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.
renitente and appeared either personally or by proxie Others came as parties to give and receive direction or hear Sentence in matters tending to spiritual regards And for this cause issued Summons even to Kings as at the Council of Lyons aforesaid it is said that the Pope had cited Regis terrae alios mundi principes dictum principem meaning Henry the third the matter was for assistance to the holy War and to determine the matter between Henry the third and his Clergie men And as in that case so in others of that kind Kings would send their Embassadors or Proctors and give them power in their Princes name interessendi tranctandi communicandi concludendi First of such matters quae ad reformationem Ecclesiae universalis in capite membris then of such as concern fidei orthodoxae fulciamentum Regumque ac principum pacificationem or any other particular cause which occasionally might be inserted So long then as Kings had their votes in the general Councils they were engaged in the maintenance of their decrees and by this means entred the Canon-law into Kingdoms Nor was the vote of Kings difficult to be obtained especially in matters that trenched not upon the Crown for the Pope knowing well that Kings were too wise to adventure their own persons into foraign parts where the general Councils were holden and that it was thrift for them to send such Proctors that might not altogether spend upon the King's purse allowed Bishops and Clergy-men to be Proctors for their Princes that in the Negative they might be pii inimici and less active but in the Affirmative zealous and so make the way wider by the Temporal and Spiritual vote joyned in one Neither did Kings onely save their purse but they also made their own further advantage hereby for by the engagement and respect which these their Proctors had in Councils they being for the most part such as were had in best esteem obtained better respect to the cause that they handled and speedier dispatch Nevertheless the case sometimes was such as could not expect favour and then as the King's temper was they would sometimes ride it out with full sail and to that end would either joyn with their Ecclesiastcal Proctors some of the Barons and great men of their Realm to add to the cry and make their affairs ring louder in the ears of fame although the Pope had the greater vote or otherwise would send an inhibition unto their Proctors and their assistants or an injunction to look to the rights of the Crown as Henry the Third did at the Council at Lyons and this sounded in nature of a Protest and within the Realm of England had the force of a Proviso or Saving But if the worst of all come to pass viz. that the Council passed the cause against Kings without any Inhibition or Injunction yet could it not bind the Law of the Land or Kings just Prerogatives no not in these times of Rome's hour and of the power of darkness For at a Synod holden by Arch-bishop Peckham An. 1280. the Acts of the Council of Lyons were ratified and amongst others a Canon against non-residency and pluralities and yet neither Council nor Synod could prevail for in Edward the Second's time an Abbot presenting to a Church vacant as was supposed by the Canon of pluralities the King whose Chaplain was disturbed enjoyned the Abbot to revoke his presentation upon this ground Cum igitur c. in English thus Whereas therefore that Decree bindeth not our Clerks in our service in regard that the Kings and Princes of England from time to time have enjoyed that liberty and prerogative that their Clerks whilst they attend upon their service shall not be constrained to undertake holy things or to be personally resident on their Benefices c. And if this present Law be considered whereof we now treat which took leave to enact a sence upon a former Canon so long since made and which is all one to makâ— a general Council will or nill it to tread in the steps of an English Parliament or which is more mean to speak after the sence of an English Declaration that had not yet attained the full growth of a Statute as was then conceived it will evidently appear that the power of a council made up of a mixture of a few votes out of several Nations or the major part of them being unacquainted with the Laws and Customs of Nations other than their own was too mean to set a Law upon any particuler Nation contrary to its own original and fundamental Law. And as the Voters sent to the grand Councils from England were but few so neither were the Proctors as may appear from this that Pope Innocent out of his moderation if we may believe it and to avoid much expence as he saith did order that the number of Proctors in such cases should be few But in truth the times then were no times for moderation amongst Popes and their Officers and therefore it was another thing that pinched for multitude of Proctors if their number had not been moderated might perhaps if not prevail yet so blemish the contrary party that what the Pope should get must cost him loss of spirits if not bloud And although the Bishops being fast Friends to the Pope by vertue of their Oath did prevail in power and the Pope had the controul of the Council yet the exceeding number of the Proctors on the contrary might render their conclusions somewhat questionable in point of honesty as being made against the mindes of the greater number of persons present though their votes were fewer To avoid this difficulty therefore for more surety-sake the Popes enlarged the number of Voters for whereas it seemeth to be an ancient rule that onely four Bishops should go out of England to the general Council in after-ages not one Bishop could be spared unless in cases of great and emergent consequence as may appear by the Pope's Letter to Henry Third and the case required it for the oppressions of the Pope began to ring so loud as the holy Chair began to shake Neither did Kings confine themselves to any certain number of Proctors notwithstanding the Pope's moderation but as the case required sent more or less as unto the Council at Pisa for the composing and quieting that great Schism in the Popedom Henry the Fourth sent solemn Embassadors and with them nigh eighty in all But unto the Council at Basil Henry the Sixth sent not above twelve or thirteen as Mr. Selden more particularly relateth And unto the Council at Lyons formerly mentioned the Parliament sent but six or seven to remonstrate their complaints of the extortions of the Court at Rome their Legates and Emissaries The sum of all will be that the Acts of general Councils were but Counsels which being offered to the sence of the Parliament of England might grow up
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
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
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
was the Synod under Arch-Bishop Dunstan called The National Synods were diversly called sometimes by the Pope sometimes by the King as the first moving occasion concerned either of them For Pope Agatho in a Synod at Rome ordered that a Synod should be called in Saxony viz. England Sacrosancta authoritate nostra Synodali unitate and many Legatine Synods in succeeding times demonstrate the same That the Saxon Kings also called them upon occasion is obvious through all the Councils and needless to instance amongst so many particulars The Provincial Synods were sometimes convocated by the King and sometimes by the Arch-bishop and sometimes joyntly The Diocesan were called by the Bishop In the National and Provincial sometimes Kings moderated alone sometimes the Arch-bishop alone and sometimes they joyned together The Assistants were others both of the Clergy and Laity of several Ranks or Degrees and it seemeth that Women were not wholly excluded for in a Synod under Withered King of Kent Abbatisses were present and attested the acts of that Synod together with others of the Clergy of greater degree The matters in action were either the making or executing of Laws for Government and because few Laws passed that did not some way reflect upon the King and people as well as the Clergy the King was for the most part present and always the Lords and others Yet if the matters concerned the Church in the first act the King though present the Arch-bishop was nevertheless President as it besel at a Synod at Clevershoe An. 747. and another at Celchith An. 816. And in the Reign of Edward the Elder though the Synod was called by the King yet the Arch-bishop was President Concerning all which it may be in the sum well conceived that in the penning of the Councils aforesaid either the Clergy being Pen-men were partial or negligent in the setting down of the right form and that the Kings called these Assemblies by instance of the Archbishop and sometime presided in his own person and sometimes deputed the Archbishop thereunto The executing of Laws was for the most part left to the Diocesan Synods yet when the cases concerned great men the more general Councils had the cognizance and therein proceeded strictly sparing no persons of what degree soever Examples we find hereof amongst others of one incestuous Lord and two delinquent Kings Edwy and Edgar Nay they spared not the whole Kingdom for in the quarrel