because as they had a Spiritual 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 original Right of the Law-making suffered a change Formerly they depended wholly upon a divine Right which some setled originally in the Pope others in the Prelacie and some in the Clergie 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 Ecclesiastical matters yet that notion was ambiguous and they could many times explicate it more largely than naturally It is not to be denied but the matters concerning the Service and Worship of God are of Spiritual 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 Ecclesiastical Jurisdiction and to leave the Civil power to rule onely dead Carcasses Much less can any other thing which by prescription hath not been of Ecclesiastical Cognizance be called Spiritual But to come to particulars because generals edifie not The Convocation claimed formerly power as originally from its 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 Clergie and concerning Matrimonial and Testamentarie 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 Cognizance First As touching the charging of the Estates of the Clergie If it was for the King's Service they were ever summoned by the King 's Writ 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 Waltham's Case appears For without their concurrence they had no power to charge any Free-man nor to levie 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 Laws upon the Laity in points of Worship and Doctrine it is 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-Laws of this Kingdom as may appear in the particular Laws concerning the Lords day and proceedings against Herâ—ticks setling the Popedom in the time of the great Schism 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
shipped over the Popes power to the Chair of Canterbury and had made a Pope instead of an Archbishop but that the man was not made for that purpose What the Ordinary Jurisdiction got or lost we come in the next place to observe First they had still their Courts and Judicatory power but upon what right may be doubted Their first foundation was laid by the Civil 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 Keys by a Divine Right and so continued until these times of Henry the Eighth wherein they have a Retrospect to the Rock from whence they were first hewn 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 work 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 Law of these Courts which was left as doubtful 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 mean time to the Judges of the Common Law to determine the same Lawful or Unlawful as occasion should require Nevertheless the Courts still hold on their course according to their old Laws and Customs for their form 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 Cognizance the Law setled some and unsetled others First As touching Heresie the Church-men formerly thought scorn the Lay-Magistrate should intermeddle but not being able to stop the growth thereof by their Church-Censures prayed aid of the Civil Magistracy so by degrees arose the penalties of Imprisonment and Burning which brought the whole matter into Cognizance before the Civil Magistrate because no Free man might be proceeded against for loss of Life or Liberty but by the Laws of the Nation and for this cause the Civil Magistrate granted the Writ of Habeas Corpus and relieved many times the party imprisoned wrongfully or granted Prohibition as they saw cause And therefore it cannot be said rightly that the sole or supream Cognizance of this crime of Heresie belonged to the Clergie before these times Nor did their proceeding 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 uniform as to permit the Title of a Custom to warrant the same Conviction being sometimes by Jury sometimes according to the Canon sometimes before the Ordinary sometimes before the Convocation sometimes before the King sometimes before special Delegates as the Histories of the 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 setled more to the prejudice of Reformation than all the endeavours foregoing like to the darkness 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 effectual otherways than 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 express 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 judgement of the Romish Church is called into question in one of their Fundamentals and the Clergie left in a Muse concerning the rule upon which they were to proceed against this crime The Parliament within six years after undertakes though somewhat unhappily to determine and define certain points of Controversie which had some relation to the Worship of God and the publick Peace and declared the contrary to these determinations to be Heresie and the punishment to be Death and Forfeiture and the Trial to be before Commissioners by Jury or Testimony of two Witnesses or by examination in the Ecclesiastical Court or inquisition in the Leet 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 Primer wherein they imployed their study as making most for their design and laid aside thoughts of all other Heresies as dry notions or old fashions laid aside and not worthy the setting forth to the common sale Secondly The Lesson concerning Marriage was no less difficult for the Clergie to take out They were put by their former Authority derived from abroad and their ancient rule of the canon-Canon-Law With the Kings leave they do what they do and where they doubt they take his Commission So did the Archbishop of Durham in the Case between 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 Civil Law and some forbidden Marriage as all Priests 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 unlawful all other further off are made lawful In all which regards the Cognizance of Matrimonial Causes is theirs onely by leave Thirdly Residency and Non-residency was a Theme formerly learned from the Canon-Law in which as also in the thing it self the Clergie were the onely skilful men The rule of the Canon-law was strict enough considering the times but it was not â—â—eel to the back The Parliament now undertakes the Cause and though it gave in some respects more liberty than the Canon yet stood it better to its tackling and kept a stricter hand upon the reins than was formerly used and by giving a general rule for Dispensation took away all arbitrary Dispensations and Licenses which were formerly granted beyond all rule but that of Silver or Gold
and instruct them that knew too little and so in time he should pass for currant amongst them all It was no hard matter for the King to accomplish this the greater part of the Kindom being pre-ingaged unto his Title and of them many depending upon him for livelihood if he failed they must look to lose all But the present occasion urged more importantly the Title to the Crown was already put to the question by the pretentions of one that named himself Duke of York And it is now high time for the Law to declare it self to direct the people in such a Case What shall the people do where Might overcomes Right or if days come like those of Henry the Sixth wherein the Subjects should be between Two Mill-stones of one King in Title and another King in possession for whom must they take up Arms If for Edward the Fourth then are they Traitors to Henry the Sixth If for Henry the Sixth then are they Traitors to Edward the Fourth And so now if for Henry the Seventh then they may be Traitors to the Duke of York If for the Duke of York then are they Traitors to Henry the Seventh For though the Duke of York was said to be but a contrivance of the House of Burgundy yet a great part both of the great men and others were of another opinion and the King himself was not very certain of his condition for the space of six years thereby This puts the Title of Allegiance and that power of the Militia to the touch at length both King and Parliament come to one conclusion consisting of three particulars First That the King for the time being whether by right or wrong ought to have the Subjects Allegiance like to that of the wise Counsellor of that brave King of Israel Whom the Lord and his People and all the men of Israel chuse his will I be And this is not onely declared by the express words in the Preface of the Law but also by the Kings own practice For he discharged such as aided him against Richard the Third then King by pardon by Parliament but such as aided him being King by declaration of the Law. Secondly That this Allegiance draweth therewith ingagement for the defence of that King and Kingdom Thirdly That the discharge of this Service whereto the Subjects are bound by Allegiance ought not to be imputed unto them as Treason Nor shall any person be impeached or attained therefore The first and the last of these need no dispute The Second is more worthy of consideration in the particular words set down in the Statute viz. That the Subjects are to serve their Prince in his Wars for the defence of him and the Land against every Rebellion Power and Might reared against him and with him to enter and abide in Service in Battle Wherein two things are to be considered the Service and the time or occasion The Service is to serve the Prince in his Wars and with him to enter and abide in service in Battel which is the less to be stood upon because there is a condition annexed if the case so require which must be determined by some Authority not particularly mentioned Albeit that whatsoever is therein set down is onely by way of supposal in a Preface annexed to the Law by the King and permitted by the Commons that were as willing the same should be allowed as the King himself both of them being weary of Wars and willing to admit this Conclusion for the better security of them both in these doubtful times But to lay all these aside for the Case is not stated till the Cause be considered all this must be onely when and where the King's Person and Kingdom is endangered by Rebellion Power or Might reared against him So as the King's Person must be present in the War for the defence of the Kingdom or no man is bound by his Allegiance to hazard his own life And then this point of Allegiance consisteth onely in defending the King in the defence of the Land or more particularly in defending the King's Person he being then in the defence of the Land and defending him in order to the defence of the Land. So as no man can rationally infer from hence that the King hath an universal power of Array when he pleases because the King when he pleases may not levy War nor make other War than a defensive War when the Land is endangered or when need shall require as another Statute hath it But who shall determine this need or danger neither in these or any other Laws is mentioned either out of want of occasion or by reason of the tenderness of the times wherein both Prince and People were willing to decline the Question Secondly the persons that are to do this service are to be considered of and although they are indefinitely set down under the word Subjects it may be supposed that the word is not to be taken in so large a sence as to comprehend all of all Ages Sexes Callings and Conditions in regard that even by the Common-Law some of each of these sorts are discharged from such service But it may seem the King was neither satisfied with the expressions of this first Law concerning the occasion or time of this service nor did he see sufficient ground under the notion of bare Allegiance to desire more New ways are by him found out his Patentees were not a few and although few or none could ever boast much of any cheap Purchases gained from him for he was wont to be well paid beforehand for his Patents either by Money or that which was as beneficial to him yet he was resolved that their holding should be no less advantageous to him than their having And therefore in plain words he lets them know that notwithstanding former consideration upon which they had their Patents at the first they must fight for him if they will live upon him and either adventure their Lives or their Benefit chuse they which and if they find fault with their condition he touches them with the Law of their Allegiance And thus he makes way to intimate a claim of a more absolute Allegiance for being to shew the Equity of the Law in regard of their Allegiance he tells them That every Subject is bound by his Allegiance to serve and assist his Prince and Soveraign Lord at all seasons when need shall require General words that affirm nothing in certainty yet do glance shrewdly upon an absolute and universal assistance Then coming to drive the Nail home it is said that the Patentees are bound to give their attendance upon his Royal Person to defend the same when he shall fortune to go in his person to Wars for the defence of the Realm or against his Rebels and Enemies And as another Statute addeth Within the same Realm or without and according to their Allegiance and not to depart without especial License or
irregularity of her proceedings Before ever she called Parliament she setled the great work of Reformation or rather Deformation in the Worship of God by single Proclamation and not onely took away the Partition-wall of Doctrine by the like power but gave way and power to Persecution thereupon to arise before any 〈◊〉 Order from the Holy See then so called enabled her thereun◠〈◊〉 And â—â—ter that she declared her self convinced that she ought not 〈◊〉 Ecclesiastical Jurisdiction and by her Instructions forbad the 〈…〉 in their Process that Clause of Regia Autoritate fulcitus yet even these Instructions had no other Authority than her own And nevertheless she still inforced the Execution of all matters concerning the publick Worship of God and Government of the Church when as yet the Pope had no admittance unto his ancient claim It is very true that the Pope long ere now had made a fair offer and the Queen had lent her ear but her Train was too great to move as fast as was pretended so as no meeting could be had till the Queens Marriage with Spain was past and such as were disaffected found it was bootless to stop the Current of two such mighty Streams of Power now joyned into one and so that unclean spirit returned seven times worse than when he went out and took Seisin meerly upon Repeal of the Laws made by Henry the Eighth in the Negative without farther Grant or Livery For though an express Embassage was sent to Rome to perform the solemnity of the submission yet the Pope died before the arrival of the Embassie and the solemnity failing left the Title of the Crown much blemished yet was it not wholly defaced For if the Statutes in Henry the Eighth and Edward the Sixth's time did but confirm the possession it is evident that the repealing of those Statutes took away no Right from the Crown nor gave legal possession to the Pope that had formerly neither Possession nor Right but left him to his Remitter as in his ancient right or rather in his ancient wrong Yet right or wrong de facto he both did win and wear the Keys so long as the Queen lived and so far as she pleased for her devotion would not allow of absolute obedience in that kind nor all for Gospel that the Pope said or did but by her self and Council executed the powers of Supremacy of Jurisdiction in Church-matters not onely in pursuance of the Papal Authority but in crossing the same where the Popes way crossed her opinion as in the cases of the War between her Husband and France and the Power Legatine of Cardinal Pool her condemning of Doctrines and Books to be Heretical by Proclamation establishing both Prayers and Dirges and other Orders of publick Worship whereof more fully in the publick Histories of those times and the Queens Injunctions upon occasion of the death of Pope Julio is to be seen Lastly she was no good Queen not onely because she gave up the peoples Liberties in Ecclesiastical matters to the Foreign Jurisdiction of Rome but undertook too much therein by far upon her own account and in Civil affairs though de jure she was not inferiour to any of her Progenitors yet she would have it declared by the Parliament as if the consideration of her Sex or Birth had made some hesitation in her mind and when she had made all clear she commending her self thereby to the Prince of Spain with her self indangered likewise that trust of the Nation which she had received and cast such a shadow upon her own Supremacy as in many things it is hard to be discerned Lastly in her whole course uneven sometimes appearing like the eldest Daughter of Henry the Eighth at other times like a Fee-covert led by the will of her Lord aud Husband that wanting Supremacy himself rendred her thereby beneath her self For first she married by Act of Parliament as if she were not at her own disposing professing as much in her speech to the Londoners upon the Kentish Rebellion So a difference was made between the two Sisters the Marriage of the one being by advice of Parliament and the abstinence of the other against the same Nor is the same altogether irrational for by the one the Government of the Nation is endangered and by the other otherwise Secondly by her Marriage she became doubly married one way relating to her Person unto her King the other relating to her Trust unto her Council For where a Foreign mighty King is so nigh the Helm it is dangerous to trust the same to his Wife without the joynt concurrence of the Lords The matter in fact declared no less for many times she had steered quite wide had not the Lords been more stiff to their Principles than she The first year of her Marriage was Honey-moon with her she thought nothing too dear for the King and that her self was but meanly married unless her Husband were as compleat a King in her Nation as any of her Predecessors although contrarily the higher he was advanced the meaner she became Thirdly by her Marriage she adventured her Title of Supremacy of Jurisdiction For Philip as King had the Honour Stile and Kingly name and so had the precedency He had to do also with the Jurisdiction for by the Articles of the Marriage he was to aid the Queen in her Administration of the Kingdom and maintenance of the Laws Writs and Commissions passed under his name He also sate in Parliament voted therein and joyned in the Royal Assent Lastly joyned in the publication and execution of all Laws To him also was Allegiance due and therefore the Crime of Treason was equally against his as the Queens Crown and Dignity saving that it was reserved to be as against him onely during the time of Coverture And yet had the Queen left Issue by him it would have been a hard adventure for the Lawyers to have given their Opinion in that case seeing the King had been Guardian to his Children during their Minority Lastly the whole power and jurisdiction resting in them both joyntly could not enable them to make or dissolve Courts at will nor conclude Orders and Directions in cases of Plea and Conveyance nor Process concerning the same I shall sum up all in this one conclusion If neither of these three had an absolute Legislative Power either in matters concerning the Church or Commonwealth if no absolute Jurisdiction in case either of Life Member or Estate If they neither can create unite or alter any Court either concerning the Trial and determining the Estates of the People or their own Revenue If not alter or make any new Process in the Courts of Law If not order common Assurances of Lands or Estates And lastly if they have no power in determining the last Appeal and definitive Sentence in matters of Controversie but all must rest upon the Sentence by Parliament there must certainly be found out a further
sense of that grand Title of Supremacy of Jurisdiction Power Superiority Pre-eminence and Authority than by the common Vogue hath been made The Title of Supremacy was first formed in the behalf of Henry the Eighth's Claim in matters Ecclesiastical which by the Statute is explained under these words of power To visit correct repress redress Offences and Enormities This Power and no other did Queen Elizabeth claim witness the words of the Statute in her own time But in the framing of the Oath of Supremacy in her time not onely in Causes Ecclesiastical but Temporal which never came within the Statutes and publick Acts in Henry the Seventh's time are inserted and if any thing more was intended it must come under the word Things which also was inserted in the said Oath and yet if the words of the Statute of Queen Elizabeth formerly mentioned be credited the word Things ought to comprehend no more than the word Causes and then the power of Queen Elizabeth in the Commonwealth will be comprehended in these words of Supremacy to visit correct repress redress Offences and Enormities for the Supremacy in the Church and Commonwealth is the same in Measure and what more than this I cannot understand out of any publick Act of this Nation Now in regard Offences and Enormities are properly against Laws the power to visit and correct must also be regulated according to Laws either of War or Peace Nor do these five words Jurisdiction Power Superiority Pre-eminence and Authority contain any more Supremacy or other sence for two of them speak onely the Rank or Degree of the Queen in Government viz. Superiority and Pre-eminence belongeth onely to her and not to any other Foreign Power And two other words do note her Right and Title thereto by Power and Authority committed to her And the other word denotes the thing wherein she hath Superiority and Power viz. in Jurisdiction the nature of which word Vlpian speaking of the nature of a mixt Government explaineth thus Quando servata dictione juris judiciorum fit animadversio So as this Supreme Authority in Jurisdiction is no other than Supreme Power to visit correct redress Offences or determine matters in doubt by deputing fit persons to that end and purpose according to the Law and this is all the Supremacy that appeareth to me belonging to the Crown in these times CHAP. XXXVI Of the Power of the Parliament during these times WHen the Throne is full of a King and he is as full of opinion of his own sufficiency and power a Parliament is looked upon as an old fashion out of fashion and serves for little other than for present shift when Kings have run themselves over Head and Ears A Condition that those of that high degree are extremely subject unto but where the Crown is too heavy for the wearer by reason of infirmity the Parliament is looked upon as the chief Supporters in the maintaining both the Honour and Power of that Authority that otherwise would fall under contempt A Work that must be done with a curious touch and a clear hand or they must look for the like Censure to that of a King to a great Lord that crowned him My Lord I like your work very well but you have left the print of your fingers upon my Crown Such was the condition of these times wherein a Child and two Women are the chief but ever under the correction and direction of the Common Council in matters of common concernment Two things declare the point the course of the Title of the Crown and the Order of the powers thereof The Title ever had a Law which was at the Helm although diversly expounded Kings ever loved the Rule of Inheritance and therefore usually strained their Pedegree hard to make both ends meet though in truth they were guilty oftentimes to themselves that they were not within the degrees The People ever loved the Title of Election and though ever they joyned it to the Royal bloud and many times to the right Heir to make the same pass more currant without interruption of the first love between them and their Princes yet more often had they Kings that could not boast much of their Birthright in their first entry into their Throne Of three and twenty Kings from the Saxons time four of the former had no Title by Inheritance the two Williams Henry the First and King Steven Two others viz. Henry the Second and Richard the first had right of Birth yet came in by Compact The Seventh which was King John had no Title but Election The Eighth viz. Henry the Third came in a Child and contrary to Compact between the Nobility and the French Lewis The Ninth and Tenth succeeded as by unquestionable Title of Descent yet the Nobles were pre-engaged The Eleventh which was Edward the Third in his entry eldest Son but not Heir for his Father was alive but his Successour was his Heir It is true there were other Children of Edward the Third alive that were more worthy of the Crown but they were too many to agree in any but a Child that might be ruled by themselves Three next of the ensuing Kings were of a collateral line Their two Successours viz. Edward the Fourth and Edward the Fifth were of the Line yet Edward the Fourth came in by disseisin and Edward the Fifth by permission Richard the Third and Henry the Sevâ—nth were collateral to one another and to the right Bloud Henry the Eighth though when he was King might claim from his Mother yet came in as Heir to his Father And if Edward the Sixth was right Heir to the House of York by his Grandmother yet cannot the Crown be said to descend upon the two Sisters neither as Heirs to him nor Henry the Eighth nor to one another so long as the Statute of their Illegitimation remained which as touching Queen Mary was till three months after her entry upon the Throne and as touching Queen Elizabeth for ever for that Virago provided for her self not by way of Repeal as her Sister had done but more tenderly regarding the Honour of her Father and the Parliament than to mention their blemishes in Government by doing and undoing She over-looked that Act of Henry the Eighth and the Notion of Inheritance and contented her self with her Title by the Statute made by her Father in his Thirty fifth year which to her was a meer purchase and was not ashamed to declare to all the world that she did have and hold thereby and that it was High Treason for any Subject to deny that the course of the Crown of England is to be ordered by Act of Parliament And this power did the Parliament exercise not onely in ordering the course of the Crown to Queen Mary and Queen Elizabeth but during the Reign of Queen Elizabeth so far as to disinherit and disable any person who should pretend Right to the Crown in opposition to the
Right of Queen Elizabeth And upon this point onely did the whole proceedings against Mary Queen of Scots depend who claimed to be and doubtless was Heir unto Henry the Eighth after the determination of his Right Line and yet she was put to death for pretending Right by the Common Law in opposition to the Act of Parliament True it is that this Doctrine doth not down well with those that do pretend to Prerogative aided as they say by the Act of Recognition made to King James and the Oaths of Supremacy and Allegiance which do make much parly concerning Inheritance and Heirs Nevertheless it is as true that the Act of Recognition made no Law for the future nor doth the same cross the Statute of 13 Eliz. Nor doth it take away the power of the Parliament from over-ruling the course of the Common Law for after-Ages Nor do the Oaths of Supremacy and Allegiance hold forth any such Obligation unto Heirs otherwise than as supposing them to be Successors and in that relation onely And therefore was no such Allegiance due to Edward the Sixth Queen Mary or Queen Elizabeth until they were actually possessed of the Crown as may appear by the Oath formed by the Statute of Henry the Eighth touching their Succession Nor did the Law suppose any Treason could be acted against the Heirs of Edward the Sixth Queen Mary or Queen Elizabeth until those Heirs were actually possessed of the Crown and so were Kings and Queens as by express words in the several Statutes do appear Nor did the Recognition by the Parliament made to Queen Elizabeth declare any engagement of the People to assist and defend her and the Heirs of her Body otherwise than with this Limitation Being Kings and Queens of this Realm as by the Statute in that behalf made doth appear And lastly had those Oaths been otherwise understood the Crown had by the virtue of them been pre-engaged so as it could never have descended to Queen Mary Queen Elizabeth or King James but must have remained to the Heirs of Edward the Sixth for ever Secondly the same power that the Parliament exercised in ordering the course of Succession in the Crown they exercised likewise in determining and distributing the Powers and Priviledges belonging to the same for these times were full of Novelties The Crown had formerly sitted a Childs head more than once but it never tried to fit a Womans head since the Saxons times till now that it must make trial of two France might afford us a trick of the Salique Law if it might find acceptance And the unsetled state of the People especially in matter of Religion might require the wisest man living to sit at the Helm and yet himself not sufficient to steer a right course to the Harbour Nevertheless the Parliament having the Statute of Henry the Eighth to lead the way chose rather to pursue a Rule than to make one and soon determined the point viz. That the Crown of England with all the Priviledges thereof equally belong to a Woman in possession as to a Man or Child A bold Adventure I say it was but that Henry the Eighth was a bold Leader and yet the bolder it was if the consequence be considered For Queen Mary as a Woman brought in one new Precedent but in her Marriage a worse for she aimed not onely at a Foreign Bloud but at a Prince in Power and Majesty exceeding her own and thereby seeking advancement both to her self and her Realm endangered both The matter was long in debate between the Spanish and English and now had busied their Wits about ten years at length a Supremacy is formed suitable to the Lord and Husband of Queen Mary that could not be content to be one inch lower than her self Philip had the name of a King and Precedency and in many cases not without the Allegiance of the English. Their offences against his person equally Treason with those against the Queens own person and Indictments run Contra pacem Coronam D. Regis Reginae That in some cases he participated in the Regal Power may appear in that by the Articles he was to aid the Queen in the Administration of the Kingdom he joyned with the Queen in the Royal Assent and in Commission Letters patents and in Writs of Summons of Parliament as well as others yet in the words the Crown is reserved onely to the Queen and she must Reign as sole Queen Now if the King had broken this Agreement either the Parliament must over-rule the whole or all that is done must be undone and England must bear the burthen A Queen Regent is doubtless a dangerous condition for England above that of an Infant-King unless she be married onely to her people This was observed by Queen Elizabeth who therefore kept her self unmarried nor did the people otherwise desire her Marriage than in relation to Posterity Few of them liking any one of their own Nation so well as to prefer him so highly above themselves and fewer any Foreigner This was soon espied by Foreign Princes and the Queen her self perceiving that she was like to receive prejudice hereby in her interest amongst them signified by her Embassadors that she never meaned to stoop so low as to match with any of her Subjects but intended to make her choice of some Foreign Prince who neither by Power or Riches should be able to prejudice the interest of any of her Neighbouring Princes A pretty Complement this was to gain expectation from those abroad and better correspondency thereunto Upon this ground divers Princes conceived hopes of more interest than by trial they could find And the Arch-Duke of Austria began a Treaty which seemingly was entertained by her but her Proposals were such as silenced all those of the Austrian Interest for ever after viz. 1. That the Romish Religion should never be admitted into England 2. That no man that she married should ever wear the Title of King. 3. That no Foreigner should ever intermeddle in the Rule and Government of the Church or Commonwealth nor in the Ministry of the Church 4. That if he survived the Queen he should never challenge any Title or Interest in the Government or any Possession in England 5. She would never marry any one that she might not first see So as either she aimed at some inferiour Prince that durst not look so high or else she did but make semblance till she was nigh Forty years old and in all declared that she liked not her Sister Maries choice To these two Powers of Determining and Distributing I shall adde a third of Deputing which the Parliament exercised as formerly it had done Henry the Eighth had in Ecclesiastical matters exercised a power beyond the Law and yet by Parliament had provided positive Laws by which the same ought to have been ordered these were also confirmed in Edward the Sixth's time with some Additionals By
power of Excommunication it self notwithstanding that the Church held it by way of reservation or saving and not by donation from the Parliament by any express Act yet was that saving with such limitations as that it received but a lame power in comparison of what it claimed and exercised in former times For whereas formerly the Church-men had the Writ De Excommunicato Capiendo at their own beck now it will not come but upon Articles and certain Conditions 1. In cases of Heresie 2. Of deserting of the Sacrament 3. Deserting of publick Worship 4. Maintenance of Error 5. Incontinency 6. Vsury 7. Simony 8. Perjury 9. Idolatry In other matters the Spiritual Sword must find or make their own way or else be quiet Secondly The Church was now no less under the Chair and Throne than under power of the Parliament nor is it a wonder if it could not thrive when it was so over◠dropped for Prelacie by the King's arms is lifted up so high above the other Clergie that the rest of the Clergie are as much underlings to the Prelacie as the Prelates are to the King. They dare not offend the Crown lest they should lose their Honours nor the inferiour Clergie them lest they should lose their Livings and Liberties and so the Prelates speak the sense of the Clergie and make the Crown their Oracle Thus in the Church-matters the Crown is all in all CHAP. XXXVII Of the Militia in these latter Times IT cannot be denied but as in the sober Government of this 〈◊〉 there is a Supremacy of Command so also in the rudest times of War and wheresoever the same is setled there must the Militia also be The word Militia is a general notion sufficient enough for a name or title but not to define the thing I take it for nothing else but the Government of the Commonwealth when it is in danger or War or in order thereunto It consisteth in the raising arming ordering and paying of the Souldiery The title of the Supream Power in all this work hath been of late put to the question and brought us to this sad condition of trial by Battle and by Fighting to find out who had the chief power to fight A Lesson that might have been learned from former Generations foregoing at a far cheaper rate when England is well in its wits Where the Law of Peace is setled there also is the Law of War and in what condition the Crown standeth in relation to the Legislative power in time of Peace may be seen in the foregoing Discourse In War the King is the peoples General by his place yet if any impediment do befal either by natural disabilities or civil to render the person incapable of managing of the Service there is no question but the people may order the matter as they please With examples hereof these times are full wherein we have a Child a Virgin and a Married Woman to sway the Work all of them in a very unmeet condition for such a Trust and yet by the help they had they managed it well enough The power of him as King or General in the Army is all one but before it is imbodied as a King onely he may do some things in order thereto according to the Law and Custom of the Nation yet this falls under a double consideration of the time and occasion In the recess of the Parliament he is the first mover and ought to move by the advice of his Council if occasion do provoke to Arms but if the same befal the Parliament then sitting no History or Record do mention that ever he moved but by their concurrent advice and direction The occasion either provoketh offensive or defensive War with other Nations or with the people of his own Nation in the case of Insurrection Examples of War with other Nations that may be called offensive Wars we have but two one in Edward the Sixth's time with Scotland and which was but in pursuance of a War begun by his Father and wherein the Kingdom stood ingaged in a case that concerned the publick good and safety viz. The Marriage of their King refused after promise made The other was in the time of Queen Mary with the French which somewhat reflected also upon the publick safety but more upon the dishonour of the same I◠none of these did either of the Supream Powers array or raise men by Prerogative but onely such as were Voluntier in that work And because the people were ill principled in Edward the Sixth's time in regard of the change of Religion he was induced to hire Foreign aid out of Germany The Wars in the time of Queen Elizabeth were in order to the defence of this Nation being ever under a malignant Aspect from abroad especially from Spain in Ireland France and the Low Countries Yet were these Wars served onely by Voluntiers nor did any Commission give power of impresting men to serve against their wills in any Expedition made to any of those places as the Commissions upon Record do testifie If any Levies of men were otherwise made or compulsory means used for such ends they are to be reckoned up amongst the errata whereof the Parliament took no notice in regard it saw the ends and issues of such Reflections in Government to be successful and honourable and that all was done by Council and a Woman popularly affected and therefore they less feared Invasion upon their Liberties Or otherwise they are to be imputed to the condition of those places being Members of the Commonwealth as the cautionary Towns in the Low Countries and the Irish Plantations were and so befel under another consideration of a defensive War in case of Invasion and common danger thereby or by Intestine broils during which condition as it is the King's duty to levy and array men so is it the duty of the people to be ready to assist one another in all such exigencies and to defend the publick Liberty Nevertheless these Arrays are not left wholly at the Will of the King but to discretion of the Council how far the same shall extend For never were general Arrays made where but one Coast was in danger and where no Conquest is in pretence but onely Piracy or Plunder But if the disease were general as in the year 88 the Array was general and yet it was of none but those that were of the Trained-bands besides such as were Voluntier Secondly The arming of these men was also diversly there was no general Rule or Law for the arming of men since the time of Edward the First to the time of Queen Mary but the Statute at Winton the course of Tenures I mean of such men as were of the Militia of this Kingdom So as when they were raised they were raised in their own Arms. But for such men as passed the Seas for Foreign Service as they were Voluntiers or sent over by the Parliament these were armed according to special contract
that power that raiseth them also ordereth them to the same ends that they are raised And therefore as the sole power of the Crown doth not the one so neither doth it the other but in cases formerly mentioned And yet in no case though the War be never so absolutely defensive and the Souldiers raised by the Kings own and onely power had the King absolute Authority and Arbitrary power in the ordering of them when they are raised but he must so behave himself to them as to Freemen according to the Laws made by themselves in their Representative in Parliament And therefore are particular Laws made to that end against undue levying and discharging of Souldiers and defaults in paying of them as also against the Souldiers departing from their Service without License or wasting their Arms and such as wilfully absent themselves from Musters as also for the preserving the Castles Forts Ships and Munition for War from being witholden from their due use or from burning or destroying Lastly As touching the charge of the War and pay of the Souldiers It is evident that in all offensive Wars the Souldiers were paid by the Crown although they might be said in some manner to be in order to the defence and safety of the Nation nevertheless where the same was so apparent to the people it was the common course in these times to have often Parliaments and often Subsidies which were no less in a good measure satisfactory to the Crown for the Charges of the War than Testimonies of the Peoples good acceptance of the government of Affairs and so accepted at their hands The particular Records will warrant all this For of all the Wars in these times that of 88 excepted not any of them were ever managed at the peoples charge by Contribution but by Retribution So were these times wherein the people looking upon the Crown as under a kind of infirmity of Childhood or Womanhood did therefore bear a kind of compassionate regard thereunto without jealousie at Prerogative and could condescend and allow the Crown its full Grains and somewhat more yea more than was meet for some other Prince to desire or the People to give up And yet more happy were they wherein the Crown knew no interest but in dependance upon the peoples good and so understanding were rightly understood CHAP. XXXIX Of the Peace IT is but little that can be said of Peace in these times wherein so little freedom was found from Foreign pretensions and Intestine irregularities or both and yet the people were never more resolved against the former nor secure against the latter and had God to Friend in all But most apparently was this observable in the times of Queen Elizabeth whose Government took up four parts of five of these times whereof we now treat She was a compleat Conquerour of War and Treason and therein the true Inheritor of the Fate of her Grandfather Henry the Seventh with advantage for she out-faced all dangers by her onely presence having thereof had more experience than any Princes that ever possessed her Throne yet she was wise enough to beware against the future considering her condition to be the last of her Line that the next behind her was rather likely to trip up her heels than support her Train that the Pope narrowly watched every opportunity the distance between him and the Throne being no greater than the breadth of her onely person It may well therefore admit of excuse if the Statute of the 25 of Edward the Third concerning Treasons did not give satisfaction although therein if she were sollicitous her Subjects were more Some kinds of offences were made Treason by Statute-laws which formerly appeared not such because they appeared not at all and yet in the opinion of her people the Queen was too slack in the making and more slack in the execution of them The people had engaged themselves deeply against the Queen of Scots and it was not safe for them to go back they go yet deeper and without any positive Authority leading the way they enter into an Association amongst themselves for the Queens safety and it was well liked by the Queen because she knew it was well meant although by some it was mistaken Nevertheless to take away all exception a Law is made in pursuance thereof and so the work is reduced under an ordinary rate though the publick danger was such as might well have digested an extraordinary undertaking I intend not to enter into the particulars of these Treasons of the new stamp because they are but temporarie and in their ultimate reach tend onely to the safeguard of the Queens person in order to the intentionary sence of the Statute of 25 Edw. 3. although not within the explicite words of that Law. Onely this is observable that though the times were full of malice yet was not all malice looked upon as fatal nor every expression thereof Treason or privity thereto although the Crown it self was not a little concerned therein but reduced to an inferiour degree called Misprision as if they were willing rather to construe undertakings for mistakings and thereby over-look much of the Malignity of these Times than to make strict inquisition into every Punctilio of offence As touching Felony the rules were various some were of a new Original as that of Gypsies others formerly such afterwards laid aside are now revived with advantage as Conjuration and Buggery But imbezzelling by Servants of their Masters Goods made Felony for a time by Edward the Sixth is by Queen Elizabeth made perpetual Some Felonies are made such within a certain precinct as Man-stealers and other Crimes upon the Scotish Borders Others formerly made Felony are now unmade as that concerning Prophecies and divers formerly protected under the refuge of Clergie are now barred of that reserve such as are those that command counsel or hire others to commit petty Treason Murder or Robbery 4 5 Phil. Mar. cap. 4. Stealers of Horses Geldings or Mares 2 E. 6. cap. 33. Robbers of Houses Booth or Tent by Day or Night 5 E. cap. 9. Pick pockets or Cut purses 8 Eliz. cap. 4. And Woman stealers 39 Eliz. cap 9. And some Crimes made Felony impeachable onely within a certain time and not upon a cool suit So as upon the whole heap of Account the zeal of the times will appear to be more hot by how much iniquity appeared more hainous and that wicked men waxed worse as the times waxed better More particulars of this nature and of other Offences of inferiour note might be superadded as also of Laws of alteration and amendment of Process and Trial and of Common Assurance and Conveyance of Estates of particular Revenue All which might be insisted upon if need were to clear out yet further the conclusion of the whole matter which I hasten to accomplish led on by a natural motion that grows in speed the nigher it comes
