As Riches increase so doe the mouths of them that eate he still stands in need of his Peoples Love Purses and Power so Divine providence orders the matter that Kings can never attaine further end of their undertakings without the aide of the people then their labour least they should be too big to be Christians and the people too mean CHAP. XXVIII Of the Condition of the Parliament in these Times THey are no good Expositors that consider their Text by peice-meale onely nor they good Historians that will tell you the bare journall of Action without the Series of occasion such as these will speak much of the Actions of Henry the Eighth what advancement he brought to the Crown and make it a compleat Monarchy wherein the King may Act what he resolveth resolve what he pleaseth and please what he lusteth when as in truth the thing is nothing so for though many of his actions in relation to particular Persons cannot be justified by any Law so in truth did they never proceed from any Law but meerly from the passion or will of the man and connivance of the people who could bear that from this King that their Ancestors would never endure under any other And yet in all the Grand concernments of the Nation the Law kept still upon the top nor did the King enter into any Competition therewith or lead the way thereunto other then by especiall allowance of the Parliament For first its evident though the King was Supream Head of the Church yet this was not like the head of a mad man led by phaney without the Law of reason or reason of Law But it was defined circumscribed and formed thereby with Qualifications and Limitations as hath been already expressed in the former Chapter Secondly it is no lesse cleare that the Legislative Power rested in the Parliament and not in the King when he was in his greatest height for as head of the Church he had no such power in Church matters or if he had such a right it was taken away by the Acts of Parliament nay when the Pope was yet possessed of this Headship the Parliament did determine the manner of the Worship of God in some particular cases as in the keeping of the Lords Day the Statute of Edward the Fourth to the honour of God did provide for the observing thereof and to the honour of God it was taken away by a Statute in the time of Henry the Eighth if the words of either Statute may be beleived But more especially after that this Headship was translated to the King the Parliament provided that the Canons should be examined and allowed by the King and thirty two Persons one part of the Clergy the other of the Temporalty chosen by the King And those that shall be assented unto and confirmed by the King and the thirty two Persons or the major part of them shall be obeyed and put in execution the residue shall be void Provided nothing shall be done contrary to the Kings Prerogative or the Lawes and Customes of this Realm So as the King had much but he had not all and what he had the Parliament gave him by a Law that was Executory all the dayes of Henry the Eighth by divers continuances and was not any power devolved to the Crowne under the Title of Supremacy nor by Vertue of the Act of Parliament concerning it but by the continuall influence from the Parliament upon the Crown as well before that Act as after derived upon it The King hath then this right of Law making but it is with the thirty two he hath it but not his Successors And lastly he hath it but by a derivative power from the Parliament and as a Committee for that service and in a word he hath the Power but the Parliament hath still the Law of that Power The second Priviledge of the Parliament hitherto concerneth onely Lawes concerning Church-government In the next place commeth to be considered the Legislative Power in point of Doctrine which doubtless issueth from the same principle of Power with the former For if the Church which as a pillar and ground holdeth forth the truth be the company of professing Beleevers then ought it not seem strange if these in their representative do intermeddle with this Power or rather duty and for the matter in fact neither did the King challenge this power nor did the Parliament make any difficulty of Conscience in executing the same and yet there were many Learned and Consciencious men of that number They therefore as touching the doctrine proceed in the same way with that formerly mentioned concerning the discipline And a Committee also is by them made of the King and Learned men to set down rules for Faith and obedience and for the order of the publique Worship of God according to the word of God and these rules are confirmed by a Statute so as the King hath a power in the point of Doctrine but it is a derivative power it is a limited power to himself and not to his Successors and to himself and others joyned with him And Lastly nothing must be done contrary to the Lawes of the Kingdome Secondly the Parliament hath not onely a right to grant and limit this power unto others but also to execute the same immediately by it self and therefore before they granted this power to this Committee whereas formerly the Pope usurped the power to be the Omega to the resolves of all Councills the Parliament intercepted that to their own jurisdiction in flat opposition to the infallibility of the Roman Chaire so farr as to Disherize some opinons which by the sentence of that infallible mouth had beene marked with that black brand of Heresie And what they did before this Act of Delegation to the King and other Committees for this worke they did afterwards as not concluding their own power by any thing that they had so don as may appear by their Censure of the translation of the Bible made by Tindall By their establishing another translation By their ordering and appointing what persons might read the same By their qualifying the six Articles and the like The Parliament then hath a power which they may grant and yet grant nothing away they may limit this power in others as they will and yet not conclude themselves And the King by accepting this limited power must disclaime both the originall and absolute right and cannot claime the same by right of head-ship or supremacy This was one great windfall which the Parliament had from the ruines of Rome not by way of usurpation but re-seisure for their possession was ancient and though they had beene dispossest yet that possession was ever under a continuall claime and so the right was saved A second that was no lesse fatall unto that See was the losse of all power over Ecclesiasticall persons in this Kingdome For whereas the Popedome had doubly rooted it self