between Cenulphus the King and Archbishop Wilfrid the whole Kingdom was under interdict for six years space and no Baptism administred all that time Nor were they very nice in medling with matters beyond their sphere even with matters of Property for at a Provincial Council for so it is called they bore all down before them even the King himself as in the case between Cenulphus the King and the Archbishop of Canterbury concerning the Monastery of Cotham The like also of another Synod concerning the Monastery of Westburgh It 's true the Lords were present and it may be said that what was done was done in their right yet the Clergy had the rule and begat the Child and the Lay-Lords onely might challenge right to the name This concurrence of the Laity with the Clergy contracted much business and by that means a customary power which once rooted the Clergy after they saw their time though not without difficulty turned both King and Lords out and shut the doors after them and so possessed themselves of the whole by Survivorship But of this hereafter The particular Diocesan Synods were as I said called by the Bishops within their several Diocesses The work therein was to preach the Word as a preparative then to visit and enquire of the manners of the Clergy in the worship of God and of all matters of scandal and them to correct These Synods were to be holden twice every year at certain times and if they met with any matter too hard for them to reform they referred it to the Provincial or National Synod CHAP. XIV Of Causes Ecclesiastical AS the power of Synods grew by degrees so did also their work both which did mutually breed and feed each other Their work consisted in the reforming and setling matters of Doctrine and Practice The first was the most ancient and which first occasioned the use of Synods In this Island the Pelagian Heresie brought in the first precedent of Synods that we have extant and herein it will admit of no denial but in the infancy of the Church the Teachers are the principal Judges of the nature of Errour and Heresie as also of the truth as the Church is the best guide to every Christian in his first instruction in the principles but after some growth there is that in every Church and Christian that makes itself party in judging of truth and errour joyntly with the first Teachers And therefore 't is not without reason that in that first Synod although Germanus was called Judex yet the people hath the name of Arbiter and 't is said that they did contestare judicium Blasphemy was questionless under Church-censure but I find no footsteps of any particular Law against it yet in Scotland a Law was made to punish it with cutting out the Tongue of the Delinquent But it may be feared that neither the Saxons nor their Roman Teachers were so zealous for the honour of Gods Name as to regard that odious sin unless we should account them so holy as that they were not tainted therewith and so needed no Law. But Apostacy was an early sin and soon provided against the Church-censure was allowed of in Britain before the Saxons Church had any breath Afterward it was punished by Fine and Imprisonment by a Law made by Alfred as he provided in like manner for other Church Laws The times anciently were not so zealous for due observance of Divine Worship unless by the Church-men who were the Leaders therein a foreign Canon was made to enforce that Duty long before but it would not down with the rude Saxons they or the greater sort of them were content to come to Church onely to pray and hear the Word and so went away This is noted by that ancient Writer in nature of an imputation as if somewhat else was to be done which they neglected this somewhat was the Mass which in those days was wont to be acted after the Sermon ended And it 's probable that if the Nobles were so ill trained up the inferiour sort was worse and yet find we no Law to constrain their diligence or to speak more plainly it 's very likely the Saxons were so resolute in their Worship as there was either little need of Law to retain them or little use of Law to reclaim them For it 's observed in their late Psalter that the Roman Clergy was not more forward to Image or Saint-worship
liberty of the Laws Nor was it to be expected that the Saxons would endure a King above this pitch For those parts of Germany whence they came that had the Regiment of Kings which these had not yet used they their Kings in no other manner than as Servants of State in sending them as Embassadors and Captains as if they claimed more interest in him than he in them And the Historian saith expresly that amongst those people in Germany that had Kings their Kings had a defined power and were not supra libertatem And this Maxim of State became afterwards priviledged by Sanctuary for by the growth of Antichrist not only the Clergy but even their Tenants and Retainers were exempt from the reach of Kings and even by their own concession allowed of a Law that cut the throat of their indefined prerogative viz. That if the King defend not his people and especially Church-men from injury nec nomen Regis in eo constabit verum nomen Regis perdit Which Law however it might pass for currant Divinity in those days yet 't is strange it should get into a publick Act of State. Nor was this a dead word for the people had formerly a trick of deposing their Kings when they saw him peep above the ordinary reach and this was an easie work for them to do where ever Neighbouring Princes of their own Nation watched for the windfals of Crowns This made the Monarchical Crown in this Land to walk circuit into all parts of the Countrey to find heads fit to wear it until the Norman times Thirdly the Saxons had so hampered their Kings in their Elections and made them so properly their own as they claimed an interest not only in the person of their Kings but also in their Estates so as in some respects they were scarcely sui juris For King Baldred had given the Mannor of Malings in Sussex to Christ-church in Canterbury and because the Lords consented not thereto it was revoked and King Egbert afterwards made a new grant by advice of the Lords which shews that the Demesnes of the Crown were holden sacred and not to be disposed of to any other use though pious without the consent of the Lords and herewith concur all the Saxon infeodations attested and confirmed by Bishops Abbots Dukes and others of the Nobility under their several hands Nevertheless Kings were not then like unto plumed Eagles exposed to the charity of the Fowls for food but had a Royal maintenance suitable to their Majesty Their power was double one as a Captain another as a King the first was first and made way for the second As Captain their power was to lead the Army punish according to Demerits and according to Laws and reward according to Discretion As Captain they had by ancient custom the spoil left to their ordering by permission of the Army Exigunt Principis liberalitate illum Bellatorem equum illam cruentam victricem frameam and they were not wont in such cases to be close handed per bella raptus munificentiae materia the spoils in these wasted parts of Germany bring little other than Horses and Arms. But after they came into Britain the change of Soil made them more fat Horses and Arms were turned into Towns Houses Lands and Cattle and these were distributed as spoils amongst the Saxon Souldiers by their Generals and this redounded to the maintenance of the State and port of the great men who were wont to be honoured non stipendiis sed muneribus and the people used ultro viritim conferre principibus vel armentorum vel frugum aliquid But now upon the distribution of conquered Towns Houses Lands and Cattle in Britain a yearly product of Victuals or other service was reserved and allowed to the Saxon Kings by the people as the people allowed to Joshua his Land Jos. 19. 46. So as they needed no longer the former course of Offerings but had enough to maintain their Royal port and great superfluity of Demesnes besides as their charity to the Church-men does sufficiently evidence And by this means all the Lands in England became mediately or immediately holden of the Crown and a setled maintenance annexed to the same besides the casual profits upon emergencies or perquisites of Felons or Fugitives goods mines of Gold and Silver Treasure trove Mulcts for offences and other priviledges which being originally in the Kings were by them granted and made Royalties in the hands of Subjects as at this day To the increase of his Majesty and maintenance there was an access of power not to make dispense with or alter Laws but to execute and act the Laws established and against this power there was no rising up so long as it like an unfeathered Arrow gadded not at random It 's true the Church-men or Prelates checked them often but could never give them the mate For peace sake Kings many times yielded much yet would no King of Saxon principles allow of any Canon that extolled the Clergy's Authority above that of Kings And though the placing and displacing of Bishops seemed to be all Ecclesiastical work yet would not the Kings altogether connive as the examples of Ina in placing a Bishop in Wells Offa in making two Provinces of one Cenulphus in restoring Polydorus Edfrid