the Opponents Instances which King called a Council stiled Commune Concilium tam Cleri quam Populi and in the conclusion of the same a Law is made upon the like occasion Si Rex Populum Convocaverit c. In both which it is evident that in those times there were Councils holden by the People as well as by the Magnates or Optimates His next instance is in the year 694 which is of a Council holden by the Great men but no mention of the Commons and this he will have to be a Parliament albeit that he might have found both Abbatesses or Women and Presbyters to be Members of that Assembly and for default of better attested the Conclusions of the same notwithstanding the Canon Nemo militans Deo c. But I must also mind him that the same Author reciteth a Council holden by King Ina Suasu omnium Aldermannorum Seniorum Sapientum Regni and it is very probable that all the Wise men of the Kingdom were not included within the Lordly Dignity The third instance can have no better success unless he will have the Pope to be allowed power to call a Parliament or allow the Archbishop power to do that service by the Pope's command for by that Authority this whatever it be was called if we give credit to the Relations of Sir Henry Spelman who also reciteth another Council within three leaves foregoing this called by Withered at Barkhamstead unto which the Clergie were summoned Qui cum viris utique militaribus communi omnium assensu has leges decrevere So as it seemeth in those times Souldiers or Knights were in the Common Councils as well as other Great Men. In the next place he bringeth in a Council holden in the year 747 which if the Archbishop were then therein President as it is said in the presence of the King was no Parliament but a Church-mote and all the Conclusions in the same do testifie no less they being every one concerning Ecclesiastical matters And furthermore before this time the Author out of whom he citeth this Council mentioneth another Council holden by Ina the Saxon-King in the presence of the Bishops Princes Lords Earls and all the wise old men and People of the Kingdom all of them concluding of the intermarriage between the Brittons Picts and Saxons which formerly as it seemeth was not allowed And the same King by his Charter mentioned by the same Penman noteth that his endowment of the Monastery of Glastenbury was made not onely in the presence of the Great Men but Cumpraesentia populationis and he saith that Omnes confirmaverunt which I do not mention as a work necessary to be done by the Parliament yet such an one as was holden expedient as the case then stood Forty years after he meeteth with another Council which he supposeth to be a Parliament also but was none unless he will allow the Pope's Legate power to summon a Parliament It was holden in the year 787 and had he duly considered the return made by the Pope's Legate of the Acts of that Council which is also published by the same Author he might have found that the Legate saith That they were propounded in publick Council before the King Archbishop and all the Bishops and Abbots of the Kingdom Senators Dukes or Captains and People of the Land and they all consented to keep the same Then he brings in a Council holden in the year 792. which he would never have set down in the List of Parliaments if he had considered how improper it is to construe Provinciale tenuit Concilium for a Parliament and therefore I shall need no further to trouble the Reader therewith The two next are supposed to be but one and the same and it is said to be holden Anno 974 before nine Kings fifteen Bishops twenty Dukes c. which for ought appears may comprehend all England and Scotland and is no Parliament of one Nation but a Party of some Nations for some great matter no doubt yet nothing in particular mentioned but the solemn laying the Foundation of the Monastery of Saint Albans What manner of Council the next was appeareth not and therefore nothing can be concluded therefrom but that it was holden in the year 797. That Council which is next produced and in the year 800 and is called in great Letters Concilium Provinciale which he cannot Grammatically construe to be a Parliament yet in the Preface it is said that there were Viri cujuscunque dignitatis and the King in his Letters to the Pope saith concerning it Visum est cunctis gentis Nostrae sapientibus so as it seemeth by this and other Examples of this nature that though the Church-motes invented the particular conclusions yet it was left to the Wittagenmote to judge and conclude them There can be no question but the next three Precedents brought by the Opponent were all of them Church-mates For the first of them which is said to be holden in the year 816 is called a Synod and both Priests and Deacons were there present which are no Members of Parliament consisting onely of the House of Lords and they all of them did Pariter tractare de necessariis utilitatibus Ecclesiarum The second of them is called a Synodal Council holden Anno 822 and yet there were then present Omnium dignitatum Optimates which cannot be understood onely of those of the House of Lords because they ought all to be personally present and therefore there is no Optimacy amongst them The last of these three is called Synodale Conciliabulum a petty Synod in great Letters and besides there were with the Bishops and Abbots many wise men and in all these respects it cannot be a Parliament onely of the great Lords The next Council said to be holden in the year 823 cannot also be called properly a Parliament but onely a Consultation between two Kings and their Council to prevent the invasion of the Danes and the attests of the Kings Chaplain and his Scribe do shew also that they were not all Members of the House of Lords The Council cited by the Opponent in the next place was holden Anno 838 being onely in nature of a Council for Law or Judicature to determine the validity of the King 's Grant made to the Church of Canterbury which is no proper work for a Parliament unless it befal during the sitting of the same The next is but a bare title of a Council supposed to be holden Anno 850 and not worth its room for it neither sheweth whether any thing was concluded nor what the Conclusions were The work of the next Council alleadged to be holden Anno 851 was to confirm the Charter of the Monastery of Croyland and to determine concerning affairs belonging to the Mercians and if it had been a Parliament for that people it might be worthy of enquiry how regularly the Archbishop of Canterbury and the
Advertisement THis Book at its first Publishing which was shortly after the Death of King Charles the First had the ill fortune to be coldly received in the world by reason of the Circumstances of those times but after K. Charles the Second was possest of the Crown and endeavoured to advance the Prerogative beyond its just bounds the Book began to be much enquired after and lookt into by many Learned Men who were not willing to part easily with their Birth-Rights so that in a short time it became very scarce and was sold at a great rate this occasion'd the private Reprinting of it in the year 1672 which as soon as the Government perceived they Prosecuted both the Publisher and the Book so violently that many hundreds of the Books were seized and burnt that and the great want of the Book since occasioned the Reprinting of it without any Alterations or Omissions in the year 1682 when the Press was at liberty by reason of the ceasing of the Act for Printing but Prerogative then getting above the Law it met with a new Persecution and the Publisher was Indicted for the Reprinting of it the passages in it upon which the Indictment was found were these Part II. Page 76. beginning Line the 24th thus I do easily grant that Kings have many occasions and opportunities to beguile their people yet can they do nothing as Kings but what of Right they ought to do They may call Parliaments but neither as often or seldom as they please if the Statute Laws of this Realm might take place And Part II. Page 148. Line 32. And though Kings may be Chief Commanders yet they are not the Chief Rulers The Prosecution went on so rigorously that the Publisher tho' beyond the Seas yet willing to try the Cause appeared according to the constant practice of the Court of King's-Bench by his Attorney but for not being personally present in the Court which was then impossible he was by the Arbitrary Power of the then Lord Chief Justice Jefferys Out-Law'd for a Misdemeanour and so remain'd till this wonderful Revolution by the wise Conduct of his Highness the Prince of Orange The Books have been ever since with care and charge preserved for the benefit of all that are willing to know and maintain their Antient Laws and Birth-Rights It was well known to and owned by the late Lord Chief Justice Vaughan who was one of the Executors of the Great and Learned Mr. Selden that the Ground-work was his upon which Mr. Bacon raised this Superstructure which hath been and is so well esteem'd that it is now again made publick by January the 10th 1688-9 John Starkey AN Historical and Political DISCOURSE OF THE Laws Government OF ENGLAND FROM The FIRST TIMES to the End of the Reign of QUEEN ELIZABETH WITH A VINDICATION of the ANCIENT WAY of Parliaments in England Collected from some Manuscript Notes of John Selden Esq by Nathaniel Bacon of Grays Inn Esquire LONDON Printed for John Starkey And are to be Sold by J. Robinson at the Golden Lyon in St. Pauls Church-Yard R. Bentley in Russel-Street in Covent-Garden Jacob Tonson at the Judges Head in Chancery-Lane T. Goodwin at the Maiden Head in Fleetstreet and T. Fox at the Angel in Westminster-Hall 1689. AN HISTORICAL and POLITICAL DISCOURSE OF THE Laws Government OF ENGLAND The FIRST PART From the FIRST TIMES till the REIGN OF EDWARD III. LONDON Printed for John Starkey at the Miter in Fleet-street neer Temple-Bar M.DC.LXXXII Advertisement A Private Debate concerning the right of an English King to Arbitrary rule over English Subjects as Successor to the Norman Conquerour so called first occasioned this Discourse Herein I have necessarily fall'n upon the Antiquity and Vniformity of the Government of this Nation It being cleared may also serve as an Idea for them to consider who do mind the restitution of this shattered Frame of Policy for as in all other Cures so in that of a distempered Government the Original Constitution of the Body is not lightly to be regarded and the contemplation of the Proportions and manners of the Nation in a small Model brings no less furtherance to the right apprehension of the true nature thereof besides the delight than the perusing of a Map doth to the Traveller after a long and tedious travel I propound not this Discourse as a Patern drawn up to the life of the thing nor the thing it self as a Master-piece for future Ages for well I know that Commonwealths in their minority want not onely perfection of Strength and Beauty but also of Parts and Proportion especially seeing that their full age attaineth no further growth than to a mixture of divers Forms in one Ambition hath done much by Discourse and Action to bring forth Absolute Monarchy out of the Womb of Notion but yet like that of the Philosopher's Stone the issue is but wind and the end misery to the undertakers And therefore more than probable it is that the utmost perfection of this Nether-worlds best Government consists in the upholding of a due proportion of several Interests compounded into one temperature He that knoweth the secrets of all Mens Hearts doth know that my aim in this Discourse is neither at Scepter or Crosier nor after Popular Dotage but that Justice and Truth may moderate in all This is a Vessel I confess ill and weakly built yet doth it adventure into the vast Ocean of your Censures Gentlemen who are Antiquaries Lawyers and Historians any one of whom might have steered in this course much better than my self Had my own credit been the fraight I must have expected nothing less than wrack and loss of all but the main design of this Voyage being for discovery of the true nature of this Government to common view I shall ever account your just Censures and Contradictions especially published with their grounds to be my most happy return and as a Crown to this Work And that my labour hath its full reward if others taking advantage by my imperfections shall beautifie England with a more perfect and lively Character THE CONTENTS Of the FIRST PART CHAP. I. Of the Britons and their Government page 1 II. Concerning the Conversion of the Britons into the Faith. 2 III. Of the entry of the Romans into Britain and the State thereof during their continuance 3 IV. Of the entry of the Saxons and their manner of Government 8 V. Of Austin's coming to the Saxons in England his Entertainment and Work. 11 VI. Of the imbodying of Prelacy into the Government of this Kingdom 13 VII Of Metropolitans in the Saxons time 15 VIII Of the Saxon Bishops 16 IX Of the Saxon Presbyters 17 X. Of inferiour Church-Officers amongst the Saxons 18 XI Of Church-mens maintenance amongst the Saxons ibid. XII Of the several Precincts or Jurisdictions of Church-Governours amongst the Saxons 22 XIII Of the manner of the Prelates Government of the Saxon Church 23 XIV Of Causes Ecclesiastical 24 XV.
be a loser by so well-deserving service as in those days that was accounted Nevertheless the English look upon Henry as the fitter man for their turn being now at hand and Robert at Jerusalem and being a native born in England civilized into the English garb by education and of a wiser and fairer demeanour and more inclining to peaceable Government which both Normans and English much inclined to as being weary of thirty years service in the Wars And therefore it is not marvellous if they applied themselves to him in a way of capitulation and less wonderful if he hearkned thereunto and yet neither unadvisedly yielded unto by him nor traiterously propounded by them as some in zeal to Monarchy conclude the point The worst of the whole matter resting in this that the King bound himself to be just that he might be great and the people to submit unto Justice that they might be free like as their Ancestors were and themselves by the Law established ought to be For the capitulation was in substance setled by the ancient Laws of the Saxons mixed with some additions of Laws made by the Kings Father with the joynt advice of the grand Council of the Kingdom all which both the Norman Williams had often confirmed by solemn protestations and promises however their actions upon sudden surprisal were malae consuetudines and exactiones injustae by this Kings own acknowledgment Thus these three Norman Kings made their way to the Throne the first by Arms under colour of Title the second by a kind of Title under colour of Arms and the last by favour but all entred the same by capitulation election and stipulation and for the general had some regard to suit their course in order of retaining the good will of their people although in a different measure according to the differency of occasions CHAP. XLVI That the Government of the Normans proceeded upon the Saxon principles and first of Parliaments THE principles which I mean are these First the Legislative power and influence thereof upon the whole Secondly the Members of that Government with their several motions Thirdly the Laws and Customs or Rules of those Motions And first concerning the Legislative power Although it be true that the first Williams great and most constant labour was to have and to hold and had but little time or liberty to enjoy yet that time of rest which he had did apply it and himself in the setling of the Laws by the advice of Common-council I say not by advice of his own heart or two or three Norman Lords or of the Norman Nobility only as some men take the confidence to aver as if they had been eye-witnesses to the actions of those days but by the joynt advice of the grand-Council of the Lords and wise men of the Kingdom of England I will not insist upon force of argument to shew that common reason must of necessity sway the King into this course but shall reserve that to another place the testimonies of Writers must now serve the turn and herein the testimony of the Chronicle of Lichfield must have the first place which speaks both of a Council of Lords and saith that by their advice he caused to be Summoned a meeting of all the Nobles and wise men through all the Counties of England to set down their Laws and Customs This was in the fourth year of his Reign or rather after his entry and as soon as the Kingdom was brought into any reasonable posture of quiet and which besides the intention of governing the Kingdom according unto Law doth strongly pretend that the Parliament had the Legislative power and right of cognizance and judicature in those Laws that concerned the Kingdom in general and for the particular Laws or Customs of several places or Precincts it was referred to a Committee or Jury in every County to set them forth upon Oath Secondly that this Council had power to change Laws may likewise appear in that Act made concerning the introduction of the Canon-Law which shews not only the power of that Council in Church-matters but also that the Canon was no further in force than the same would allow and this was also done by Common council and the Council of the Archbishops Bishops Abbots and all the Princes of the Kingdom which connexion shews plainly that there was a Council besides that of the Prelates and Princes Thirdly in matters of general charge upon the whole body of the people the King used also the help of this Grand-council as may especially appear in the charge of Arms imposed upon the Subjects which was said to be done by the Common council of the whole Kingdom as is witnessed even by the Kings own Law. It may seem also that the grand Officers of the State were elected by such grand assembly of the wise men for we find that Lanfrank was elected to the See of Canterbury by the assent of the Lords and Prelates and of the whole people that is by the Parliament of England and as probable it is that Bishops were therein also elected for that the Bishop of Lichfield resigned his Bishoprick in such like Assembly if the meaning of Lanfrank be rightly understood who saith in his Letter that it was in conventu Episcoporum atque Laicorum Lastly that one Law of the Kings which may be called the first Magna Charta in the Norman times by which the King reserved to himself from the free-men of this Kingdom nothing but their free service in the conclusion saith that their Lands were thus granted to them in inheritance of the King by the Common-council of the whole Kingdom and so asserts in one the liberty of the free-men and of the representative body of the Kingdom These footsteps of the Parliament find we in the Conquerors time besides other more general intimations scattered amongst the Historians which may induce opinion to its full strength that this King however Conqueror he was yet made use of this additional power of Parliament to perfect his designs and it may be more often than either of his Sons that yet had less pretence of superlative power to countenance their proceedings William Rufus was a man of resolution no whit inferiour if not surpassing his Father and had wit enough for any thing but to govern his desires which led him many times wild and might occasion conceit that he was almost a mad King though he were a witty man and therefore it is the less marvail if he used not the help of the Common-council more than needs must where Kings many times are told of that which they are loth to know Nevertheless William the second could not pass over thirteen years without a parley with his Commons and Clergy unless he meant to adventure a parley between them and his Brother Robert who like an Eagle eyed his posture though he hovered afar off But Henry the first was more wise
set this consideration aside as not co-incident at all with the Norman engagements after they were crowned and to take all the subsequent Wars to be meerly defensive of the right of the Crown as in sober construction they will appear to be as touching the levying of money 't is evident that it lay onely in the power of the grand Council of the Kingdom for otherwise the Laws were setled that no Tax should be made or taken but such as were due in the Confessor's time as formerly hath been shewed Secondly for the preparing of men and munition it was done either by Tenure or by special Law. As touching Tenure it was provided by way of contract that those that held by Knight-service should be ready with their Arms to assist the King for the defence of the Realm So as they were not bound by their Tenure to aid him in any other cases Others were also by especial Law of the Land bound to be ready for their service in that kind For all the Inhabitants of this Kingdom held their Estates under a general service which by common right they are bound to perform viz. in time of danger to joyn in defence of their Country This is the common Fealty or Allegiance which all men owe and which if neglected or refused renders the party guilty of Treason against his Country and his Estate under the penalty of forfeiture according to the old Saxon Law revived and declared by Henry the first Thus the Law made preparation for the War both of Men and Arms. Castles and Forts were likewise either first made by the order of the grand Council or otherwise allowed by them for the defence of the Commons and the Kingdom so was the Law of William the first The levying and managing of the War must not be denied de jure to belong to the representative body so far as may consist with the directory part for that it is a main part of the Government of the Kingdom in times of War And therefore Henry the first amongst his Laws made in the ordinary course of Law-making provideth for the ordering of men in the Army in the field and established a Law that such as forsook their Colours or Associates in the field during the Battle should be punished with death and forfeiture of his whole Estate Nor yet can it be denied but that de facto Kings of their own accord and by secret Council did direct therein either in the vacancy of Parliament which was the general case of the first times of the Norman Conquerour and the whole Reign of William Rufus or by connivance of the grand Council while they saw nothing done but what was well done Nor can it be rationally said that Kings by such advice as they have in the recess of the grand Council levying War in defence of the publick according to rules do otherwise than their duty or if the grand Council look on see nothing misgoverned and say nothing that they do other than is meet For it must be remembred that Kings in their first original were rather Officers for War than Peace and so are holden by all Antiquity and as Generals in War were called Reges or Imperatores by the Grecians Romans and Germans And at such times as War was concluded at the general meeting of the people they chose their Dux or Rex call him which you please and he being chosen all bound themselves to be at his command and to defend his person So as while a King keepeth within his place in time of danger it is his duty first to stir himself and stir up the rest to lead them and order them as may be most for the publick defence and to govern the Army by such Laws as are or shall be established by order of the publick Meeting and in case of sudden exigencies to use his own wits and in all this is the common liberty no whit infringed in regard that all is for the publick defence to which the Knights are bound by their Tenures and all others by the Law. And this was this Kingdoms case in the Normans time that both Leaders and Souldiers whether by election of the people or prescription yet all served for the defence of the Kingdom Nor were they compellable to any other service inconsistent therewith nor to stand to any judgement in such cases differing from or contrary to that of the Parliament it self CHAP. LV. That the entry of the Normans into this Island could not be by Conquest THat in point of fact the entry of the Normans into England was not by Conquest will sufficiently appear from what hath been already noted I shall make one step further and shew that as affairs then stood with the Conquerour it was impossible for him to merit that name against the stream of Providence that had pre-engaged him to three sorts of men viz. the Normans the Clergie and the Commons of England It must be taken for a ground that Duke William must give all fair correspondency to the Normans considering they are Members of his own Body and the Arm of his Strength without which he could do nothing And it is not less certain that however the Sea divided the two Countries yet long before the arrival of the Army the Normans and Saxons were so well acquainted by the latter access of the Danes that partly by marriage and other interests the Normans made so great a party in England as that party merited no less from the Duke in his entrance than those he brought with him And therefore both they and their Allies in all reason must expect such reward of their faithfulness to him as the other had nor could the Duke deny the same unless he had disclaimed his own interests whereof he had none to spare Secondly their merit from the Duke was accompanied with no less mutual relation to his Army being of the same blood with themselves and of ancient acquaintance and as impossible it was for the Duke to keep them from consociation with the mixed people as to abstract the mixed people each from other one or both of which must be done and the Conquerours must be kept from incorporating with the conquered or else the Law of Conquest cannot hold Thirdly if these two had failed yet had the Duke by his manner of rewarding his Army disabled himself from holding however he might seem to have by conquest Thus was his gift of Mannors Lands and Franchises unto his Souldiers compleated with their ancient Rights and Priviledges in free service otherwise it had been little better than a Trap to bring his own men into bondage who lately were free Souldiers under no better than a Duke of their own election And their Government in their own Country however big yet had not brought forth a Soveraignty into the World their Duke no compleat King nor themselves so mean as Vassals and it was equally difficult for him to get
over-spread the body of the Clergie in those days and therefore I shall sum them up as follows Rights of Advowsons shall be determined in the King 's Court. This had been quarrelled from the first Normans time but could never be recovered by the Clergie Before the Normans time the County-courts had them and there they were determined before the Bishop and Sheriff but the Ecclesiastical Causes being reduced to Ecclesiastical Courts and the Sheriff and the Laity sequestred from intermeddling the Normans according to the custom in their own Country reduced also the tryal of rights of Advowsons unto the Supreme Courts partly because the King's Title was much concerned therein and the Norman Lords no less but principally in regard that Rights require the consideration of such as are the most learned in the Laws Rights of Tythes of a Lay-fee or where the Tenure is in question belong to the King 's Court. Pleas of Debts by troth-plight belong to the King 's Court. These were Saxon Laws and do intimate that it was the endeavour of the Clergie to get the sole cognizance of Tythes because they were originally their dues and of Debts by troth-plight because that Oaths seemed to relate much to Religion whereof they held themselves the onely Professors The King's Justice shall reform Errours of the Ecclesiastical Courts and Crimes of Ecclesiastical persons Appeals shall be from Arch-Deacons Courts to the Bishops Courts and thence to the Archbishops Courts and thence to the King's Court and there the Sentence to be final No man that ever was acquainted with Antiquity will question that these were received Laws in the Saxons time nor did the Clergie ever quarrel them till the Normans taught them by courtesie done to Rome to expect more from Kings than for the present they would grant whereof see Cap. 47. But King Steven that was indebted to the Clergie for his Crown and could not otherwise content them parted with this Jewel of Supreme power in Causes Ecclesiastical to the Roman cognizance as hath been already noted but Henry the second would have none of this Cheat at so easie a rate This struck so smart a blow as though the Popedom had but newly recovered out of a paralytick Schism yet seeing it so mainly concerned the maintenance of the Tripple-Crown Alexander the Pope having lately been blooded against a brave Emperour made the less difficulty to stickle with a valiant King who is conclusion was fain to yield up the Bucklers and let the Pope hold what he had gotten notwithstanding against this Law and all former Law and Custom And thus the Popes Supremacy in Spiritual Causes is secured both by a Recovery and Judgment by confession thereupon The King shall have vacancies of Churches and power to elect by his secret Council The Party elected shall do homage salvo ordine and then shall be consecrated This certainly was none of the best yet it was a custom not altogether against reason although not suitable to the opinion of many yet we meet two alterations of the ancient custom First that the election shall be by the King and secret Council whereas formerly the election of Bishops and Archbishops was of such publick concernment as the Parliament took cognizance thereof and that which was worse a Council was hereby allowed called a secret Council which in effect is a Council to serve the King's private aims and unto this Council power given in the ordering of the publick affairs without advice of the publick Council of Lords which was the onely Council of State in former times And thus the publick affairs are made to correspond with the King 's private interest which hath been the cause of much irregularity in the Government of this Island ever since The second alteration resteth in the salvo which is a clause never formerly allowed unless by practice in Steven's time whenas there was little regard of the one or the other Nor doth it concur with the file of story that it should be inserted within these Constitutions seeing that Writers agree it was the chief cause of quarrel between him and Becket who refused submission without the clause and at which the King stuck with the Archbishop for the space of seven years which was six years after the Constitutions were consented unto and concluded upon No Clergie-man or other may depart the Realm without the King's License It is a Law of Nations and must be agreed on all hands that no reason of State can allow dispensations therein especially in a doubtful Government where the Supremacy is in dispute and this the wilful Archbishop never questioned till he questioned all Authority but in order to his own for but the year before when he went to Turonn to the general Council upon summons he first obtained License from the King before he went. No Sentence of Excommunication or Interdiction to pass against the King's Tenant or any Minister of State without License first had of the King or his Chief Justice in the King's absence Till the Conquest no Excommunication passed without Warrant of Law made by the joynt assembly of the Laity and Clergy but the Conquerour having let loose the Canons and the Clergie having got the upper hand in Councils made Canons as they pleased and so the Laity are exposed to the voluntary power of the Canon onely as well the Normans as until these times Kings have saved their own associates from that sudden blow and upon reason of religious observance lest the King should converse with excommunicate persons e're he be aware The Laity are not to be proceeded against in Ecclesiastical Courts but upon proof by Witnesses in the presence of the Bishop and where no Witnesses are the Sheriff shall try the matter by Jury in the presence of the Bishop A negative Law that implieth another course was used upon light Fame or Suspition ex officio although the Oath at that time was not born into the World and that all this was contrary to the liberty of the Subject and Law of the Land And it intimates a ground of prohibition in all such cases upon the Common Law which also was the ancient course in the Saxons times as hath been formerly noted Excommunicated persons shall be compelled onely to give pledge and not Oath or Bail to stand to the Judgement of the Church Upon the taking and imprisoning of the party excommunicate the course anciently was it seemeth to give Pledge to stand to Order Of this the Bishops were weary soon as it seemeth and therefore waved it and betook themselves to other inventions of their own viz. to bind them by Oath or Bail both which were contrary to Law for no Oath was to be administred but by Law of the Kingdom nor did it belong to the Ecclesiastical Laws to order Oaths or Bail and therefore this Law became a ground of prohibition in such
which shew him to be a brave King if he was not a very rich man. Henry the second was more heavy because he had more to do yet find we but one assessment which was Escuage unless for the holy War which was more the Clergy-mens than his Richard was yet a greater burthen his Reign was troublesome to him and he deserved it for from the beginning thereof to the ending could never the guilt of his disobedience to his Father be blotted out but it was more troublesome to the people because it cost so much treasure was managed by such ill Governours except the Archbishop of Canterbury and was unsuccessful in most of his undertakings yet never invaded the liberties of the Commons by any face of Prerogative But what wanted in him was made compleat and running over in his Successor John who to speak in the most moderate sence of his Government being given over to himself when he was not himself robbed the Lords of their authority bereaved the Church of its Rights trod under foot the Liberties of the people wasted his own Prerogative and having brought all things into despair comes a desperate cure the head is cut off to save the body and a president left for them that list to take it up in future ages And thus that which Steven gave Henry the second lost Richard the first would not regain and John could not and so all were gainers but the Crown CHAP. LXI Of Judicature the Courts and their Judges IT is no silent argument that the Commons gain where Laws grow into course and it was the lot of these troublesome times to lay a foundation of a constant Government such as all men might learn which formerly was laid up onely in the breasts of wise experienced men The two most considerable points in Government is the Law and the Execution the latter being the life of the former and that of the Common-wealth I say not that the Law was augmented in the body of it or that the Execution had a freer course than in the best of the former times but both were more and more cleared to the world in many particulars as well touching matters concerning practice of the Law as touching rules of righteousness For the first whereof we are beholding to Glanvil in Henry the second 's time and for the latter to King John or rather the Barons in his time in the publishing of the Grand Charter or an enumeration of the Liberties or Customes of the people derived from the Saxons revived continued and confirmed by the Normans and their Successors which for the present I shall leave in lance dubio to stand or fall till occasion shall be of clearing the point in regard that King John soon repented of his Oath the Bond of his consent and to heal the Wound got the Pope's pardon and blessing thereupon so easie a thing it was for a Son of the Roman Church to pass for a good Catholick in an unrighteous way The execution of the Law was done in several Courts according to the several kinds of affairs whereof some concerned matters of Crime and Penalty and this touched the King's honour and safety of the persons of himself and his Subjects and therefore are said to be contra coronam dignitatem c. The second sort concern the profits of the Crown or treasure of the Kingdom The third concern the safety of the Estates of the people These three works were appointed unto three several Courts who had their several Judges especially appointed to that work Originally they were in one viz. in the supream Court of Judicature the Court of Lords whereof formerly was spoken but after through increase of affairs by them deputed or committed to the care of several men that were men of skill in such affairs and yet retained the Supremacy in all such cases still And because that which concerned the publick Treasure was of more publick regard than the other the deputation thereof was committed probably to some of their own members who in those days were Barons of the Realm and afterwards retained the Title but not the Degree and therefore were called for distinction-sake Barons of the Exchequer The particular times of these deputations appear not clearly out of any monument of antiquity nevertheless it is clear to me that it was before Henry the second 's time as well because Henry the first had his Judex fiscalis as Glanvil so frequently toucheth upon the King's Court of Pleas which cannot be intended at the Court of Lords for that in those days was never summoned but in time of Parliament or some other special occasion But more principally because the Historian speaking of the Judges itinerant reciteth some to be of the Common-pleas which sheweth that there was in those days a distinction of Jurisdiction in Judicatures And it may very well be conceived that this distinction of Judicature was by advice of the Parliament after that the Grand Council of Lords was laid aside by Kings and a Privy-Council taken up unto whom could not regularly belong any juridical power because that remained originally in the grand assembly of the Lords Over these Courts or two of them one man had the prime Title of Chief Justice who then was called Lord Chief Justice of England and whose office was much of the nature of the King's Lieutenant in all causes and places as well in War as Peace and sometimes was appointed to one part of the Kingdom and by reason thereof had the name onely of that part and some other of the other parts The greatness of this Office was such as the man for necessity of state was continually resident at the Court and by this means the King's Court was much attended by all sorts of persons which proved in after-times as grievous the King as it was burthensome to the people Other Judges there were which were chosen for their learning and experience most of them being of the Clergie as were also the under-Officers of those Courts for those times were Romes hour and the power of darkness Other Courts also were in the Country and were Vicontiel or Courts of Sheriffs and Lords of Hundreds and Corporations and Lordships as formerly and these were setled in some place But others there were which were itinerant over which certain Judges presided which were elected by the Grand-Council of Lords and sent by Commission from King Henry the second throughout the Kingdom then divided into Six Circuits unto each of which was assigned Three Justices so as the whole number of Justices then was Eighteen The office was before the coming of the Saxons over hither but the assignation was new as also was their Oath for they were sworn But the number continued not long for within four years the King re-divided the Land into four Circuits and unto each Circuit assigned five Justices making in the whole the number of Twenty and one Justices for the Northern
Fathers government Nor did he onely follow the counsels of others herein but even at such times as their counsels crossed he chose those Counsels that suited with the most popular way as is to be seen in the different counsels of the Archbishop of Canterbury and William Briware And yet two things troubled much those times one that they were times of parties the other that the Protector was somewhat too excellent to be a meer servant and it is hard for the English Nobility to endure him to be greater although it may seem reasonable that they that are thought worthy to govern a King should be much more worthy to govern themselves But the Pope put an end to all occasion of question hereabout for by his Brief he declares the King to be sixteen years old and of age to govern himself and therefore all Castles are forthwith to be rendred up into the King's hands This proved the rock of offence whilst some obeyed the Pope and were impugners of those that put more confidence in the Castles than in the Kings good nature Hence first sprang a civil broil thence want of money then a Parliament wherein the Grand Charter of Englands Liberties once more was exchanged for a sum of Money Thus God wheeled about successes But the King having passed over his tame age under the Government of wise Counsellors and by this time beginning to feel liberty it was his hard condition to meet with want of Money and worse to meet with ill Counsellors which served him with ill advice that the Grand Charter would keep him down make him continually poor and in state of pupillage To this giving credit it shaped an Idea in his mind that would never out for forty years after and thus advised he neglects his own engagement defies the Government that by his Royal word and the Kings his predecessors in cool bloud had been setled and that he might do this without check of Conscience he forbad the study of the Law that so it might die without heir and he have all by Escheat This sadded the English and made them drive heavily the King to add more strengh brought in Foraigners and foraign Councils and then all was at stand The Councils were for new ways The great designe was to get money to supply the King's wants and as great a designe was to keep the King in want otherwise it had been easie for those at the helm to have stopped the concourse of Foraigners other than themselves from abroad the confluence of the Queens poorer Allies lavish entertainment profuse rewards cheats from Rome and all in necessitous times But strangers to maintain their own interests must maintain strangeness between the King and his Subjects To supply therefore these necessities all shifts are used as revoking of Charters displacing of Officers and fining them Afforestations with a train of oppressions depending thereon Fines and Amercements corrupt Advancements Loans and many tricks to make rich men offenders especially projects upon the City of London Nevertheless all proved infinitely short of his disbursements so as at times he is necessitated to call Parliaments and let them know his wants At the first the people are sensible and allow supply but after by experience finding themselves hurt by their supplies to the King they grant upon conditions of renewing the power of the Great Charter and many promises pass from the King to that end and after that Oaths and yet no performance This makes the people absolutely deny supplies Then the King pretends Wars in France Wars in Scotland and Wars against the Infidels in the Holy-land whither he is going the people upon such grounds give him aids but finding all but pretences or ill success of such enterprizes they are hardned against supplies of him for the Holy War. Then he seems penitent and pours out new promises sealed with the most solemn execration that is to be found in the Womb of Story and so punctually recorded as if God would have all generations to remember it as the seal of the Covenant between the King of England and his people and therefore I cannot omit it It was done in full Parliament where the Lords Temporal and Spiritual Knights and others of the Clergy all standing with their Tapers burning The King himself also standing with a chearly contenance holding his open hand upon his brest the Archbishop pronounced this Curse ensuing By the authority of God omnipotent of the Son and of the Holy Ghost and of the glorious Mother of God the Virgin Mary and of the blessed Apostles Peter and Paul and of all the other Apostles and of the Holy Martyr and Archbishop Thomas and of all the Martyrs and of the blessed Edward King of England and of all Confessors and Virgins and of all the Saints of God. We Excommunicate and Anathematize and sequester from our holy Mother the Church all those which henceforth knowingly and maliciously shall deprive or spoil Churches of their right And all those that shall by any art or wit rashly violate diminish or change secretly or openly in deed word or counsel by crossing in part or whole those Ecclesiastical liberties or ancient approved customs of the Kingdom especially the Liberties and free Customs which are contained in the Charters of the common Liberties of England and the Forests granted by our Lord the King to the Archbishops Bishops Prelates Earls Barons Knights and Freeholders And all those who have published or being published have observed any thing against them or their Statutes or which have brought in any customs or being brought in have observed and all Writers of Ordinances or Councils or Executioners or such as shall judge by such things All such as are knowingly guilty of any such matters shall ipso facto incur this Sentence such as are ignorantly guilty shall incur the same censure if being admonished he amend not within fifteen days after admonition In the same censure are comprehended all perturbers of the peace of the King and Kingdom for everlasting memory whereof we have hereunto put our Seals And then all throwing down their Tapers extinguished and smoaking they said So let all that shall go against this curse be extinct and stink in Hell. The King all the while continuing in the posture above-mentioned said So God me help I will observe all these things sincerely and faithfully as I am a Man as I am a Christian as I am a Knight as I am a King crowned and anointed If we shall pare away the superstitious ceremonies and consider divine providence we may search into all Histories of all ages and we shall not find a parallel hereunto so seriously composed solemnly pronounced with an Amen from the representative body of the whole Kingdom put in writing under seal preserved to posterity vindicated by God himself in the ruine of so many opposers And yet the dust of time hath almost buried this out of the thoughts of men so as few