Parliament is looked upon as the cheif supporters in the maintaining both the Honour and Power of that Authority that otherwise would fall under contempt A work that must be done with a curious touch or a cleare hand or they must look for the like Censure to that of a King to a great Lord that Crowned him My Lord I like your work very well but you have left the print of your fingers upon my Crown Such was the condition of these times wherein a Child and two Women are the cheifs but ever under the correction and direction of the Common Councel in matters of common concernment Two things declare the point the course of the Title of the Crown and the order of the powers thereof The Title ever had a Law which was at the Helm although diversly expounded Kings ever loved the rule of inheritance and therefore usually strained their Pedegree hard to make both ends meet though in truth they were guilty oftentimes to themselves that they were not within the degrees The People ever loved the Title of Election and though ever they joyned it to the Royall blood and many times to the right Heire to make the same pass more currant without interruption of the first love between them and their Princes yet more often had they Kings that could not boast much of their birth-right in their first entry into their Throne Of three and twenty Kings from the Saxons time foure of the former had no Title by inheritance the two Willams Henry the first and King Steven of two others Viz. Henry the second and Richard the first had right of birth yet came in by compact The seventh which was King John had no title but election The eight Viz. Henry the third came in a Child and contrary to compact between the Nobility and the French Lewes the ninth and tenth succeeded as by unquestionable Title of discent yet the Nobles were preingaged The eleventh which was Edward the third in his entry eldest Son but not Heire for his Father was alive but his Successor was his Heire its true there were other Children of Edward the third alive that were more worthy of the Crown but they were too many to agree in any but a Child that might be ruled by themselves Three next of the ensuing Kings were of a collatterall line Their two Successors Viz. Edward the fourth and Edward the fifth were of the right line yet Edward the fourth came in by dissesin and Edward the fifth by permission Richard the third and Henry the seventh were collatterall to one another and to the right blood Henry the eighth though when he was King might claime from his Mother yet came in as Heire to his Father And if Edward the sixth was right Heire to the House of Yorke by his Grand-Mother yet cannot the Crown be said to descend upon the two Sisters neither as Heires to him nor Henry the eighth nor to one another so long as the Statute of their illigittimation remained which as touching Queen Mary was till three Months after her entry upon the Throne and as touching Queen Elizabeth for ever for that Virago provided for her self not by way of repeale as her Sister had done but more tenderly regarding the Honour of her Father and the Parliament then to mention their blemishes in Government by doing and undoing She overlooked that Act of Henry the Eighth and the Notion of Inheritance and contented her self with her Title by the Statute made by her Father in his thirty fifth yeare which to her was a meere purchase and was not ashamed to declare to all the World that She did have and hold therby and that it was high Treason for any Subject to deny that the course of the Crown of England is to be ordered by Act of Parliament And this power did the Parliament exercise not onely in ordering the course of the Crown to Queen Mary and Queen Elizabeth but during the Reign of Queen Elizabeth so far as to dis-inherit and dis-able any person who should pretend Right to the Crown in opposition to the Right of Queen Elizabeth and upon this point onely did the whole proceedings against Mary Queen of Scots depend who claimed to be and doubtless was Heir unto Henry the eighth after the determination of his right Line and yet She was put to death for pretending Right by the Common Law in opposition to the Act of Parliament True it is that this Doctrine doth not down well with those that do pretend to Prerogative aided as they say by the Act of Recognition made to King James and the Oaths of Supremacy and Allegiance which do make much parly concerning Inheritance and Heirs nevertheless it is as true that the Act of Recognition made no Law for the future nor doth the same cross the Statute of 13 Eliz. nor doth it take away the power of the Parliament from over-ruling the course of the Common Law for after Ages Nor do the Oaths of Supremacy and Allegiance hold forth any such Obligation unto Heirs otherwise then as supposing them to be Successors and in that relation onely And therefore was no such Allegiance due to Edward the sixth Queen Mary or Queen Elizabeth untill they were actually possessed of the Crown as may appear by the Oath formed by the Statute of Henry the eighth touching their Succession Nor did the Law suppose any Treason could be acted against the Heirs of Edward the sixth Queen Mary or Queen Elizabeth untill those Heirs were actually possessed of the Crown and so were Kings and Queens as by express words in the severall Statutes do appear Nor did the Recognition by the Parliament made to Queen Elizabeth declare any ingagement of the People to assist and defend her and the Heirs of her Body otherwise then with this Limitation Being Kings and Queens of this Realm as by the Statute in that behalf made doth appear And lastly had these Oaths bin otherwise understood the Crown had by the vertue of them been pre-ingaged so as it could never have descended to Queen Mary Queen Elizabeth or King James but must have remained to the Heirs of Edward the sixth for ever Secondly the same power that the Parliament exercised in ordering the course of succession in the Crown they exercised likewise in determining and distributing the Powers and Priviledges belonging to the same for these Times were full of Novelties The Crown had formerly fitted a childes head more then once but it never tried to fit a Womans head since the Saxon Times till now that it must make triall of two France might afford us a trick of the Salique Law if it might finde acceptance And the unsettled estate of the People especially in matter of Religion might require the wisest man living to sit at the Helm and yet himself not sufficient to steer a right course to the Harbour Nevertheless the Parliament having the Statute of Henry the