in deposing Wilfrid and Edward the Confessor in making Robert Norman Archbishop of Canterbury may induce into opinion and for their own safety sake the Prelates thought it wisdom for them sometimes to stoop to that power that at other times they must be beholding to And therefore though in Synodical disputes they would hold with the Canon yet in matters of Action would suit with the occasion and thereby taught Princes to account of Canons but as Notions and politickly to put the honour of Commissioners upon these men Thus the current of both powers passing in one channel made the people drink double Beer at once the turns both of Pope and King were competently served and these men had the honour of the two-handed Sword and all seemed composed into a fair compromise But the Popedom finding its Authority becalmed endured this but as a burthen till Pope Nicholas the second 's time who by the like trick commended all to the Crown as from the Papal Benediction For Edward the Confessour upon his foundation of the Abbey of Westminster sent to the Pope for his allowance and confirmation of what he had done or was to do and to make way for the more favour sent presents and a confirmation of Romescot The Pope was so inflamed with such an abundant measure of blessing as he not onely granted the Kings desire but also discharged that Abbey from ordinary jurisdiction made it a peculiar subject onely to the Kings visitation and concluded his Bull with this Horn Vobis vero posteris vestris regibus committimus advocationem tuitionem ejusdem loci omnium
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
Freemen in such cases it being contrary to the Grand Charter never asked by the Clergie formerly nor no complaint before now for denial for my part therefore I shall not apprehend it of a higher nature than the King 's Writ which in those days went forth at random if the 44th Article of the Clergies complaints foregoing be true It being so contrary to the common sence of Parliament to give the bodies of the Freemen to the will of the Clergie to whom they would not submit their Free holds But the Writ proceeds in enumeration of particulars Reparations and adornings of Churches and Fences of Church-yards Violence done to a Clerk Defamation to reform not to give damage Perjury oblations payments of Tythes between Rector and Parishioner Right of Tythes between two Rectors to a fourth part of the value Mortuaries due by custom A Pension from a Rector to a Prelate or Advocate The most of which were under the power of a prohibition in the time of Henry the Third who was King but yesterday as the Articles of complaint formerly set down do manifest Nor had the Clergie ever better Title than connivance of some such favourites as King Steven whose Acts may peradventure be urged against Kings but not against the people unless their own act can be produced to warrant them The learning in the Princes case will I suppose admit of a difference for it can never be made out that the King's Council in Parliament was the Magnum concilium Regni but onely the House of Lords and therefore whatever passed in Parliament by their onely advice might bind the King but could never reach the Commons nor their Liberties And thus the Grand Charter in the first conception was conclusive to the King but was not the act of the Parliament because the Parliament cannot grant a Charter to it self of that which was originally custom And therefore this Law however countenanced can never be concluded to be other than a Permission not onely because it was never the Act of the Commons of England but because it is contrary to the liberty of the Freemen And it is beyond all imagination that the Commons should out themselves from the protection of the common-Common-Law and yoke themselves their Free-holds and Estates under the bondage of the Canons nor ought such a construction to be admitted without express words to warrant it As for the conclusion it is worse and not onely dishonourable to the King in binding his Arms from protecting his Subjects by the Common Laws and so in some respects making them Outlaws but dishonourable to it self whilst it makes Prohibitions grounded upon Laws to be nullities by a late trick of non obstante which was first taken up by the Pope then by Henry the third and by this King granted to the Clergie and thus are all set at liberty from any rule but that of Licentiousness Nevertheless this Law did thrive accordingly for we find scarce any footsteps in story of any regard had thereof till it became grey-headed For it was not long e're the King stood in need of money and was necessitated to try the good wills of the Clergie more than once this occasioned them to be slow in answer and in conclusion to deny that they should aid the King with any more money Papa inconsulto The King hereupon disavows the Clergy and leaves them to the Romish oppressions which were many and then the Clergie rub up all old sores and exhibit their complaints to their holy Father to this effect 1. That the King's Justices intermeddle in Testamentary causes accounts of Executors and cognizance of Tythes especially to the fourth part of the Living 2. That the Clergie were charged to the King's Carriages That the King's Mills were discharged from paying of Tythes That Clerks attending on the Exchequer were necessitated to non-residency And that after their decease their Goods were seized till their acounts were made That Ecclesiastical possessions were wasted during vacancies 3. That Clerks were admitted to free Chappels by Lay men 4. That the King's Justices took cognizance of Vsury Defamation violence done to Clerks Sacriledge Oblations Fences of the Church-yards and Mortuaries 5. That prohibitions are granted without surmise 6. That Clerks are called to answer in the King's Court for crimes and being acquitted the Informers escape without penalty 7. That Clerks are not allowed their Clergie 8. That after purgation made Clerks are questioned in the King's Court for the same offence 9. That persons in Sanctuary are therein besieged 10. That the Writ de Cautione admittenda issueth forth although the Church be not satisfied and excommunicate persons being imprisoned are enlarged in like manner 11. That Debts between Clerks due are determined in the temporal Courts 12. That Bishops are compelled by Distress to cause Clerks to appear in Lay-courts without cause 13. That the Church loseth it's right by the ceasing of Rent or Pension by the space of two years 14. That Nuns are compelled to sue in the Lay-courts for their right in possessions befalling by decease of their Kinred 15. That Churches are deprived of their Priviledges till they shew Quo warranto they hold them 16. That Ecclesiastical Judges are stopped in their proceedings by Sheriffs and great men 17. That Bishops refusal of Clerks presented are examined in the Lay-courts 18. That Patrons of Religious Houses do oppress them by extream Quarter 19. That Bigamy and Bastardy are tried in Lay-courts 20. That the King suffers his Livings to be vacant for many years 21. That the Clergie are wronged by the Statute of Mortmain Here 's all and more than all that 's true and more than enough to let the Reader see that the Writ Circumspecte agatis was but a face put on for the present after laid aside and the Clergy left to the bare Canon They likewise shew what the Clergy aimed at and in that they did not obtain it was to be attributed to the resolution of the Laity and not any neglect in themselves for the Arch-bishop died in the service and it is thought that grief for these matters was no little cause thereof But the times within a while grew troublesome and the King in pursuit of the French Wars being unadvised in his way angred the people by his arbitrary levie of Men and Money as it brought forth a State-scoul little inferiour to a Quarrel And to pacifie the Clergie he granted them the Writ de consultatione habenda in all matrimonial and testamentary cases which were of their least doubted priviledges and this qualified the first Article of complaint next foregowing if such cause they had of complaint and this was all that the Clergie got at Edward the first 's hands Edward the second was a man that was neither well-affected to Rome nor weak in spirit and yet so unhappy that his way neither promised good success nor ever had it and so he became a Servant unto
and 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
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