even of such as know it do seriously consider how far it may yet and even now be charged upon the account of this Nation Serious as it was it was soon forgotten nor would the King be long holden with promises some unhappy Star struck him in his birth he had been too hard for his promises and now having the Pope at his Elbow he can dispence with his Oath and bid defiance to an Execration and in flat defiance of the Grand-Charter professeth oppression accumulates forreign Counsellors and forreign Guards contemns his own people ushers in the Pope's Extortions upon them to fill up the measure thrives in nothing but in the match of his Son and Successor with a Sister of Spain and yet that also helps to hasten on the publick poverty and that a Parliament that brought forth a bloudy issue although not by any natural power but occasionally For the Barons mean now no longer to trust to promises strangers are banished the Realm and others of the English bloud stepped into their places and Revenues But this was not all the King must confirm the Grand-Charter and thereto he addeth not onely his own Oath but causeth the Prince his Son to confirm the same in like manner It is likewise propounded to him that the chief Officers of the Kingdom may be chosen such as the Parliament shall like of And that other Laws meet for the government of the Kingdom might be established of all these the King made no bones And to make men believe that he was in good earnest he was contented to disrobe and disarm himself and invest the Barons both with Sword and Scepter retaining nothing but the Crown for himself This had been safety enough for the Kingdom but that it was a conclusion without an agreement for as it was on the King's part made from a principle of shame and fear so it was determined in anger for after that the King had been thus drest and girt for the space of Four or Five years whatsoever he thought all the while it is no matter he began first to stretch his Conscience and having the Pope's Dispensation to help soon makes his Oath to fly assunder although his Son had for the present more Conscience But the other girt held more stoutly for the Lords had the Sword chained to their Arm by the King 's own grant Liceat omnibus in regno nostro contra nos insurgere ad gravamen nostrum opem operam dare ac si nobis in nullo fenerentur and the Lords maintained their hold though not without some jealousies amongst themselves And it is very probable had the King been a little longer breathed with patience he might have had his will upon easier terms for the Lords were not so jealous of one another as the Commons were jealous of the Lords that they meaned to rule onely for themselves But the King now being in a wood and bemired so as he must now resolve to get all or lose all and so either satisfie his natural desires or the remainder of his politick power entred the field with the aid of those Commons that chose rather to be oppressed by one King than many Lords And thus the Lords received the first blow and gave the first foil Afterwards being worsted by their own divisions and jealousies they left a victory to the King that might have made him absolute if he had been moderate but pursuing revenge too far he was distasted of his own party that looked on him as a Polyphemus that intended to devour the Enemy first that he might more freely feast upon themselves in the issue This made victory follow the King afar off and taught the King that the end of Civil War must be attended with moderation in the Conquerour so far as may stand with publick safety or otherwise he that is Conquerour to day by Sword may be conquered to morrow by Jealousie Thus many humours consumed and all parts tired after four years continual War the State cometh to its right Wits The King's gains in all this bloudy sweat may be summed up in two heads First that he had liberty to chuse his principal Officers of State by advice of the Lords and them also to displace by like Counsel Secondly in that he gained though at a dear rate wisdom to observe the state of affairs and to apply himself according to occasion so lived Henry the third for three or four years after these troubles long enough to let the World know that he was able to govern like an English King and to teach his Son by his own late experience to be a wise governour betimes For Edward the first being trained up in the Tragedy of a Civil War wherein he was one of the chief actors and having expiated the bloudy way of his riotous youth by his Holy War as they called it now he betakes himself to amends making by Justice in Government having found by his Father's experience that a Kingdom well governed like good husbandry preserves the owner but being neglected destroys both He came over in his third year in August was crowned in September summoned a Parliament in February following but adjourned it till after Easter and then it is found that the Church of late had been ill governed the Clergy-men grieved by many ways the people otherwise handled than they ought to be the Peace ill kept the Laws less used and Delinquents less punished than was meet and in the sence of these inconveniencies were the Laws of Westminster the first made wherein the world may see the great difference between the Prince and the King in one and the same man. The most part of those Laws were little other than plaisters applied to particular botches of those times wherein the King dealt with a tender hand as if he feared to ulcerate any part and especially the Clergie and therefore delivered the last Law in a petitionary way to the Clergie because it concerned the execution of Justice in prohibited times and yet bound up all with a salvo to himself and his prerogative like a wise King that would neither lose right nor do rong nor yet stickle to debate with his Subjects now whenas his eye was upon a further mark For Leolin the Prince of Wales had affronted him and though he could not endure affronts yet could he dissemble them for advantage and so he suffered the Parliament to run its course that he might have done the sooner Otherwise he had a seed of his Father's conceit that Laws are not made for Kings as appeared afterward for after he had gotten his Army into the field he took a fifteenth which was granted to his Father and this was inaudito more but there was no disputing with power and therefore the Subject must be contented rather to score it up against the future than require present pay so dangerous a thing it is for England that Kings should have occasion to
demise he died a death meet to be for ever blotted out of the thoughts of all Subjects but to be had in everlasting remembrance of all Kings For if a Kingdom or Parliament misleads the King at the worst he is but misled by his Council but if he be drawn aside by favorites he must thank his own lust in the one he hath but the least share in the burthen in the other he must bear the whole CHAP. LXV Of the condition of the Nobility of England till the time of Edward the Third NOw was Prerogative mounted up to the highest pitch or endeavoured so to be either through the weakness or power of these Kings of whom the first and last had little to ground upon but their own will and the other I mean Edward the first had more wisdom and power but was otherwise distracted by foraign and more urgent employments so as the work fainted before it came to its full period The contest was between the King and Barons who till those days were rather the great and richer sort of men than Peers although they also were of the number I am not so sharp-sighted as to reach the utmost intentions of the Lords but their pretences are to such publick nature as it is plain that if their private interest was wrapped up therein they were inseparable And I shall never quarrel the Lords aim at private respects whenas it is plain the publick was so importantly concerned and yet I will not justiâ—ie all that I find written concerning their Words and Actions The Speech of the E. of Cornwal to his his elder Brother and King Henry the Third I will neither render up my Castle nor depart the Kingdom but by the judgment of the Peers and of Simon the E. of Leicester to the same King that he lyed and were he not a King the Earl would make him repent his word and of the Lords that they would drive the King out of his Kingdom and elect another and of the E. Marshal to Edward the first that he would neither go into Gascoine nor hang and such other do savour of passion especially that of the E. of Leicester and the Lords and may seem harsh and unmannerly and yet may admit of some allay if the general rudeness of the time the King 's injurious provocations and the passions of cholerick men be weighed together Yet will not all these trench upon the cause nor render the state of the Lords too high or disproportionable to their place in the policy of the Kingdom of England as things then stood I say it was not disproportionable for where the degree of a King was mounting up to such a pitch as to be above Law the Lords exceeded not their places in pressing him with their Counsels to conform to the Laws and in maintaining that trust that was reposed in them in keeping off such sinister Counsels and invasions as might violate the Laws and Liberties or hinder the current of Justice concerning which I shall shortly state the case and leave it to the censure of others The Government of the people of this Nation in their original was Democratical mixt with an Aristocracie if any credit be to be given to that little light of History that is left unto us from those ancient times Afterwards when they swarmed from their hive in Forreign parts and came over hither they came in a warlike manner under one conducter whom they called a King whose power whatever in the War yet in time of peace was not of that height as to rule alone I mean that whereas the Lords formerly had the principal executory power of Laws setled in them they never were absolutely devested of that power by the access of a King nor was the King ever possessed of all that power nor was it ever given to him but the Lords did ever hold that power the King concurring with them and in case the King would not concur the people generally sided with the Lords and so in conclusion the King suffered in the quarrel From this ground did arise from time to time the wandrings of the people in electing and deposing their Kings during the Saxon times Nor did nor could the Norman Williams shake off this co-partnership but were many times as well as other ensuing Princes perswaded against their own minds and plotted desires Nor can it otherways be supposed where Councils are setled for whereto serve they if notwithstanding them the King may go the way of his inordinate desire If the Lords then did appear against these Kings whereof we treat in cases where they appeared against the Laws and Liberties of the people it was neither new nor so heinous as it is noised for them who are equally if not more entrusted with the Common-wealth than the King by how much the Counsellors are trusted more than the Counselled to be true for the maintenance of their trust in case the King shall desert his But the greater question is concerning the manner by Threats and War. It is as probable I grant that the Lords used the one as the other for it was the common vice of the times to be rugged yet if we shall add to what hath been already said first that Knight-service was for the defence of the Kingdom principally Secondly that the greatest power of Knight-service rested with the Lords not only in propriety and ownership but in point of direction for the benefit of the Commonwealth and lastly that the state of the times now was such as the Kingdom was oppressed by strangers Counsels and the Counsels of the Kingdom rejected that instead of Law Garrisons of strangers ruled that no man could own his own that the Subjects were looked upon as enemies and of all this the King made the principal instrument who had ruled and over-ruled in this manner and so was resolved to continue I shall leave it to the better judgement of others what other healing plaister was to be had for such a sore Albeit it cannot be denied that more due respects might have been tendred to Kingly dignity than was in those times practised And yet there was a difference also in the occasions of War for certainly that last War with Edward the second was more fatal and yet less warrantable and in the issue declared that there was more of the Queen therein than of the Lords who knew a way of removing Favourites from the King without removing the King from the Kingdom or driving him out of the World. In all which nevertheless it cannot be concluded that the Lords party was encreased more than in the former Kings times for the loss of the field in Henry the Thirds time against the Prince kept them in awe all the succeeding Reign although they were not then tongue-tyed and their second loss against Edward the Second which was yet more sharp questionless quelled their spirits although they lost no right thereby and encreased the Kings party much
Freemen in such cases it being contrary to the Grand Charter never asked by the Clergie formerly nor no complaint before now for denial for my part therefore I shall not apprehend it of a higher nature than the King 's Writ which in those days went forth at random if the 44th Article of the Clergies complaints foregoing be true It being so contrary to the common sence of Parliament to give the bodies of the Freemen to the will of the Clergie to whom they would not submit their Free holds But the Writ proceeds in enumeration of particulars Reparations and adornings of Churches and Fences of Church-yards Violence done to a Clerk Defamation to reform not to give damage Perjury oblations payments of Tythes between Rector and Parishioner Right of Tythes between two Rectors to a fourth part of the value Mortuaries due by custom A Pension from a Rector to a Prelate or Advocate The most of which were under the power of a prohibition in the time of Henry the Third who was King but yesterday as the Articles of complaint formerly set down do manifest Nor had the Clergie ever better Title than connivance of some such favourites as King Steven whose Acts may peradventure be urged against Kings but not against the people unless their own act can be produced to warrant them The learning in the Princes case will I suppose admit of a difference for it can never be made out that the King's Council in Parliament was the Magnum concilium Regni but onely the House of Lords and therefore whatever passed in Parliament by their onely advice might bind the King but could never reach the Commons nor their Liberties And thus the Grand Charter in the first conception was conclusive to the King but was not the act of the Parliament because the Parliament cannot grant a Charter to it self of that which was originally custom And therefore this Law however countenanced can never be concluded to be other than a Permission not onely because it was never the Act of the Commons of England but because it is contrary to the liberty of the Freemen And it is beyond all imagination that the Commons should out themselves from the protection of the Common-Law and yoke themselves their Free-holds and Estates under the bondage of the Canons nor ought such a construction to be admitted without express words to warrant it As for the conclusion it is worse and not onely dishonourable to the King in binding his Arms from protecting his Subjects by the Common Laws and so in some respects making them Outlaws but dishonourable to it self whilst it makes Prohibitions grounded upon Laws to be nullities by a late trick of non obstante which was first taken up by the Pope then by Henry the third and by this King granted to the Clergie and thus are all set at liberty from any rule but that of Licentiousness Nevertheless this Law did thrive accordingly for we find scarce any footsteps in story of any regard had thereof till it became grey-headed For it was not long e're the King stood in need of money and was necessitated to try the good wills of the Clergie more than once this occasioned them to be slow in answer and in conclusion to deny that they should aid the King with any more money Papa inconsulto The King hereupon disavows the Clergy and leaves them to the Romish oppressions which were many and then the Clergie rub up all old sores and exhibit their complaints to their holy Father to this effect 1. That the King's Justices intermeddle in Testamentary causes accounts of Executors and cognizance of Tythes especially to the fourth part of the Living 2. That the Clergie were charged to the King's Carriages That the King's Mills were discharged from paying of Tythes That Clerks attending on the Exchequer were necessitated to non-residency And that after their decease their Goods were seized till their acounts were made That Ecclesiastical possessions were wasted during vacancies 3. That Clerks were admitted to free Chappels by Lay men 4. That the King's Justices took cognizance of Vsury Defamation violence done to Clerks Sacriledge Oblations Fences of the Church-yards and Mortuaries 5. That prohibitions are granted without surmise 6. That Clerks are called to answer in the King's Court for crimes and being acquitted the Informers escape without penalty 7. That Clerks are not allowed their Clergie 8. That after purgation made Clerks are questioned in the King's Court for the same offence 9. That persons in Sanctuary are therein besieged 10. That the Writ de Cautione admittenda issueth forth although the Church be not satisfied and excommunicate persons being imprisoned are enlarged in like manner 11. That Debts between Clerks due are determined in the temporal Courts 12. That Bishops are compelled by Distress to cause Clerks to appear in Lay-courts without cause 13. That the Church loseth it's right by the ceasing of Rent or Pension by the space of two years 14. That Nuns are compelled to sue in the Lay-courts for their right in possessions befalling by decease of their Kinred 15. That Churches are deprived of their Priviledges till they shew Quo warranto they hold them 16. That Ecclesiastical Judges are stopped in their proceedings by Sheriffs and great men 17. That Bishops refusal of Clerks presented are examined in the Lay-courts 18. That Patrons of Religious Houses do oppress them by extream Quarter 19. That Bigamy and Bastardy are tried in Lay-courts 20. That the King suffers his Livings to be vacant for many years 21. That the Clergie are wronged by the Statute of Mortmain Here 's all and more than all that 's true and more than enough to let the Reader see that the Writ Circumspecte agatis was but a face put on for the present after laid aside and the Clergy left to the bare Canon They likewise shew what the Clergy aimed at and in that they did not obtain it was to be attributed to the resolution of the Laity and not any neglect in themselves for the Arch-bishop died in the service and it is thought that grief for these matters was no little cause thereof But the times within a while grew troublesome and the King in pursuit of the French Wars being unadvised in his way angred the people by his arbitrary levie of Men and Money as it brought forth a State-scoul little inferiour to a Quarrel And to pacifie the Clergie he granted them the Writ de consultatione habenda in all matrimonial and testamentary cases which were of their least doubted priviledges and this qualified the first Article of complaint next foregowing if such cause they had of complaint and this was all that the Clergie got at Edward the first 's hands Edward the second was a man that was neither well-affected to Rome nor weak in spirit and yet so unhappy that his way neither promised good success nor ever had it and so he became a Servant unto
to the degree of Laws if the Parliament liked them Nevertheless National Synods in England undertook the quarrel of general Councils for Arch-bishop Peckham in a Synod 1280. enjoyned the Constitutions made in the Council at Lyons to be observed under a curse without consultation first had with the Parliament or before he knew whether they would be right or wrong And before him Boniface made Constitutions in opposition to the customs of the Kingdom so as the matter was now come to a kind of contest whether Synods or Parliaments should hold supremacy in doubtful cases concerning the limits of the Ecclesiastical and Temporal power For henceforth Kings must bid adieu to the Synods and sit no more amongst them and Synods now think themselves free to consult and determine what they please without speaking under correction nor was there other remedy left to Kings but threats by Writs directed to the Bishops firmiter inhibendo quod sicut Baronias quas de Rege tenent diligunt nullo modo praesumant concilium tenere de aliquibus quae ad coronam Regis attinent vel quae ad personam Regis vel statum suum vel statum concilii sui contingunt quod si fecerint Rex inde se capiat ad Baronias suas And this prevailed so effectually that the Bishops durst not adventure too far lest they should go beyond their guard and therefore they come and ask leave of the Parliament in cases that trenched upon the Law of the Kingdom as they did in the case of Bastardy wherein they would have had their consent That Children born before Marriage might be made legitimate by the Marriage subsequent And yet they could not prevail for they were answered Nolumus leges Angliae mutari notwithstanding that the Canon-law and the Laws of the Normans sided with them And so they obtained not their desire although they still retained the Tryal of general Bastardy unto themselves Nevertheless the times were such as Kings being too weakly assisted by the people and the Clergie strongly seconded by the Pope they took advantage of those times of distraction so as to hold themselves no farther obliged to the King than the Pope and their own covetousness would allow them and to make all sure they had setled it so far as they were able by a Constitution that the Clergie were not bound to aid the King Papa inconsulto and they put it in practice in a Synod under Arch-bishop Winchelsie Anno 1295. in the time of Edward the First and although the King prevailed in the conclusion at that time yet from the times of Henry the Third the Clergie for future times granted their aids to the King by themselves and apart from the rest of the body of the Kingdom and held themselves not bound by any aid granted by the Parliament albeit that their own aids granted in their Synods were not obligatory unto the body of the Clergie in this Kingdom unless first allowed and confirmed by the Parliament And thus is England become like a two-bodied monster supported with one pair of Legs CHAP. LXVII Of the condition of the Free-men of England of the Grand Charter and other Statutes during the Reigns of these Kings SHattered asunder by broyls of Civil Wars the Freemen having laid aside that regard of the ancient mutual covenant and bond of Decenners are now become weak and almost enthralled to the lust of Kings Lords Pope and English Clergie and therefore it is no wonder if Taxes and Tributes were many and new although most of them deserved not to march under any banner but the colours of oppression nor did any thing save them from the worst Tenure of all but the several interests of those superiour powers which oftentimes did justle with one another and thereby gave the Commons liberty to take breath so as though for the present they lost ground and hunted upon a cool scent yet they still retained the prey within their view Sometimes they were cast far behind other times they recovered themselves a Truce is cried and Laws are made to moderate all and determine the bounds of every one and thus comes the Grand Charter upon the publick Theatre The Historian saith it was the same with that of King John's framing and yet by comparing them together we find them disagreeing both in words and sence and therefore shall sum the same up as shortly as I can observing the difference of the two Charters as I pass along The First Chapter concerned the Church of which sufficient hath been spoken The Freemen shall enjoy these Liberties to them and their Heirs for ever The Heir in Knight-service shall pay the ancient relief That Reliefs were setled by the Saxons hath been already shewed and also that they were continued and confirmed by Henry the First onely in those times they were paid in Horses Arms c. But in after-times all was turned into money which was more beneficial for all Lords shall have their Wards bodies and Lands after homage received until the full age though the Ward be formerly Knighted The Law of Wardship may seem more anciently seated in this Kingdom than the Normans times for if the Statutes of Scotland bear any credit that Law was in Scotland before those times The Lords were not to have the Wardship before they were possessed of the Tenure because it was theirs as a fruit of the Tenure according to the Saxon Law concerning distress that it could not be in the power of the Lord to distrain till he was possessed of the service And if by fraudulent conveyance the Heir did hold the Lord out of possession a Writ of Ward did lie against him and if he did not appear the Lord might seize the Lands unless in case of Wardship per cause de guard And in case the Lord would hold the Wardship longer than the full age of the Heir an Assize did lie against the Lord for the Heir could not enter without Livery But if the Heir were of full age at the time of the Ancestor's death the Lord could not enter the Lands and yet he should have a Relief and the primer seisin And if the Heir entred the Lands before Homage done he gained no Free hold though he were Knighted before as this Law provideth For it may seem that these times of Civil War brought forth a trick of Knighting betimes as an honourable encouragement for young sparks to enter the field before they were compleat men of discretion to know whether the cause of War was good or evil And yet reason might induce a conceit that he that was thought meet to do Knight-service in his own person might expect the maintenance fit for the ability of the person and honour of the service Grantees or their Assigns or Committees of Wardships shall preserve the Land c. from Waste and the Tenants from extortion They shall yield up the same stocked
the Clergy No man shall be appealed by a Woman for the death of any but her own Husband The right of Appeal is grounded upon the greatest interest Now because the Wives interest seemeth wholly to be swallowed up in her Husband therefore she shall have an Appeal of the death of him onely and such also was the Law in Glanvil's time How far this point of interest shall extend to the degrees of Consanguinity the Norman Law formerly hath shewn And against whom Appeals did lie the Statute at Westminister tells us viz. not onely against the principal but also against accessories yet not against them till the principal be attainted And because it was ordinary for men of nought to appeal others in a malicious way it was by another Law established that if the party appealed was acquitted the appealor should not onely render damages but be imprisoned for a year The County-Court shall be holden at the wonted time The Torn shall be holden at the accustomed place twice in the year viz. after Easter and Michaelmas The view of Frank-pledges shall be holden at Michaelmas The Sheriff shall not extort The Sheriff's Courts had now lost somewhat of their Jurisdiction though for time and place they are confirmed statu quo to the end that through uncertainty thereof the suiter might not make defaults and be amerced Yet they lost much of their respect within the compass of these few years by two Laws the one of which made at Merton allowed all suiters to the rural Courts to appear by Proxie or Atturney which it seemeth had power to vote for the Masters in all cases publick and private and did not onely themselves grow into parties and maintenance of Quarrels and so spoiled these Courts of their common Justice but rendred the Freemen ignorant and careless of the common good of the Country and given over to their own private interest And though the corruption of Justice was soon felt and against it a Law was provided viz. That the Sheriff should not allow of such corrupt Attorneys yet this was no cure to the Freemen who were still suffered to wax wanton at home albeit that they were discharged from doing their suit in all other Hundreds but that wherein they dwell The second Law that took away much honour from these Courts was that Law at Marlbridge that discharged the Baronage of England and the Clergie from their attendance at such service and this also opened the door wider to oppression For where greatness is it carrieth therewith honour from the meaner sort and a kind of awe and stop unto the minds of such men that otherwise would riot without restraint and though it might also be said that the pretence of great men in such Courts would oversway the meaner and make strong parties yet it must also be acknowledged that these parties being greater are the fewer and do not so generally corrupt all sorts as the corruption of the meaner sort do It is said by the wise man Where the poor oppress the poor it is like a raging rain that leaves no food The last branch in this Law is an inhibition to the Sheriff from extortion and surely there was great need and much more need than ever now that the Lords and Clergy are absent It was thought that the great occasion of the Sheriff's oppression was from above I mean from the King that raised the values of the Farm of Counties granted to the Sheriffs for in those days Sheriffs gave no accounts as of later times they have done and therefore the Charter of King John between the 17th and 18th Chap. inserteth this Clause Omnes Comitat. Hundred Wapentag Trethingi sint ad antiquas firmas absque ullo incremento exceptis Dominicis Maneriis nostris But this did not work the work although it took away occasion for the humour was fed from within and turned to a sore upon that place that could never be cured to this day Nor could the wisdom of times find other help to keep the same from growing mortal but by scanting the dyet and taking away that power and jurisdiction which formerly it enjoyed The 37th Chapter hath been already noted in the Chapter of the Clergie next foregoing Escuage shall be taxed as was wont in the time of Henry the second The Charter of King John hath superadded hereunto this ensuing provision There shall be no Escuage set in the Kingdom except for the redeeming of the King's person making of his eldest Son a Knight and on marriage of his eldest Daughter and for this there shall be onely reasonable aid And in like manner shall the aids of the City of London be set And for the assessing of Escuage we will summon the Archbishops Bishops Abbots Earls and greater Barons of the Kingdom specially by our several Writs and will cause to be summoned in general by our Sheriffs and Bailiffs all other our Tenants in capite to be at a certain day after Forty days at the least and at a certain place and we will set down the cause in all our Writs And the matter at the day appointed shall proceed according to the counsel of those that shall be present although all that were summoned do not come And we will not allow any man to take aid of his Freemen unless for redemption of his body and making his eldest Son a Knight and on marriage for his eldest Daughter and this shall be a reasonable aid onely Thus far the Charter of King John concerning this point of Tax or Assessment and if the History saith true the Charter of Henry the Third was one and the same with that of King John then either this was not lest out in Henry the Third's Charter in that Historians time or if it was omitted in the original it was supposed to be included in the general words of the Law as being accustomed in times past And then these particulars will be emergent First that the Aids and Escuage in Henry the First 's time were assessed by the same way with that in this Charter of King John for that all the quarrel between the Lords and King John was concerning the Charter of Henry the first which the Lords sware to maintain Secondly that neither Aids nor Escuage were granted or legally taken but by Act of Parliament although the rate of them was setled by common custom according to the quantity of their Fee. Thirdly that some Parliaments in those times as concerning such matters consisted onely of such men as were concerned by way of such charge by reason of their Tenancy for Escuage onely concerned the Tenants by Knight-service and therefore those onely were summoned unto such Parliaments as onely concerned Escuage Nor had the City of London nor the Burgesses right to vote in such cases it is said p. 258. And thus the Forest-Laws that were made in the time of
Richard the First were made by the consent of Archbishops Bishops Abbots Earls Barons and Knights of the whole Kingdom for what the great men gained they gained for themselves and their Tenants And the truth is that in those times although publick damage concerned all yet it was ordinary for Kings to make a shew of summoning Parliaments whenas properly they were but Parliamentary meetings of some such Lords Clergy and others as the King saw most convenient to drive on his own design And therefore we find that Henry the Third about the latter part of his Reign when his Government grew towards the dregs he having in the Kingdom Two hundred and fifty Baronies he summoned unto one of these Parliamentary meetings but Five and twenty Barons and One hundred and fifty of his Clergy Nevertheless the Law of King John was still the same and we cannot rightly read the Law in such Precedents as are rather the birth of will than reason Fourthly that no aids were then granted but such as passed under the title Escuage or according thereunto for the words are No Escuage shall be demanded or granted or taken but for redeeming the King's person Knighting of his Son or Marriage of his Daughter Nor is the way of assessing in these times different saving that instead of all the Knights two onely are now chosen in every County the Tenure as it seemeth first giving the Title of that Order and both Tenure and Order now changed into that Title taken up for the time and occasion Fifthly that it was then the ancient custom and so used in the time of Henry the First that the advice of those then present was the advice of the whole and that their advice passed for a Law without contradiction notwithstanding the King 's Negative voice for the words are The matter at that day shall proceed according to the counsel of those that shall be present although all do not come and therefore that clause in the King's Oath quas vulgus eligerit may well be understood in the future and not in the preter tense Last of all though not gathered from the Text of this Law whereof we treat yet being co-incident with the matter it is observable that though the Clergie were now in their ruffle and felt themselves in their full strength yet there befel a posture of state that discovered to the world that the English held not the interest of the Clergie to be of such publick concernment or necessary concurrence in the Government of the Kingdom as was pretended For the Clergie finding Assessments of the Laity so heavy and that occasions of publick charge were like to multiply daily they therefore to save the main stock procured an Inhibition from Rome against all such impositions from the Laity and against such payments by the Clergie and in the strength of this they absolutely refuse to submit to aid Edward the First by any such way although all the Parliament had thereunto consented And thus having divided themselves from the Parliament they were by them divided from it and not onely outed of all priviledge of Parliament but of all the priviledge of Subjects into the state of praemunire and thus set up for a monument to future times for them also to act without the consent of those men as occasion should offer But Henry the Third not satisfied with this ancient and ordinary way of Assessment upon ordinary occasions took up that extraordinary course of Assessment upon all the Freemen of the Kingdom which was formerly taken up onely in that extraordinary occasion of redeeming of the King 's or Lord's person out of captivity and common defence of the Land from piracy and under the Title of Dane-gelt which was now absolutely dead and hanged up in chains as a monument of oppression Nevertheless it cannot be denied but that in former times the Freemen were as deeply taxed if not oppressed with payments to their Lords at such times as they were charged over to the King in the cases aforesaid as by the latter words of the Law aforesaid of King John doth appear and whereby it is probable that the inferiour Lords were gainers The conclusion of the Charter of Henry the Third the same suiting also with the third observation foregoing doth not a little favour the same for it is expresly set down that in lieu of the King's confirmation of the Charter of Liberties aforesaid not onely the Archbishops Bishops Abbots Priors Earls Barons and Knights but also the Freemen and all the Kingdom gave a fifteenth of all their moveables And thus have I summed up and compared both the Copies of the Grand Charters of Englands Liberties saving two particulars inserted into the Forest-Laws of Henry the Third wherein if any thing had been new and unreasonable King John might have colour to except against them as extorted by force and Henry the Third might as he was advised plead nonage and so they might have been choaked in their birth but being all Consuetudines as in the conclusion they are called and Kings ashamed to depend upon such frivolous exceptions it may be wondred what might move them to adventure so much blood-shed and themselves into so many troubles to avoid their own acts unless the writing of them were an obligation acknowledged before the world and they resolving secretly to be under none were loth to publish the same to all men It is a strange vanity in great men to pretend love to Justice and yet not endure to be bound thereto whenas we see that God himself loves to be bound by his word and to have it pleaded because he delights as much to be acknowledged true in performing as good in promising But neither was King John or Henry the Third of this spirit fain they would undo but could not It is true it was at the first but a King's Charter of Confirmation and had Kings been patient therewith it might have grown no bigger but by opposition it rooted deeper and grew up unto the stature of a Statute and setled so fast as it can never be avoided but by surrender from the whole body Having thus summed up the Liberties of the Subjects and Free-men of England under this Charter I shall make some Appendix hereunto by annexing a few additionals in these times established and although they come not within the letter of the Grand Charter yet are they subservient thereunto And first concerning the King and this either as he is King or as he is Lord. As King he had these Prerogatives above all Lords The King shall have the custody of Fools and Ideots Lands for their maintenance and shall render the same to their Heirs And concerning Mad-men and Lunaticks the King shall provide a Bailiff for their maintenance rendering account to them when they are sober or to their Administrators It is no less liberty or priviledge of the People that Fools and Mad persons
concerning Calvin's Case fol. 45 IX Of Courts for Causes criminal with their Laws fol. 54 X. Of the course of Civil Justice during these times fol. 56 XI Of the Militia in these times fol. 58 XII Of the Peace fol. 62 XIII A view of the summary courses of Henry the Fourth Henry the Fifth and Henry the Sixth in their several Reigns fol. 68 XIV Of the Parliament during the Reigns of these several Kings fol. 75 XV. Of the Custos or Protector Regni fol. 79 XVI Concerning the Privy Council fol. 83 XVII Of the Clergie and Church-government during these times fol. 86 XVIII Of the Court of Chancery fol. 95 XIX Of the Courts of Common-pleas and Common Law. fol. 97 XX. Concerning Sheriffs fol. 98 XXI Of Justices and Laws concerning the Peace fol. 99 XXII Of the Militia during these times fol. 102 XXIII A short Survey of the Reigns of Edward the Fourth Edward the Fifth and Richard the Third fol. 106 XXIV Of the Government in relation to the Parliament f. 109 XXV Of the condition of the Clergie fol. 112 XXVI A short sum of the Reigns of Henry the Seventh and Henry the Eighth fol. 113 XXVII Of the condition of the Crown fol. 118 XXVIII Of the condition of the Parliament in these times fol. 130 XXIX Of the power of the Clergie in the Convocation f. 134 XXX Of the power of the Clergie in their ordinary Jurisdiction fol. 136 XXXI Of Judicature fol. 141 XXXII Of the Militia fol. 143 XXXIII Of the Peace fol. 148 XXXIV Of the general Government of Edward the Sixth Queen Mary and Queen Elizabeth fol. 152 XXXV Of the Supream power during these times fol. 157 XXXVI Of the power of the Parliament during these times fol. 162 XXXVII Of the Jurisdiction Ecclesiastical during these last times fol. 166 XXXVIII Of the Militia in these later times fol. 168 XXXIX Of the Peace fol. 173 XL. A summary Conclusion of the whole matter fol. 174. THE CONTINUATION OF AN Historical and Political Discourse OF THE Laws Government OF ENGLAND THE former times since the Norman entry like a rugged Sea by cross Winds of Arbitrary Vapours in and about the Crown and by Forrein Engagements from the holy Chair made the true face of affairs cloudy and troublesome both for the Writer and the Reader Henceforward for the space of Three hundred years next ensuing Kings by experience and observation finding themselves unequal to the double chace of absolute Supremacy over the sturdy Laity and encroaching Clergie you will observe to lay aside their pretensions against the Peoples Liberties and more intentively to trench upon the Spiritualty now grown to defie all Government but that of Covetousness Nor would these times allow further advantage to Kings in this work they being either fainted by the ticklish Title of the Crown hovering between the two Houses of York and Lancaster or drawn off to forrein employments as matters of greater concernment for the present well-being of the Kingdom or for the spreading of the fame of such as desired to be renowned for valiant men It will be superfluous to recount the particular atchievements formerly attained by these Ecclesiastical men the former Treatise hath already said what was thought needful concerning that For the future I shall even premise this that the ensuing times being thus blessed with a Truce or stricter League between the Kings and Commons the errours in Government more readily do appear the corruptions in natures of men more frequently discover themselves and thereby the body of the Statute-Laws begins to swell so big that I must be enforced to contract my account of them into a narrower compass and render the same unto the Reader so far forth only as they shall concern the general stream of Government leaving those of privater regard unto every mans particular consideration as occasion shall lead him For whatever other men please to insist upon this I take for a Maxime That though the Government of a King is declared by his Actions yet the Government of a Kingdom is onely manifested by ancient Customs and publick Acts of Parliament And because I have undertaken a general Survey of the Reigns of thirteen several Kings and Queens of this Nation for I shall not exceed the issue of Henry the Eighth and to handle each of them apart will leave the Reader in a Wilderness of particulars hard to comprehend in the general sum I shall therefore reduce them all into three heads viz. Interest of Title Interest of Prerogative and Interest of Religion the last of which swayed much the three Children of Henry the Eighth the second as much in their two Ancestors viz. Henry the Eighth and Henry the Seventh and the first in the three Henries of Lancaster and three succeeding Kings of the House of York And because Edward the Third and his Grand-child Richard the Second do come under none of these Interests I shall consider them joyntly as in way of Exordium to the rest although the course of the latter was as different from the former as Lust falls short of a generous Spirit CHAP. I. A sum of the several Reigns of Edward the Third and Richard the Second SEveral I may well call them because they are the most different in their ways and ends of any two of that race that ever swayed their Scepter and yet the entrance of the first gave countenance to the conclusion of the last For the Scepter being cast away or lost by Edward the Second it was the lot of his Son Edward the Third a youth of Fifteen years of age to take it up he knowing whose it was and feeling it too heavy for him was willing enough it should return but being overswayed by Counsels drawn from reason of State and pressed thereto by those that resolved not to trust his Father any more he wisely chose to manage it himself rather than to adventure it in another hand But that is not all for as it is never seen that the Crown doth thrive after divorce from the Scepter but like a blasted Blossom falls off at the next gale of adversity such was the issue to Edward the Second his power once gone his Honour followeth soon after he had ceased to be King and within a small time did cease to be Edward His Son thus made compleat by his Fathers spoil had the honour to be the Repairer of the ruines that his Father had made and was a Prince which you might think by his story to be seldom at home and by his Laws seldom abroad Nor can it be reconciled without wonder that Providence should at once bestow upon England a courageous People brave Captains wise Council and a King that had the endowments of them all Otherwise it had out-reached conceit it self that this small Island wasted by the Barons Wars the people beaten out of heart by all Enemies in the time of the Father should nevertheless in the time of the Son with honour