eighth to lead the way chose rather to pursue a Rule then to make one and soon determined the point viz. That the Crown of England with all the Priviledges thereof equally belong to a Woman in possession as to a Man or Childe A bold Adventure I say it was but that Henry the eighth was a bold Leader and yet the bolder it was if the consequence be considered for Queen Mary as a Woman brought in one new President but in her Marriage a worse for she aimed not onely at a forrain blood but at a Prince in Power and Majesty exceeding her own and thereby seeking advancement both to her self and her Realm indangered both The matter was long in debate between the Spanish and English and now had busied their wits above ten years at length a Supremacy is formed sutable to the Lord and Husband of Queen Mary that could not be content to be one inch lower then her self Philip had the name of a King and precedency and in many cases not without the Allegiance of the English Their offences against his person equally Treason with those against the Queens own person and Indictments run Contra pacem coronam D. Regis Reginae That in some cases he participated in the Regal Power may appear in that by the Articles he was to aid the Queen in the Administration of the Kingdom he joyned with the Queen in the royall Assent and in Commissions Letters Patents and in Writs of Summons of Parliament as well as others yet in the words the Crown is reserved onely to the Queen and she must reign as sole Queen Now if the King had broken this Agreement either the Parliament must over-rule the whole or all that is done must be undone and England must bear the burthen A Queen Regent is doubtless a dangerous condition for England above that of an Infant King unless she be married onely to her People This was observed by Queen Elizabeth who therefore kept her self unmarried nor did the People otherwise desire her Marriage then in relation to Posterity Few of them liking any one of their own Nation so well as to prefer him so highly above themselves and fewer any Forrainer This was soon espied by forrain Princes and the Queen her self perceiving that she was like to receive prejudice hereby in her interest amongst them signified by her Embassadours that she never meaned to stoop so low as to match with any of her Subjects but intended to make her choise of some forrain Prince who neither by Power or Riches should be able to prejudice the interest of any of her neighbouring Princes A pretty Complement this was to gain expectation from those abroad and better correspondency thereunto Upon this ground divers Princes conceived hopes of more interest then by triall they could finde And the Arch-duke of Austria began a Treaty which seemingly was entertained by her but her Proposals were such as silenced all those of the Austrian Interest for ever after viz. 1. That the Romish Religion should never be admitted into England 2. That no man that she married should ever wear the Title of King 3. That no Forrainer should ever intermeddle in the Rule and Government of the Church or Common-wealth nor in the Ministry of the Church 4. That if he survived the Queen he should never challenge any Title or Interest in the Government or any Possession in England 5. She would never marry any one that she might not first see So as either she aimed at some inferior Prince that durst not look so high or else she did but make semblance till she was nigh fourty years old and in all declared that she liked not her Sister Maries choise To these two Powers of Determining and Distributing I shall add a third of Deputing which the Parliament exercised as formerly it had done Henry the eighth had in Ecclesiastical matters exercised a Power beyond the reach of Law and yet by Parliament had provided positive Laws by which the same ought to have been ordered these were also confirmed in Edward the sixths time with some Additionals By these particular Commissioners were appointed for the making of Ecclesiastical Constitutions and the King himself had a power Episcofactory without Conge deslire They likewise limited the power of Ecclesiastical Courts altered their Process reformed their Censures even that grand Censure of Excommunication it self The like or much more may be said of their deputing power in Civil Affairs as well inlarging the Kings power as in abridging the same for whereas some of the Successors of Henry the 8. had power by vertue of his Letters Patents after 24 years of age to annull any Act of Parliament by them made before that Age. In the time of Edward the sixth notwithstanding the Proviso in that Law and although Edward the sixth was not then twelve years old yet the Parliament repealed all and restored to Edward the sixth onely that power for the time to come but not to any of his Successors and whereas Henry 8. had gained to himself his Successors a Legislative Power by Proclamation the Parliament in Edward the sixths time took the fame quite away and reduced Proclamations into their former sober posture The like may be observed of the power of the Parliament in ordering the Lives Members and Estates of the People in matters criminal and in making and altering Courts of Justice and bounding their power altering their Process abridging their Terms for Judicature reforming Errors in pleading amending common Conveyances and Assurance as in passing Fines with Proclamations their course in the County Palatine Limitations of Prescription fraudulent Deeds Recoveries by Collusion c. in all which the Crown had no power but in and by the Parliament Many particulars more might be added if the matter so required for the Statutes are more full in these later Times then formerly and may soon lead us beyond a just Period in so clear a matter CHAP. XXXVII Of Jurisdiction Ecclesiastical in these last Times IN the general and in relation to the forrain Jurisdiction of Rome it was like a Childe in an Ague under Fits of Heat and Cold but in it self under the Prelacy still growing in stature though not in strength Edward the sixth came in like a storm that tore up Episcopacy by the Roots yet a Top-Root remained intire with the stock bearing shew of a kinde of Divinity that though bared of the old Soile of the Papacy yet transplanted into the new Mould of Royalty soon conveyed a new life which made the stock still flourish and grow into a better condition then formerly it had Their Legislative power in matters concerning their own interest though in outward view seeming their own yet was doubly disturbed from the Pope and the King who though many times opposed one another yet evermore were both of them in opposition to the Church with the greater bitterness by their