according to the ancient Law of the Kingdom Either therefore the Privy-Council had no power to hold any Pleas at all or else no power of Trial. The first of these was concluded in open Parliament and the second as good as so for if the first then the second will come on undeniably But suppose all this be given up yet was this Liberty to hold Pleas so qualified that the person could not be touched till the thing did appear by Inquisition and then in a legal way Such proceeding was had upon suggestion made against the City of London in Henry the Third's time for one of the Judges was first sent into the City to find the suggestion by a Jury and then the Lord Mayor appeared before the Lords and traversed the matter and in a manner appealed or rather demanded to be tried according to the custom of the City And the like course do we find observed in our Law-Reports of these times in a Case concerning the price of Wool by a false Report The foot of the whole account will be this That the work of Judicature of the Privy-Council in these times in cases of Crimes was to receive Articles and award Inquisitions and after return in nature of a Grand Inquest to Recover Traverse and to order Trial at the Common-Law and upon Verdict returned to Fine and Ransom In other Cases either of Right or Equity in matters of private property they were determined either by Judges of the Bench or Chancery although possibly the suit was Coram Concilio for that all the said Judges were of the King's Council And yet as I dare not affirm so I cannot deny but it might also be possible that some matters especially these of a greater consequence either in their own nature or in regard of the persons whom they concerned were determined by the major Vote of the whole Council in a prudential or rather arbitrary way But this was Invita Minerva and used so rarely as the path is grown out of view saving some few footsteps here and there remaining which shew that the Grand Council of Lords had been there CHAP. IV. Of the Chancery IT is the birth of the King's power in Judicature and may deserve the name of the first-born For though it had no better Title in these later times than Officium because amongst other of the King's Escripts it formed Writs remedial for such as had received wrong yet even by that work it was in repute for so much skill in the Law of the Land that by the consent of all it was as well able to advise a remedy as to advise the Complainants where to have it And yet it had one advantage further that it was an Office of remembrance to the King who is a person of great trust in the Law and gave such credit to all acts done before him as being entred into the remembrance became of the highest nature of Record against which no Plea did lie Amongst these matters of debt and contract coming into the account this Office taking notice of the Record took cognizance of the thing and for the executing thereof and thus in these and such-like Cases granted Judicial Writs and so found out a way of Judicature to as many Causes as the State would trust it with And because it pretended cognizance onely of matters of Record before them they found out a way of examining of Witnesses by Commission and returning their Depositions in writing which being become a Record before them they gave their Sentence upon the whole matter without the ancient ordinary Trial per pares It becomes a kind of peculiar exempting it self from the ordinary course in manner of Trial and from the ordinary rules of Law in giving of Sentence and as a Back-door for the King 's Arbitry in case of Judicature in matters of Common-pleas as the Council-Table was in Crown-pleas They both are looked upon with a very pleasing eye of Majesty which loves not to be strait-laced yet all is embattelled under the Colours of Equity Honour Conveniency and Conscience like a Monopoly that is bred under the wings of the publick but feeds it self upon it That this had attained the Title of a Court so anciently as in King Steven's time as the Honourable Reporter noteth I much question by the Title that Fleta gives it in later times nor under his favour will that Testimony cited out of the History of Ely warrant it but upon a mistaken ground of misplacing the note of distinction For I take the words to be thus translated King Etheldred determined and granted that the Church of Fly should for ever in the King's Court hold the dignity of the Chancery and not hold the dignity of the King's Court of Chancery Nevertheless it is clear that these times brought it to that condition that it might well carry that name if formerly it had not For it grew very fast both in honour and power and this not by Usurpation though it did exceed but by express donation from the Parliament Yet is this power much darkned in the limits and extent thereof chiefly in regard that the Chancellor is betrusted with many things whereof there is no evidence for the Chancery to claim any cognizance For he was in these times a person of many interests and relations being one of the Quorum in the Star-Chamber of the King's Council chief in the Chancery most commonly a Clergy-man and therewith Legate à Latere and in these several Relations might act directly and yet in several Courts And therefore though he had power with others to punish neglects of Execution of the Statutes of Wines by Act of Parliament and also of the Statute concernign Victual and to determine matters of controversie between parties in Cases depending before the Parliament and in some matters that concern the King's Revenue yet cannot these be said to be the proper work belonging to the cognizance of the Chancery but to the Chancellor by special Commission in another Relation Albeit I cannot deny but the Court it self had cognizance in matters of as strange a nature Viz. To punish disturbances of Merchants in their Trade to see to the executing of the Statutes of Purveyors and to remedy grievances contrary to other Statutes Which general words let in a wild liberty to that Court to intermeddle in Laws which were never intended for their touch to punish Nusances according to discretion to give remedy to Merchants upon the Statute of Staple so that it is clear enough the Parliament intended it should be a Court and gave their Seal to their power of Judicature Nor as it seemeth was this any regret to the Courts of Common-Law but as a thing taken for granted For the Reports tell us That if the King grants Tythes arising from without the bounds of any Parish the Patentee shall sue in the Chancery by Scire Facias and shall there proceed to
controul for when displeasure was like to ensue he could speak fair and feast and if need was kiss away all discontent Towards his end as stale drink he grew sowr For as in the first part of his Reign he had been supplied by good-will against Law so in his latter times he had gotten a trick of supply by Law against good-will This was by penal Laws which are a remedy if they be used Ad terrorem but if strained beyond that the Remedy proveth worse than the Disease In their first institution they are forms of courtesie from the people to the King but in the rigorous execution of them are trials of mastery of the King over the people and are usually laid up against days of reckoning between the Prince and them Those penal Laws are best contrived that with the greatest terrour to the Delinquent bring the least profit to the King's Coffers Once for all this King's Acts were many his Enterprizes more but seldom attaining that end which they faced He was a man of War and did more by his Fame than his Sword was no sooner resolved in good earnest but he died left a Kingdom unassured his Children young and many friends in shew but in truth very few Now if ever was the Kingdom in a Trance Edward the Fourth left a Son the Prima materia of a King and who lived long enough to be enrolled amongst English Kings yet served the place no further than to be an occasion to fill up the measure of the wickedness of the Duke of Gloucester and a monument of Gods displeasure against the House of Edward the Fourth whether for that breach of Oath or treachery against Henry the Sixth or for what other cause I cannot tell But at the best this Prince was in relation to his Uncle the Duke of Gloucester little other than as an Overseer to an Executor that might see and complain but cannot amend For the Duke ruled over-ruled and mis-ruled all under the name of Edward the Fifth and left no monument of good Government upon record till he changed both the Name and Person of Edward the Fifth to Richard the Third his Fame had lifted him up and might have supported him had he regarded it But as no man had more honour before he ascended the Throne so no man ever entred and sate thereon with less His proceedings were from a Protector to an Vsurper and thence to a Tyrant a Scourge to the whole Nation especially the Nobility and lastly an instrument of Gods Revenge upon himself a man made up of Clay and Blood living not loved and dying unlamented The manner of his Government was strained having once won the Saddle he is loth to be cast knowing himself guilty all over and that nothing could absolve his Fame but a Parliament he calls it courts it and where his Wit could not reach to apologize he makes whole by recompence takes away Benevolences he is ready to let them have their present desires what can they have more He promiseth good behaviour for the future which he might the better do because he had already attained his ends Thus in one Parliament for he could hold no more he gave such content as even to wonderment he could assoon find an Army in the field to fight for him as the most meritorious of his Predecessors Hiâ— ill Title made him very jealous and thereby taught his best Friends to keep at a distance after which time few escaped that came within his reach and so he served God's Judgement against his adjutants though he understood it not Amongst the rest against the Duke of Buckingham his great Associate both in the Butchery of the two young Princes