Issue or Demurrer and then to the Common-Law where upon Trial if the Defendant make default the Plaintiff shall have Judgement and Execution And if the Heir be in Ward to the King the Mother shall sue and recover her Dower in the Chancery And they tell us that it had power to prohibit Spiritual Courts and Courts of Common-Law yea to over-rule or reverse Judgements and yet the Common-Law held it's ground when it was concerned for neither were all suits there by Bill as in cases of Equity nor determined according to such rules nor did the power of Judicature rest in the breast of one Chancellor but in him joyntly with other Council of the King which were also learned Judges of the Law. For the Report informeth that Edward the Second had granted a Rent in Tail to the Earl of Kent who dying his Son under age and Ward to the King Edward the Third seised amongst other Lands the Rent and granted it to Sir John Molins Upon Petition the King refers the matter to the Arch-bishop and others of the Council calling to them the Chancellor A Scire Facias goes forth to Sir John Molins he upon appearance pleaded to the jurisdiction as a case belonging to the Common-law but it would not be allowed because it was to repeal the King's Charter And whereas it was objected that the reference was to the Archbishop and others and therefore the cause ought not to be determined in the Chancery it was resolved that it did properly belong to the Chancery by the Law And in the argument of the case it appears clearly that the King's Council there were learned in the Law. And the same is yet more evident by the Title of Bills in those days exhibited in the Chancery which was directed to the Chancellor and the King's Council and the Rule given Per tout les Justices Which I rather note for the shortness of the form of Bills in those days far different from these times wherein the substance of the complaint however small in it self is oftentimes blown out into so great a bubble that it breaks to nothing And the Statutes formerly mentioned do assert the same thing as touching the King's Council For though they speak of the Council or Chancery in the English Tongue yet in the original the words are Conceil en Chancery Having thus touched upon the matters under the Judicatory of the Chancery and Judges in the same In the next place the manner of proceedings comes to consideration For it seems they had been formerly very irregular and that contrary to the Grand Charter upon a bare suggestion in the Chancery the party complained of was imprisoned and no proceedings made thereupon For remedy whereof it was ordained That upon suggestions so made the Complainant was to find Sureties to pursue the Suggestions and that the Process of Law should issue forth against the party without imprisoning him and that if the Suggestions were not proved true the Complainant should incur the like penalty that the Defendant should have done in case he had been found Guilty But afterwards this later Clause was altered by another Statute because it was full of uncertainty and it was ordained that in such case the Complainant shall be imprisoned until he shall satisfie the Defendant of his Damages and furthermore shall make Fine and Ransom to the King. But because that the Defendant many times held his advantage even to extremity this course lasted not long but a new Law was made which put the power of awarding Damages in such cases into the Chancellour to do according to his discretion And thus the Chancery obtained power to award Damages which they never had formely and the Chancellour a Precedency both in the Chancery and of the Council in the Court of Star-chamber and in many cases in the Exchequer By the first he had a power in matters of Meum and Tuum by the last in matters Mei and Regis and by the other in matters Mei and Regni A considerable man certainly he was in the motions of Government but how much more if he be made Arch-bishop of Canterbury Cardinal and Legate à Latere or Arch-bishop Lord Treasurer and Legate à Latere as these days had divers times seen Extraordinary advancements bestowed upon the Nobility brings Honour to the Throne but if they be not men of noted Worth and Uprightness they make the Scepter stoop by stirring up envy in the Nobility and indignation from the people For seldom is it seen that Advancements are fed from the Crown though they be bred from thence but either maintained by new supplies from the peoples Purses or the ruine or decay of some Officers more ancient than themselves or both And such was the condition of the Chancellour he sucked fat from beneath and Bloud and Spirits from the Grand Chief Justiciar of England and so reduced that Honourable Potentate unto the degree of Chief Justice of the King's Bench leaving scarcely unto him the Name or Title of Lord. One thing more remaineth touching the election or nomination of this Great man. At the first he was no better than a Register or the King's Remembrancer or Secretary having also the Honour to advise the King in such matters as came within the circuit of the Writings in his custody and questionless Eo usque it is suitable to all the reason in the World that he should be of the King 's sole Nomination and Election But when it befals that instead of advising the King his word is taken to be the Rule and a Judicatory power put upon that and unto this is superadded that honourable trust of keeping and governing the Great Seal of the Kingdom with the continual growing power occasionally conferred upon him by the Parliament He is now become no more the King's Remembrancer but the Lord Chancellor of England and Supream Officer of State. And it seems but reasonable that he should hold his place by publick Election as well as the Grand Justiciar whose Plumes he borrowed and other Grand Officers of State did before him For he that will have his Servant to work for another must give the other that Honour of Electing him thereto nor was this laid aside nor forgotten by these times but a claim was put in for the Election or allowance of this principal Officer amongst others the Parliament obtaining a Judgement in the case by the King's Confession and so the thing is left to the judgement of future ages Viz. Whether a King that can do no man wrong can dissemble the Royal Assent in Parliament or declare himself legally in that manner by Proclamation CHAP. V. Of Admirals Courts THis is a third Court that maintained the King's Judicatory power in a different way from that which is commonly called the Common-Law and by many is therefore supposed to advance the King's Prerogative but upon mistaken grounds It is very true that the
formerly bred by the Canon nourished by continual practice allowed by Ordinance of Parliament or Grant from Kings in Parliament are now confirmed by solemn concurrence of the whole Representative Body of the Kingdom to have and to hold with Warranty And yet the sence is not so general as the words nor doth it seem much other than a Confection made for the Arch-Bishops appetite to cure a distemper between him and the King for the Civil Judge lost nothing hereby nor would the Crown as may appear by a Law of equal Authority with the former for though an Executor or Administrator may cheat yet it tells us that Ordinaries only can oppress and extort from dead men and therefore in such cases doth provide remedy by enquiry and Indictment before the King's Justices They shall have Cognizance of Vsury during the Delinquent's Life and the King after the Delinquent's death The difference ariseth from the different end the first being to reform the Person by Church-censures and to urge him to restitution the latter is for the King 's Fine or Forfeiture For as touching the Usurer's estate the offence was in the nature of Felony forfeiting both Lands and Goods to the King after the Delinquent's 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 lie in the power of the Ordinary by Ecclesiastical censure so to reform the Ofâ—ender as to clear him to the King unless the party offending made his peace with the King by Composition And thus the Law continued for ought appeareth to me till the time of Henry the Eighth They shall have Cognizance of avoidance of Benefices of Right They shall certifie Bigamy and Bastardy had beyond the Sea and whether a Prior be perpetual or Dative The first of these concerning avoidance of Churches it seemeth was somewhat doubtful in point of practice for that the Civil Judge used to determine all manner of avoidances as well in Fact as of Right but by this Statute they are restrained only unto avoidances in Fact so as after this Statute it is holden that avoidances by death shall be tryed by the Countrey but if the avoidance be by Deprivation Resignation Creation or otherwise it shall be tryed by the Ordinary because by common intendment he is more conusant of the thing than Countrey-people But as touching the point of Bigamy the matter is more doubtful 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 Judgment of his Peers than where the outward maintenance only is engaged Nevertheless 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 is by this Law again allowed to him to try and certifie this point of Bigamy also although the Statute of Bigamists might seem to Entitle the Civil Magistrate thereto as the Law was holden to be before this Statute was made In the next place although it cannot be denyed but the Trial of Bastardy beyond the Sea might as well lie in the cognizance of the Lay-Magistrate as in that of the Ecclesiastical yet seeing the Clergy had already attained the cognizance of the thing the place proved but a matter of circumstance especially they having the advantage of the Civil Magistrate in this in regard that the Ecclesiastical persons beyond the Sea had also obtained the cognizance of that matter amongst themselves their Testimony or Certificate would come with more credit to the Clergy in this Kingdom than to the Magistrate whose cognizance in such cases they did disallow Lastly concerning Priories whereas some were presentative and filled by Induction from the Ordinary and others were Donative having their Priors meerly at the will of the Abbot to be placed and displaced as he thought most expedient If then the point in issue depends upon this knot this Law referreth the Trial unto the Ordinary who by common presumption best knows whether any Institution and Induction had passed his Registry and Seal or not And thus though a kind of Judicial power seemeth to be carried along herewith yet is all in a ministerial and subservient way unto the Civil Magistrate and nevertheless with such credit and authority that the main hinge of the Judicatory in such cases depends upon the dash of their pen. No Bishop nor Arch-Bishop shall be Impeached before the Civil Magistrate without the Kings express Warrant The former particulars concerned matter of Authority this and others ensuing concern matter of immunity which or most of which were formerly for a long time within the fancy of the Canon but never came to the height of Parliamentary approbation or Authority till now that it comes in as a peace-offering to pacifie the quarrel between the Arch-Bishop Stratford and the King. For he being engaged in the French Wars so resolved to continue and therefore to maintain distempers at home he held neither Honourable nor safe Their Temporalties shall not be wasted during the vacancy Nor shall they be seized but by Judgment of the Court. The first of these was an ancient Law grounded upon great reason although dulled by time and by covetousness of the needy Patrons next to laid aside if not quite put out of countenance So as a new Law must be made to revive it and to abolish that corrupt custom or practice of depredating those possessions given to a holy use in common supposal contrary to the trust by them undertaken and the use still continuing But the second Branch is in nature of a Law of Restraint set upon the Common-Law for the persons of these Spiritualized men were of so airy a constitution as they could not be holden by hands made out of the Clay such as the rude Laity were and therefore the Civil Magistrate upon all occasions used to lay hold upon that whereof there was some feeling which were called Temporalities and thereby drew them to appearance at the Lay-Courts for however Spiritual the Clergy were they would not easily part with their Lay-Fees But now by this Law the times are so attenuated that the very Temporalities are made so Spiritual as not to be medled with by the Lay-Magistrate unless upon judgment first obtained against them And suitably thereunto within twelve years following another Law was made more punctual That their Temporalties should not be seized upon for contempts but that their persons should be seized yet within twenty years after that this Law begins to be out of countenance and the Opinions of the Judges began to grow bold upon the ancient rule that their Temporalities were Temporal though their persons were Spiritual and that it was more dangerous to
conclusion he now sees it bootless to stand always upon his defence and receives affronâ—s he resolves therefore to enter the lists and maketh seizure of the Deanery of York which formerly by usurpation the Pope had conferred upon a Cardinal and of all Church-livings given by the Pope to aliens Then a Law is made more sharp than those in the eighteenth year wherein Provisors of Abbies and Priories are made liable to a Proemuniri and Provisors of other Ecclesiastical Livings and Dignities whereby the presentation of the rightful Patron is disturbed to be fined and imprisoned until the fine and damages to the party wronged be paid And all such as draw men to plead out of England in cases that belong to the cognizance of the Kings Court and all obtainers of provisions in the Court at Rome these were also subject to a Proemuniri For whilst these things were thus in action the Pope bestirred himself notably with Citations Excommunications Interdictions and such other birds of prey not only against mean men but Judges Bishops and the King's Council as amongst others the case of the Bishop of Ely at the solicitation of some of some of inferiour regard as I remember a Clerk or some such thing Yet as these Bull-drivers or Summoners to the Romish Court were no late upstarts so were not these times the first that took them to task for before the Statutes of Proemuniri we find provision was made against Provisors and that some Statute did precede those in Print which punished a disturber of the King 's Incumbent by a Bull from Rome with perpetual Imprisonment or at the King's will. Besides the party wronged was allowed an Action for his Damages Qui tam pro Domino Rege quam pro seipso sequitur And before that time also bringers of Bulls from Rome were imprisoned although in all these cases aforesaid the liberty of the Persons both of Lords and Prelates was saved And thus all the while King Edward the Third kept the Field he gave the Pope cuff for cuff but retiring himself to take his ease he waxing wanton waxed weak and more slowly pursued the vindication of his own Right and his Subjects Liberty The Laws are laid aside and Rome had further day given to plead and in the mean time Execution is staid the double mind is double dyed and advantage is soon espyed above sixty Church-livings more are suddenly catched and given to the Favourites at Rome The Parliament rings herewith yet the King delays the remedy and in this Eddy of affairs Edward the Third dies and Richard the Second takes up the place who had wit enough to observe what concerned his own interest and courage enough to pursue it but neither wit nor courage to over-rule his Lusts which in the conclusion over-ruled all rule and brought himself to destruction He found the people at his entrance into the Throne irritated with the Pope's oppressions and vexed at his Grandfather's desidiousness his spirit is also stirred within him and himself thereby pressed to tread in his Grandfather's former ways and to out-run him in his latter He made the penalty of Proemuniri to extend to all Farmers or others in nature of Bailiffs that held any Church maintenance to the use of any Alien and unto all Aliens that are Purchasors of such Provisions to any use and unto all Lieges that shall in like manner purchase such Provisions But as touching such as shall accept such Provisions he ordained Banishment for their Persons and Forfeiture of their Estate Notwithstanding all this the Roman Horse-leech would not so give over The King grew into displeasure with his Subjects and they with him and with one another they see the Pope still on horseback and fear that the English Clergie their own Country-men if not Friends and Abettors yet are buâ— faint and feigned Enemies to the Pope's Cause Nor was it without cause that their fear was such for as the Pope had two hands to receive so they had two hearts making shew of forming blows at the Pope but then always at a distance or when without the Pope's Guard and thus the Laws begin to stammer and cannot speak so plain English as they were wont The people hereat offended resolve to put the Clergie into the Van and to try their mettle to the full At the last parliament that Richard the Second did hold both the Lords Temporal and Spiritual are opposed one by one The Lords Temporal like themselves resolve and enter their Resolutions to defend the Right of the Crown in the Cases of Provisors although even amongst these great men all were not equally resolute for Sir William Brian had purchased the Pope's Excommunication against some that had committed Burglary and he was committed to the Tower for his labour But the Prelates answer was ambiguous and with modifications which was all one to cry as men use to say Craven yet was the Statute made peremptory according to what was formerly enacted And though the Prelates cautionary way of proceeding might be a principal reason why the Pope's power held so long in England in an usurping way yet Kings also much conduced thereto by seeking too much their personal ease above the honour of their place and the Pope's blessings and opinion of his favour more than their own good or the peoples Liberty for there was no other balm for a distracted mind than that which dropped from the Pope's Lips. In like manner Richard the Second being already at least in purpose estranged from his people sought to get friends at Rome to hold by the Spiritual Sword what he was in danger to lose by laying aside the Sword of Justice which is the surest Tenure for Kings to hold by And though the Popedom was now under a Schism between two Popes Clement and Vrban yet he was so far won for Vrban that he not onely engaged himself and the Parliament to determine his Election and uphold the same but also Ex abundante did by Implication allow to him an Indefinite power to grant provisions and so at once he lost the Die and gained a Stake that like a bubble looked fair but soon vanished away Nevertheless these two Comrades whilst they were togather resolved to make the most of each other that they could and therefore though the Popedom liked not the King yet the Pope had his love so far as he could deny himself for he had already denied his Kingdom And if the Articles exhibited against the King by Henry the Fourth be true the Pope had his Faith also For that he might be rid of his reputed Enemy Archbishop Arundel he trusted the Pope with that Complement of making Walden Archbishop of Canterbury in Arundel's stead which the Pope took so kindly as he made it a Precedent for Provisors for the future Nor did the King stick in this one Singular but made it his custom in passing of Laws
embasing of Money against forein Money not made currant against counterfeit and false Money For according to the goodness of the Money so will the Trade be more or less For the Merchant will rather lose in the price of his Commodity in Money than in exchange for other Commodity because the value thereof is less certain and the Transportation more chargeable Secondly as touching the plenty of Money that is as necessary to the advance of the Trade as of the goodness of it For according to the plenty thereof will be the plenty of the Manufactures because Handicrafts-men having no Commodities but their labour cannot work for exchange nor can exchange supply Rents and maintenance to the greater sort of people To this end therefore it is provided against melting of Money and Exportation of Silver and Gold. And yet to encourage or not discourage Importation of Silver and Gold liberty was given to every man to Export so much as they did Import provided that what they carry away must be of the new stamp or Minted in this Nation By this means Bullion came in with probability that much thereof would remain in the Nation in lieu of Commodities exported or if not the greater part yet at least the Mint gained and that was some benefit to the Nation Thirdly for the fuller currance of the Money the Issue was established in several parts of this Kingdom according to the ancient custom and this was advantageous both to the Mint and to the Stock of Money in the Kingdom This establishment was with this difference that though the Mint was setled by the Parliament yet the Exchange was left to the Directory of the King and his Council Because the Exchange is an uncertain thing subject to sudden alteration in other Nations and it is necessary that in this Country it be as suddenly ballanced with the Exâ—change in other Countries or in a short time the Nation may receive extream damage In regard whereof and many other sudden exigencies in Trade it seemeth to me convenient that a particular Council were established for continual influence into all parts of these Dominions to take into consideration the quantity of the Staple-Commodities necessary to be retained as a Stock at home for the use of the people and the Manufactures and accordingly to ballance the trade of Exportation and Importation by opening and enlarging or shutting and straitning the Stream as occasion doth require And lastly to watch the course of the Exchange in forein parts and to parallel the course thereof in this Land thereto For otherwise the publick must necessarily suffer so long as private men seek their own particular interests onely in their course of Trade CHAP. VIII Of Legiance and Treason with some Considerations upon Calvin's Case AS Times change Manners so do Manners change Laws For it is the wisdom of a State when it cannot over-rule Occasion to pursue and turn it to the best issue it can Multitude of Laws therefore are not so much a sore to the people as a symptome of a sore people Yet many times Laws are said to be many whenas they are but one branched into many particulars for the clearing of the peoples understanding who usually are not excellent in distinguishing and so become as new Plaisters made of an old Salve for Sores that never brake out before Such sore times were these whereof we now treat wherein every touch made a Wound and every Wound went to the Heart and made the Category of Treason swell to that bigness that it became an individuum vagum beyond all rule but the present sence of timorous Judges and a touchy King. Thus were many of the ignorant and well-meaning people in an hideous danger of the gulf of forfeiture before they found themselves nigh the brim All men do agree that Treason is a wound of Majesty but all the doubt is where this Majesty resteth originally and what is that Legiance which is due thereto the breach whereof amounteth to so high a censure for some men place all Majesty in one man whom they call an absolute Monarch Others in the Great men And others in the People and some in the concurrence of the King and body of the People And it is a wild way to determine all in one Conclusion whenas the same dependeth wholly upon the constitution of the Body Look then upon England in the last posture as the rigider sort of Monarchical Politicians do and Majesty will never be in glory but in the concurrence of the King and Parliament or Convention of Estates and so upon the whole account it will be upon the People whose welfare is the supream Law. Rome had Kings Consuls Dictators Decemviri and Tribunes long before the Orator's time and he saw the foundation of an Empire or perpetual Dictatorship in the person of the first of the Caesars any of all which might have challenged the supremacy of Majesty above the People And yet the often change of Government shewed plainly that it rested upon another pin and the Orator in express words no less when speaking of the Majesty of that Government he allotteth it not to those in chief command but defineth it to be magnitudo populi Romani Afterwards when the pride of the Emperours was come to its full pitch in the times of Augustus and Tiberius an Historian of those times in the Life of Tiberius tells us That he declared the bounds of Treason to be determined in Three particular instances of Treachery against the Army Sedition amongst the People and violating the Majesty of the People of Rome In all which men were not punishable for words but for actions and endeavours I do not herein propound the Government of the Roman Empire as a model for England but à majori may conclude that if the proper seat of Majesty was in the people of Rome when Emperours were in their fullest glory it is no defacing of Majesty in England to seat it upon the whole body from whom the same is contracted in the Representative and so much thereof divided unto the person of the King as any one Member is capable of according to the work allotted unto him These several seats of Majesty making also so many degrees do also imply as many degrees of wounding for it is written in Nature That the offence tending to the immediate destruction of the whole body is greater than that which destroyeth any one Member onely and when the written Law maketh it Treason to compass the destruction of the King's Person it leaveth it obvious to common sence that it is a higher degree of Treason to compass the destruction of the Representative and above all to destroy the whole body of the people Crimes that never entred into the conceit of wickedness it self in those more innocent times much less saw they any cause to mention the penalty by any written Law. Nevertheless because many sad examples had occurred
within the memory of this present Age of the danger of the person and honour of Kings and yet on the other side they saw that in such cases of Treason the King's honour was made of reaching Leather and might easily be strained within the compass of a wound of Majesty therefore Edward the Third imitating Tiberius reduced the crime of wound of Majesty in the Person of the King into certain particular instances out of the compass whereof the Judges of the Law in ordinary course must not determine Treason These concern either the safety of the Person of the King or of the Succession in the Royal Throne Or lastly the safeguard of the publick Right by the Broad and Privy seal the value of Money and by persons in matters of Judicature judicially presiding all of them reflecting upon the King considered in his politick capacity For otherwise many crimes might have been mentioned more fatally reflecting upon the King in his natural capacity which nevertheless are omitted as not worthy of so high a censure Other Treasons are left to the determination of the Parliament as occasion should offer it self whereof divers examples of a new stamp occurred within forty years next ensuing which were of a temporary regard and lived and died with the times To these two notions of Majesty and Treason I must adde a third called Legiance for it is that which maketh Majesty to be such indeed and lifteth it into the Throne and whereof the highest breach makes Treason And because that which hath been already said reflecteth upon an Opinion or rather a knot of Opinions for I find them not punctually adjudged in Calvin's Case I must a little demur to them because as their sence is commonly taken it alters the fundamental nature of the Government of this Nation from a Common-wealth to a pure Monarchy In handling of this Case the honourable Reporter took leave to range into a general discourse of Legiance although not directly within the conclusion of the Case and therein first sets down the general nature thereof That it is a mutual bond between an English King and his people and then more particularly sets forth the nature of this bond in the several duties of obedience and fealty fol. 5. a. and those also in their several properties viz. Natural Absolute fol. 7. a. due to the King omni soli semper fo 12. a. in his natural and not publick capacity fol. 10. a. Whereas he saith this bond is natural he meaneth that it is due by birth fol. 7. a. By absolute if I mistake him not he meaneth that it is indefinite fol. 5. b. viz. not circumscribed by Law but above Law and before Law fol. 13. a. and that Laws were after made to enforce the same by penalties fol. 13. b. and therefore he concludeth that this legiance is immutable fol. 13. b. and fol. 14. a. Thus having slated the point as truly as I can both for the nature of Legiance and the object thereof viz. the King and not the People otherwise than in order to the safety and honour of the King's person considered in his natural capacity as he is a man I shall in the next place examine the grounds as they are severally set down and therein shall lead the Reader no further than the Reporters own concessions Not troubling the Reader with any doubt whether this Bond consists in obedience onely or in that fealty and in all shall ever be mindful of the honour of that Pen with which I have to deal First whereas it is said that English Legiance is natural and grounded upon the birth of each party within the Kings Dominions and protection it needeth no debate so as the same be taken sano sensa viz. for a qualified Legiance without those sublimities of absolute indefinite immutable c. for otherwise if such a high strain of Legiance be due from every English man by birth then all the Magna Charta or Laws concerning the Liberties of the people come too late to qualifie the same because they cannot take away the Law of Nature fol. 14. a. And thus the party once born English must for ever remain absolutely obliged to the King of England although haply he lives not two Months under his protection all his ensuing life-time Secondly the Legiance of an English-man to his King ariseth from that civil Relation between the two Callings of King and Subject and therefore it is not a natural bond which cannot be taken away The first is true by the Reporter's own concessions Protectio trahit subjectionem subjectio protectionem so he saith fol. 5. a. fol. 9. b. and therefore though it be granted that Magistracy in general is from Nature as he saith fol. 13. a. yet of weak birth is that inference which he maketh viz. That English Allegiance is a principle in Nature Unless it be also admitted that all men on Earth that submit not to English Legiance do sin against Nature The difference then will stand thus Magistracy is founded in Nature therefore Legiance also But English Magistracy is from Civil constitution therefore is English Legiance of the like nature In the next place the Reporter saith that before any Municipal Law was made Kings did dare jura and he mounts as high for an example as the Trojans Age by the Testimony of Virgil. But I believe he intended not much strength in this seeing it is well known by any that knows the Scriptures that there were Municipal Laws given and that concerning the Office of a King by Moses which were more ancient than those of Troy and long before the time of Virgil who neither tells us in what manner those Trojan Laws were made though the Kings gave them nor if all were according to the Reporter's sence is the testimony of a Poet who sometimes useth his Poetica licentia to be taken in terminis In the next place the Reporter voucheth the Testimony of Fortescue c. 12 13. which is as absolutely opposite to the main point in hand as any Pen can declare For he tells us of divers sorts of Kingdoms some gotten by Conquest as those of Nimrod and Belus c. But saith he There is a Kingdom politick which is by the association of men by consent of Law making one chief who is made for defence of Law and of his Subjects Bodies and Estates and he cannot govern by any other power and of this nature faith he the Kingdom of England is fol. 30. 31 32. A second piece of the foundation of this opinion of the Reporter is taken ab inani it is a vain thing saith he to prescribe Laws but where by Legiance foregoing people are bound to obey But this compared with the words of Fortescue formerly mentioned falls of it self to dust and therefore I shall not further enlarge concerning it Thirdly The Reporter brings in to help the matter the consent of the Law in elder times by
Legiance of the Subject This is the strength as nigh as I can collect of that which is set down as a sixth reason but I make it the fourth because the third as I conceive is but an illustration of the second and the fifth is upon a supposal of a Fides ficta whereas that Faith of an English Subject which is according to Law is the truer of the twain But to the substance of this fourth reason If the first be granted yet the Reporter cannot attain his conclusion for the King may in his Natural Capacity have right to the Crown by Inheritance and yet not right in the Legiance of his Subjects otherwise than in the right of the Crown As in the case of Lord and Tenant the Lord may inherit the Lordship in his Natural Capacity but the service is due to him as Lord and not as by Inheritance in the service in the abstract And though it be granted that the Legiance to a King is of a higher strain than that of a Tenant to his Lord fol. 4. b. 5. a. yet doth the Reporter bring nothing to light to prove them to be of a different Nature in this regard The fifth and last reason that cometh to consideration is from a Testimony of the Parliament for it is said That this damnable Tenet of Legiance to the King in his Politick Capacity is condemned by two Parliaments But in truth I can find but one under that Title that mentioneth this Opinion and that is called Exilium Hugonis which is sum is nothing else but Articles containing an enumeration of the particular offences of the two Spencers against the State and the Sentence thereupon The offences are For compassing to draw the King by Rigour to Govern according to their Wills for withdrawing him from hearkning to the advice of his Lords for hindring of Justice and Oppression and as a means hereunto they caused a Bill or Schedule to be published containing That Homage and Legiance is due to the King rather in relation to the Crown than absolutely to his Person because no Legiance is due to him before the Crown be vested upon him That if the King do not Govern according to Law the Lieges in such case are bound by their Oath to the Crown to remove him either by Law or Rigour This is the substance of the Charge and upon this exhibited in the Lords House the Lords super totam materiam banish them before their Case is heard or themselves had made many appearance thereto So as to the matter of this Schedule which contains an Opinion suitable to the point in hand with some additional aggravations the Parliament determineth nothing at all but as to the publishing of the same to the intent to gather a party whereby they did get power to act other enormities mentioned in the Charge And in relation to those enormities the Lords proceeded to sentence of Banishment all which was done in the presence of the King and by his disconsent as may appear by his discontent thereat as all Historians of those Affairs witness And it is not probable that the King would have been discontented with the proceedings of the Lords in asserting the Prerogative of a King in that manner of the Schedule if he had perceived any such thing in their purposes Add hereunto that the Lords themselves justified the matter of the Schedule in their own proceedings all which tended to enforce the King to govern according to their Counsels and otherwise than suited with his good pleasure By force they removed Gaveston from the King's presence formerly and afterward the Spencers in the same manner So they removed the King from his Throne and not long after out of the World. Last of all I shall make use of one or two Concessions which hath passed the Reporter's own Pen in this discourse of his for the maintaining that the Legiance of an Englishman is Neither Natural nor Absolute nor Indefinite nor due to the Natural Capacity but qualified according unto Rules The first is this Englishmen do owe to their Kings Legiance according to their Laws therefore it is not Natural or Absolute or Indefinite The inference is necessary for the latter is boundless and Natural the former is limited and by civil Constitution If any breach therefore of English Legiance be bounded by Law then the Legiance of an English man is circumscribed and not Absolute or Natural The major proposition is granted by the Reporter who saith that the Municipal Laws of the Kingdom have prescribed the order and form of Legal Legiance fol. 5. b. And therefore if by the Common Law the Service of the King's Tenant as of his Mannor be limited how can that consist with the absolute Legiance formerly spoken of which bindeth the Tenant being the King 's Subject to an Absolute and Indefinite Service Or if the Statute-Laws have setled a Rule according to which each Subject ought to go to War in the King's service beyond the Sea as the Reporter granteth fol. 7. 8. then cannot the Legiance be absolute to bind the Subject to go to War according to the Kings own pleasure Secondly An English King's protection of his Subjects is not Natural Absolute Indefinite nor Originally extendeth unto them in their Natural Capacity therefore is not the Legiance of an English Subject to his King Natural Absolute Indefinite nor Originally extendeth to the King in his Natural Capacity The dependence of these two resteth upon the Reporters own words who tells us that Protectio trahit Subjectionem Subjectio Protectionem Protection draws with it Subjection and Subjection draws with it Protection so as they are Relata and do prove mutually one anothers Nature fol. 5. a. And in the same Page a few lines preceding he shews why this Bond between King and Subject is called Legiance because there is a reciprocal and double Bond for as the Subject is bound in Obedience to the King so is the King bound to the Subject in protection But the King is not Naturally bound to protect the people because this Bond begins not at his Birth but when the Crown settles upon him Thirdly This Protection is not absolute because the King must maintain the Laws fol. 5. a. and the Laws do not protect absolutely any man that is a breaker of the Laws Fourthly This protection is not Indefinite because it can extend no further than his power and his power no further than his Dominions fol. 9. b. The like also may be instanced in continuance of time Lastly The King's protection extendeth not originally to the Natural Capacity but to the politick Capacity therefore till a Foraigner cometh within the King's Legiance he cometh not within his protection And the usual words of a Writ of Protection shews that the party protected must be in Obsequio nostro fol. 8. a. The sum then is that as protection of an English King so neither is Legiance or Subjection of an Englishman Natural Absolute
till by Laws Enacted in Parliament they lost their Liberties of bearing Office Ministerial or of Judicature of holding Castle of Convention without the Kings License yea of Purchase and by degrees were brought down from the height of a Free Principality to be starved in their power and inferiour to a Free People And thus the Welsh on the one side the discontented Lords on the other and Mortimar's Title in all so busied the King as though he lopped off the Tops as they sprang up yet they sprang forth as they were lopped nor was it the Kings lot all this while to find out the root of All or to strike at that Lastly when time had made all Troublers weary yet he still sits upon Torns he was jealous of his Subjects jealous of his Son yea jealous of himself it being ever the first and last of his thoughts how to keep his Crown For the most part of his Reign he was troubled with the walking Ghost of Richard the Second ever and anon he was alive he was here he was there and so the peoples minds were always kept at random but when all these Spirits are conjured down Richard the Second's Ghost is yet within Henry's own breast So ruled Henry the Fourth an unhappy confident man that durst undertake more than he would did more than he ought was successful in what he did yet never attained his end to be sure of his Crown and quiet of mind For a Plaister to this Sore he turned somewhat towards Religion but shewed it more in zeal to Church-men than in works of Piety and therefore may be thought to regard them rather as his best Friends in right of Archbishop Arundel than as in relation to Religion Yet as if he overlooked that he desires their Prayers becomes a strict observer of superstitious Rites is fiery zealous against the Lollards intends a Journey into the Holy Land and War against the Infidels the common Physick of guilty Kings in those days Briefly he did will to do any thing but undo what he had done and had done more had his Journey to the Holy Land succeeded But whether hastned or delayed by a Prophecie of the ending of his days falls not within my Pen to censure entring upon the Work he died in the beginning of his purposes in the midst of his fears never came to the Holy Land and yet yielded up his last breath in Jerusalem The Parliament was then sitting and was witness of the death of Henry the Fourth as it had been of his entrance upon the Throne as if purposed to see the course of the Crown in the doubtful current between the two Houses of Lancaster and York and to maintain their own Honour in directing the Scepter according to their warranty upon a late Intail by Act of Parliament Yet did not all rest upon this for the Heir of Henry the Fourth was a Man every inch of him and meant not to Moot upon the point His Father died a King and he his Heir had the Crown and was resolved to hold it A rough young man he had been formerly and bold enough to out-face small doubts in point of Succession for he could for need out-face common Civility it self This might have lien in his way for he that cannot govern himself can much less govern a Kingdom Yet a hidden providence concluded quite contrary and rendred him a clear Testimony of a strange change by the anointing Oyl like that of Saul that forthwith had the Spirit of another man. So though not hammered thereto by Affliction as was Edward the First yet was he his parallel in Government and superiour in Success Being seated in the Throne all men thought it dangerous to abide the adventure of the Turn of this Kings Spirit The Clergie had but yesterday tried the Mastery with the Laity and gained it but by one Vote there was no dealing with the Clergie whilst Archbishop Arundel lived nor with him whilst Henry the Fourth lived or his Merits were in memory but now they both are dead the Clergie and the Laity are upon even ground This might make the Clergie now not over-confident The Lords looked on the King as a man like enough to strike him that stands next The wise men saw he would be doing all men were tired with Intestine Quarrels and jumped in one That he that would be in action should act abroad where he might get Renown and a Purchase big enough for his Spirit Scotland was a Kingdom yet incompetent to the King's Appetite France was the fairer Mark and better Game and though too big for the English gripe yet the Eagle stooped and sped himself so well as within six years he fastned upon the Sword and Scepter and a Daughter of France and might have seized the Crown but chose to suffer a blur to lie upon his Title derived from Edward the Third rather than to incur the censure of Arrogancy over a stooping Enemy or to pluck the fruit from the Tree before it was fully ripe which in time would fall â—nto his lap by a better Law than that of the Sword Otherwise it might be well conceited that he that hath both Right and Power and will not seize disclaims Besides the King was as well Inheritor to his Father's Fate as Crown still he had success but the end was so far distant that he died in the way thereto The brave Dauphine of France maintaining War after his Father the French King had yielded up the Bucklers to Henry the Fifth till Henry the Fifth died and the English did forgo what they had formerly gotten in France by the Sword of that great Commander Nor did the English gain any thing in the conclusion of this War but an honourable windy repute of being one of the five Chief Nations of Christendom if honour it be to be reputed amongst the Nations a Conquerour of France the chief Leader unto the dethroning of three Popes at once the Election of Pope Martin and of giving a Cure to that deadly Wound of the Popedom which had spent the bloud of two hundred thousand mens lives lost in that Quarrel These Foreign Engagements made the King less sollicitous of the point of Prerogative at home and the rather because he knew the way to conquer his private Enemies Arms and his Subjects Hearts without loss of Honour in the one or Reverence in the other He loved Justice above the rank of his Predecessors and in some respects above himself for he advanced Gascoign for doing Justice though to the King 's own shame He liked not to intrude himself into Elections and therefore though requested by the Monks of Canterbury he would not nominate a Successour to Archbishop Arundel but left the whole work to them In the Authority of his place he was moderate and where his Predecessors did matters without the Lords consent when he made his Unkle the Marquiss of Dorset Duke of Exeter and had given