Livery so long as he may live without care and spend without controll For by this time the humour of his great Grand-father budded in him he pawned his heart to young men of vast desires and some say so inordinately as he prostituted his chastitie unto them And it s no wonder if the Revenues of the Crowne are insufficient for such Masters Thiâ— the people soon felt and feared their own Free-holds for they are bound saith he not to see the Crowne deflowred for want of maintenance it s very true nor to see the Crowne deflowred of its maintenance A Parliament therefore is called in which diverse Lords associate and prepare Physick for the Kings lavish humour which being administred wrought for ten yeares after till it had purged him of his life and the Kingdome of their King It was an Act of Parliament that gave power to fourteen Lords and others to regulate the Profits and Revenues of the Crowne and to doe Justice to the People this was to continue for one whole yeare The Parasites no sooner found the effect hereof to their Cost but the King growes sicke of it and findes an Antidote to over-rule Acts of Parliament by Acts of Privy Councell declares this ill-favoured Commission voide and the Contrivers Advisers and Inforcers Traytors To make it more Majesticall he causeth the Judges to Subscribe this Order and so it becomes Law in repute This foundation thus laid he buildeth in hast an Impeachment of these Commissioners of high Treason and supposing that they would not readily stoope himselfe stoopes lower for he would put his Right to triall by battell which was already his owne by the judgement of the Masters of the Law For so they may be well called seeing they had thus Mastered it In this the King had the worst for he lost his Honour and himselfe God hath a care of common right even amongst Idolaters Then comes the Parliament of Wonders wherein the Kings Party are declared Traytors and the chiefe Judges with their Law judged by another Law The King not medled with thinks it high time to come out of his Minority and assumes the Government of the Kingdome and himselfe to himself being now three and twenty yeares of age old enough to have done well if he had cared for it But resolving to follow the way of his owne will at length it led him to his owne ruine onely for the present two things delayed it Viz. The Authority Wisedome and Moderation of his Unckles especially of the Duke of Lancaster now come out of Spain and the great affection which the King pretended to the Queen who had also gained a good opinion amongst the People The benevolent aspect of the People not for their owne advantage but for the Publick quiet procured many Parlies and interviewes between the King and People and many Lawes for the upholding of the Court and Government although both Warre Lawes Justice and Councells all are faint as all is faint in that man that hath once dismanned himself This he perceives well enough and therefore Peace he must have by any means The Queen dies himselfe being nigh eight and twenty yeares old takes a Creature like a Wife but in truth a Childe of eight yeares old and this is to get Peace with France It s no wonder if now he hunts after unlawfull game and that being ill taken brings all things out of order For abused Marriage never wants woe Civill men are now looked upon as severe Cators and his Unckles especially the Duke of Glocester with a jealous eye which accomplished his death in the conclusion The Dukes of Lancaster and Yorke forsake the Court Favorites step into their roomes The old way of the eleventh yeare is re-assumed Belknap and others are pardoned and made of the Cabinet The Pardon of the Earle of Arundell is adnulled contrary to the advise of the major part and the Arch Bishop the Earles brother is banished The Lords forsake the wilfull King still the Kings jealousie swells The Duke of Hertford is banished or rather by a hidden Providence sent out of the way for a further worke The Duke of Lancaster dies and with him all hope of moderation is gone for he was a wise Prince and the onely Cement that held the joynts of the Kingdome in correspondency And he was ill requited for all his Estate is seised upon The Duke of Hertford and his Party are looked upon by the People as Martyrs in the Common Cause and others as Royalists Extremities hasten on and Prerogative now upon the wing is towering above reach In full Parliament downe goes all the worke of the tenth and eleventh yeares Parliament which had never bin if that Parliament had continued by adjournment The King raiseth a Power which he calleth his Cuard of Cheshire men under the terror of this displaying rod the Parliament Kingdom are brought to Confession Cheshire for this service is made a Principality thus goes Counties up and Kingdoms down The Kings Conscience whispers a sad Message of dethroning and well it might be for he knew he had deserved it Against this danger he intrenches himself in an Act of Parliament That made it Treason To purpose and endeavor to depose the King or levy War against him or to withdraw his Homage hereof being attainted in Parliament And now he thought he was well guarded by Ingagement from the Parliament but he missed the right Conclusion for want of Logique For if the Parliament it self shall depose him it cannot be made a Traytor or attaint it selfe and then hath the King gain'd no more then a fals birth But the King was not thus quiet the sting of guilt still sticks within and for remedy he will unlaw the Law and gets it enacted that all Procurers of the Statute of 10. Richard the Second and the Commission and Procurers of the Kings assent thereto and hinderers of the Kings proceedings are adjudged Traitors All these reach onely the branches the root remains yet and may spring again and therefore in the last place have at the Parliament it self For by the same its further declared That the King is the sole Master of the Propositions for matters to be treated in Parliament and all gainsayers are Traitors Secondly That the King may dissolve the Parliament at his pleasure and all gainsayers are Traitors Thirdly That the Parliament may not proceed against the Kings Justices for offences by them committed in Parliament without the Kings consent and all gainsayers are Traitors These and the like Aphorismes once Voted by the Cheshire men assented unto by the Parliament with the Kings Fiat must passe for currant to the Judges and if by them confirmed or allowed will in the Kings opinion make it a Law for ever That the King and all Parliaments is Dominus fac primum and Dominus fac totum But the Judges remembred the tenth yeare and Belknaps intertainment and so dealt warily their opinion is thus