and usurpation of the Royal Scepter He lived till he had laid the Foundation of better times in the person of Henry the Seventh and then received his reward But an ill Conscience must be continually fed or it will eat up its own womb The Kings mind being delivered from fear of the Sons of Edward the Fourth now dead torments himself with thoughts of his Daughter alive ashamed he is of Butchery of a Girl he chuseth a conceit of Bastardizing the Children of Elizabeth Gray that calleth her self Queen of England but this proved too hard to concoct Soon after that he goes a contrary way The Lady Elizabeth Gray is now undoubted Wife of Edward the Fourth and her eldest Daughter as undoubted Heir to the Crown And so the King will now be contented to adventure himself into an incestuous Marriage with her if his own Queen were not in the way onely to secure the Peace of the Kingdom which he good King was bound in Conscience to maintain though with the peril of his own Soul and in this zeal of Conscience his Queen soon went out of the way and so Love is made to the young Lady But Henry Earl of Richmond was there before and the Lady warily declined the choice till the golden Apple was won which was not long after accomplished the King losing both the Lady his Crown and own Life together put an end to much wickedness and had the end thereof in Bosworth-Field CHAP. XXIV Of the Government in relation to the Parliament THe seasons now in Tract were of short continuance lives passed away more speedily than years and it may seem useless to enquire what is the nature of the Government in such a time whenas the greatest work was to maintain Life and Soul together and when all is done little else is done For though the Title of the House of York was never so clear against that of Lancaster yet it had been so long darkned with a continual â—uccession of Kings of the Red Rose that either by their Merit had gained a Throne in the peoples Hearts or by their Facility had yielded their Throne up to the peoples will as it proved not easie to convince them that liked well their present Lot and were doubtful of change or to make them tender of the right of Edward the Fourth above their own quiet Above Threescore years now had England made trial of the Government of the Lancastrian Princes and thereof about Thirty years experience had they of Henry the Sixth they saw he was a gentle Price On the other side Edward the Fourth newly sprung up out of a Root watered with blood himself also a man for the Field This might well put the minds of the people to a stand what to think of this Man whose Nature and ends are so doubtful and brought nothing to commend him to the good wills of the people but his bare Title which the common sort usually judge of according as they see it prosper more or less Add hereunto that Divine Providence did not so clearly nor suddenly determine his secret purpose concerning this change by any constant success to either part by means whereof the one half of Edward the Fourth's Reign was spent while as yet Henry the
them to put up beyond his place and to bid adieu to the advice of all the rest but he gets the uppermost seat in the King's Head makes a Foot-stool of the King's Heart and then it is two to one that the people in such cases must bear the greater burthen For whoever first said it he said most true That Prerogative in the hand of a King is a Scepter of Gold but in the hand of a Subject it is a Rod of Iron The Reign of this King Henry the Eighth serves us with much experience of this kind for if the consideration of the Affairs of this Government should be divided the same would be double the one under the Regiment of Cardinal Wolsey the other of the King by Cromwel Cranmer Gardiner and others interchangeably I call that of Wolsey a Regiment for he was in the nature or condition of a Pro-Rex during the Kings Juvenility This fortune thus super-induced upon a Cardinal raised from mean degree to be Legate à Latere courted by Foreign Princes slattered by the Emperour with Titles of Son and Cousin made him lead a dance that the King however active he was is put to his career to hold him company which the King perceiving tripped up his heels and left the Archbishop the Chancellour the Cardinal the Legate and many more with him lying on the ground No pride like to that of the Clergie whose parts are more sublime and apprehensions clear If God addeth not a superiour Work to rule over all a little honour will blow up all with powder The King having thus matched the Cardinal forgot his former natural pace and once in a heat could cool no more till death cooled him He knew by experience that the Cardinal could over-awe the people why should not the King do as much if the Lords stooped to the Cardinal why not much rather to the King The Cardinal pulled down reared up turned square to round why should he be less than his Subjects Such conceits as these soon wound up the Kings mind to that height that it is death to him to stoop one inch lower to more moderate advice though he loved their persons never so well but all must be content with the weight of his arm though it were no small one and yet in point of Religion affairs tended to a kind of Reformation all this while CHAP. XXVII Of the State of the Crown THat the Crown of England now abounded more in Flowers than Crosses the Face of Story doth hold forth to ordinary Observation and yet few are satisfied either in the true nature of the particular advantages or in the manner how they were obtained or in the continuance I must therefore make a little stop upon them because in the true discerning of them the discovery of the nature of the Government in latter days doth much depend Hitherto the Crown came short of absolute power over the people upon two grounds in observation one relating to the Clergie the other to the Laity The Church-men were heretofore under a Foreign power and a Foreign Law against which Kings durst not deeply engage either not being assured of their own Title or employed in pursuit of other game or being of a weak Spirit were scared with the Thunder-bolt of the Pope's Curse But the Laity were under another Law and such an one as by clear and unquestionable Custom had established bounds between the way of Kings and the Rights of the People Neither did Kings directly invade those Borders either led thereto by a kind of Conscience in such of them as were morally enclined or in others by a kind of fear of raising up Earthquakes from beneath which commonly do overthrow high Towers sooner than Winds from above But now such interests are laid aside fast asleep by two Kings Whereof one cared not much for Fear and neither of them for Conscience For Henry the Seventh having leisure to study the Nature and contemplate the Fashion of the English Crown dislikes the Model in some particulars It was not rich enough nor well poised to his mind which ever was not to be poor but towards his latter time to be exceeding rich as supposing that to be the onely way to be more desirable to Friends formidable to Enemies and absolute over his People And this opinion of his missed in the main end though it attained his immediate desire For by mistaking the right way it made a rich King but not a rich Crown He delighted more in the riches of his People than in a rich People And this bred no good blood because the People thought that the Law was not on his side in that matter They suffered him to visit their Purses but are loth it should prove customary lest they should lose their Common Right They therefore chose rather to give him power by Act of Parliament to revoke Letters-Patents and Grants and make resumptions of Offices Fees Annuities and the like that he might rather repossess his own than possess theirs Many Penal Laws likewise of a limited and Temporary regard are made and as Cheese after a full Dinner they close up all with Subsidies For it was evident to all men that the Royal mind of the King served no further than to take what was given provided that the People would give what else would be taken By this means Henry the Seventh left rich Coffers to descend to Henry the Eighth but the Crown was still the same in price In this Act of the Play the People carry away the plaudite The second Act was the point of Allegiance wherein both parts carry themselves so cunningly as it is hard to adjudge the Garland yet it may be thought the King observed it rather because he offered all the play whilst the People did onely lie at their close guard The whole project consisted in this to gain a more absolute Allegiance from the English to their King. And because this is exemplified partly in War and partly in Peace that part which concerneth War will more properly fall under the consideration of the Militia and therefore I shall refer the same to that head in the 32 Chapter ensuing and will come to the second consideration of Allegiance in relation to Peace and therein touch upon the Kings power in making of Laws and of Judicature according to those Laws As touching the making of Laws the ingenuity of Henry the Seventh could not suffer him to make any claim thereto in any positive way yet his actions declare that his heart was that way For being beset with troubles he could often fancy dangers and arm himself then call a Parliament who were wise enough to grant as readily as he asked rather than to be compelled thereto So he had Laws made according to his own Will though he made them not The matter of Judicature comes next and therein he made his Judges appear and not himself though they did not onely represent his person but his mind