faithfully carried on by him that Justice it self could not touch his person unjustice did and he received this reward from his Nephew Henry the Sixth that he died in the dark because the Cause durst not endure the light Now is Henry the Sixth perswaded that he is of full Age he had laid aside his Guardian the Duke of Gloucester but forgetting to sue out his Livery he betakes himself from the Grace of God into the warm Sun as the Proverb is changing the Advice of a faithful experienced wise Counsellour for the Government of an Imperious Woman his Queen who allowed him no more of a King than the very Name and that also she abused to out-face the World. And after she had removed the Duke of Gloucester out of the way undertook the sway of the Kingdom in her own person being a Foreigner neither knowing nor caring for other Law than the Will of a Woman Thus the Glory of the House of Lancaster goes down and now a Star of the House of York appears in the rising and the people look to it The Queen hereat becomes a Souldier and begins the Civil Wars between the two Houses wherein her English party growing wise and weary she prays Aid of Ireland a Nation that like unto Crows ever wants to prey upon the Infirmities of England The Wars continue about sixteen years by â—its wherein the first loss fell to the English party the pretensions being yet onely for good Government Then the Field is quiet for about four years after which the clamour of ill Government revives and together therewith a claim to the Crown by the House of York is avouched Thereupon the Wars grew hot for about four years more and then an ebb of as long Quiet ensues The Tide at last returns and in two years War ends the Quarrel with the death of Fourscore Princes of the Bloud-Royal and of this good man but unhappy King. Unhappy King I say that to purchase his Kingdoms Freedom from a Foreign War sold himself to a Woman and yet lost his Bargain and left it to Observation That a Conscientious man that marries for by-regards never thrives For France espied their advantage they had maintained War with England from the death of Henry the Fifth with various success The Duke of Bedford being Regent for the English for the space of fourteen years mightily sustained the fainting condition of the English Affairs in those parts and having crowned his Master Henry the Sixth in Paris in the ninth year died leaving behind him an honourable Witness even from his Enemies That he was a brave Commander a true Patriot and a faithful Servant to his Lord and Brother Henry the Fifth and to his Son Henry the Sixth But now the Duke of Bedford is dead and though France had concluded a Peace with the English yet they could not forget the smart of their Rod but concluded their Peace upon a Marriage to be had with a Woman of their own bloud and interest And what they could not effect by Arms in thâ—â—r own Field they did upon English ground by a Feminine Spirit which they sent over into England to be their Queen and in one Civil War shedding more English bloud by the English Sword than they could formerly do by all the men of France were revenged upon England to the full at the English-mens own charge For what the English gain by the Sword is commonly lost by Discourse A Kingdom is never more befooled than in the Marriage of their King if the Lady be great she is good enough though as Jezabel she will neither reverence her Husband obey her Lord and King nor regard his people And thus was this Kingdom scourged by a Marriage for the sin of the wise men that building upon a false Foundation advised the King in the breach of Contract with the Earl of Arminiack's Daughter And thus the King also for that hearkning to such Counsel murthered the Duke of Gloucester that had been to him a Father yielded up his Power to his Queen a masterless and proud woman that made him like a broken Idol without use suffered a Recovery of his Crown and Scepter in the Parliament from his own Issue to the Line of York then renewing the War at his Queens beck lost what he had left of his Kingdom Country and Liberty and like the King that forgot the kindness of Jehojada lost his Life by the hand of his Servant CHAP. XIV Of the Parliament during the Reigns of these Kings THe Interest of the Parliament of England is never more predominant than when Kings want Title or Age. The first of these was the Case of Henry the Fourth immediately but of them all in relation to the pretended Law of the Crown but Henry the Sixth had the disadvantage of both whereof in its due place The pretended Law of the Crown of England is to hold by Inheritance with power to dispose of the same in such manner by such means and unto such persons as the King shall please To this it cannot be denied divers Kings had put in their claims by devising their Crown in their last Will but the success must be attributed to some power under God that must be the Executor when all is done and which must in cases of Debate concerning Succession determine the matter by a Law best known to the Judge himself Not much unlike hereunto is the Case of Henry the Fourth who like a Bud putting up in the place of a fading Leaf dismounts his Predecessor First from the peoples regard and after from his Throne which being empty sometimes he pretended the resignation of his Predecessor to him other whiles an obscure Title by descent his Conscience telling him all the while that it was the Sword that wrought the work But when he comes to plead his Title to Foreign Princes by protestation laying aside the mention of them all he justifies upon the unanimous consent of the Parliament and the people in his own onely person And so before all the World confessed the Authority and Power of the Parliament of England in disposing of the Crown in special Cases as a sufficient Bar unto any pretended Right that might arise from the House of Mortimar And yet because he never walks safely that hath an Enemy pursuing him still within reach he bethinks himself not sure enough unless his next Successours follow the dance upon the same foot To this end an Act of Parliament leads the Tune whereby the Crown is granted or confirmed to Henry the Fourth for life and entailed upon his Sons Thomas John and Humphrey by a Petition presented 5 Hen. 4. Thus Henry the Fourth to save his own stake brought his Posterity into the like capacity with himself that they must be Kings or not subsist in the World if the House of York prevails And so he becomes secured against the House of York treading on his heels unless the Parliament of England shall
with this Nation such as are these parts of France Ireland and Scotland then under the English Fee. This is apparent from the nature of the Statute of Henry the Fifth formerly mentioned for if there was need to provide by that Statute that the Kings arrival and personal presence should not dissolve the Parliament assembled by the authority of the Custos Regni then doth it imply that the personal presence of the King by and upon his arrival had otherwise determined the Parliament and that Authority whereby it sate But the Precedents are more clear all of them generally running in these or the like words In absentia Regis or Quamdiu Rex fuerit in partibus transmarinis It is also to be granted that the King's will is many times subjoyned thereunto as if it were in him to displace them and place others in his absence yet do I find no Precedent of any such nature without the concurrence of the Lords or Parliament and yet that the Parliament hath ordered such things without his consent For when Richard the First passing to the Holy Land had left the Bishop of Ely to execute that place during his absence in remote parts the Lords finding the Bishop unfaithful in his Charge excluded him both from that place and Kingdom and made the King's Brother John Lord Warden in his stead But in the Case of the Protectorship which supposeth disability in the person of the King the same by common intendment is to continue during the King's disability and therefore in the Case of Henry the Sixth it was determined that the Protectorship doth Ipso facto cease at the King's Coronation because thereby the King is supposed able to govern although in later times it hath not so been holden For Kings have been capable of that Ceremony assoon as of the Title and yet commonly are supposed to be under the rule of necessity of Protectorship till they be Fourteen years of age or as the Case may be longer For although Henry the Sixth was once thought ripe when he was eight years old yet in the issue he proved scarce ripe for the Crown at his two and twentieth year Nevertheless the default of Age is not the onely incapacity of Kings they have infirmities as other men yea more dangerous than any other man which though an unpleasant Tune it be to harp upon yet it is a Theam that Nations sometimes are enforced to ruminate upon when God will give them Kings in his Wrath and give those also over to their own lusts in his Anger In such cases therefore this Nation sometimes have fled to the refuge of a Protector and seldom it is that they can determine for how long When Henry the Sixth was above Thirty years old Richard Duke of York was made Protector and Defender of the Realm and of the Church It was done if the Record saith true by the King himself Authoritate Parliamenti It was further provided by the Parliament that though this was to continue Quamdiu Regi placuerit yet the Duke should hold that place till the Kings Son Edward should come to years of discretion and shall declare that he will take that place upon himself The ground hereof is said to be that the King was Gravi infirmitate detentus which could not be intended of any bodily distemper for neither doth any such thing appear by any Author or Record Nor if such had been yet had it been an irrational thing in the Parliament to determine the same upon the Princes discretion and acceptance of the Charge upon himself It seemeth therefore that it was Gravis infirmitas Animi and that this way of the Parliament tended to a tacite sliding him out of the Government of the Kingdom by a moderate expression of a general incapacity in his person The Conclusion of all that hath been said concerning this Title is double One that both the Custos Regni and Protector are not subsistent but consistent with that of a King because it supposes a King under incapacity Secondly That they tend to teach the people a necessity of having one Chief although it may in truth seem to be but a trick of State like some pretty carved Cherubims in the Roof of a Building that do seem to bear it up whenas in truth it is the Pillars that support both it and them CHAP. XVI Concerning the Privy-Council NAtions do meet with their Exigences as well as persons and in such condition resolutions taken up by sudden conceit are many times more effectual than more mature deliberations which require more time in composing are more slow in conclusion let slip opportunities and fall short of expectation in the end Such are the ways of debate in the Grand Representative of the Kingdom Add hereunto that in putting the Laws in execution greater discretion is required than can enter into the head of any one man and greater speed than can stand with debate amongst many And therefore it is beyond all doubt that the Conventicles of Council are no less necessary in their degree than the Assembly of the Estates of this Nation in their Grand Convention Yet with this Caveat that one Genius may move in both for otherwise the motions of Government must needs be inconstant inconsistent and like that of an Hypocrite one way abroad another way at home neither comfortable to it self nor confiding to others And therefore cannot these Privateer-Councils by any proportion of Reason be better constituted than by the Representative it self that it may be a Creature made in its own Image one and the same with the Image of the maker This was the wisdom and the practice of these times more ordinarily than in the former for the Parliament was no less jealous of the power of Henry the Fourth than of the infirmities of Henry the Sixth nor more assured in the aims of any of them all than themselves were in in their own Title to the Crown Neither was this sufficient for the Parliament looked upon themselves as a body that sometimes must retire to rest and upon the Privy Council as Watch-men subject to change and therefore they not onely give them instructions but engage them unto observance Their instructions were sometimes occasional but some more general of which I shall instance onely in two which were to be of everlasting regard First That they should hold no pleas before them that is to say at the Council-Table or at the Privy Council nor before any of them unless as Judges in the Chancery Exchequer or Benches at Westminster so as whatsoever misscarriages were had by the Privy Council in Cases of Judicature in the Star-chamber formerly are now reduced The second rule was this That no dispatches should be made at the Council-Table of any matters there agitated but by general consent Unity gives life to Action carrying therewith both Authority and Power and when all is done must derive its original
Duke of Gloucester but that the Heir apparent of the House of York steps in to rescue And new troubles arise in Gascoign to put an end to which the Queens party gains and takes the Duke of York's word for his good behaviour gets this Law to pass expecting hereby if not a full settlement at home yet at least a respit to prevent dangers from abroad during the present exigency And thus upon the whole matter the Lords and Privy Council are mounted up by the Commons to their own mischief CHAP. 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 go 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 sence 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 Archbishop Arundel 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 mutual kindnesses in a necessitous estate which commonly are the more hearty and more sensible by how much other contentments are more scant But the Archbishop 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 Clergie 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 Archbishop and the Clergie enters into his very Soul they are his dearly beloved for the great natural love as he says to the World they bear to him what he could he got what he got he gave to the Church Thus the Family of Lancaster becoming a mighty support unto the Clergie Roman as it was they also became as stout maintainers of the crackt Title of that younger House So was fulfilled the old Prophecie of the Oyl given to Henry the First Duke of Lancaster wherewith Henry the Fourth was anointed That Kings anointed with that Oyl 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 Political Government of the people Concerning the latter many things did befal that were of a different piece to the rest in regard that the Lords for the most part were for the Clergie and they for themselves but the Commons began to be so well savoured with Wickliff's way that they begin to bid defiance at the Clergies self-ends and aims and because they could not reach their Heads they drive home blows at their Legs A Parliament is called and because the King had heard somewhat feared that the people were more learned than was meet for his purpose and that the Parliament should be too wise he therefore will have a Parliament wherein the people should have no more Religion than to believe nor Learning than to understand his Sence nor Wisdom than to take heed of a Negative Vote But it befel otherwise for though it was called the Lack-learning Parliament yet had it skill enough to discern the Clergies inside and Resolution enough to enter a second claim 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 than the King would have them yet they have also so much wisdom as to look to their own skins and commonly are not so venturous as to tell all the world what they know or to act too much of that which they do 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 maintain Fifteen Earls Fifteen hundred Knights Six thousand two hundred Esquires and one hundred Hospitals more than were in his Kingdom This was a strong temptation to a needy and couragious Prince but the Archbishop was at his Elbow The King tells the Commons that the Norman and French Cells were in his Predecessor's time seized under this colour yet the Crown was not the richer thereby he therefore resolves rather to add to than diminish any thing from the maintenance of the Clergie Thus as the King said he did though he made bold with the Keys of St. Peter for he could distinguish between his own Clergie and the Roman The people are herewith put to silence yet harbour sad conceits of the Clergie against a future time which like a hidden fire are not onely preserved but encreased by continual occasions and more principally from the zeal of the Clergie now growing fiery hot against the Lollards For that not onely the people but the Nobles yea some of the Royal Bloud were not altogether estranged from this new old way whether it was sucked from their Grandfather 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 Gloucester Bedford was first at the helm of affairs at home whilst the King acted the Souldiers part in France as ill conceited of by the Clergie as they slighted by him At a Convocation once assembled against the Lollards the Duke sent unto their Assembly his Dwarf as a great Lollard though he was a little man and he returned as he went even as Catholick as any of them all Non tam despectus à Clero quam ipse Clerum despiciens atque eludens This and some other sleights the Clergie liked not they therefore find a way to send him into France to be a reserve to his Brother And in his room steps forth Humphrey Duke of Gloucester that was no less cool for the Roman way than he Henry the Fifth was not more hearty in Romes behalf for although he was loth 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 Crown as allow the Bishop to take the Hat. Nor was he much trusted by the Clergie who were willing he should rather engage in the Wars with France than mind the Proposals of the Commons concerning the Clergies Temporalties which also was renewed in the Parliament in his days Above all as the Lancastrian House loved to look 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 obliged of all the
rest looked to the Provisors more strictly than his Predecessors had and not onely confirmed all the Statutes concerning the same already made but had also provided against Provisors of any annual Office or Profit or of Bulls of Exemption from payment of Tythes or from Obedience Regular or Ordinary and made them all punishable within the Statute And further made all Licenses and Pardons contrary thereto granted by the King void against the Incumbent and gave damages to the Incumbent in such vexations for the former Laws had saved the right to the true patron both against Pope and King. And thus the English Kings were Servants to the Church of England at the charges of Rome whilst the Popedome being now under a wasting and devouring Schism was unable to help it self and so continued until the time of Henry the Sixth at which time the Clergie of England got it self under the power and shadow of a Protector a kind of Creature made up by a Pope and a King. This was the Bishop of Winchester so great a man both for Birth parts of Nature Riches Spirit and Place as none before him ever had the like For he was both Cardinal Legate and Chancellor of England and had gotten to his aid the Bishop of Bath to be Lord Treasurer of England Now comes the matter concerning Provisors once more to be revived First More craftily by colloguing with the Nobility who now had the sway in the Kings Minority but they would none An answer is given by the King that he was too young to make alterations in matters of so high concernment yet he promised moderation The Clergie are put to silence herewith and so continue till the King was six years elder and then with Money in one hand and a Petition in the other they renew their suit but in a more subtile way For they would not pretend Rome but the English Churches Liberties they would not move against the Statutes of Praemuniri but to have them explained it was not much they complained of for it was but that one word Otherwhere which say they the Judges of the Common Law expound too largely not onely against the Jurisdiction of the Holy See but against the Jurisdiction of the English Prelacy which they never intended in the passing of those Laws Their Clonclusion therefore is a Prayer That the King will please to allow the Jurisdiction of their Ecclesiastical Courts and that Prohibitions in such Cases may be stopped But the King either perceiving that the Authority of English Prelacy was wholly dependant on the See of Rome and acted either under the shadow Legatine or at the best sought an Independent power of their own Or else the King doubting that the calling of one word of that Statute into question that had continued so long might endanger the whole Law into uncertainty declined the matter saving in the moderation of Prohibitions Thus the English Clergie are put to a retreat from their Reserve at Rome all which they now well saw yet it was hard to wean them The Cardinal of Winchester was a great man and loth to lay down his power but his own Tribe grew weary of him and his power For the greater some Church-men are unless they be better than men the inferiour and better Church-men are worse than men At length therefore the Cardinal is Vnlegated and that power conferred upon the Archbishop of Canterbury a man formerly well approved but by this very influence from Rome rendred suspected Which he perceiving protested against the exercise of the Jurisdiction Legatine without the Kings allowance and so mannerly crept into the Chair The English Kings and Clergie having thus attained the right discerning of each other begin to take up a new way of policy which was to hold nothing of the Popedom but the Form of Worship and Discipline but as touching Jurisdiction they held it a high point of wisdom either to fetch it nigh at home or to be silent in the matter having now found a main difference between the Popes Will and the Church-Law and therefore as formerly the Convocation and Parliament joyned in excluding of Foreigners from Church-livings under the notion of Intelligencers to Enemies abroad So neither now will they allow any provisions for English men and upon this ground the Dean and Chapter of York refused to admit the Bishop of Lincoln to the See of York although assigned he was thereto by Pope Martin and he the darling of Nations being by joynt consent advanced to the Triple Crown that had been formerly tripled amongst three Popes and troubled all Europe And whereas during the Tripapalty much money had been levyed here in England to serve for the recovery of the Popedom to one of English interest now by joynt consent the same is seized upon and stopped as fewel from the fire and spent by Henry the Fifth in the recovery of a Kingdom in France that should have been employed in recovery of a Popedom at Rome These things concurred to give a wound to the Popedom that was never cured to this day Nevertheless the English Clergie was no loser by all this but gained in the whole sum For as it made them more depending on the Crown so it made the Crown more fast to them from which they had received more real immunities and power than the Pope ever did or was able to give them and might expect to receive many more What personal respects these three Kings shewed them hath been already touched Henry the Sixth added one favour which made all the rest more considerable Hitherto they had used to meet in Convocation as upon the interest of Rome and little notice was taken of them now the Nation owns them and in some respects their work and it is granted That the Clerks of Convocation called by the Kings Writ and their Menial Servants shall have such priviledge in coming carrying and going as the Members of the Parliament have So as though they be not Members yet they are as Members if they assemble by the Kings Writ and not onely by the power of the Legate or Metropolitan The antiquity of this Court is great yet not so great as hath been supposed nor is it that Court of the Ordinary called the Church Gemot mentioned in the Laws of Henry the First as not onely the works thereof therein set down do sufficiently declare but also it is evident that in Henry the Second's days the Grand Councils of this Kingdom were joyntly mixed both of Clergie and Laity Nor could the Clergie shut the Laity from their Councils till about the times of Richard the First or King John. From which time forward the Laity were so far from protecting of them that till these times now in hand all their care was to keep them from violating the Liberty of the people That they were many times notwithstanding called together by the Kings Writ before these times hath
also been cleared by another Pen. That their work at such times was to advise concerning such matters as should be propounded to them by the King in Parliament their Summons do shew the particulars whereof for the most part concerned supplies of Money from the Church-men And yet sometimes matters of great moment were debated therein As in a Convocation summoned by Henry the Fifth in his ninth year the preheminence of Pope Eugenius above the Council of Bazil was debated and as much as they could they determined the same The credit of their decisions in former time I believe was not much amongst the people because the men were looked upon with an evil eye Now that the Parliament seemeth to own them in their way and to protect them their determinations are somewhat The Church-men espy their opportunity and whilst the benevolent influence of the State is in its first heat they improve it in this manner The times were now come about wherein light began to spring forth conscience tobestir itself and men to study the Scriptures This was imputed to the idleness and carelesness of the Clergie who suffered the minds of young Scholars to luxuriate into Errours of Divinity for want of putting them on to other Learning and gave no encouragement to studies of humane Literature by preferring those that were deserving The Convocation taking this into consideration do decree That no person should exercise any jurisdiction in any Office as Vicar-general Commissary or Official or otherwise unless he shall have first in the University have taken Degrees in the Civil or Canon Law. A shrewd trick this was to stop the growth of the study of Divinity and Wickliff's way and to imbellish mens minds with a kind of Learning that may gain them preferment or at least an opinion of abilities beyond the common strain and dangerous to be meddled with Like some Gallants that wear Swords as Badges of Honour and to bid men beware because they possibly may strike though in their own persons they may be very Cowards And no less mischievously intended was this against the rugged Common-Law a Rule so nigh allied to the Gospel-way as it favoureth Liberty and so far estranged from the way of the Civil and Canon-Law as there is no hope of accommodation till Christ and Anti-Christ have fought the field Thus much of the Church of England in relation to the State now as it is absolutely considered in regard of the several degrees of persons therein Although these three Kings were much endeared to the English Clergy yet the difference between the Laity and them growing high the King 's principal care is now to keep an even hand between them both for he that will back two Horses at once must keep them even or put his joynts to the adventure First Henry the Fourth granteth That no more shall be paid to Rome for the first-fruits of Archbishops and Bishops than hath been anciently used The occasion hereof was to prevent the horrible mischief and damnable custom of Rome for such are the very words of that Statute unto which the Clergy gave their Vote if not the first Vote and therefore certainly did neither believe nor honour that infallible Chair as their own Mother nor did they bear her Yoke further than their own benefit and reason of State did require For though the immediate benefit of this Law did descend upon the Prelacy yet it also much concerned the interest both of the honour and benefit of the Nation that the Clergy should not be at the Pope's pleasure to tax and assess as he thought good Secondly Henry the Fifth added unto the Prelacy some kind of increase both of Honour and Power viz. to visit Hospitals that were not of the King 's own foundation and to reform abuses there for the Patrons either had no power to punish or will or care to reform them And thus upon the point although they lost a Right yet they gained ease Thirdly The same King confirmed by a Statute unto Ordinaries the cognizance of Accounts of Executors for their Testators Estates which formerly was granted by the Canon-Law but they wanted power to execute and a Right to have and receive In all these the Clergie or Prelacy were the immediate gainers In as many other things the people were made gainers and yet the Clergie were no losers otherwise than like the Kite of that prey which was none of their own First They refused formerly to grant Copies of Libels either thereby to hinder the course of Prohibitions or to make the Copies the moredear and Money more cheap with them Henry the Fifth finding this a grievance to the people passeth a Law That all Ordinaries shall grant the Copies of Libels at such time as by Law they are grantable Secondly As the probate of Wills had anciently belonged to the Ordinary by the Canon-Law and formerly also confirmed to them by the Parliament so it also regulated and settled the Fees for such Service But the Clergy having been ever under the noutriture of their Mother Rome that loved to exceed they likewise accounted it their liberty to take what they could get But the nigher they come to engage with Kings in their Government according to Law the more reformed they grow Formerly Edward the Third had settled their Fees but they would not hold to the rule Now the Law is doubled by Henry the Fifth with a penalty of treble damages against Delinquents Furthermore the very Priests could not contain their Pater-Nosters Requiems Masses and such Wares they had engrossed and set thereof what price they pleased The Market was risen to that height that Edward the Third undertook to set a rate upon those Commodities but that also would not hold long Henry the Fifth he sets a certain stipend somewhat more than Edward the Third had done and yet less than the Priests had formerly Lastly Some Laws were made wherein the Commonwealth gained and the Church were losers First Whereas the Church-men formerly held all holy things proper and peculiar to their own Cognizance especially such as concerned the Worship of God the Parliament now began to be bold with that and never asked leave It had now for a long time even since the Saxon times been the unhappy condition of this Church of England amongst others to decay continually in Piety and right Devotion but through the light that now revived and God's goodness it in these times came to pass that the people did entertain some sense of their duty towards God more than formerly and begin to quarrel the abuses done to the Lords day in the manner of the keeping thereof London hath the honour for beginning this Reformation by an Act of their Common Council The Parliament within seven years after that engage the whole Kingdom in that service though therewith also are adjoyned other holy Feasts then holden and all Fairs and Markets are enjoyned to cease on that
day under pain of forfeiture of Goods exposed to sale excepting Victual and excepting the four Sundays in Harvest And thus though places had their Consecration allowed by the Parliament and immunity from trading in Fairs and Markets by the space of a hundred and sixty years before this time yet that time which God by his own Law had reserved to his own self never came under regard to be allowed till now and yet not by the motion of the Clergie nor by their furtherance For by their thrusting in the Holy days they made them equal with the Lords day and in Harvest-time superiour by preserving them in force whenas the Lords days were set aside So God had somewhat of these men but the Pope more Secondly As the Church-men lost in the former so the Prelacy in this that follows The Prelates had long since obtained the Trial of Bastardy and therein could strain themselves so far as to put the case of Inheritance into danger where the point otherwise was clear enough And this grew to that height that it endangered the disinheriting of the Heirs of the â—arl of Kent It is therefore now provided that before the Ordinary in such Cases proceeded to Trial Proclamations shall be made in Chancery to summon all pretenders of Interests or Titles to come before the Ordinary to make their Allegations and all Trials of Bastardy otherwise made shall be void so as whatever the Canon did the Parliament would not trust to the Ordinaries Summons nor allow of their power in any other manner than the Parliament thought meet One thing more remaineth wherein the true Church of Christ seemed to lose and yet gained and the Clergie joyning with the King seemed to gain and yet lost this was the point of Worship which had long stumbled the minds of the people and was now grown to that strength that nothing but an Act of Parliament can keep it under This opinion concerning Worship was at the first so young that it was not yet baptized with any proper name but called Opinion contrary to the Church-determinations or Catholick Faith. And against this the Clergie now stormed more than ever formerly because it was grown to such a height as if it meaned to over-top theirs To this end they procured an Act to pass That all Preachers Teachers Writers School-masters Favourers or notoriously defamed persons for the maintenance of such Opinions shall be upon conviction before the Ordinary according to the Canons imprisoned in the Diocesans Prison and Fined according to the Diocesans discretion If upon Conviction he shall not abjure or shall relapse he shall be delivered unto the Secular power and be burned And that Preachers without License of the Diocesan should be restrained Concerning which Law I shall first shew what change in the Laws of this Kingdom was endeavoured and what was really effected First It is an undeniable ground That no Freeman can be put to answer before any Judge but upon presentment or other matter of Record foregoing and by due Process of Law. And yet it had been ruled that strong presumption and complaint of credit after it is entred is sufficient Record to ground proceedings in this Case to attach the party to Answer But by this Law a Trial is introduced that neither resleth upon any peremptory Accusation or proof of Witness but meerly upon Inquisition upon the Oath and Conscience of the party suspected which in the latter days hath been called the Trial upon the Oath Ex Officio For such was the Trial allowed by the Canon in these times as appears in the Constitutions of Otho and the Decrees of the Archbishop Boniface by whom it was endeavoured to be obtruded upon the Laity about the times of Henry the Third or Edward the First but even the Clergie then withstood it as Lindwood confesseth And Otho in his very Constitution doth hold this forth by that clause of his Non obstante obtenta consuetudine Seconly This Law doth endeavour to introduce a new Judge with a power to Fine and Imprison according to discretion and a Prison allowed to him as his own peculiar and yet the Writ De cautione admittenda still held its power to regulate that discretion as formerly it had done which by the way may render the power of this Law suspicious Thirdly The Clergie are not content to have the Estates and Liberties of the bodies of the people at their discretion but they must also have their Lives Although no Freeman's life could by the Fundamental Laws of this Kingdom come to question but by the Judgement of his Peers nor could the Clergie by their own Canons interesse sanguini viz. They cannot put any man to death but by this Law they may send any man to death by a Sentence as sure as death Tradatur potestati seculari And such a death not as the Civil Magistrate is wont to execute by a speedy parting of the Soul from the Body by loss of Blood stop of Breath or such like but the Clergie must have Bloud Flesh Bones and Life and all even the edge of non entity it self or they are not satisfied and thus the Writ De comburendo Hoeretico entred into the World. True it is that some sparks of this fire are found in former times and Bracton toucheth upon such a Law in case of a Clerk convict for Apostacy Primo degradetur post per manum Laicalem Comburatur which was indeed the Canon and that by his own Confession for it is grounded upon one Secundum quod accidit in the Synod at Oxford under Archbishop Becket But that Case concerneth a Clerk who by his profession hath put himself under the Law of the Canon and it was onely in case of Apostacy himself being turned Jew and this also done upon a sudden pang of zeal and power of an Archbishop that would know no Peer Nor do we find any second to this Precedent by the space of Two hundred years next ensuing neither doth the Decree of Archbishop Peckham who was not long after Becket treating about Apostacy in Lay-men mention any other punishment than that they are to be reclaimed Per censuras Ecclesiasticas Nor yet that of Archbishop Arundel amongst the Constitutions at Oxford not long before this Statute who treating about the crime of Heresie lays the penalty upon forfeiture of Goods with a Praesertim as if it were the grand punishment And Linwood in his Gloss upon that place setting down the Censures against Heresie Hodie sunt saith he damnandi ad mortem as if it were otherwise but as yesterday Fourthly the next endeavour is to bring the cognizance of all wholly to the Ecclesiastical Court without further Appeal for so the words concerning Conviction of Heresie are Whereupon evidence shall be given to the Diocesan of the same place or his Ordinary in that behalf These changes I say were endeavoured to be brought upon the Government of
tanning of Leather imbasing of Silver selling of Waxen Images and Pictures c. For the superstition of these times was such as these petty Gods were not set at so high a price by the Seller but a higher price by the Buyer The Parliament therefore set a true value of them viz. For the Wax so much as the Wax is worth by weight and but four pence for the godhead So as it seems the Parliament was not very superstitious in their House whatever they were at Church Furthermore the Justices of the Peace had power to punish deceit in Measures Weights Forcible Entries and Detainers In many of which cases the penalty being Fine and Imprisonment became a snare to many of the Justices especially such as were of the greater and higher rank who having Castles of their own under colour of Justice imprisoned Delinquents in their own Castles and ransomed them at their own pleasure which proved a great oppression to the people and occasioned a Law that no Justice should commit any Delinquent to other than the County-Gaol saving Franchises to the Lords Those times are happy when Justice waits not altogether at Court but grows up in the Fields and Justices of Peace as the Kings Arms upon the Royal Mace are terrible onely to the bad and not as they are pictured before an Ale-house-door to invite men to transgress The Laws for the preservation of the peace concern either punishment of Crimes committed or prevention of them from being committed There is a succession of crimes as of Men and Ages because the Scripture tells us that the hearts of all are fashioned alike yet it is with generations as with men some incline to some crimes more than other and that is the reason that the title Treason sometimes is set forth in Folio sometimes in a lesser Volume It is evident is Story that the violent times of Richard the Second had raised the value of that amongst other offences above measure not long before his time his Father had reduced that wild notion of Treason to a certain rule that formerly wandred in a Wilderness of opinions But Henry the Fourth either to save his own stake or to take the people or both reduced it again to the Statute-rule of Edward the Third and made void that Statute of his Predecessors which had made a former Act of Parliament and all the service thereby done Treason The Dimensions of Treason thus clearly limned and declared taught ill-disposed minds to keep out of the Letter and yet to be bold with the Scene Counterfeit Money they durst not yet to diminish the same they thought came not within the Circle and so it became a common grievance till a Law was made That all purposed impairing of Money should be Treason And so the Parliament held forth to all men that they had a power to declare Treason without the bounds of the Statute of Edward the Third The like power it held forth in the time of Henry the Sixth for men knew that Burglary and Robbery were mortal crimes they would no more of that now they devise a way to spoil 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 poena of burning the parties House and Goods which many times did ensue upon default made This practice was at once made Treason to prevent the growth of such an evil And the like was done with Robberies and Manslaughters contrary to the Kings Truce and safe-conduct As many or more new Felonies were also now created One was the cutting out of mens Tongues and plucking out of Eyes a strange cruelty And that shewed the extream savageness of those times so much the more intolerable by how much the poor tortured creature could hardly be either Eye or Ear-Witness of the truth of his own wrong A second Felony was the customary of carrying of Wool or Wool-fells out of the Realm to other places except Calis Another Felony 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 appear not this was also made Felony 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 Battle fought till both sides be weary I shall not enter into each particular Statute divers of them being little other than as asseverations annexed to a Sentence to add credit and stir up minding in men that otherwise would soon forget what is said or done The remedies formerly propounded are now resined and made more effectual 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 stiff lest being uneffectual it aggravate the violence and therefore it is required that two Justices and the Sheriff should joyn in the work to carry on the work with more Authority and Power And what they cannot do in the punitive part they must certifie to the King and his Council or to the Kings Bench if Traverse be made So as though the power of the County be annexed to the Sheriff Jure ordinario to maintain the Peace yet the Parliament did delegate the same upon Justices as it thought most expedient To maintain and recover the Peace when it is broken shews more Power but to prevent the breach shews more Wisdom and therefore to all the rest the Wisdom of these Times provideth 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 parties for it is commonly seen that such as the admired for excellencies of person are so far idolized of some as that their Gestures Actions and Opinions are observed Tokens of favour though never so small are desired from such and the Idol 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 to be 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 is well if they escape a years imprisonment without Bail or Mainprize Lords may wear the King Livery but may give none Knights and Esquires may wear the Kings Livery in their attendance upon his person but not in the Country The King and â—â—ince may give Liveries to Lords and menial Servants The sum is that Liveries may be given by the more publick persons for state not to make parties and men may wear Liveries in token of Service in Peace and not in Arms. One thing must be added to all which may concern Trial in all Viz. A Law was made that Noble Ladies shall be tried by their Peers A Law now of the first stamp and strange it is that it never came before now into the breast of the Law but that it came now it is not strange No meaner person than the Dutchess of Gloucester is first charged with Treason when that could not appear then for Necromancy very fitly that she might be tried by the Ecclesiastical way of Witnesses She is found guilty and a Sentance of Penance and Imprisonment or Banishment passed thereupon after such a wild way as both Nobles and Commons passed this Law for the vindication of that noble Sex from such hudling Trials for the future CHAP. XXII Of the Militia during these times THe Title of Henry the Fourth to the Crown was maintained principally by his Tenures which the Courtiers call Knight service but the Common people force of Arms And that which destroyed many a man was the principal means of his subsistence Otherwise it is clear that his Title was stark naught nor could he outface Mortimer's Title without a naked Sword which he used warily for he had Enemies enough to keep his Sword in hand and Friends enough to keep it from striking at random For coming in by the peoples favour he was obliged to be rather remiss than rigorous yet his manner of coming was by the Sword and that occasioneth men much to debate about his absolute power in the Militia as supposing that what power he had other Kings may De jure challenge the same And let that be taken for granted though it will not necessarily follow in true reasoning And let it also be taken for good That Henry the Fourth entred the Throne by his Sword yet is there not any Monument in Story or Antiquity that favoureth any absolute right in him over the Militia but the current is I think somewhat clear against it First Because Henry the Fourth De jure could not compel men to serve beyond the Seas but raised them by contract and therefore by Act of Parliament he did confirm the Statute 1 Edw. 3. Stat. 2. cap. 5. which Statute was purposely made to that end And the same also is countenanced by another Statute made in these times whereof we now Treat by the words whereof appeareth that the Souldiers for the Foreign Service were levied by Contract between them and the Captain who undertook to levy them by Wage so as none were then compelled to enter into Service by Imprest or absolute Command Nor is there any Authority amongst all those cited in Calvin's Case that doth mention any such thing but contrarily that Opinion of Thirning is express That the King cannot send men beyond Seas to Wars without Wages and therefore no man is bound to any such service by any absolute Legiance as the Reporter would understand the point but if he receiveth Wages thereto he by that Contract binds himself Secondly It seemeth also to be granted that such as went voluntarily in the Kings Service ever had the Kings Pray after they were out of their Counties if the King ruled by his Laws For by the Statute formerly mentioned the King did likewise confirm the Statute of 18 Edw. 3. Stat. 2. cap. 7. which is express in that point and the matter in fact also is evident upon the Records Thirdly Touching the arming of those that were thus levied as there was a certain Law by which all men were assessed to certain Arms either by the Service and Tenure of their Lands or by Parliament for such as were not bound to find sufficient Arms by their Tenure according as is contained in the Statute 25 Edw. 3. Stat. 5. cap. 8. So did Henry the Fourth by the Statute formerly mentioned to be made in his time confirm that Law of Edward the Third In the argument of Calvin's case it is much insisted upon to prove the Legiance of an English man to the King to be absolute because he hath power to send men to War at his pleasure and he hath the onely power to make War and if so then hath he absolute power in the Militia As touching the power of sending men to War hath been already spoken but as touching the power to make War there is no doubt but where a King hath made a League with another King he onely can break that League and so make War and that Opinion of Brian must be agreed for good in that sence But if a League be made by Act of Parliament or if the King will have War and the Parliament will make a League without him no Authority doth in such case avouch that it is the right of the King or that he hath a legal power to break that League as he pleaseth Neither in the next place hath the King any Right or legal Power to make War with his own Subjects as he pleaseth but is bound to maintain the Peace not onely by his Oath at his Coronatiion but also by the Laws whereto he is bound if he will reign in right of an English King. For every man knoweth that the grounds of the Statutes of wearing of Liveries was for the maintaining of the publick Peace And Henry the Fourth amongst other provisions made against that trick hath this That the King shall give onely his Honourable Livery to his Lords Temporal whom shall please him and to his Knights and Esquires menial and to his Knights and Esquires which be of his retinue and take of him their yearly Fee for term of Life and that no Yeoman shall take or wear any Livery of the King nor of none other Lord. And another Law was made within one year ensuing confirming the former and providing that the Prince may give Liveries to such Lords as he pleases and to his menial Gentlemen and that they may wear the same as in the Kings Case By both which the King and Prince are both in one Case as touching the power of giving Liveries if the one hath absolute power then hath the other the like if one be under the Directory of Law in that point then is also the other For it is clear that the King is intended by the Statute to be bound from giving Liveries and the people from wearing them