their work is to lead the Kings Conscience in dark wayes or rather into them commonly he hath a devout outside and that is the Kings Idol but if while his eye be towards Jerusalem his minde be towards the dead Sea the King is his and then the blinde leads the blinde Like some Ignis fatuus to such as know it not No man is so well knowne by his company as Kings are by these men and these men by their Actions Although some have bin so witty as to cheat the whole generation of Mankinde by entertaining holy men to be their Chaplains themselves the mean time without any sparke of that holy Fire Yet this King was not so cunning he had a Confessor of his own choice and according to his owne heart who was complained of as a grievance and the Parliament removed him So nigh they adventured even to invade the Kings owne conscience if it may be called conscience that will acknowledge no Law but that of its owne minde Thirdly The Kings Revenue was under the check and controll of the Parliment for it befalls some Princes as other men to be somtimes poore in abundance by riatous flooding treasure out in the lesser currents and leaving the greater channells dry This is an insupportible evill because it is destructive to the very being of affaires whether for Warr or Peace For the Kings treasure is of a mixt nature much of it being intended for publique service as himselfe is a publique person And for this cause he hath Officers of severall natures attending upon this treasury Some for land some for Sea some for the generall treasure of the Kingdome some for that of the houshold and some for the privy purse the common end of all being to maintaine state in time of peace and strength against time of Warr because it s no easie matter to maintaine the just proportions for each of the said ends it is the lesse wonder that such a brave Prince as Edward the Third should Labour under want for maintenance of the Warrs and so lavish a Spendthrift as Richard the Second should Labour under more want to maintaine his port and countenance in peace And therefore though it be true that the publique treasure is committed to the King as the cheife Steward of the Realme yet it is as true that he is but a Steward and that the supreame survey of the Treasure resteth in the Parliment who are to see that the treasure be not irregularly wasted to reduce the same into order and for that end to call the Treasurers and Receivers to account to see to the punishing of such as are unfaithfull and encouraging of others that are faithfull for when by extravagant courses the Treasure is wasted by extraordinary courses it must be supplied which ever is out of the Subjects purses And in such cases it is great reason that they should observe which way the course lies of such expenses If then in such cases sometimes the Parliament hath stayed the issuing out of the Kings Revenue for some time or otherwise viewed and examined the same charged it with conditions 22 E. 3. n. 29.14 R. 2. n. 15. limitted it to certaine uses and in case of misuser refused to levy or make payments the case will be without dispute that the Parliament ordered the publique treasure as they saw most need But much more if wee consider how the greatest part of this treasure was raised Viz. Not from the old Revenues of the Crowne but by new impositions levies and assesments layd upon the people even what they pleased and in what manner they thought meet and not otherwise Aydes are lawfull if they be legally given by common consent of Parliament Taxes if legally given by Parliament are no lesse lawfull yet they must be collected in such manner and by such means as the Parliaments Order doth direct Loans of monys to the King may be made by them that will but the King must not demand them because the subject hath no means to recover the debt This trick had been lately tryed by Edward the Second much mony he got and it was repaied by the order of the Parliament But of all the rest nothing shewed more absolute authority in the publique Revenue then the care that was had of the Demesnes of the Crown for whereas the expenses of Kings grew so vast that neither the yeerly Revenue could suffice nor aides assesments and taxes could satisfie however ordinary they in these times were become rather then Kings would contiane themselves they would invade their own Demesnes by pauning selling and giving them a way either for love or mony and thus was poverty treasured up against the future both for King and Crown The Parliament espying this leake that was like to undoe all applyed a speedy remedy undoing what was done and undoing some by an act of Resumption and thereby taught Kings to looke to their honor better for the future and people also to take heed of medling with such considerated matters and to know that he that hath such in his possession hath them by a cract title that cannot bee amended but by Act of Parliament Fourthly An English King is no Out-law nor can he do any wrong though the man may he hath a double relation one as a King the other as a man and the uniting of both in one Person hath cheated many a man of his judgement in the Case of Prerogative he hath a double will and these many times contrary equally as in other Relations and in this contrariety sometimes the King overcomes the man and sometimes the man the King so as if any man the King hath much more cause to cry out O miserable Man These divers wills are generally led by diverse rules One of a man w ch many times reacheth no higher then the Affections and if the man be weak they deserve little better name then Lusts The rule of a King is Law or Councells of these in place and unto these in all prudentialls he must submit his judgement and will as he is a King nor can he doe otherwise unlesse he will presume to be wiser then his Councell Sutable hereunto doth that clause in one of the Statutes of these times conclude Viz. That the King is bound by his Oath to passe all Lawes that are for the good of the Kingdome For were the power of election or determination of the Point onely in the King then were the Oath in vain nor is the Parliament at all in case of the Kings dissent to judge of the convenience or inconvenience of Proposalls made for the good of the whole body according to that power which it exercised in these times Nor is it irrationall to inferre here from that if Law and Councell be the rule of a King then the obedience of the people unto this King must be in order to Law and Councell otherwise the disobedience cannot be