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
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
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
over Learned men to Preach and Baptize both King and People and this Rome might probably gain some Honour although possibly the King intended it not or much less to acknowledg any Authority or Power in that Church over that of Britain This act of Lucius so advanced him in the opinion of Writers that they know not when they have said enough Some will have him to be the instrument of the first entry of Religion into this Isle others that he setled a form of Church-government under the three Archbishops of London York and Caerlion upon Vske and 28 Bishopricks the first of which is cried down by many demonstrative instances nor can it consist with the second nor that with it or with the truth of other stories For it neither can be made out that Lucius had that large circuit within his Dominion nor that the title of Archbishop was in his daies known and 't is very improbable that the British Church was so numerous or that Religion in his time was overspread the whole Island nor is there any mention in any Author of any Monuments of these Archbishops or Bishops of Britain for the space of 200. years after this King's reign and yet no continual raging persecution that we read of that should enforce them to obscure their profession or hide their heads or if such times had been it would have been expected that Bishops in those daies should be in Britain as well as in other places most famous for gifts and graces and pass in the forefront of persecution But we find no such thing no not in the rages of Dioclesian which made the British Church famous for Martyrs Writers speak of Alban Amphibalus Aron Julius and a multitude of Lay-people but do not mention one Bishop nor Presbyter nor other Clergy-man but quendam Clericum a man it seems of no note and of unknown name In Charity therefore the English Church in those daies must be of mean repute for outward pomp and to liftedup to that height of Archbishops when as Rome it self was content with a Bishop Somewhat more probable it is that is noted by Writers concerning Lucius his endeavour to settle the Commonwealth and good Laws for Government and to that end did write a Letter to Eleutherius Bishop of Rome for a Model of the Roman Laws probably being induced thereunto by the splendor of the state of the Roman-Church and Commonwealth the onely Favorite of fame in those times through the Northern parts of the World. Things afar off I confess are dim and it is meet that Antiquaries should have the honour due to great after-sight And therefore I might think as some of them have done that the Epistle of Eleutherius to King Lucius is spurious if I could imagine to what end any man should hazard his wits upon such a Fiction or if the incongruities charged against it were incurable but being allowed to be first written in Latine and then translated into British for the peoples satisfaction and in that Language the Original being lost traduced to posterity and then by some Latine Writer in after-ages returned into Latine and so derived to these times all which very probably hath been such occasions of exceptions well arise by mistake of Translators and Transcribers in ignorant times and the substance nevertheless remain entire and true Considering therefore that the matter of that Epistle savoureth of the purer times of the Church and so contrary to the dregs of Romulus I mean the policy practice and language of the Roman Clergy in these latter ages wherein this forgery if so it be was made I must allow it to pass for currant for the substance not justifying the syllabical writing thereof To others it seemeth needless and vain that Lucius should send for a model to Eleutherius when as the Roman Deputies and Legions at home might have satisfied the Kings desire in that particular or their own experience might have taught them grounds sufficient after two hundred years converse with the Romans that they should have little needed a model for that which they saw continually before their view or might have understood by inquiry of their own acquaintance But what could be expected of rough Souldiers concerning form of government of a Common-wealth or if some exceeded the ordinary strain in policy yet they were too wise to communicate such Pearls to conquered Nations that ought to look no higher than the will of the Conquerour and subsist in no better condition than may be controlled by the Supream Imperial Law of the Lord Paramount or if in this they had corresponded to the desires of the Britains yet being for the most part ignorant of the main they could never have satisfied the expectations of a Christian King who desires such a Law as may befriend Religion and wherein no man was more like to give direction than Eleutherius who seeing a kind of enmity between the Roman-Laws and Christ's Kingdom sends to the King a fair refusal of his request upon this ground that Leges Romanas Caesaris semper reprobare possumus He saw that they were not well grounded he therefore refers the King to the sacred Scripture that is truth itself Laws that come nighest to it are most constant and make the Government more easie for the Magistrate quiet for the People and delightful to all because mens mindes are setled in expectation of future events in Government according to the present rule and changes in course of Government are looked at as uncoth motions of the Celestial Bodies portending Judgements or Dissolution This was the way of humane wisdom but God hath an eye on all this beyond all reach of pre-conceit of man which was to make England happy in the enjoying of a better Law and Government than Rome how glorious soever then it was and to deliver that Island from the common danger of the World for had we once come under the Law of the first Beast as we were under his Power we had been in danger of being born Slaves under the Law of the second Beast as other Nations were who cannot shake it off to this day But Lucius lived not to effect this work it was much delayed by the evil of the times nothing was more changeable Then the Emperours grew many of them so vitious as they were a burthen to Mankind nor could they endure any Deputy or Lieutenant that were of better fame than themselves had Some of them minded the affairs of the East others of the North none of them were ad omnia And the Lieutenants in Britain either too good for their Emperour and so were soon removed or too bad for the people of the Land and never suffered to rest free from Tumults and Insurrections So that neither Lucius could prevail nor any of his Successors but passing through continual cross flouds of Persecutions under Maximinus Dioclesian and Maximinianus and many Civil Broiles till the times of Constantine
constant supply for the Church-men out of their Estates as well real as personal especially in the particulars ensuing The most ancient of all the rest was the first-fruits which was by way of eminency called Cyrick-sceate or in more plain English Church free which was always payable upon St. Martins day unto the Bishop out of that house where the party did inhabit upon the day or Feast of the Nativity It was first granted by Parliament in the time of King Ina and in case of neglect of payment or denial it was penal eleven-fold to the Bishop besides a fine to the King as was afterwards ordered by Canutus After the first-fruits cometh to consideration the Revenue of Tythes the which I find no publick Act of State to warrant till the Legatine Council under Offa Although the Canon was more ancient The Bishop at the first was the general Receiver as well of these as of the former and by him they were divided into Three parts and imployed one to the poor another for the maintenance of the Church and a Third part for the maintenance of the Presbyter But in future times many Acts of State succeeded concerning this amongst which that grant of Athelwolfe must be a little paused upon Some Writers say that he gave the tenth Mansion and the tenth of all his goods but Malmsbury saith the tenth of the hides of Land but in the Donation it self as it is by him recited it is the Tenth Mansion But Matth. Westm. understands that he gave the Tenth part of his Kingdom but in the Donation by him published it is decimam partem terrae meae In my opinion all this being by Tradition little can be grounded thereupon The form of the Donation it self is uncertain and various the inference or relation more uncertain and unadvised for if the King had granted that which was not his own it could neither be accounted pious or rational Nor do we find in the Donation that the King in precise words gave the Land or the Tenth part of the Land of his Kingdom but the Tenth of his Land in the Kingdom And the exemplification published by Matth. Westm. countenanceth the same albeit the