Peace for whilst Henry the Sixth was in France which was in his Tenth year from St. George's day till February following the Scots propound terms of Peace to the Duke of Gloucester he being then Custos Regni which he referred to the Order of the Parliament by whom it was determined and the Peace concluded in the absence of the King and was holden as good and effectual by both Kingdoms as if the King had been personally present in his full capacity CHAP. XXIII A Survey of the Reigns of Edward the Fourth Edward the Fifth and Richard the Third THe Reign of Henry the Sixth was for the most part in the former parts of it like Fire buried up in the Ashes and in the latter parts breaking out into a Flame In the heat whereof the Duke of York after Fealty given by him to Henry the Sixth and Dispensation gotten from the Pope to break his Faith lost his life and left his Son the Markgrave to pursue his Title to the Crown which he claimed by Inheritance but more especially by Act of Parliament made upon the agreement between Henry the Sixth and his Father This was Edward the Fourth who nevertheless reserved himself to the Election of the Lords and was by them received and commended to the Commons in the Field By which means he gaining the possession had also encouragement to maintain the same yet never held himself a King of full Age so long as Henry the Sixth lived which was the one half of his Reign Nor did he though he held many Parliaments scarce reach higher than at reforming of Trade which was a Theam well pleasing to the people next unto their Peace which also the King carefully regarded For although he had been a Souldier of good experience and therewith successful yet as one loath to trust too far either the constancy of the people of his own Opinion or the fortune of War with his neighbouring Princes he did much by brave countenance and discourse and yet gained repute to the English for valour after the dishonourable times of Henry the Sixth He had much to do with a wise King of France that knew how to lay out three or four calm words at any time to save the adventure of his peoples bloud and make a shew of money to purchase the peaceable holding of that which was his onely by force until the wind proved more fair to bring all that continent under one head In his Government at home he met with many cross Gales occasioned principally by his own rashness and neglect of the Earl of Warwick's approved friendship which he had turned into professed enmity and so weakned his own cause thereby that he was once under water his Kingdom disposed of by new intail upon the Heirs of Duke Clarence and so the Earl of Warwick remained constant to the House of York though this particular King was set aside Nor did he in all this gain any thing but a Wife who though his Subject and none of the greatest Family neither brought any interest unto her Lord and Husband amongst Foreign Princes brought nevertheless a Pearl which was beyond all which was the purchase of the Union between the two Houses of York and Lancaster and a peaceable succession in the Throne for a long while to come It must be granted that there fell therewith an unhappy inconvenience in the raising of a new Nobility of the Queens Kindred of whom the ancient Stock of Nobility thought scorn and yet they were so considerable as to be envied A Wound hard to be cured and yet easily avoided by such as know how to deny themselves And therefore can be no prejudice unto that conclusion That for an English King to marry his own Subject is more safe for the King and beneficial for the Kingdom than to marry a Stranger But Edward the Fourth did not long lie underneath upon the next fair Gale he comes from beyond the Sea and like his first Predecessor of the House of Lancaster claims onely his Dutchy which no man could in reason deny to be his right and therefore were the sooner engaged with him in that accoust This was an act that in the first undertaking seemed modest but when it was done appeared too bold to adventure it upon the Censure of Henry the Sixth and therefore they were not more ready to engage than slack to dis-engage till they were secure in the Kings Interest which not long after ensued by the death of Henry the Sixth Thus Edward the Fourth recovered the Crown to save his Dutchy His Government was not suitable for he came in by the People but endeavoured to uphold himself by Foreign Dependencies as if he desired to spread his Roots rather wide than deep How ill this Choice was the event shewed for Plants that root wide may be strong enough against an outward Storm but they soon grow old barren and rot irrecoverably from beneath Such was the end of this mans Government himself lived and died a King and left Issue both Male and Female the one tasted the Government the other kissed it but neither of them ever enjoyed further than a bare Title Nor was the Government of Edward the Fourth so secured by the Engagements of Foreigners for as he sought to delude so he was deluded both by Burgundy and Scotland to the prejudice of all three Towards his own people his carriage was not so much by Law as by Leave for he could fetch a course out of the old way of rule satisfie himself dissatisfie others and yet never was called to account What was done by Entreaty no man could blame and where Entreaties are countenanced by Power no man durst contradict Thanks to his Fate that had brought him upon a People tired by Wars scared by his success and loth to adventure much for the House of Lancaster in which no courage was left to adventure for it self The greatest errour of his way was in the matter of Revenue the former times had been unhappy in respect of good Husbandry and Edward the Fourth was no man to gather heaps His occasions conduced rather to diffuse and his mind generally led the way thereto so as it is the less wonder if he called more for accommodations than the ordinary Treasury of the Crown could supply Hereto therefore he used expedients which in his former times were more moderate for whilst Henry the Sixth lived he did but borrow by Privy Seal and take Tunnage and Poundage by way of hire Afterwards when no Star appeared but what was enlightned from his own Sun he was more plain and tried a new trick called Benevolence Unwelcome it was not onely in regard of its own nature but much more in the end for it was to serve the Duke of Burgundy in raising a War against France in the first view but in the conclusion to serve his own Purse both from Friends and Foes And yet this also passed without much
controul for when displeasure was like to ensue he could speak fair and feast and if need was kiss away all discontent Towards his end as stale drink he grew sowr For as in the first part of his Reign he had been supplied by good-will against Law so in his latter times he had gotten a trick of supply by Law against good-will This was by penal Laws which are a remedy if they be used Ad terrorem but if strained beyond that the Remedy proveth worse than the Disease In their first institution they are forms of courtesie from the people to the King but in the rigorous execution of them are trials of mastery of the King over the people and are usually laid up against days of reckoning between the Prince and them Those penal Laws are best contrived that with the greatest terrour to the Delinquent bring the least profit to the King's Coffers Once for all this King's Acts were many his Enterprizes more but seldom attaining that end which they faced He was a man of War and did more by his Fame than his Sword was no sooner resolved in good earnest but he died left a Kingdom unassured his Children young and many friends in shew but in truth very few Now if ever was the Kingdom in a Trance Edward the Fourth left a Son the Prima materia of a King and who lived long enough to be enrolled amongst English Kings yet served the place no further than to be an occasion to fill up the measure of the wickedness of the Duke of Gloucester and a monument of Gods displeasure against the House of Edward the Fourth whether for that breach of Oath or treachery against Henry the Sixth or for what other cause I cannot tell But at the best this Prince was in relation to his Uncle the Duke of Gloucester little other than as an Overseer to an Executor that might see and complain but cannot amend For the Duke ruled over-ruled and mis-ruled all under the name of Edward the Fifth and left no monument of good Government upon record till he changed both the Name and Person of Edward the Fifth to Richard the Third his Fame had lifted him up and might have supported him had he regarded it But as no man had more honour before he ascended the Throne so no man ever entred and sate thereon with less His proceedings were from a Protector to an Vsurper and thence to a Tyrant a Scourge to the whole Nation especially the Nobility and lastly an instrument of Gods Revenge upon himself a man made up of Clay and Blood living not loved and dying unlamented The manner of his Government was strained having once won the Saddle he is loth to be cast knowing himself guilty all over and that nothing could absolve his Fame but a Parliament he calls it courts it and where his Wit could not reach to apologize he makes whole by recompence takes away Benevolences he is ready to let them have their present desires what can they have more He promiseth good behaviour for the future which he might the better do because he had already attained his ends Thus in one Parliament for he could hold no more he gave such content as even to wonderment he could assoon find an Army in the field to fight for him as the most meritorious of his Predecessors Hiâ— ill Title made him very jealous and thereby taught his best Friends to keep at a distance after which time few escaped that came within his reach and so he served God's Judgement against his adjutants though he understood it not Amongst the rest against the Duke of Buckingham his great Associate both in the Butchery of the two young Princes and usurpation of the Royal Scepter He lived till he had laid the Foundation of better times in the person of Henry the Seventh and then received his reward But an ill Conscience must be continually fed or it will eat up its own womb The Kings mind being delivered from fear of the Sons of Edward the Fourth now dead torments himself with thoughts of his Daughter alive ashamed he is of Butchery of a Girl he chuseth a conceit of Bastardizing the Children of Elizabeth Gray that calleth her self Queen of England but this proved too hard to concoct Soon after that he goes a contrary way The Lady Elizabeth Gray is now undoubted Wife of Edward the Fourth and her eldest Daughter as undoubted Heir to the Crown And so the King will now be contented to adventure himself into an incestuous Marriage with her if his own Queen were not in the way onely to secure the Peace of the Kingdom which he good King was bound in Conscience to maintain though with the peril of his own Soul and in this zeal of Conscience his Queen soon went out of the way and so Love is made to the young Lady But Henry Earl of Richmond was there before and the Lady warily declined the choice till the golden Apple was won which was not long after accomplished the King losing both the Lady his Crown and own Life together put an end to much wickedness and had the end thereof in Bosworth-Field CHAP. XXIV Of the Government in relation to the Parliament THe seasons now in Tract were of short continuance lives passed away more speedily than years and it may seem useless to enquire what is the nature of the Government in such a time whenas the greatest work was to maintain Life and Soul together and when all is done little else is done For though the Title of the House of York was never so clear against that of Lancaster yet it had been so long darkned with a continual â—uccession of Kings of the Red Rose that either by their Merit had gained a Throne in the peoples Hearts or by their Facility had yielded their Throne up to the peoples will as it proved not easie to convince them that liked well their present Lot and were doubtful of change or to make them tender of the right of Edward the Fourth above their own quiet Above Threescore years now had England made trial of the Government of the Lancastrian Princes and thereof about Thirty years experience had they of Henry the Sixth they saw he was a gentle Price On the other side Edward the Fourth newly sprung up out of a Root watered with blood himself also a man for the Field This might well put the minds of the people to a stand what to think of this Man whose Nature and ends are so doubtful and brought nothing to commend him to the good wills of the people but his bare Title which the common sort usually judge of according as they see it prosper more or less Add hereunto that Divine Providence did not so clearly nor suddenly determine his secret purpose concerning this change by any constant success to either part by means whereof the one half of Edward the Fourth's Reign was spent while as yet Henry the
Sixth was in view and the minds of men left unassured neither trusting much to Edward the Fourth nor he to them And after that Henry the Sixth was gone out of the way Edward the Fourth could not readily change his posture used Arguments of force and power and for the most part looked like a man in Arms with his hand on his Sword ready to draw upon the next man that stands in his way Thus are the people partly driven and partly drawn into an Oath of Allegiance unto Edward the Fourth under peril of Attainder and the Parliament assured unto him once more For immediately upon the departure of Edward the Fourth beyond Sea after Ten years of his Reign the Parliament never staying for the issue of Providence declared the Throne void of Edward the Fourth and Henry the Sixth King. The Judges likewise of the Courts of Westminster determined the same thing as may appear by the Law-Reports of those times in Print wherein reattachments were often granted by them upon discontinuance of Process by this Demise of Edward the Fourth And thus Henry the Sixth is once more King for six Months viz. from October to April at which time the Ballance turns Edward the Fourth returns gets into the Throne Henry the Sixth is again Dethroned all things are as they were and all confirmed by Act of Parliament For that Body is ever wise enough to side with Power rather than to spend much time upon fruitless Orders and Votes that will pierce no Armour and therefore like the times must needs be subject to fits of distemper at the coming in of every Tide and did build and pull down enact and disenact turn and return the English Crown from York to Lancaster and back again and in conclusion for some time did do little but undo Nor can they be justly censured herein for Councils of men are not ordained to hinder divine Providence or over-rule Fate but to foresee and close with Occasions in the most advantageous way for the publick good and when both Winds and Currents are uncertain to ride at flote till they can discern the most commodious Haven to Winter in To impute therefore fault unto the Parliament in such Cases for want of Uniformity and Immutability of Councils is somewhat like the Notion that Batchelors conceit of Wives they would have but they do not know what other 〈◊〉 an Idea of their own fancy Now if it be enquired which course prevailed in order either to the Kings Royalty or the peoples Liberty I shall answer Neither of these but the House of York prevailed to hold the Crown and might have advanced the Authority thereof had they not fall'n out amongst themselves for the spoil and Edward the Fourth was not altogether disposed thereto The success that he had in the Field and his Souldiery made him look big like a King of the greater size but Kings sleep not securely upon such Pillows When the Militia is on Horseback it is as ready to be a Guard upon the King as for him and when it is most sober not so easily governed as a Commonwealth And therefore Edward the Fourth now in Arms though he found it a hard Notion to maintain the peoples Liberty where no man is free from the Souldier yet he enclined thereto We read of a multitude of Taxations of all sorts and of Benevolences the worst of all those sorts For Souldiers must have money or if not they will have it but the King would not force things so far as his power could reach he will have Money but it shall be by order of the Parliament He might have pretended much upon the Commission of Array yet did it not but chose rather to be Lord of the Seas And because it was too great a Farm for his private Purse he prays aid of the Parliament by the way of Tumage and Poundage which was in demand nine years before the Parliament granted it And when it was granted it was with such restrictions that it is evident the King preferred the right of the Parliament therein above his private honour Secondly Titles of Honour are but windy Notions and every one knows what claim is made by Kings to have the sole interest in conferring the same This Edward the Fourth neglected so far as he interested the Parliament both in the conferring of them and resuming the same Thirdly The course of Trade was now more especially looked to not by the King and Privy Council but by the Parliament And because it was much decayed partly by reason of the ill government thereof and partly by the excessive lavishness of these times many Laws are made for remedy of both And first the Staple was setled sometimes at Calis alone sometimes at it and Middleborough and by this means England gained Trade from both Nations but the principal thanks is to be given to the interest between the King and the House of Burgundy Then course is taken for the bringing of the Staple Commodities onely to those places and the return to be made in Money and not Commodity by exchange Then for the well making of Staple-Manufactures and restraining Importation of Foreign Manufactures of such kinds Then against transporting of English Coyn and importing of Foreign Coyn other than Bullion And as touching the second grievance it seems gallantry or vanity of Apparel was a sore Disease of these times which were become times of Fashions and wherein the King led the way by his own example For he desired to be brave and that he might be more brave he passed Laws that the people should be less brave assessing a sort of Apparel for every degree and therein stooped so low as to define the fashions of their very shoes Fourthly The Parliament retained their ancient right of reducing the course of Judicature For whereas Sheriffs had hitherto holden their course of Trial of the moaner sort of Felonies and Trespasses and Offences determinable onely by Imprisonment or Fines and Amerciaments whereby mens Estates did lie under the continual pillage of these covetous and extorting Officers It was established by the Parliament that these men should have for the future only power of enquiry and to certifie at the next Sessions and there the Trial to be and Fines and Amerciaments to be set Taxed and Estreated unto the Exechequer and from thence to be levied and thereof the Sheriff give account This was a great security to the peoples Estates but gave them not a full remedy For though the Trial was now more fair yet these Officers were Judges of suspicion and had still power upon suspicion to imprison their persons and seize their Estates under colour to save them for the King in case Conviction followed For remedy hereof the Justices of the Peace have now power given them to Bail in Case of light suspicion and it is further declared that no mans Estate shall be first
that Prince that will keep Guards about his Person in the midst of his own people may as well double them into the pitch of an Army whensoever he pleases to be fearful and so turn the Royal power of Law into force of Arms. But it was the French fashion and the King 's good hope to have all taken in the best sence His Title setting aside the saying of Philip the Hardy That Kingdoms onely belong to them that can get them would hardly endure the touch till Pope Innocent by his Bull confirmed the Crown to him to hold by a six-fold right Viz. Of Inheritance of War of Espousals of Election of Gift by Parliament and lastly of Pontifical Benediction which the King liked marvelous well and the rather because his Title by Marriage was buried up in the middle and so made the less noise For though it was his best guard yet he liked not that it should be so reputed lest his Title should seem rather conferred upon him than gained by him and so should hold by a Woman or at the best by the courtesie of England if the Peoples favour should so far extend the Law in that point by both which he holds the honour of a compleat King diminished His Title by Inheritance is much disputable if the right Heirs of John of Gaunt be enquired after And much more that of War for although that brought the Possession yet no right or Title but by wrong which may indeed be plaistered over by Election or Act of Parliament but then he must be Tenant to the People As touching the Pontifical Benediction himself took that but as a redundancy that might sway with the Clergie and do his Title no hurt Nevertheless what severally they cannot do by joynt concurrence he accounts so fully done as if he were a King against all the World and more Yet is he not sure enough but as one jealous is more tender so is his eye ever upon his Title there is his guard and regard as if it were the outworks of his Crown which once lost the Crown cannot hold out long In this work he minded so much his Greatness that he lost the repute of his Goodness Then casting his eye upon the Government and finding it of a mixt temper wherein if Royalty prevails not Popularity will like a good Souldier whilst his strength is full he sallies upon the peoples liberties in regard of their persons with such cunning conveyance as he taught the People to dance more often and better to the tune of Prerogative and Allegiance than all his Predecessors had done Nor did the People perceive it till they were over their Shoes and then they clearly saw their condition and that it was in vain for them to wrangle with their own acts of which more particularly in the next Chapter The Legiance of persons of the People once gained their Estates more easily follow And therefore though in the former he wrought by Ambuscado in this he may be more brave and charge them in the Van. Yet this he did also by degrees first by light skirmishes of borrowing smaller sums of money possibly when he had no need and paying them again thereby to gain credit for greater sums of which he intended not so sudden return Then he charges them home with Benevolences a trick gained in right of his Wife from her Father for he hoped that the person of Richard the Third was now become so abominable as his Laws would be the less regarded But in this course he gained nothing but Wind. Then as Edward the Fourth he falls upon Malevolences of Penal Laws things made in terrorem to scare men to obedience rather than to compel them but are now executed Ad angorem and the people find that he is but a word and a blow with them and thus serving his Prerogative with Power and his Purse with his Prerogative he made all serve his own turn Humanitatem omnem vincente periculo In the Field he always put his Wisdom in the Van for as he was parsimonious in expences of Money so much rather of Bloud if he could prevail by Wit. Generally he was the first in Arms to make men believe he was more ready to fight than they Thus he many times gained the advantage of his Adversaries and sometimes came off without blows In the Battle he did put on courage as he did his Armour and would dare to adventure just as far as a General should as if he had ever regard of his Crown rather than of the honour of a forward Souldier which nevertheless was also so dear to him as he is seldom found in the Rear although his Judgement commanded in chief rather than his Courage In the Throne he is much more wise because he was willing it should be known In doing Justice he is seldom suspected unless where himself is party and yet then he is also so shame-faced as he would ever either stalk behind some Law that had a semblance to his ends or when he meant to step out of the way he would put his Ministers before not so much that his fineness might be known but his Royalty For the Lion hunts not its own prey nor is it Regal for a King to be seen in catching of Money though he be understood Besides it was needless he had Lords Bishops Judges and other instruments of malevolent aspects as so many Furies outwardly resembling men for the Commonwealth but working for the common mischief like some Pictures one way looking right and another way looking wrong And thus the King comes lawfully by what he catched though his instruments did not and must be still holden for a good King though it be his hard hap to have ill servants Take him now amongst the people he is alike to all yea in some things that might seem to brush upon the King 's own train for he had some of his suit that were not altogether of his mind and these he would spare to the course of Justice if need were As it befel in the case of the Duke of Suffolk whom he suffered to be tried at the Kings Bench-bar for a Murder done upon a mean person and by such means obtained the repute of a zealous Justiciar as if Justice had been his principal vertue All this suited well with his main end for he that will milk his Cattle must feed them well and it encourages men to gather and lay up when they have Law to hold by what they have His Religion I touch upon in the last place as most proper to his temper for it was the last in his thought though many times the first in the acting But where it stood in his way he turned it behind him he made Church-men his instruments that the matter might better relish for who will expect ought save well from men of Religion and then if the worst come he was but misled by such as in common reason ought
the people for the present must endure In deposito of the King and other persons that a kind of Interim might be composed and the Church for the present might enjoy a kind of twilight rather than lie under continual darkness and by waiting for the Sun-rising be in a better preparation thereunto For the words of the Statute are That all must be done without any partial respect or affection to the Papistical sort or any other Sect or Sects whatsoever Unto this Agreement both parties were inclined by divers regards For the Romanists though having the possession yet being doubtful of their strength to hold the same if it came to the push of the Pike in regard that the House of Commons wanted Faith as the Bishop of Rochester was pleased to say in the House of Lords and that liberty of Conscience was then a pleasing Theme as well as liberty of Estates to all the People These men might therefore trust the King with their interests having had long experience of his Principles and therefore as Supream Head they held him most meet to have the care of this matter for still this Title brings on the Van of all these Acts of Parliament On the other side that party that stood for Reformation though they began to put up head yet not assured of their own power and being so exceedingly oppressed with the six Articles as they could not expect a worse condition but in probability might find a better they therefore also cast themselves upon the King who had already been baited by the German Princes and Divines and the outcries of his own People and possibly might entertain some prejudice at length at that manner of Worship that had its original from that Arch-enemy of his Head-ship of the Church of England Nor did the issue fall out altogether unsuitable to these expectations For the King did somewhat to unsettle what was already done and abated in some measure the flame and heat of the Statute although nothing was established in the opposite thereto but the whole rested much upon the disposition of a King subject to change As touching the constitution of this Law that also shews that this was not derived from the ancient Right of the Crown now restored but by the positive concession of the People in their representative in regard it is not absolute but qualified and limited diversly First This power is given to this King not to his Successors for they are left out of the Act so as they trusted not the King but Henry the Eighth and what they did was for his own sake Secondly They trusted the King but he must be advised by Counsel of men of skill Thirdly They must not respect any Sect or those of the Papistical sort Fourthly All must be according to Gods Word and Christs Gospel And Lastly Nothing must be done contrary to the Laws and Statutes of this Realm And thus though they trusted much yet not all nor over-long For it was but a temporary Law and during the present condition of affairs Nor did the King or People rest upon this Law for within three years following another Law is made to confirm what was then already done by the King and a larger power granted to the King to change and alter as to his Wisdom shall seem convenient Thus the Kings Injunctions already set forth were established all opposal to them inhibited and the King hath a power of Lawing and Unlawing in Christ's Kingdom and to stab an Act of Parliament in matters of highest concernment And the reason is the King will have it so and who dares gainsay it as Cranmer said The King loves his Queen well but his own opinion better For new things meeting with new love if it be once interrupted in the first heat turns into a displeasure as hot as the first love Nor had either party great cause to boast in their gainings for none of them all had any security but such as kept close to a good Conscience All this though much more than any of his Predecessors ever attained was nevertheless not enough till his Title was as compleat The Pope had fashioned him one now above twenty years old for his service done against Luther and others of that way and sent it to him as a Trophee of the Victory this was Defender of the Faith which the King then took kindly but laid it up till he thought he had deserved it better and therefore now he presents it to the Parliament who by a Statute annexed it to the Crown of England for ever now made triple by the Royalizing of that of Ireland amongst the rest A third Prerogative concerned the Kings power in temporal matters And now must England look to it self for never had English King the like advantage over his People as this man had His Title out-faced all question left rich by his Father trained up in the highest way of Prerogative absolute Lord of the English Clergy and of their Interest in the People of a vast spirit able to match both the Emperour and French abroad and yet more busie at home than all his Predecessors A King that feared nothing but the falling of the Heavens the People contrarily weary of Civil Wars enamoured with the first tastes of Peace and Pleasures whiles as yet it was but in the blushing child-hood over-awed by a strange Giant a King with a Pope in his belly having the Temporal Sword in his hand the Spiritual Sword at his command Of a merciless savage nature but a word and a blow without regard even of his bosome-Companions What can then the naked relation of a Subject do with such an one if Providence steps not in and stops not the Lions mouth all will be soon swallowed up into the hungry maw of Prerogative To set all on work comes Steven Gardiner from his Embassage to the Emperour sad apprehensions are scattered that the motions abroad are exceeding violent and sudden that the Emperour and French King are fast in nothing but in change according to occasion that like the Eagle they make many points before they stoop to the Prey that if the motions at home do wait upon debates of Parliament things must needs come short in execution and the affairs of this Nation extreamly suffer A dangerous thing it is that the King should be at disadvantage either with the Emperour or French King for want of power in these cases of sudden exigencies and for some small time during the juncture of these important affairs that seeing likewise at home the point concerning Religion is coming to the Test the minds of men are at a gaze their Affections and Passions are on their Tiptoes It is reason the King should steer with a shorter Rudder that this care might meet with every turn of Providence which otherwise might suddenly blow up the Peace and good Government of this Nation These and the like represented a fair face to that
formerly hath been already manifested Thirdly As touching Matrimonial Causes their former power of making Laws concerning them and Testamentary Causes is now absolutely taken away onely concerning Matrimonial 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 Katherine Dowager depending before the Archbishop Cranmer For the King supposed the Pope a Party and therefore meaned not that he should be his Judge And thus though the Clergie 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 losers of that which was none of their own CHAP. XXX Of the power of the Clergie in their Ordinary Jurisdiction THose Spirits are truly degenerate that being sensible of miserie cannot stir up desires of Change although the way thereto lies open before them And this shews 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 Popedom upon the Bishops Sphere and the people under their charge could never have provoked such complainings amongst all sorts in several 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 Praemuniri taught them to speak and so were scared into a better condition than they would have had and into a more absolute Estate of Jurisdiction than 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 four hundred years and the King finding the root of all the mischief 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 Archbishops Court and the Appeals from the Archbishop's Commissarie 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 Archbishop was either more worthie or more willing with that trust For though the Convocation might have 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 do in matters of more publick nature the utmost Appeal in such cases is made Provincial This whether priviledge or prejudice the Ecclesiastical Causes gained above the Civil whose definitive Sentences was reserved to the Parliament And thus is the Archbishop made Heir to the Pope in the greatest priviledge of a Pope to be chief Judge on Earth in matters Ecclesiastical within his own Province A trick that in my opinion much darkned 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 than a lawful power and whether all the Pope's former power allowed him by the Canon or gained by Usurpation and Custom shall be said a lawful power or whether the power of Review by Appeal shall be derived to the Crown under the general Notion of Supreamacy 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 Clergie the matter concerning the Divorce of the Lady Katherine 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 Pope's 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 setled 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 therefore as to me it appears the power of Supream Cognizance of Appeals was not in actual possession of the Crown by the Clergies submission so was it actually vested in the Archbishop before the Title of Supremacy was confirmed by Act of Parliament and so it never was in the Crown actually possessed much less had the Crown the same by Remitter For the King's turn once served by the Convocation and the matter of the Divorce of Queen Katherine setled the King perceiving the slow progress of the Convocation the Members of the same not being yet sufficiently tuned to the present Affairs And moderate Archbishop 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 Archbishop to Delegates 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 Archbishop and conferred it upon them A second advantage not inferiour hereto which the Archbishop gained out of the ruines of the Popedom 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 licentiousness in the world But in the Archbishop 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 Archbishop to walk in as the Pope had in former times A large Teather and greater priviledge than ever the Crown had by which although the King himself be like Saul higher by the Head than all the people yet in many things Samuel is higher than 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 therefore have his way like that of the Zodiack broad enough for Planetary motion of any one that could not contain himself within the Ecliptick line of the Law and so
and made all practices contrary to the rule damageable to the party Thus far concerning the matters in Cognizance now touching the power of the Keys English Prelacy having laid aside the pretentions of Rome they put the world to a gaze to see which way they would go In the innocent infancy of Prelacy it was led by the hand by the Presbytery and would do nothing without them afterwards having gained some degree of height and strength they entred themselves to be Chariot-horses to the Roman Sun till they had set all on fire Now unharnest it is expected they should return to their former Wits nevertheless forgetting their ancient Yoak-fellows the rural Presbyters they stable with the King use his name sometimes but more often their own serving him with Supremacie as he them with authority beyond their Sphere They raise him above Parliament he them above Councils so as they do what they list let the Plebeian Presbyter will or nill they are the onely numeral Figures and the other but Cyphers to make them Omnibus numeris absoluti Nevertheless the Canon still remains the same Episcopi se debent scire Presbyteros non Dominos nec debent in clerum dominari Episcopus se sedente non permittat Presbyterum stare Episcopi noverint se magis consuetudine quam dispensatione Presbyteris majores Kings may make them Lords but as Bishops they hold their former rank assigned by the Canon as Lord s the King never gave them the Keys and as Bishops the Canon did not yet as under the joynt Title of Lord-Bishops they hold themselves priviledged to get what power they can Two things they reach at viz. The absolute power of Imprisonment and of Excommunication in all causes Ecclesiastical The Common Law would never yield this some Statutes in some Cases did pretend First As touching Imprisonment the Statute of Henry the Fourth concerning Heresie doth lisp some such power of what force the same Statute is hath been already observed In case of incontinency of Church-men it is more directly given them by a Statute in Henry the Seventh's time before which time the Statute it self doth intimate that an Action did lie against them for such Imprisonment which Law also was made useless by another in Henry the Eighth's time who gave a way to Statutes for the punishing them at the Common Law. First with Death which continued for some Moneths and that being found too heavy it was punished by another Law with Forfeiture and Imprisonment And the same King likewise gave way to a Law for the like punishment in case of Heresie By that Law that revoked the Statute of Henry the Fourth formerly mentioned although till Trial the same was bailable And thus continued till the time of Edward the Sixth But as touching Excommunication it was to no purpose for them to struggle the Common Law would never permit them to hold possession quietly but did examine their Authority granted Prohibition enjoyned the Ordinary to grant Absolution where it saw cause Nevertheless in some cases Henry the Eighth gives way to some Statutes to allow them this power as in the â—evying of Tenths In the next place the Prelacy had not this Ecclesiastical Jurisdiction in themselves so as to grant it to others but the Parliament did dispose thereof not onely to Bishops but to Chancellors Vicars general Commissaries being Doctors of the Law and not within holy Orders and limiting their Jurisdiction in cases concerning the Papal Jurisdiction and their manner of sending their Process and Citations to draw men from their proper Diocess and also their inordinate Fees in Cases Testamentary The Prelates therefore might possibly make great claim hereof for generally they were still of the old stamp loved to have all by Divine Right and lived they cared not by what wrong But the Laity enclining too much to the new Religion as then it was termed refused to yield one foot unto their pretentions And so like two Horses tied together by their Bits they endeavour after several courses ever and anon kicking one at another yet still bestrode by a King that was joynted for the purpose and so good a Horseman that neither of them could unhorse him till Death laid him on the ground And thus was the Roman Eagle deplumed every Bird had its own Feather the great men the Honours and Priviledges the meaner men the Profits and so an end to Annates Legatine levies Peter-pence Mortuaries Monasteries and all that Retinue the vast expences by Bulls and Appeals to Rome to all the cares expences and toil in attendance on the Roman Chair The beginning of all the happiness of England CHAP. XXXI Of Judicature THese two Kings were men of towring Spirits liked not to see others upon the Wing in which regard it was dangerous to be great and more safe not to be worthy of regard Especially in the times of Henry the Eighth whose motion was more eager and there was no coming nigh to him but for such as were of his own train and would follow as fast as he would lead and therefore generally the Commons had more cause to praise the King for his Justice than the Nobility had Both the Kings loved the air of profit passing well but the latter was not so well breathed and therefore had more to do with Courts which had the face of Justice but behind were for the Kings Revenue Such were the Court of Requests of mean Original mean Education yet by continuance attained to a high growth The Court of Tenths and first-Fruits The Court of Surveyors The Court of the Lord Steward of the Houshold The Court of Commission before the Admiral The Court of Wards The Court of the President of the North The Prerogative Court The Court of Delegates The Court of Commission of Review Others of more private regard And that which might have given the name to all the rest the Court of Augmentation Besides these there were some in Wales but that which concerned more the matter of Judicature was the loss of that grand Liberty of that Country formerly a Province belonging to this Nation and now by Henry the Eighth incorporated into the same and made a Member thereof and brought under the same Fundamental Law a work that had now been long a doing and from the time of Edward the Third brought on to perfection by degrees First by annexing the Tenure of the Marches to the Crown Then upon occasion of their Rebellion by loss of many of their wonted Liberberties Afterwards Henry the Eighth defaced the bounds of divers the ancient Counties and setled them anew and the bounds of the Marches also and appointed Pleas in Courts of Judicature to be holden in the English Tongue And last of all re-united them again to the English Nation giving them vote in Parliament as other parcel of the English Dominions had True it is that from their