disabled to understand as in Case of Infancy there the Royall Assent can bear litle weight with it but most of all in the Kings absence where either the Assent is put thereto by Commissioners that know not the Kings particular minde or the Act is done onely by the Houses in nature of Ordinances and yet these of force to binde all Parties but the King But nothing more debased the Royall Assent in these times then a trick that Edward the Third plaid in the middest of the fullest strength of his Government It was in time of War which never is time of good Husbandry and laying up nor of sober advise in laying out nor of equity in levying and collecting money for the nerves of War This forward Warrier in the heat of his Atchievements findes his strength benummed for want of money he leaves off comes home rages against his A. Bishop to whom he had committed the care of Provision for his War and the A. Bishop as hotly falls upon some of the Treasury in the Army on the one side and upon others in the Countrey whose oppressions saith he in stead of bringing in money made the people to give a stop thereto A contest hereupon thus had it was concluded by the Power of the Parliament that such men should be questioned and that the Parliament from time to time should call all Officers of State to account and thereupon ensues a calme After the Parliament ended the King repeats the matter it makes his heart sick he disgorgeth himself by a Proclamation made by advise of Nobles and Wise men as he saith and tells all the World he dissembled with his Parliament and what he did was done by duress of minde to please for the time and to gain his ends which being now had he by his Proclamation revokes what he had done in Parliament or indeavoured it And thus is England put to school to learn to dissolve three hard knots First Whether a King can dissemble with his Parliament Secondly Whether Edward 3. his dissembling assent makes a Law Lastly Whether by a Proclamation by advise of Nobles and Wise men he can Declare that he dissembled with his Parliament and therein not dissemble the Royall Assent so as to bring all the Lawes made in any Kings time into question at least during his life However the result may be its evident the Royall Assent gets no honor hereby and the Statute as little that hath suffered this Proclamation all this time to passe among the number of the Statutes in Print as a Law when as many Statutes that are Lawes of note are left out as uselesse Although in the generall the two Houses joyned in every Act Ad extra yet Ad intra and in relation one to another they had their severall operations the House of Commons intermedled more in the matter of fact the House of Lords in matter of right although in either of these there is a mutuall aspect from both In matters of judicature much rested with the Lords and therefore it is ordained that The House of Lords shall remedy all offences contrary to the Law of Magna Charta And in cases where no remedy is left nor judgment by the Law the matter shall be determined in Parliament and the King shall command execution to be done according to the judgment of the Peeres Which Lawes seeme to bee but declarative of the former Lawe and in the nature of reviving that power into Act which was formerly layd asleep and doth strongly implye that the ultimate act in judicature rested with the Lords in relation not onely to the House of Commons but also in relation to the King whose work in such cases is not to judge above or with the Peers but to execute their sentence and that carries with it a list whereby the power of a King may appeare not to be so supreame in making of the Law as some would have it for if his Judgement and Conscience be bound by the Votes of the Peers in giving a Law in Case of a particuler person where the Law was not formerly known Let others judge of the value of this Negative Vote in giving Law to the whole Kingdome It s true that this Parliament was quarrelled by the King and he kept it at a bay by a Proclamation that pretended Revocation as far as a Proclamation could revoke an Act of Parliament but it effected nothing nor did the contest last long Now though this Jurisdiction thus rested in the House of Lords in such Cases as well as in others yet is it not so Originally in them as to be wholly theirs and onely as they shall order it for the Commons of England have a right in the course and order of Jurisdiction which as the known Law is part of their liberty and in the speedy execution of Justice as well as they have right to have Justice done and therefore whereas in Cases of Error and delayes the Appeale was from the inferiour Court to the Parliament which immediately determined the matter and now the trouble grew too great by the increase of Pleas For remedy hereof a kind of Committee is made of 1 Bishop 2 Earls 2 Barrons who by the advice of the Chancellor Treasurer and the Judges shall make good judgement in all Cases of Complaint of delay in Judgement which Committee is not made by Order of the Lords alone which they might have done in case Jurisdiction had bin wholly and onely shut up in their custody but by Act of Parliament and joynt concurrence of the Commons with the Lords For as the Commons challenge speedy Execution of Justice as one of their liberties So also to be under the jurisdiction of such Judges and Courts as the Lawes in the making whereof themselves challenge a Vote do establish appoint I will conclude this Chapter with the Constitution of the Parliament in these times For the difficulties that befell between the Kings and their people or Houses of Parliament wrought two sad effects Viz. A propensity to decline calling of Parliaments so often as was used and exspected and when it assembled as great a propensity in the Members to decline their attendance by means whereof as the Historians tell us the Parliament was somtimes inforced to adjourn it self for want of number sufficient the first of these arose from want of good will in the Kings the other from want of courage and zeale in the people The first of these was fatall and destructive to good Government for though in distempered Parliaments its good to withdraw yet in distempered times its necessary to meete and gain a right understanding of all parties and therefore these times were so happy as to binde themselves by publique Acts of State to recontinue the Assembling of Parliaments For the face of the Times represented unto all that Agitations were like to be quick violent and to continue for some succession of Time It s