Historian observed it not But suppose that the Kingdom joyned with the King in the concession and that it was the course to pass it onely in the Kings name yet could not the Tenth Hide Tenth Mansion or Tenth part of the Kingdom be granted without confusion in the possessions of the people For either some particular persons must part with all their possessions or else out of every mans possession must have issued a proportionable supply or lastly a Tenth part of every mans possession or House and Land must be set forth from the rest or some must lose all and become beggars to save others all which are to me equally improbable Nevertheless I do not take the thing to be wholly fabulous but may rather suppose that either a Tenth was given out of the Kings own Demesnes which is most probable or else the Tenth of the profits of the Lands throughout the Kingdom and that it was by publick Act of State and that clause forgotten by Historians And thus might a good president be led to Alfred Athelstan and other Kings who setled Tythes under payment of penalties and appointed the times of payment viz. The small Ttihes at Whitsontide and the great Tithes at Alhollantide Another Tribute was that of Luminaries which by Alfred and Gunthrum was first setled by Law although it had been before claimed by Canon It was payable thrice a year viz. Hollantide Candlemas and Easter at each time half a penny upon every Hide of Land and this was under a penalty also Another Income arose from the Plough and under the name of Plough-Alms At the first it was granted by Edward the Elder generally and the value was a penny upon every plough and in after-times it was ordained to be paid Fifteen days after Easter Next comes a Fee at the death of the party which was commonly called Soul shot and paid before the dead body was buried unto that Church where the dead parties dwelling was So as they never left paying and asking so long as the body was above ground and this it 's probable turned into that fee which was afterward called a Mortuary The incumbent also of every Church had Glebe laid to the Church besides oblations and other casual profits as well arising from houses bordering upon the Church as otherwise All these four last were payable to the Priest of that particular Congregation and had not their beginning till Parishes came to be setled Lastly the zeal of the charity of England was not so cold as to contain it self within it's own bounds They were a dependent Church upon Rome and their old Mother must not be forgotten An alms is granted for under that lowly title it passed first but afterwards called Romscot or Romesfeogh or Heord-penny for it was a penny upon every hearth or chimney payable at the Feast of St. Peter ad vincula and therefore also called Peter-pence it was for the Popes use and was setled under great penalties upon the defaulters It arose by degrees and parcels For first Ina the Saxon King granted a penny out of every house in his Kingdom After him Offa granted it out of every dwelling house that had ground thereto occupied to the yearly value of Thirty pence excepting the Lands which he had purposed for the Monastery at St. Albans This Offa had a much larger Dominion than Ina and was King over Three and twenty Shires After whom Aethelwolf passed a new grant thereof out of his whole Kingdom which was well-nigh all that part which was called Saxony with this proviso nevertheless that where a man had divers dwelling houses he was to pay onely for that house wherein he dwelt at the time of payment Afterward Edward the Confessor confirmed that Donation out of such Tenements as had Thirty pence vivae pecuniae If then it be granted that the Saxon Subjects had any property in their Lands or Tenements as no man ever questioned then could not this charge be imposed without the publick consent of the people and then the assertions of Polydore and the Monks who tell us that Ina and Offa had made the whole Kingdom tributary to Rome must needs be a mistake both in the person and the nature of the gift seeing there is a much more difference between an Alms and a Tribute than between the King and the People Now that it was an Alms and not a Tribute may apear for that the original was a suddain pang of Zeal conceived and born in one breath while the King was at Rome and therefore not imposed as a Tribute Secondly it was ex regali munificentia and therefore free Thirdly it was expresly
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
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
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
imprison the person of a Clergy-man than to attach his possessions And therefore they held That if the Ordinary remove not the Incumbent when the King 's Writ commands him so to do his Temporalties should be seized And if the Ordinary should certifie one to be a Clerk which is none the like course is to be taken They shall depute the next and most lawful Friends of the Intestate to administer his Goods The Statute at Westminster the second having given formerly a kind of allowance that the Ordinary should be Administrator to the Intestate so far as to answer the Intestate's Debts lent him thereby an opportunity to possess himself of the whole to all intents and purposes Which being observed by the Parliament by this Law they made way for Administration to fall through the hands of the Ordinary into the Lap of Administrators made by the Authority of the Parliament but of the Ordinaries nomination according to the Authority hereby to him given These Administrators thus made had a greater power than ever the Ordinary had or could give For though the Ordinary by the Statute at Westminster was bound to pay the Debts of the Testator yet could he never bring Action as the Administrator to all intents by this Law is enabled to do And though it be true that the Administrator is by this Law ordered to account to the Ordinary yet doth not that entitle the Ordinary to any interest in the personal Estate but only gives him a bare Authority to take the account without any compulsory power by Ecclesiastical censures to enforce him thereto Secondly it is such an account as is no Evidence in any Court of Record And lastly if upon the foot of the account any arrere remained or surplusage of Estate the Ordinary could neither recover nor order the same because by the Law anciently the next friends had the sole interest therein and being by this Statute made Administrators the whole power of ordering the Estate is vested in them To conclude this Statute was made in favour and for the ease of the Ordinary if they would please so to take it for they could get no benefit by executing the Administration in their own persons if they intended to Administer according to the Law. The persons of the Clergy are priviledged from Arrests during the Holy Actions of the Officiating This was plotted since Anselm's time he and his Successors endeavoured by Constitution and Canon continually to mind the Civil Magistrate thereof but could never nurse it up to the degree of a Law till now they gained the advantages of the times growing into a more tender apprehension of Devotion than formerly The penalty of transgressing this Law is left in general and therefore did the less scare but within three years after it was confirmed with a certain penalty of Fine and Imprisonment as to the King's suit and damages to the party offended and the Priviledge was enlarged for and during their continuance in the Consecrated ground in order to such services and not upon Fraud or Collusion to avoid Arrests But by neither of these Laws was the Arrest although contrary to them made void as touching the Process The Goods of the Clergy are discharged from Purveyance and their Houses from Quarter The latter of these was an Encroachment upon the greater Clergy-men For under the Title of Hospitality which the Prelates were obliged to by their great Possessions and Revenues conferred upon them to that end Kings used to quarter Messengers to and from Scotland the King's Horses Dogs and Hawks c. But the point of Purveyance was an ancient Prerogative belonging to Kings and by no Custom were the goods of any man discharged therefrom till it was by Act of grace first confirmed by Edward the First and afterwards by grant of Edward the Second yet by reason of the rudeness of the times did not those Acts prevail to that settlement that was promised till now Edward the Third renewed the Law. Nevertheless could not this Law of Edward the Third perfect that work because it was but a bare command till Richard the Second made a remedial Law giving thereby the Clergy that were wronged a right of Action of Trespass against the Purveyors and to recover treble damages whereas formerly they were liable only to a Fine to the King which many times was as soon pardoned as asked These condescensions might have wedded the English Clergy to the English Crown but that it was coy and expected further gratuities Besides they beheld their old Step-dame Rome now in its full Splendor and Power and deeply interested in the sway of affairs in this Kingdom and above all the rest the nigh affinity between the Prelate and the Pope was such that they sucked one Milk breathed one Air and like the Philosophers