Labour or other Contribution none of which ought to be done but by publick Law. And therefore when the Inhabitants of the County of Cornwal were to make defence against Invasion and Piracy from the Coast of Little Britain in regard they were a long slender County and upon sudden surprizals People could not so readily flock together for their joynt defence they obtained an Act of Parliament to give them power to fortifie the Sea-coasts according to the direction of the Sheriff and Justices of the Peace Lastly Wars once begun must be maintained at the charge of the undertakers If they be the Kings own Wars he must maintain them out of his own Treasury till the benefit of them do prove to the common good and in such cases the charges have been sometimes provided before the work by Act of Parliament and sometimes after Henry the Seventh and Henry the Eighth both of them at their several times went to Boloigne with their Armies Henry the Seventh with an intent to gain profit to himself by an advantagious peace and had his ends therein and was ashamed to ask aid of the people towards the charges of that War. Henry the Eighth went upon his own charge also with his Army trusting to the Parliament for consideration to be had of his employment wherein his expectation did not fail and in his absence made Queen Katherine General of all the Forces of England in his absence and gave her power with other five Noble Personages to take up Money upon Loan as occasion should require and to give security of the same for the maintaining and raising of Forces if need should require as is more particularly set forth in the Patent-rolls of these times Nevertheless the War at Sea Infra quatuor Maria was ever reputed defensive as to the Nation and under the publick charge because no War could be there but an Enemy must be at hand and so the Nation in imminent danger and therefore the maintenance of the Navy-Royal in such cases was from the publick Treasury To conclude therefore if the Parliament and Common Law in all these Cases of Levies of men for War payment of Souldiers and their deportment in cases of Fortifications and of maintenance of Wars at Sea and the deportment of such as are employed therein I say if they give the Law and carry the Supream Directory then certainly the Law rules in that which seems most lawless and though Kings may be chief Commanders yet they are not the chief Rulers CHAP. XXXIII Of the Peace PEace and War originally depend upon the same power because they relate each to other as the end to the means and receive motion from one and the same Fountain of Law that ruleth both in Peace and War. It is very true that several Ages hitherto have been troubled with arbitrary Exhalations and these very times whereof we now treat are not altogether clear from such an air Two Kings we have at once in view both of them of an elate spirit one working more closely by cunning the other more openly by Command yet neither of them pretending so high as to do all or be all in all Peace suited more with Henry the Seventh than with his Son who delighted to be accounted terrible rather than good yet both of them were glad enough to be at peace at home and were industrious to that end though by several means Henry the Seventh pretended Justice and Peace a welcome news to a people that formerly accounted nothing theirs but by the leave of the Souldier and therefore sets upon the Reformation of the Sheriffs Courts in the entring of Plaints and making of Juries suitable to that present time wherein men of Estates were very scarce and much of the Riches of the Nation evaporated into the Wars both Civil and Foreign Although the continuance of that order concerning Juries in the succeeding times of opulency hath brought these Courts into contempt and made way thereby for the Kings Courts to swell in Glory and to advance Prerogative even above it self Secondly he reforms Goals as well in their number as their use During the Civil Wars every small party of men that could get a strong place made the same not onely a Castle but a Goal and usually imprisoned and ransomed at their own pleasure For remedy whereof Henry the Seventh restores all Goals to the Sheriffs saving such as hold by Inheritance and gives power to two Justices of the Peace one being of the Quorum to take Bail in cases bailable and Recognizances of the Peace to be certified at the next Sessions or Goal-delivery Thirdly both Kings concur in providing against such disorders as more immediately did trench upon the publick Peace and reached at the Crown it self by labouring to prevent by severe punishing and lastly by regulating the proceedings of Judicature in such cases These disorders were two inordinate wearing of Liveries and unlawful Assemblies The first being in nature of unlawful assembly of minds and spirits of men the second of their bodies and persons Both these had formerly been provided against but the Judges of the Common Law unto whose Cognizance these Crimâ— were holden did restrain their punishments to the rule of the Common Law then thought to be too facile and mean for disorders that did flie at so high a pitch and therefore they are reduced before a higher Tribunal as matter of State as hath been already mentioned The severity of punishment consisted not so much in aggravating the Pain as the Crime matters of injury being made Felonies and those Treasons This Crime of Treason at first it concerned matters acted against the Nation afterwards it reached to matters acted against the King now it reacheth even to the very thoughts and imaginations of the heart not onely of bodily harm to the King but of the Queen or their Heirs apparent or tending to deprive them of their Title of Name of Royal Estate This Crime was formerly made but Felony by Henry the Seventh and then onely extended to such offence committed by one of the Kings Houshold against the Person of the King or a Lord or any of the Council Steward Treasurer or Controller so as the Person of the Queen was not then in the case and yet then newly Crowned and at that instant bearing in her Womb the Royal Seed which was then the onely earnest of the stability and glory of England and therefore it is a subject of wonderment unless it were out of extremity of Jealousie lest he should seem to make too great account of her Title and thereby disparage his own And then is it a piece of wit but not without weakness for he that is jealous of the slightings of other men shews himself unresolved in his own pretensions Now Henry the Eighth not onely raised the price but added to the thing and not onely putteth the Queen but the Prince or Heir
looking on and such as stood more directly in her Path she would rather set aside than trample down and be fair to all without respect to difference of Religion that would be fair to her Much of her happiness depended upon Election of her Council 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 than 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 publick mind if not popular 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-witness of many of her Actions and of those that succeeded her many times hath said That a Courtier might make a better Meal of one good Look from her than of a Gift from some other King. Another 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 chiefest Treasure on Earth viz. Their hearts to her Parliament which was the most considerable Party that she had to deal with She could personate Majesty equal to any Emperour and advise commend yea and chide if she saw occasion And yet ever had a trick to come off with a kind Conclusion without blur of Honour So as of thirteen Parliaments called during her Reign 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 liberal 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 Albeit she spared not also as she saw occasion to check the best of them for their Irregularities She had no Beloved yet entertained Favourites at a cheaper rate and in better order than 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 sometimes beyond command yet if calmly 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 Precedent 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 gain the private Contentments of a married Life and therewith maintain her publick Interest in the Kingdom and therefore resolved rather to sit alone than to sit below and to refuse the help of any Consort rather than 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 somewhat stale and spiritless and gave occasion to mens minds to wander after the next Successor Before she had been nine years Queen this scrutiny was once begun but it received a fair answer of delay because it was then taken as done in love now the apprehensions hereof according to her age are more fad she thinks them weary of her and thereupon 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 less who expecting more from Successors than they find lived to dis-desire and unwish their former choice by late repentance Thus making the ending of her days she 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 erewhile monstrous in the two former Kings times for Greatness now suffers as great a diminution over-shadowed by Infancy Womanhood and Coverture and gives the People breath to beware for the future Ne potentes si nocere velint non possent Nevertheless the loss was onely of the Hydropical humour 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 engage 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 child may handle without hurt done either to the Estates Persons or Consciences of any man because it is presupposed he does nothing but what the Law first dictates by his Council unto him There is then no Infancy in the Crown though in the Person because the wisdom of the Crown is not intended to rest in one Person but in the Counsels of many who are equally wise whether the Person of the King be old or young And the Statutes made by Henry the Eighth by which this King had power by his Letters-patents after the age of 24 years to adnul 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 Councils changed and the Parliament took this Statute away as scandalous to the Fundamental Government of the Nation and instead of the power of Adnulling allowed of the power of Repealing yet so as until 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 Equilibrio and men were loath to part with their Interests which they did hang upon that Power of
these particular Commissioners were appointed for the making of Ecclesiastical Constitutions and the King himself had a power of Episcopofactory without Conge d'eslire 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 by enlarging the King's power as in abridging the same For whereas some of the Successors of Henry the Eighth had power by vertue of his Letters◠patents after Twenty four years of age to annul any Act of Parliament by them made before that age in the time of Edward the Sixth notwithstanding the Proviso of 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 the Eighth had gained to himself and his Successors a Legislative Power by Proclamation the Parliament in Edward the Sixth's time took the same 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 Errours in pleading amending common Conveyances and Assurance as in passing Fines with Proclamations their course in 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 than 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 Foreign Jurisdiction of Rome it was like a Child in an Ague under Fits of heat and cold but in it self under the Prelacie still growing in Stature though not in strength Edward the Sixth came in like a Storm that tor◠〈…〉 by the roots yet a Top-root remained intire with the 〈◊〉 bearing shew of a kind of Divinity that though bared of the 〈◊〉 Soil 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 than 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 they opposed one another yet evermore were both of them in opposition to the Church and with the greater bitterness by their own mutual Emulations But now the Church is come under the controle of onely one that joyned with it for their mutual interest as being both of them embarqued in one and the same ship Two things concurred to the furtherance hereof First the Times were tender and scarce able to digest the change of Worship now patronized by Edward the Sixth much less able to digest the change of Government if the same had been undertaken in a different way from what it was formerly Secondly The Times were also dark and few saw the bottom of Prelacie but lodged all the prejudice in the persons that managed that calling And certainly they had the less occasion to doubt of their own judgement therein because Edward the Sixth had the good providence of God to lead him to make use of such men in that place that were meek and holy and themselves attempted in the fire of Persecution and therefore more tenderly affected to others in that condition And these carrying themselves like tender nursing Fathers in their places wrought in the people a good opinion of their places and that Form of Government for their sakes Yet even in those first Times of Reformation somewhat appeared in that very quintessence of Episcopacie in matters of Ceremony and Conformity that might have taught wise men to beware Upon such grounds as these it went well with Episcopacy in these first Times of Reformation but ill with the Church in the issue That Prelacie was a gainer by the change in Henry the Eighth's time hath already appeared and that it still gained may further appear in these ensuing Considerations First Whereas formerly Bishops were regardant both to the Crown and Presbytery for so may the Dean and Chapter be accounted in the point of Election by Conge d'eslire now they are made the birth of the Kings own breath which thing was never deduced from the ancient Right of the Crown saving due honour to the air of the Preface of the Statute for in the best Times it never had more than a power of Investiture But from the necessity of the Times so corrupted that Deans and Chapters generally were of the Roman Spirit and gave little hope of good Elections by themselves Besides the state of Learning and Holiness was now at the low-water mark so as little supply being looked for to begin the work of Reformation from beneath they began above and so it proved but a weak building for the longer time And thus a lesson is left to future Parliaments That in Cases of Reformation they are not to be strictly holden to Rules of Law or Precedent Secondly The Prelates hereby had their Authority confirmed by Act of Parliament and so were now built upon a Foundation that formerly did hang onely upon a pin of power from Rome For Jurisdiction without Authority is but a Dropsie that brings inevitable consumption in the conclusion And thus the Prelacie are inabled to hold Courts without contradiction and directed in their Process who formerly had a good Title to neither in that course that they held the same Thirdly Though their Jurisdiction was defined by the Statutes yet in larger bounds than ever the Statute-Laws formerly noted and in what they claimed power they did it not altogether upon Civil Right but still kept an awful regard to their Persons and Power as under the sway of a Divine Donation and therefore as in those matters to them by the Statute allowed they did proceed in the name and under the Seal of the King so in other things of Collation Institution Induction Orders Excommunication and such like they proceeded in and under their own Name and Seal and which was a Crown to all the rest power is still given to the Archbishop of Canterbury in cases of Faculty and Dispensation to proceed under his own Seal and not the Kings as if it were a power independent upon the Crown and belonging unto the man neither by Statute nor Commission but coming by some secret Influence from the very place it self Although in the clear sense it is no more
But Queen Mary having gotten a safe reserve from Spain upon all adventures and a strong interest amongst the people by upholding the Catholick party made no bones to innovate in the point of arming of the Militia although it cost the people much more than was imposed upon their Ancestors The pattern hereof was taken from the Spanish Cabinet the Queen being loth to be inferiour to her own Husband in bringing as much strength to him as he to her and both of them willing enough to appear potent in the eyes of France that then stood in competition with them both A yoke it was yet neither the King nor Queens Will but the Parliament put it on and ere an Age expired it was cast off again For the better understanding see it in this Scheme Per Annum Lances Light-horse Corslets Bows Hacquebuts Bills 1000 l. 6 10 40 30 20 20 1000 marks 4 6 30 20 10 10 400 l. 2 4 20 15 6  200 l. 1 2 10 8 3  100 l.  2 3 3 2  100 marks  1 2 2 1  40 l.   2 1 2  20 l.   1 1 1  10 l.   A Coat of Plate 1 1  5 l.   A Coat of Plate 1   Goods 1000 marks 1 1 2 4 3  400 l.  1 1 2 1  200 l.   1 2 1  100 l.   1 2   40 l.   2 Coats of Plate 1  1 20 l.   1 Coat of Plate 2  1 10 l.    1 1 The Lances were to be compleatly harnessed or the one half of them The Corcelets furnished with Coats of Mail and Pikes the Bows with and Iron Cap and a Sheaf of Arrows the Hacquebuts with Sallets All which was to be over and besides such Arms as men were bound unto by Tenure or Covenant with the Landlord or by vertue of the Statute 33. H. 8. c. 5. besides Townships which were charged with joynt-arms Annuities and Copy-holds were charged as Goods If the Arms were lost in the Service the owner must make them good again The defaults were punishable with Fine by the Justices of the Peace who had the view and might present them at the Sessions to be proceeded upon as in other cases Here is provision enough yet not as the Arms of the Militia of the Kingdom but as a Magazine in the hands of every particular man and as his proper Goods to be imployed for the publick Service either upon suddain Invasion in a defensive War or when the Parliament shall send them abroad And yet it is also a rule unto the Crown against arbitrary Assessments upon discretion from which it cannot recede if it mean to do right It might now very well stand with the Justice of Queen Elizabeth to grant Commissions of Array Secundum formam Statutorum and do hurt to no man. It is true her Commissions of Lord Lieutenancy wanted that limitation in words yet they carried the sense For if the Crown were bound by the Law the Lord Lieutenants were much rather but the danger arose after the death of Queen Elizabeth For when King James came to the Crown under colour of pleasing the people and easing them of a burthen he pleased himself more and made the yoke upon the people much more heavy in the conclusion for where no declared Law is there the discretion of them that have the care lying upon them must be the Rule And thus came the Scotish blood to have pretensions to a greater Prerogative than all their Predecessors had upon this supposal that the Statute of Queen Mary took away all former Laws of that kind and then the taking away of the Statute of Queen Mary takes away all declared Law as to that point But more truly it may be inferred that if all Statute-Laws be taken away then the rule of Tenures at the Common Law must remain in force and no other Nevertheless this Statute of Queen Mary though in force for the present was not a general rule for Arms in all places of this Nation for the Marches of Scotland were a peculiar Jurisdiction as to this point They stood in more constant need of Arms than any other part of this Nation in regard of their uncertain condition in relation to their neighbouring Jurisdiction and therefore were the Farms of these parts generally contracted for upon a special reservation of Arms for each particular which being now decayed are again reduced by Queen Elizabeth to their ancient condition in the time of Henry the Eighth A second thing which may come under this general consideration of arming is the arming of places by making of Forts and Castles which was not in the immediate determinate will of the Crown to order as it pleased For though they may seem to be means of Peace and present Safety yet they are Symptoms of War and in the best times are looked upon with a jealous eye especially such as are not bordering upon the Coasts Because that Prince that buildeth Castles within the Land is supposed to fear the Neighbourhood This was more especially regarded in the days of Philip and Mary for when that Marriage was to be solemnized it was one of the Articles to provide for the safety of such Forts and Castles as then were maintained to the end they might be preserved free from Usurpation for the Use Profit Strength and Defence of the Realm onely by the natural born of the same And afterwards when occasion was offered for the building of more of that nature a new power is given to King Philip and Queen Mary to re-edifie or make Forts and Castles which must be executed by Commission to the Lieges for ten years and onely within the Counties bordering upon Scotland and these particularly named in the Statute So as the Crown had not power to build in all cases nor to any end they pleased Nor to place therein or betrust the same to whom it would Nor yet had Edward the Sixth that absolute power although not engaged in Foreign Interests as his Sister Mary was and therefore whereas Castellanes had been made for life by Patent and so the absolute power of the Crown was barred in the free disposal of the same during such time the Parliament gave the King power to remove such as were not liked or thought not faithful to the Publick Interest although they gave no cause of seizure by any disloyal act The like also may be observed of the Ships and Ordnance for they also do belong to the State as the Jewels of the Crown and therefore upon the Marriage of Queen Mary they also are by Articles preserved and saved for the use profit strength and defence of the Realm by the natural born of the same Thirdly As touching the ordering of the Souldiery the matter is not much to be insisted upon for little doubt is to be made but
men of so high accomplishment And by this means Lordship once bringing therewith both Authority and Power unto Kings before Kings grew jealous of their greatness in these latter days is become a meer Jelly and neither able to serve the interest of Kings if the people should bestir themselves nor their own any longer Henceforth the Commons of England are no mean persons and their Representative of such concernment as if Kings will have them to observe him he must serve them with their Liberties and Laws and every one the publick good of the people No man's work is beneath no man 's above it the best honour of the Kings work is to be Nobilis servitus as Antigonus said to his Son or in plain English Supream Service above all and to the whole I now conclude wishing we may attain the happiness of our Forefathers the ancient Saxons Quilibet contentus sorte propria A VINDICATION Of the ancient way of PARLIAMENTS In ENGLAND THe more Words the more Faults is a divine Maxime that hath put a stop to the publishing of this Second Part for some time but observing the ordinary humour still drawing off and passing a harsher Censure upon my intentions in my First Part than I expected I do proceed to fulfil my course that if Censure will be it may be upon better grounds when the whole matter is before Herein I shall once more mind that I meddle not with the Theological Right of Kings or other Powers but with the Civil Right in Fact now in hand And because some mens Pens of late have ranged into a denial of the Commons ancient Right in the Legislative power and others even to adnul the Right both of Lords and Commons therein resolving all such power into that one principle of a King Quicquid libet lìcet so making the breach much wider than at the beginning I shall intend my course against both As touching the Commons Right joyntly with the Lords it will be the main end of the whole but as touching the Commons Right in competition with the Lords I will first endeavour to remove out of the way what I find pulished in a late Tractate concerning that matter and so proceed upon the whole The subject of that Discourse consisteth of three parts one to prove that the ancient Parliaments before the thirteenth Century consisted onely of those whom we now call the House of Lords the other that both the Legislative and Judicial Power of the Parliament rested wholly in them Lastly that Knights Citizens and Burgesses of Parliament or the House of Commons were not known nor heard of till punier times than these This last will be granted viz. That their several Titles of Knights Citizens and Burgesses were not known in Parliament till of latter times Nevertheless it will be insisted upon that the Commons were then there The second will be granted but in part viz. That the Lords had much power in Parliament in point of Jurisdiction but neither the sole nor whole The first is absolutely denied neither is the same proved by any one instance or pregnant ground in all that Book and therefore not clearly demonstrated by Histories and Records beyond contradiction as the Title-page of that Book doth hold forth to the World. First because not one instance in all that Book is exclusive to the Commons and so the whole Argument of the Discourse will conclude Ab Authoritate Negativa which is no Argument in humane testimony at all Secondly The greatest number of instances in that Book are by him supposed to concern Parliaments or General Councils of this Nation holden by the Representative thereof whereas indeed they were either but Synodical Conventions for Church-matters whereunto the poor Commons he well knoweth might not come unless in danger of the Canons dint or if they did yet had they no other work there than to hear learn and receive Laws from the Ecclesiasticks And the Lords themselves though present yet under no other Notion were they than as Counsel to the King whom they could not cast out of their Council till after-ages though they often endeavoured it Thirdly The Author of that Tractate also well knoweth that Kings usually made Grants and Infeodations by advice of the Lords without the aid of the Parliament And it is no less true that Kings with the Lords did in their several Ages exercise ordinarily Jurisdiction in cases of distributive Justice especially after the Norman entrance For the step was easie from being Commanders in War to be Lords in Peace but hard to lay down that power at the Foot of Justice which they had usurped in the rude times of the Sword when men labour for Life rather than Liberty and no less difficult to make a difference between their deportment in commanding of Souldiers and governing of Countrymen till Peace by continuance had reduced them to a little more sobriety Nor doth it seem irrational that private differences between Party and Party should be determined in a more private way than to trouble the whole Representative of the Kingdom with matters of so mean concernment If then those Councils mentioned by the Author which concern the King's Grants and Infeodations and matters of Judicature be taken from the rest of the Precedents brought by him to maintain the thing aimed at I suppose scarce one Stone will be left for a Foundation to such a glorying Structure as is pretended in the Title-page of that Book And yet I deny not but where such occasions have befaln the Parliament sitting it hath closed with them as things taken up by the way Fourthly It may be that the Author hath also observed that all the Records of Antiquity passed through if not from the hands of the Clergie onely and they might think it sufficient for them to honour their Writings with the great Titles of men of Dignity in the Church and Commonwealth omitting the Commons as not worthy of mention and yet they might be there then present as it will appear they were in some of the particular instances ensuing to which we come now in a more punctual consideration The first of these by his own words appear to be a Church-mote or Synod it was in the year 673 called by the Archbishop who had no more power to summon a Parliament than the Author himself hath And the several Conclusions made therein do all shew that the People had no work there as may appear in the several Relations thereof made by Matthew Westminster and Sir Henry Spelman an Author that he makes much use of and therefore I shall be bold to make the best use of him that I can likewise in vindicating the truth of the point in hand For whatever this Council was it is the less material seeing the same Author recites a Precedent of Aethelbert within six years after Austin's entry into this Island which was long before this Council which bringeth on the Van of all the rest of
Bishop of London and the Embassadors from the West-Saxons could sit amongst them and attest the Conclusions therein made as well as the proper Members of that Nation He cometh in the next place to a Council holden in the year 855 which is more likely to be a Parliament than most of them formerly mentioned if the Tithes of all England were therein given to the Church but hereof I have set down my opinion in the former part of the Discourse And though it be true that no Knights and Burgesses are therein mentioned as the Opponent observeth out of the Title yet if the body of the Laws be duly considered towards the Conclusion thereof it will appear that there was present Fidelium infinita multitudo qui omnes regium Chirographum laudaverunt Dignitates verò sua nomina subscripserunt And yet the Wittagenmotes in these times began to be rare being continually interrupted by the invasions of the Danes The three next Councils alleadged to be in the years 930 944 948. were doubtless of inferiour value as the matters therein concluded were of inferiour regard being such as concern the passing of the Kings Grants Infeodations and Confirmations The Council mentioned to be in the year 965 is supposed to be one and the same with the next foregoing by Sir Henry Spelman which calls it self a General Council not by reason of the general confluence of the Lords and Laity but because all the Bishops of England did then meet The Primi and Primates were there who these were is not mentioned but it is evident that the King of Scots was there and that both he and divers that are called Ministri Regis attested the Conclusions It will be difficult to make out how these should be Members of the House of Lords and more difficult to shew a reason why in the attesting of the Acts of these Councils which the Opponent calls Parliaments we find so few of the Laity that scarce Twelve are mentioned in any one of them and those to descend so low as the Ministri Regis to make up the number Five more of these instances remain before the coming of the Normans The first of which was in the year 975 and in a time when no Parliament according to the Opponents principles could sit for it was an Inter-Regnum The two next were onely Synods to determine the difference between the Regulars and the Seculars in the King's absence by reason that he was under age and they are said to be in the year 977 and 1009. But it is not within the compass of my matter to debate their dates The last two were Meetings or Courts for Judicature to determine the Crime of Treason which every one knows is determinable by inferiour Courts before the high Steward of Judges and therefore not so peculiar to a Parliament as to be made an Argument of its existence And thus are we at an end of all the instances brought by the Opponent to prove that Parliaments before the Norman times consisted of those whom we now call the House of Lords All which I shall shut up with two other Notes taken out of the Book of Councils published by Sir Henry Spelman The first of which concerneth a Grant made by Canutus of an exemption to the Abbey of Bury Saint Edmunds in a Council wherein were present Archbishops Bishops Abbots Dukes Earls Cum quamplurimis gregariis militibus cum populi multitudine copiosa votis regiâ—s unanimiter consentientes The other taken out of the Confessor's Laws which tell us that Tythes were granted to the Church A Rege Baronibus Populo And thus I shall leave these Testimonies to debate with one another whilst the Reader may judge as seemeth most equal to himself Being thus come to the Norman times and those ensuing I shall more summarily proceed with the particulars concerning them because they were times of Force and can give little or no evidence against the Customs rightly setled in the Saxon times which I have more particularly insisted upon that the Original Constitution of this Government may the better appear Now for the more speedy manifesting of the truth in the particulars following I shall pre-advise the Reader in three particulars First that the Church-motes grew more in Power and Honour by the aid of the Normans Law refusing the concurrence and personal presence of Kings whom at length they excluded from their Councils with all his Nobles and therefore it is the less wonder if we hear but little of the Commons joyning with them Secondly That the Norman way of Government grew more Aristocratical than the Saxon making the Lords the chief Instruments of keeping Kings above and People underneath and thus we meet with much noise of meetings between the King and Lords and little concerning the grand meetings of the Kings and the Representative of the People although some foot-steps we find even of them also For the Kings were mistaken in the Lords who meaned nothing less than to serve them with the Peoples Liberties together with their own which they saw wrapped up in the gross Thirdly By this means the Councils of the King and Lords grew potent not onely for advice in particular occasions but in matters of Judicature and declaring of Law ordering of Process in Courts of Pleas which in the first framing were the works of the Wise and Learned men but being once setled become part of the Liberties of every Freeman And it is not to be doubted but these Councils of Lords did outreach into things too great for them to manage and kept the Commons out of possession of their right during the present heat of their ruffling condition yet all this while could not take absolute possession of their Legislative power I now come to the remainder of the particular instances produced by the Opponent which I shall reduce into several Categories for the more clear satisfaction to the Reader with less tediousness First It cannot be denied but the Council of Lords gave advice to Kings in cases of particular emergency nor is it incongruous to the course of Government even to this day nor is it meet that the Parliament should be troubled with every such occasion and therefore the giving of advice to William the Conquerour what course he should take to settle the Laws of England according to the instances in Councils holden An. 1060 and 1007. and to gain favour of the great men according to that in Anno 1106. and in the manner of endowment of the Abbey of Battel as in pag. 25 of the Opponents Discourse and what to do upon the reading of the Pope's Letter according to that in Anno 1114. And whether the Pope's Legate should be admitted as in pag. 18. And how King Stephen and Henry shall come to an Agreement as Anno 1153. And how to execute Laws by Judges and Justices Itinerant as Anno 1176. And touching the manner of ingaging for a Voyage
by Croisado to Jerusalem Anno 1189. And to give answer to Embassadors of a Foreign Prince pag. 25. And how King John shall conclude Peace with the Pope Anno 1213. Where nevertheless Matth. Paris saith was Turba multa nimis I say all these might well be done by a Council of Lords and not in any posture of a Parliament albeit that in none of all these doth any thing appear but that the Commons might be present in every one or many of them all Secondly As touching Judicature the Lords had much power therein even in the Saxon times having better opportunities for Knowledge and Learning especially joyned with the Clergie than the Commons in those times of deep darkness wherein even the Clergie wanted not their share as in the first part of the Discourse I have already observed Whatsoever then might be done by Judges in ordinary Courts of Judicature is inferiour to the regard of the Parliament and therefore the Plea between the Archbishop and Ethelstan concerning Land instanced Anno 1070. And between Lanfrank and Odo Anno 1071. And between the King and Anselme pag. 15 16. And the determining of the Treason of John afterwards King against his Lord King Richard pag. 23. And the difference concerning the title of a Barony between Mowbray and Scotvile pag. 25. And giving of security of good behaviour by William Brawse to King John pag. 26. All these might well be determined onely before the Lords and yet the Parliament might be then sitting or not sitting as the contrary to either doth not appear and therefore can these form no demonstrative ground to prove that the Parliament consisted in those times onely of such as we now call the House of Lords A Third work whereby the Opponent would prove the Parliament to consist onely of the House of Lords is because he findeth many things by them concluded touching the solemnization and the setling of the Succession of Kings both which he saith were done by the Lords in Parliament or those of that House and I shall crave leave to conclude the contrary For neither is the Election or Solemnization of such Election a proper work of the Parliament according to the Opponents principles nor can they prove such Conventions wherein they were to be Parliaments Not the Election of Kings for then may a Parliament be without a King and therefore that instance concerning William Rufus pag. 16 will fail or the Opponents Principles who will have no Parliament without a King. The like may also be said of the instance concerning King Steven pag. 18. Much less can the Solemnization of the Election by Coronation be a proper work for the Parliament Nevertheless the Opponent doth well know that both the Election of a King and the Solemnization of such Election by Coronation are Spiritless motions without the presence of the people and therefore though his instance pag. 17 concerning the Election of Henry the First by the Bishops and Princes may seem to be restrictive as to them yet it is not such in fact if Matthew Paris may be believed who telleth us that in the Conventus omnium was Clerus and Populus universus and might have been noted by the Opponent out of that Learned Antiquary so often by him cited if he had pleased to take notice of such matters A Fourth sort of Instances concerneth matters Ecclesiastical and making of Canons and hereof enough hath been already said that such Work was absolutely challenged by the Church-motes as their proper Work and therefore the Instance pag. 16 17. of the Council in Henry the First 's time and the Canons made by the Bishops there and that other called by Theobald Archbishop of Canterbury and instanced by the Opponent pag. 19. I say both these do fail in the Conclusion propounded Fifthly as touching the most proper Work of Parliament which is the making of Laws concerning the Liberties and Benefit of the people the Opponent produceth not one instance concerning the same which doth not conclude contrary to the Proposal for as touching those two instances in his Thirteenth page Anno 1060 they concern not the making of Laws but the reviving of such as had been disused formerly which might well enough be done by a private Council But as to that in his Fifteenth page of the Law made by the Conquerour concerning Remigius Bishop of Lincoln although it be true that we find not the particular Titles of Knights Citizens and Burgesses â—yet besides the Council of Archbishops Bishops and Princes we find the Common Council for so the words are Communi Concilio Concilio Archiepiscoporum Episcoporum Abatum omnium Principum although the Opponent would seem to wave these words Et Concilio by putting them in a small Character and the rest in Great Letters that the Readers eyes might be silled with them and overlook the other Secondly As to the instance of the Council at Clarindon in his Nineteenth page which he citeth out of Matthew Paris Matthew Westminster and Hoveden although he pleaseth to mention the several ranks of Great Men and those in black Letters of a greater size and saith That not one Commoner appears yet Mr. Selden's Hoveden in that very place so often by the Opponent cited tells him that both Clerus and Populus were there Thirdly The Opponent citeth an instance of Laws made by Richard the First in his Twenty fourth page and he setteth down the several Ranks of Great Men and amongst the rest ingeniously mentioneth Milites but it is with a Gloss of his own that they were Barons that were made Knights whenas formerly Barons were mentioned in the general and therefore how proper this Gloss is let others judge especially seeing that not onely Milites and Milites Gregarii but even Ministri were present in such Conventions even in the Saxon times And Mr. Selden in the former known place mentioneth an Observation that Vniversi personae qui de Rege tenent in Capite sicut caeteri Barones debent interesse judiciis curiae Domini Regis cum Baronibus Fourthly He citeth in his Twenty fifth page another instance in King John's time in which after the assent of Earls and Barons the words Et omnium fidelium nostrorum are also annexed but with this conceit of the Oponents that these Fideles were those that adhered to the King against his Enemies be it so for then the Commons were present and did assent or they may be saith he some specially summoned as Assistants take that also and then all the true-hearted in the Kingdom were specially summoned and were there so as the conclusion will be the same In the fifth place he cited a strange Precedent as he calls it of a Writ of Summons in King John's time in his Twenty seventh page wherein Omnes Milites were summoned Cum armis suis and he concludes therefore the same was a Council of War. First Because they were to come armed It is very
true and so they did unto the Councils in the ancient Saxon times and so the Knights of the Counties ought to do in these days if they obey the Writ Duos Milites gladiis cinctos c. Secondly he saith that the Knights were not to come to Council That is his opinion yet the Writ speaks that the Discreti Milites were to come Ad loquendum cum Rege de negotiis regni It is true saith he but not Ad tractandum faciendum consentiendum It is true it is not so said nor is it excluded and were it so yet the Opponents conclusion will not thence arise That none but the King and those who are of the House of Lords were there present The Sixth and last instance mentioned by the Opponent is in his Thirtieth page and concerneth Escuage granted to King John who by his Charter granted That in such cases he would summon Archbishops Bishops Abbots Earls and the greater Barons unto such Conventions by special Writs and that the Sheriff shall summon promiscuously all others which hold in Capite and thence he concludes That none but the Great Lords and the Tenants in Capite whom he calls the lesser Barons were present but no Knights Citizens or Burgesses all which being granted yet in full Parliament the Citizens and Burgesses might be there For Councils were called of such persons as suited to the matter to be debated upon If for matters purely Ecclesiastical the King and his Council of Lords and the Church-men made up the Council If for advice in emergencies the King and such Lords as were next at hand determined the conclusions If for Escuage the King and such as were to pay Escuage made up a Council to ascertain the sum which was otherwise uncertain If for matters that concerned the common Liberty all sorts were present as may appear out of the very Charter of King John noted in my former discourse page 258. and also from an Observation of Cambden concerning Henry the Third Ad summum honorem pertinet said he Ex quo Rex Henricus Tertius ex tanta multitudine quae seditiosa ac turbulentia fuit optimos quosque ad Comitia Parliamentaria evocaverit Secondly The Opponent takes that for granted that never will be viz. That all the Kings Tenants In Capite were of the House of Lords whenas himself acknowledgeth a difference page 28. viz. That the Barons are summoned by Writs sigillatim as all the Members of the House of Lords are but these are by general Summons their number great and hard it will be to understand how or when they came to be excluded from that Society I shall insist no further upon the particulars of this Tractate but demur upon the whole matter and leave it to Judgement upon the Premises which might have been much better reduced to the main Conclusion if the Opponent in the first place had defined the word PARLIAMENT For it was a Convention without the People and sometimes without the KING as in the Cases formerly mentioned of the Elections of William Rufus and of King Stephen And if sometimes a Parliament of Lords onely may be against the King and so without King or People as in the Case between Stephen and Maud the Empress and the Case likewise concerning King John both which also were formerly mentioned All this is no more to the Government than it would be should at any time the Commons hold a Parliament without a King or House of Lords and then all the Opponents labour is to little purpose A TABLE TO THE Second Part. A A Betting of Felony made Felony page 174 Administration granted to the next of the Kindred 30 Admirals power from the Parliament 24. formerly under many brought into one 25. once gained jurisdiction to the high-water-mark 26. and his Power regulated by Law ibid. over Sea-men Ports and Ships ibid. Allegiance according to Law 11. vide Supremacy the nature thereof in general 42. it is not natural ibid. 52. not absolute or indefinite 49. not to the King in his natural capacity 51. it obligeth not the people to serve in forein War 60. it is due to the person of the King for the time being 144 163. what it is in time of War and relation thereunto 144. Henry the Seventh and Henry the Eighth endeavoured to advance it in relation to the Crown but effected it not 61. Appeals in cases Ecclesiastical restrained from Rome and given in the Kings case to the Convocation and in the cases of the people the Archbishop afterwards to the Delegates and were never setled in the Crown 133 136. vide Archbishop Archbishop hath the lawful power of the Pope in Appeals and Dispensations Licenses and Faculties 136. the Archbishop of York loseth his jurisdiction over the Scotish Bishops 113 Arrays Commission of Array 104 vide War. Assent of the King to Acts of Parliament serveth onely to the execution of the Law and not to the making thereof 13 Association of the people for the common safety before the Statute enabling the same 173. B. BAstardy not to be determined by the Ordinary before Summons to the pretenders of Title to be heard 92 Bench the Kings Bench at Westminster abated in power by the Commissions of Oyer and Terminer and Goal-delivery 54 97 Benevolence first used by Edward the Fourth 108. taken away by Richard the Third ibid. taken up again by Henry the Seventh 114 Bishops not impeachable before the Civil Magistrate 29. their Temporalties to be neither seized nor wasted in the vacancy Vide Ordinary Buggery made Felony 173. C. CAnons their power anciently in debate 37. such as are not according to the Law are taken away 138 Castles and Goals restored to the Country 67. vide Forts and Fortifications Chancery once an Office afterwards a Court 21. the power grows by Act of Parliament 22 95. the manner of the proceedings 23. Keeper of the Great Seal increaseth in power 95 Chancellour elected by the Parliament 23 Cheshire made a Principality 7 Children carried into Cloisters remedied 96 Clergie priviledgea from Arrests 31. discharged of purveyance and free quarter ibid. their Temporalties in question 38. the Commons love not their persons 86. their first declining from Rome in the matter of Provisors 88. they gain free process in matters Ecclesiastical 112. their defection from Rome and submission to the Crown 120 Clergie upon Trial but once allowed 151. in some cases disallowed 147 173. Commissioners Ecclesiastical 167. High Commission ibid. Conjuration vide Witchcraft Conservators of the Truce 95 Constables Court vide Marshals Court Convocation established by Parliament 89. it then undertook great matters but much more after the Clergies forsaking the Pope 134 Councils the Privy Council ordered by Parliament 13 20 83. of use for sudden motions 16. their Oaths 17. and Jurisdictions 19. and power 83 Magnum Concilium or the grand Council of Lords 16 Crown entitled not by Descent 75 162. but intailed 75. vide 109.