Councels and unto that had also a binding Power in making Lawes Decrees and Decretalls out of his own breast but this was gotten by plunder he never had any right to headship of the Church nor to any such Power in right of such preferment nor was this given to the King as head of the Church but with such limitations and qualifications that its evident it never was in the Crowne or rightly belonging thereto First nigh three yeares after this recognition by the Clergy in their Convocation it is urged upon them and they passe their promise In verbo sacerdotii And lastly it is confirmed by Act of Parliament that they shall never make publish or execute any new Canon or constitution provinciall or other unlesse the Kings Assent and License be first had thereto and the offences against this Law made punishable by fine and imprisonment So as the Clergy are now holden under a double bond one the honor of their Preisthood which binds their Wills and Consciences the other the Act of Parliament which bindes their Powers so as they now neither will nor can start Neverthelesse there is nothing in this Law nor in the future practise of this King that doth either give or assert any power to the King and Convocation to binde or conclude the Clergy or the People without an Act of Parliament concurring and inforcing the same And yet what is already done is more then any of the Kings Predecessors ever had in their possession A second Prerogative was a definitive power in point of doctrine and worship For it is enacted that all Determinations Declarations Decrees Definitions Resolutions and Ordinances according to Gods word and Christs Gospell by the Kings advise and confirmation by Letters Patents under the great Seale at any time hereafter made and published by the Arch-Bishops Bishops and Doctors now appointed by the King or the whole Clergy of England in matters of the Christian faith and lawfull rights and ceremonies of the same shall be by the People fully beleeved and obeyed under penalties therein comprized Provided that nothing be done contrary to the Lawes and Statutes of this Realme A Law of a new birth and not an old Law newly revived or restored This the present occasion and the naturall constitution of the Law do fully manifest The occasion was the present Perplexity of the People for in stead of the Statute Ex officio which was now taken away the six articles commonly called the six stringed whip was gotten into power by a more legall and effectuall originall The Parliament had heard the cries of the People concerning this and having two things to eye at once one to provide for the Peoples liberty and further security against forrain pretentions the other which was more difficult for the liberties of the consciences of multitudes of men of severall opinions which could not agree in one judgement and by discord might make way for the Romish party to recover its first ground and finding it impossible for them to hunt both games at once partly because themselves were divided in opinion and the bone once cast amongst them might put their own co-existence to the question and partly because the worke would be long require much debate and retard all other affaires of the Common-wealth which were now both many and weighty In this troubled wave they therefore wisely determine to hold on their course in that worke which was most properly theirs and lay before them And as touching this matter concerning doctrine they agreed in that wherein they could agree Viz. To refer the matter to the King and Persons of skill in that mistery of Religion to settle the same for the present till the Parliament had better leisure the People more light and the mindes of the People more perswaded of the way Thus the Estates and Consciences of the People for the present must indure In deposito of the King and other Persons that a kind of Interim might be composed and the Church for the present might enjoy a kind of twilight rather then lye under continuall darknesse and by waiting for the Sun rising be in a better preparation thereunto For the words of the Statute are that all must be done without any partiall respect or affection to the Papisticall sort or any other sect or sects whatsoever Unto this agreement both parties were inclined by diverse regards For the Romanists though having the possession yet being doubtfull of their strength to hold the same if it came to the push of the Pike in regard that the House of Commons wanted faith as the Bishop of Rochester was pleased to say in the House of Lords and that liberty of conscience was then a pleasing Theame as wel as libertie of Estates to all the People These men might therefore trust the King with their interests having had long experience of his Principles And therefore as supream Head they held him most meete to have the care of this matter for still this title brings on the Vann of all these Acts of Parliament On the other side that party that stood for reformation though they began to put up head yet not assured of their owne Power and being so exceedingly oppressed with the six Articles as they could not expect a worse condition but in probabililty might finde a better they therefore also cast themselves upon the King who had already been well baited by the German Princes and Divines and the outcries of his owne People and possibly might entertain some prejudice at length at that manner of woship that had its originall from that Arch enemy of his Head-ship of the Church of England Nor did the issue fall out altogether unsutable to these expectations For the King did somewhat to unsettle what was already done and