Twins lived in each other The latter of these was not discerned by those dim-sighted times and therefore they could do nothing towards the dissolution of that knot but left it to future times who found no other way than to cut it asunder But Edward the Third and his Successor espyed the first felt the inconvenience thereof and applyed themselves to such remedy as they found most ready at hand All things that are subject to time are also subject to change which comes commonly slower upon Governments that are less Ecclesiastical for Churches continue longer in a growing condition than in their complete estate like a Christian that seldom endures long after his full ripeness Thus in England it is hitherto above a thousand years since the Gospel came to the Saxons and well-nigh a thousand years since the Pope set his foot amongst us ever approaching nigher the Throne and ascending thereunto but finding it full of a King that would not remove he sits down in his Lap a heavy burthen questionless he was considering his claim of Jurisdiction his provisions pensions exemptions impositions and such like oppressions and therefore it is no wonder if the King feeling the incumbrance gives a lift at the Popes power by stoping the current of Money from England Rome-wards To this end the Statute made at Carlisle is revived whereby the Clergy are inhibited from conveying Treasure beyond the Seas but the Pope knew how to ride and will not so easily forgo his saddle The Roman Eagle had made many a fair flight in England and had not yet fully gorged himself he grants ten thousand Marks yearly out of Taxes laid upon the Church-livings in England unto two Cardinals neither of which did nor by the Canon could live in England the Treasurership of York also to another Cardinal after that the King had conferred the same elsewhere He proceeds also further to invade the undoubted rights of the Crown by making an Election of the B. of Norwich and causing him to be invested Rege renitente The King spent eight years in the recovery of his right and was deluded in the
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
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
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
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
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-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
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
the Summons to the Parliament doth hold for this Quae de communi consilio ordinari contigerint and the words in the Coronation-oath Quas vulgus elegerit do speak no less whether they be taken in the â—â—eter perfect-tense or the Future-tense the conclusion will be the same True it is that in all Kings are supposed as present yet is not that valuable in the point of Council which is the foundation of the positive Law. For as the best things under heaven are subject to infirmity so Kings either short or beyond in Age or Wit or possibly given over to their lusts or sick or absent in all which the name of a King adds little more to the Law than a sound yet all the while the Government is maintained with as much honour and power as under the most wise and well-disposed King that ever blessed Throne This is done in the Convention of States which in the first times consisted of Individuals rather than Specificals The great men doubtless did many things even before they saw the English shore that Tacitus noteth yet in the publick Convention of all did nothing alone till of one House they became two The particular time of the separation is uncertain and the occasion more It may be the great Lords thought the mysteries of State too sacred to be debated before the vulgar lest they should grow into curiosity Possibly also might the Commons in their debates wish the great men absent that themselves might more freely vote without angering their great Lords Nevertheless the Royal assent is ever given in the joynt Convention of all But how a double Negative should rest in the house of Lords one originally in themselves the other in the sole person of the King whenas in no case is any Negative found upon Record but a modest waring the answer of such things as the King likes not is to me a mystery if it be not cleared by Usurpation For it is beyond reach why that which is once by the Representative of the People determined to be Honestum should be dis-determined by one or a few whose Counsels are for the most part but Notionary and grounded upon private inconveniencies and not upon experimentals of most publick concernment or that the veult or Soit fait which formerly held the room onely of a Manifesto of the Regal Will to execute the Law then made as his Coronation-Oath to execute all Laws formerly established should be taken to be a determination of the justness or honesty of the thing When as this Royal Assent is many times given by a King that knows no difference between good and evil and is never competent judge in matters that in his opinion do fall into contradiction between his own private interest and the benefit of the people However unequal it may seem yet both that and other advantages were gained by the House of Lords after the separation was once made as many of the ancient Statutes by them onely made do sufficiently hold forth which although in the general they do concern matters of Judicature wherein the Lords originally had the greatest share yet other things also escaped the Common Vote which in after-ages they recovered into their consideration again And the condition of the people in those times did principally conduce hereunto For until the Norman times were somewhat setled the former Ages had ever been uncertain in the changes between War and Peace which maintained the distance between the Lords and their Tenants and the authority of the one over the other savouring of the more absolute command in Law. And after that the Sword was turned into the Plough-share the distance is established by compact of Tenure by Service under peril of default although in a different degree for the Service of a Knight as more eminent in War so in Peace it raised the mind to regard of publick Peace but the service of the Plough supporting all is underneath all yet still under the common condition of Free-men equally as the Knight Peace now had scarcely exceeded its minority before it brought forth the unhappy birth of Ambition Kings would be more absolute and Lords more Lordly the Commons left far behind seldom come into mention amongst the publick Acts of State and as useless set aside This was the lowest ebb that ever the Commonage of England indured which continued till Ambition brought on Contention amongst the great men and thence the Barons Wars wherein the Commons parting asunder some holding for the King who promised them Liberty from their Lords others siding with the Lords who promised them Liberty from the King they became so minded of their Liberties that in the conclusion they come off upon better advantage for their Liberties than either King or Lords who all were losers before their reckoning was fully made These Wars had by experience made the King sensible of the smart of the Lords great interest with the people and pointed him to the pin upon which the same did hang to take which away a design is contrived to advance the value of the Commoners and to level the Peerage that they both may draw in one equal yoke the Chariot of Prerogative The power of the Commons in publick Councils was of some efficacy but not much honour for their meetings were tumultuary time brought forth a cure hereof the flowers of the people are by election sent to be the Representative and so the Lords are match'd if not over-match'd the people less admiring the Lords and more regarding themselves This was but a dazle an Eclipse ensues for Kings having duly eyed the nature of Tenure between the Lords and Commons look upon it as an Out-work or Block-house in their way of approach Their next endeavour is therefore to gain the Knighthood of England within the compass of their own Fee and so by priority to have their Service as often as need should require by a trick in Law as well for their own safety in time of War as for their benefit in time of Peace This was a work of a continuing nature and commended to Successors to accomplish by degrees that the whole Knighthood of England is become no more the Lords till the Kings be first served And thus the power of the People is wholly devolved into the King's Command and the Lords must now stand alone having no other foundation than the affections of the People gained by beneficence of Neighbourhood and ordinary Society which commonly ingratiates the inferiour rank of men to those of higher degree especially such of them as affect to be popular Henry the Seventh found out this Sore and taught his Successors the way to avoid that occasion of Jealousie by calling up such considerable men to attend the Court without other Wages but fruitless hopes or under colour of honour to be had by Kings from the presence of such great men in their great Trains or of other service of special note to be done onely by
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
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.