Womanhood 138. Coverture 139 Custos Regni a formality of State under the Parliaments Order 79. many times conferred upon Children 80. and upon a Woman 148. D. DElegates though named by the King yet by Authority of the Parliament 133 Defender of the Faith 122 Dispensations Licenses and Faculties never in the Crown but by the Parliament givent to the Archbishop under limitations 137 139 Duels ordered by the Marshal as subservient to the Common Law 63. E. EDward the Third his Reign 2. his Title upon Entry by Election ibid. Edward the Fourth his Reign though had Title of Inheritance yet entred by Election 106 Edward the Fifth approached the Crown by Inheritance but never put it on 108 Edward the Sixth his Reign his Title and Possession did meet though he was a Child and his Sister Mary grown in age 152 Ecclesiastical power vide Prelacy and Prelates Elizabeth Queen her Reign 155. her Title by Election 163 Englishire taken away 56 Episcopacy vide Prelates and Prelacy Errors vide Heresie Exchange ordered by the Statute 38 Excommunication 159. the Writ de excommunicato capiendo ordered 169. vide Parliament exportation 38. F. FAlse News punished 66 Felony by riding in armed Troops 56 66 101 150 174 First-fruits regulated 90. taken away from Rome 130 Forcible entries 101 Forts Fortifications and Castles ordered by Parliament 147 171. G. GOal-delivery by the Judges of the Benches 54 97. vide Judges Goals regulated 67 149 Guard for the Kings Person brought in by Henry the Seventh 113 Gypsies made Felons 174 H. HEnry the Fourth his Reign doubtful in his Title but rested upon Election chosen by Parliament sitting when there was no King 68 c. Henry the Fifth his Reign his Title by an Intail by the Parliament 70 c. Henry the Sixth his Reign his Title by the Intail last mentioned though a Child he is admitted to the Crown 72 c. Henry the Seventh first setled a constant Guard his sixfold Right to the Crown and his gaining Prerogative in the persons and Estates of the people ibid. 113 c. Henry the Eighth his natural endowments 116 c. his power in the matters Ecclesiastical 120 c. in Temporals 125 c. Heresie and Errour in Doctrine under the cognizance of the Civil Magistrate 36 92. not punishable by death by Law till Henry the eighths time 126 138. the Writ De Heretico comburendo hath no legal ground in any of those former Times 67 93 95 126 138 Honours vide Parliament Hospitals visited by the Pelacy 90. I. IMportation 42 Judges of Assizes 97 142 Jurisdiction Ecclesiastical not originally in the Prelacy nor absolutely 137 Justices of the Peace their residency and quality their number various their work also 62 99. one Justice 63. and the setling of their Session ibid. their power to take Bail 149. K. KIngs vide Parliament Allegiance Supremacy Militia L. LAbourers their Work and Wages 42. ordered by the Justices of the Peace 63 Lancaster the Princes of that House friends to the Clergie in policy 86 Laws made by the Successors of Henry the Eighth during their minority annulled 69. Ecclesiastical Laws vide Parliament Lieges by Birth though not born within the Allegiance of England 57 Liveries and Tokens inhibited to the Lords 64 103. and limited in the Kings person ibid. means of jealousie between the King and his people 143 Libels in the Spiritual Court to be delivered in Copies upon demand 90 Licenses vide Dispensations Lords their power and jurisdiction in the Parliament 14. in Council 17 142 Lunacy no impediment in Trial of Treason 151. M. MAry Queen her Reign 153. her Title by Election 164. she prejudiced her Supremacy by Marriage 163 Marque and Reprisal 122 Martials Court 62 Matrimonial Causes after the Reformation by Henry the Eight in the Cognizance of the Clerge by leave 139 Militia 58 102 143 122. vide War. Mint 44 84. vide Parliament Monasteries dissolved 117. maintained by Henry the Fourth 86 Money out of England to Rome stopped 32. N. NAvy Royal as Forts for the publick safety maintained at the publick charge 148 Nisi prius 98 Non-residency 139 Noble Ladies Trial 101. O. OYer Terminer 54 98 Ordinary not to be questioned in the Civil Courts for things under Ecclesiastical jurisdiction 28 29. hath cognizance of Vsury 28. of Avoidances Bigamy and Bastardy 29. grant Administration 30. visit Hospitals and call Executors to account 90. hath power to fine and imprison 91 141. to keep Courts but the Authority doubtful 137. have Cognizance of the Heresie 91 138. Matrimony Non-residence ibid. In Queen Elizabeth's time their jurisdiction left in doubt 168 c. Oath ex Officio first brought in by the Church-men in matters Ecclesiastical 92. afterwards by the Parliament into the Star-chamber in cases criminal 142. P. PArdon of Crimes not absolutely in the King 11 Parliament without the King consisting of three States 69. without the Clergie 34 Parliaments power in ordering of the Crown 75 133 162. In ordering the King's person by Protectors 9. vide Protector In ordering their Children In ordering their Family 10 75. In ordering their Revenues 10 75 68. In ordering their Council 83 In the Militia vide Militia and War. In conferring places of Honour and Trust 11 23 In ordering the Mint vide Mint In making Ecclesiastical Laws Concerning Church-Government 131 c. 121 165. Concerning Doctrine 123 131 138 c. Concerning Worship 131 Concerning Church-censures 140 In granting Licenses and Dispensations 137 In final Appeals 133 In ordering it self 14 76 In Judicature 15 111 Parliament not inconstant though mutable 110 Peace Justices and their Sessions 62 c. 99 c. 148 c. 173 c. penal Laws executed to get money 108 114 Pleadings in English 57 Pope's power in England abated 33 c. vide Ordinary Supremacy Archbishop Prelacy not favoured by the Canon 140. their power since the time of Queen Mary 166. their dignity and power distinguished 28 34 Priests Wages 41 91 Praemunire and Provisors 32 34 c. 89 Proclamations made equal to Laws 125. altered 158 Protectors variety of them makes a doubtful Government 3 5 72 Purveyance regulated 31 39 R. RAvishment consented to forfeits Joynture 56 Request Court established by Cardinal Wolsey 140 Richard the Second his Reign 6. endeavours to over-rule the Parliament but failed in the conclusion 7 Richard the Third's Reign 108. his Title by Vsurpation and Murther ibid. Riots 101. S. SAnctuaries changed into fewer priviledged places 151 Servants imbezelling Felony ibid. 174 Sheriffs Courts regulated 149. Election of Sheriffs 55. Farm of the County 98. continuance in service ibid. Extortion ibid. Souldiers vide War. Staple 42 c. 111 Star-chamber 19 c. 141 Stealers of Men and Women Felony 174 Supremacy Supream Head 120. certainly not Absolute or Arbitrary power nor a Legislative power 166 c. Supream Governour 159. in causes Ecclesiastical ibid. c. in Temporal ibid. T. TEnths and First-fruits
130 Torniament 63 Tunnage and Poundage 110 Trade 38 111 Treason 45 c. by Thoughts by Marriage and counterfeiture 149 150. tried where the King will 151. Petty Treason 55. W. WAles subdued by Henry the Fourth 69. Vnited to the English Crown by Henry the Eighth 141 War by advice of Parliament 58 102. Levying of men 59 103 145 167. Jurati obligati ad arma taken away 57. Arming of men ibid. 167. Conduct to their Rendezvouz 59. Running from their Colours ibid. 63 172. plunder satisfied 58. Their pay 103 148 169. Offensive and Defensive 167 Watches enquired into by Justices of the Peace 101 Wickliff 37 Wills probate 90 Witchcraft made Felony 150 174. FINIS Caes. com lib. 5. Tacit. Anal. 14. Amian lib. 15. Caes. com lib. 6. Tacit. Caes. com lib. 5. Lib. 6. Hieron Caes. com 6. Isa. 42. 4. 51. 5. 60. 9. 66. 19. Tertul. adv Judaeos Platina de vit Eleuthe Bedâ— l. 5. c. 25. Origen hom 4. Ezek. Psal. 2. 3. Tacit. Vit. Agric. Tacit. vit Agric. M. Westm. an 181. M. Westm. an 303. Cic Attic. 2. Concil Brit. 42. M. Westm. An. 446. Beda Lib. 1. cap. 17. Concil Brit. p. 49 62 382. Concil Brit. 385 Gildas Amian l. 16. Zossimus hist lib. 3. Amian lib. 28. 30. Suffrid Petrus Fris. antiquit lib. 3. cap. 1. Caes. Com. Histor. Germ. Plutarch vit Solon Lycurg Albinus Sax. 72. Xenophon Tacit. Emius Avent Anal. Bowr 1. 10. Beuter in Tac. 125 Amian Naucler 505. Greg. Epist. lib. 5. Epist. 59. Bed. hist. lib. 3. cap. 25. Bed. hist. lib. 1. cap. 23. Lib. 3. cap. 4. Bed. hist. lib. 1. cap. 27. Lib. 2. cap. 2. Greg. Epist. l. 7. Epist. 13. 7. Concil Brit. 92. Bed. hist. lib. 1. cap. 29. Bed. hist. lib. 1. cap. 25. Greg. Epist. lib. Epist. 59. 2 Thes. 2. Bed. hist. lib. 2. cap. 2. Concil Brit. fol. 111. Tacit. mor. Serm. Greg. Epist. ad Eulog Concil Brit. p. 258. An. 745. Mag. cent 3 cap. 7. Concil Brit. p. 190. An. 694. Ant. Brit. p. 55. Malmsb. lib. 1. cap. 2. Ant. Brit. p. 54. Ant. Brit. Concil Brit 133. Ant. Brit. 45. Ibid. 53. Concil Brit. 238 246 261. Mag. Cent. 7. cap. 7. Bed. hist. lib. 4. cap. 3. Concil Brit. 196. An. 697. Ibid. 329. An. 816. Conc. 8. gen Constant. can 14. Mag. cent 8. cap 9. Concil Brit. 128. An. 693. Ll. Sax. cap. 37. An. Aetheist cap. 11. Concil Brit Concil Brit. p. 197. An. 697. Concil Brit. p. 576. Concil Brit. p. 448. Ll. Aetheâ—st 13. Ibid. 406. Concil Brit. p. 273. Ll. Aethel c. 2. Ll. Canut c. 12. Mag. cent 8 cap. 9. Deacons Sub-deacons Acolites Exorcists Concil Brit. p. 54. Lecturers Ostiaries Concil Brit. 261. An. 750. M. Paris in vit Eadrick Abb. An. 1009. Concil Brit. 513. Ll. Aetheld 31. First-fruits Concil Brit. p. 185. An. 693. Concil Brit. p. 545. Tythes Concil Brit. p. 298. An. 787. Concil Brit. 259. Ingulfus Gest. pontif Lib. 2. cap. 2. An. 854. Concil Brit. p. 392. An. 905. Ibid. 527. An. 1009. Luminaries Concil Brit. p. 377. Ibid. 545. An. 1032. Plough-alms An. 905. An. 1009. Soul-shot Concil Brit. p. 571. An. 1009. Glebe Concil Brit. 260. An. 750. Peter-pence Concil Brit. p. 230. An. 725. Concil Brit. p. 311. An. 791. Ibid. 313. An. 847 Ibid. 6. 1. Vit. Offae 19. Concil Brit. p. 445. 545. Concil Brit. p. 621. Fox Maryâ— p. 340. Brit. Ant. p. 18. Malms gest Reg. lib. 1. c. 4. Bed. hist. lib. 1. cap. 29. Malmsb. loco citat Vit. Offae Malmsb. Concil Brit. 133. Antiq. Brit. Antiq. Brit. p. 54. M. Westm. An. 775. Ll. Edw. conf cap. 31. Lindwood l. 1. de constit c. 1. Malmesh gest pontif lib. 3. fo 263. Baronius An. 930. Malmesb. gest pontif lib. 3. p. 263. An. 680. Concil Brit. p. 191. 310. 318. Ibid. 316. 318 387. Concil Brit. 245. 317 387. M. Westm. An. 955. 958. Concil Brit. 479. Ibid. 337. Ibid. 319. 332. Concil Brit. p. 334. Mag. cent 8. cap. 9. Heresie An. 446. Beda hist. l. 1. Blasphemy Concil Brit. p. 341. An. 840. Apostacy An. 314. Concil Brit. 41. Ibid. 367. False Worship Canon Apost cap. 10. Bed. hist. lib. 3. cap. 26. Mag. Cent. 7. cap. 6. Concil Brit. p. 306. Tacit. Mor. Germ. Concil Brit. 246. An. 745. Ibid. 377. Ibid. 405. An. 928. Perjury Ll. Sax. fol. 4. An. 9 28. Sacriledge Concil Brit. p. 127. An. 610. Ibid. 265. Simony Concil Brit. 163. Matrimonial Causes Beda hist. l. 1. cap. 27. Concil Brit. 219. Concil Brit. p. 427. An. 944. Bastardy Incest Concil Brit. p. 392. An. 905. Adultery Fornication Concil Brit. p. 558. Tythes Synod Durien cap. 7. An. 785. Rabban Epist. ad Hadubrand Concil Brit. p. 277. Concil Brit. p. 254. An. 747. Malmesb. gest pontif lib. 3. An. 680. Bonis epist. ad Cutbertum An. 745. Concil Brit. p 379. Concil Brit. p. 248 253. An. 747. Cantab. 10. 200 263. Witik in gest Saxon. lib. 1. M. Westm. An. 672. M. Westm. An. 912 919. Tacit. Cragius Mag. cent 8. cap. 2. An. 747. Tacitus Tacitus Concil Brit. p. 397. Ll. Inae Lamb. Miror cap. 1. Sect. 1. Wigorn. An. 1016. Tacitus Ll. Sax. Ed. cap. 17. M. Westm. An. 756. 758. Wigorn. An. 755. Concil Brit. 340. Tacitus Tacitus Mir. 101. 298. Ll. Edw. c. 4. Malmesb. gest pontif lib. 3. gest Reg. lib. 1 cap. 4. M. Paris An. 1095. Concil Brit. p. 614. An. 1066. Canâ—â— cap. 67. Ll. Edw. cap. 35. Nitard lib. 4. Tacitus Tacitus Tacitus Miror cap. 5. Sec. 1. Concil Brit. p. 333. M. Westm. An. 854. Caes. Com. lib. 6. Tacitus Lamb. in 4. fol. 72. Tacitus Tacitus Tacitus Malmesb. gest Reg. lib. 2. cap. 9. Lib. 5. An. 978. Tacitus Tacitus Concil Brit. 126. Ll. Sax. Lamb. Cantab. fol. 2. Ibid. fol. 22. Ibid. fol. 53. Concil Brit. p. 219. Ll. Lamb. Cantab. fol. 36. Ll. Edw. Lamb. Cant. fol. 139. Antiq. Brit. p. 51. Concil Brit. 127. Ibid. 321. Ibid. 332. Cap. 1. Sec. 3. Sec. 2. Cap. 4. Sec. 11. Tacitus Plut. Lycurg Thucyd. lib. 1. de Lacedem Tacitus An. 1158. Concil Brit. p. 127. Ll Canut p. 2. cap. 79. Ll. Ed. cap. 35. Ll. Sax. Lamb. p. 1. Concil Brit. 219. Ingulfus Mag. cent 8. cap. 9. An. 712. Concil Brit. p. 189. An. 694. Tacitus Ll. Ed. cap. 35. Tacitus Ll. Sax. Lamb. Cantab. 10. Concil Brit. p. 528. An. 1009. Tacitus Ll. Ed. cap. 35. Ll. Canut c. 58. Seld. Tit. Hon. M. Westm. An. 794. Sheriffs Ll. Edw. c. 35. Coroners Miror cap. 1. Sect. 13. Miror p. 300. Fitz N. Br. 163 164. Folkmote or County-court Miror p. 147. Ll. Canut Miror cap. 1. Sec. 15. Miror cap. 5. Sec. 1. Ll. Canut Ll. Edgar Concil Brit. p. 197. tit 22. Ll. Edw. cap. 35. Ll. Edw. cap. 35. Ll. Edw. cap. 4. Sheriffs Torne Miror cap. 1. Sec. 16. Ll. Edgar cap. 5. Ll. Edw. cap. 35. Ll. Canut p. 2. cap. 17. Tacitus Cluer lib. 1. cap. 19. Malmesb. Reg. gest p. 54. Ll.
this power within its own bounds than the watry Element upon which it sloated but it made continual waves upon the Franchise of the Land and for this cause no sooner had these great men savoured of the Honour and Authority of that Dignity but comes a Statute to restrain their Authority in the Cognizance of Cases only unto such matters as are done upon the main Sea as formerly was wont to be And within two years after that Act of Parliament is backed by another Act to the same purpose in more full expressions saving that for Man-slaughter the Admirals power extended even to the high water-mark and into the main streams And this leadeth on the next consideration viz. What is the subject matter of this Jurisdiction and Authority I shall not enter into the depth of particulars but shall reduce all to the two heads of Peace and Justice The Lord Admiral is as I formerly said a Justice of Peace at Sea maintaining the Peace by power and restoring the Peace by setting an Order unto matters of Difference as well between Foraigners as between the English and Foraigners as may appear by that Plea in the fourth Institutes formerly mentioned Secondly That point of Justice principally concerneth matters of Contract and Complaints for breach of Contract of these the Admiral is the Judge to determine according to Law and Custom Now as subservient unto both these he hath Authority of command over Sea-men and Ships that belong to the State and over all Sea-men and Ships in order to the service of the State to arrest and order them for the great voyages of the King and Realm and during the said voyage but this he cannot do without express Order because the determining of a voyage Royal is not wholly in his power Lastly the Lord Admiral hath power not only over the Sea-men serving in the Ships of State but over all other Sea-men to arrest them for the service of the State and if any of them run away without leave from the Admiral or power deputed from him he hath power by enquiry to make a Record thereof and certifie the same to the Sheriffs Mayors Bailiffs c. who shall cause them to be apprehended and imprisoned By all which and divers other Laws not only the power of the Admiral is declared but the original from whence it is derived namely from the Legislative power of the Parliament and not from the single person of the King or any other Council whatsoever But enough hath been already said of these Courts of State in their particular precincts One general interest befalls them all That as they are led by a Law much different from the Courts of Common-Law so are they thereby the more endeared to Kings as being subservient to their Prerogative no less than the Common-Law is to the peoples liberty In which condition being looked upon as Corrivals this principal Maxime of Government will thence arise That the bounds of these several Laws are so to be regarded that not the least gap of intrenchment be laid open each to other lest the Fence once broken Prerogative or Liberty should become boundless and bring in Confusion instead of Law. CHAP. VI. Of the Church-mens Interest BUt the Church-mens interest was yet more Tart standing in need of no less allay than that of the King's Authority for that the King is no less concerned therein than the people and the rather because it was now grown to that pitch that it is become the Darling of Kings and continually henceforth courted by them either to gain them from the Papal Jurisdiction to be more engaged to the Crown or by their means to gain the Papal Jurisdiction to be more favourable and complying with the Prerogative Royal. The former times were tumultuous and the Pope is gained to joyn with the Crown to keep the people under though by that means what the Crown saved to it self from the people it lost to Rome Henceforth the course of Affairs grew more civil or if you will graced with a blush of Religion and it was the policy of these times whereof we now treat to carry a benign Aspect to the Pope so far only as to slave him off from being an enemy whilst Kings drove on a new design to ingratiate and engage the Church men of their own Nation unto it's own Crown This they did by distinguishing the Office or Dignity of Episcopacy into the Ministerial and Honourable Parts the later they called Prelacy and was superadded for encouragement of the former and to make their work more acceptaple to men for their Hospitalities sake for the maintenance whereof they had large Endowments and Advancements And then they reduced them to a right understanding of their Original which they say is neither Jus Divinum nor Romanum but that their Lordships power and great possessions were given them by the Kings and others of this Realm And that by vertue thereof the Patronage and custody of the Possessions in the vacancy ought to belong to the Kings and other the Founders and that unto them the right of Election into such advancements doth belong not unto the Pope nor could he gain other Title unto such power but by usurpation and encroachment upon the right of others But these great men were not to be won by Syllogisms Ordinarily they are begotten between Ambition and Covetousness nourished by Riches and Honour and like the Needle in the Compass turn ever after that way Edward the Third therefore labours to win these men heaped Honour and Priviledges upon them that they might see the gleanings of the Crown of England to be better than the vintage of the Tripple Crown Doubtless he was a Prince that knew how to set a full value upon Church men especially such as were devout and it may be did somewhat outreach in that course For though he saw God in outward events more than any of his Predecessors and disclaiming all humane merits reflected much upon God's mercy even in smaller blessings yet we find his Letters reflect very much upon the Prayers of his Clergy he loved to have their Persons nigh unto him put them into places of greatest Trust for Honour and Power in Judicature and not altogether without cause he had thereby purchased unto his Kingdom the name and repute of being a Kingdom of Priests But all this is but Personal and may give some liking to the present Incumbents but not to the expectants and therefore the Royal Favour extended so far in these times as to bring on the Parliament to give countenance to the Courts and Judiciary power of the Ordinaries by the positive Law of the Kingdom although formerly the Canons had already long since made way thereto by practice I shall hereof note these few particulars ensuing Ordinaries shall not be questioned in the King's Court for Commutation Testamentary Matters or Matrimonial Causes nor other things touching Jurisdiction of Holy-Church Things
so things were done according to his mind though he did them not And thus his Excellency seemed more eminent in finding and making instruments fitting to do his work than in doing his own work Nevertheless all this was but from hand to mouth no Fundamental Law is altered all this while If the Laws were made by Parliament the King made them not If the Judges turned the Law to the King's ear the Law was still the Crown though the King wore it But Henry the Eighth was no such man he had not this skill of undermining nor desired it he was tender of the least diminution of his Honour industrious in finding out the occasion and a most resolved man to remove it out of the way though it reached as high as the Triple Crown A man underneath many passions but above fear What need he care for pretences his Father loved Riches he Power When he came to traverse his ground he found quickly where the Church-men trespassed upon him and began with them resting upon the wisdom of his Father and the infallibility of the Pope Henry the Eighth had taken to Wife Katherine his Brothers Dowager and continued in that condition Eighteen years without wrinkle of Fame till the great Success of Charles the Fifth the Queens Brother against the Pope and French scared the King into a jealousie of his greatness and the Emperour 's failing in courtesie to Cardinal Wolsey the King 's Achates stirred the Cardinals spirit to revenge for the loss of his hopes in the Popedom For the Cardinal finding the King's mind to linger after another Bedfellow by whom he might have a Son he made the French Embassadour his Instrument to mind the King of his unlawful Marriage with the Queen and to mention unto him Margaret D' Alanson a Princess of France both in Bloud and Beauty The King liked the notion of Divorce but disliked the motion concerning the French Lady himself being prepossessed with a fair Object at home the Lady Anne Bullen then attending upon the Queen And thus being moved he entred into a scrutiny concerning the condition of his Marriage wherein he had been formerly touched both by the French and Spaniards themselves upon several motions made First Between Charles the Fifth and afterwards between the Dauphine and the Lady Mary afterwards Queen Hereat the Cardinal winked all the while till the infallibility of the Chair of Rome came upon the Stage then bestirring his Wits he lodged the Case upon Appeal thither as he hoped beyond all further Appeal and so held the King there fast till himself might accomplish his own ends But the Wheel once set a running would not stay The King espies the Cardinal in his way and bears him down Then finding the fallacy of the infallible Chair he hearkens after other Doctors follows their light and being loth to hear what he expected from Rome he stopped the way to all Importation of such Merchandize as might be any ways prejudicial to the Prerogative Royal with the penalty of the loss of Land or Liberty and Fine the two latter being formerly warranted by Law. The first served as a scare for though it were but by Proclamation men might justly fear that he who was so stout against the Pope would not stick to scourge his own Subjects out of his way in the time of his heat The King thus entred the Lists both against Pope and Cardinal now under Praemuniri whereof he died meets the English Clergie thus losing their Top-gallant standing up in the Reer against him and talking at large Nevertheless the King stops not his career puts them to the rout for maintaining the power Legatine They soon submit crave pardon give a sum of Money and perfume their Sacrifice with that sweet Incense of Supream Head of the Church of England This was done not by way of Donation for the Convocation had no such power but by way of acknowledgement in flat opposition to the Jurisdiction of the Pope It became the common subject of discourse amongst all sorts but of wonderment to the Pope Yet for fear of worse he speaks fair for he was not in a posture to contest but all would do no good The Queen had appealed to Rome the Pope by Wolsey's advice makes delays The Parliament espying the advantage at once took all Appeals to Rome away and established all Sentences made or to be made within this Land notwithstanding any Act from Rome and enjoyned the English Clergie to administer the several Acts of publick Worship notwithstanding any Inhibition or Excommunication from any Forein pretended Power The grounds upon the Preamble of the Law will appear to be Two. First That the King of England is Supream Head in rendring Justice within the Nation in all Causes therein arising which is more than the Recognizance of the Clergie two years before this Act did hold forth Yet this acknowledgement is not absolute but in opposition to Forein pretensions Secondly That the Clergie in England having power may in matters Spiritual determine all doubts without Forein help and administer such Duties as to their place do belong Not hereby determining that the Church-men ever had such power by Law nor that they ought originally to have such power They never had it for no sooner were they dis-joyned from the Laity in these affairs but immediately they were under the Pope and received their power from him And de Jure they cannot challenge such power but by a positive Law such as this Law of Henry the Eighth which also giveth but a restrictive and limited power viz. In matters Testamentary of Divorce Matrimony Tythes Oblations and Obventions So as if they will challenge such power they must thank the Parliament for it and use the same accordingly as persons deputed thereunto and not in their own right or right of their places In all this the King's Supremacy is but obscurely asserted and rather by implication shewing what in reason may be holden than by declaration of what was making way thereby First Into the Opinions of men before they were enjoyned to determine their Actions but within Two years ensuing or thereabout the Law is made positive The King shall be taken and accepted the onely Supream Head on Earth of the Church of England and have power to visit correct repress redress reform restrain order and amend all such errours heresies abuses offences contempts and enormities as by any manner of Spiritual Authority or Jurisdiction ought or may lawfully be reformed Which in the Preamble is said to be made to confirm what the Clergie in their Convocation formerly had recognized The corpse of this Act is to secure the King's Title the King's Power and the King's Profit As touching the King's Title it is said that in right it did formerly belong to him which is to be granted by all so far as the power is rightly understood But as touching the King's Profit it cannot