abated in some measure the flame and heat of the Statute although nothing was established in the opposite thereto but the whole rested much upon the disposition of a King subject to change As touching the constitution of this Law that also shewes that this was not derived from the ancient right of the Crowne now restored but by the positive concession of the People in their representative in regard it is not absolute but qualified and limited diversly First this power is given to this King not to his successors for they are left out of the act so as they trusted not the King but Henry the eighth and what they did was for his owne sake Secondly they trusted the King but he must be advised by Councell of men of Skill Thirdly they must not respect any sect or those of the Papisticall sort Fourthly all must be according to Gods Word and Christs Gospel And Lastly nothing must be done contrary to the Laws and Statutes of this Realm And thus though they trusted much yet not all nor over long For it was but a temporary Law and during the present condition of affaires Nor did the King or People
concerned or not concerned what they conclude they must maintain Vi Clavibus although in right his Prerogative is above theirs Now by the Statute the Kings Vote is asserted and a Negative Vote restored and himself made as well Head of the Convocation as the Church nothing can passe there without his Concurrence nor come to the Consideration of the Parliament without his pleasure and thus the King hath a double Vote in every Church Ordinance One as in the Parliament to passe the same as an Act of Parliament of which I conceive the Opinion of that Honourable Judge is to be understood the other as a Member of the Convocation to passe their advices to the Parliament and therefore he might either sit in person amongst them or by his Vicar as Henry the Eighth did by the Lord Cromwell By the First the whole Kingdome was ingaged By the Second the Convocation onely and that as a Court onely and not the representative of the Clergy because as they had a Spirituall relation so also they had the Common right of Free-men and therefore could not be bound without the Common consent of the Free-men Thirdly as their power of Convention and power in Vote so their Originall right of Law making suffered a change formerly they depended wholly upon a Divine right which some settled Originally in the Pope others in the Prelacy and some in the Clergy But now they sit by a derivative power from the Act of Parliament from which as from their Head they receive life and power Fourthly they suffered some change in the very work of their Convention for though formerly they claimed power to meddle onely with Ecclesiasticall matters yet that Notion was ambiguous and they could many times explicate it more largely then naturally It is not to be denied but the matters concerning the Service and Worship of God are of Spirituall consideration but that such should be so strictly deemed to lie in the way of Church-men onely is to bring all Spirits within the Verge of Ecclesiasticall Jurisdiction and to leave the Civill power to rule onely dead Carkases much lesse can any other thing which by prescription hath not been of Ecclesiasticall Cognisance be called Spirituall But to come to particulars because generalls edifie not The Convocation claimed formerly power as Originally from it self to impose rules for government upon Church-men and Church-Officers and upon the Laity so far as extended to their Service of God And also to charge the Estates of the Clergy and concerning Matrimoniall and Testamentary Causes They claimed also a power to determine Doctrine and Heresies Yet De Facto divers of these they never acted in that right wherein they claimed to hold Cognisance First as touching the charging of the Estates of the Clergy If it was for the Kings Service they were ever summoned by the Kings Writt yet was not their Act binding immediately upon the passing of the Vote till the Parliament confirmed the same and therefore the old form of granting of Dismes was Per Clerum Communitatem as by the pleading in the Abbot of Walthams Case appears for without their concurrence they had no power to charge any Free-man nor to levy the same but by their Church Censures which would stand them in no stead And in this the Convocation suffered no alteration either in right or power by the change thus wrought by Henry the Eighth Secondly as touching imposing Lawes upon the Laity in points of Worship and Doctrine its evident though they claimed such power they had it not for when all is done they were contented at length to get the Support of the Statute-Lawes of this Kingdome as may appear in the particular Lawes concerning the Lords Day and proceedings against Heretiques setling the Popedome in the time of the great Scisme c. But now all Title of claim is quite taken from them and all is left in the Supream Legislative power of this Nation as formerly hath been already manifested Thirdly as touching Matrimoniall causes their former power of making Lawes concerning them and Testamentary causes is now absolutely taken away onely concerning Matrimoniall matters they had so much of the Judicatory power concerning the same put upon them as might well serve the Kings own turn and that was for determining the matter between himself and the Lady Katharine Dowager depending before Arch-bishop Cranmer For the King supposed the Pope a party and therefore meaned not that he should be his Judge And thus though the Clergy had acknowledged the King to be their Supream Head yet in this he was content to acknowledge their Supremacy above him to judge between himself and his Queen and in other matters concerning himself So as upon the whole matter the Convocation were gainers in some things in other things they were onely loosers of that which was none of their owne CHAP. XXX Of the power of the Clergy in their Ordinary Jurisdiction THose Spirits are truely degenerate that being sensible of misery cannot stir up desires of change although the way thereto lies open before them and this shewes the nature of the Romish yoke that it lay upon the Spirits of Men did intoxicate and make them drunk with their condition otherwise the Usurpations Oppressions Extortions and Incroachments of the Popedome upon the Bishops Sphear and the People under their charge could never have provoked such complaynings amongst all sorts in severall Ages from time to time And now that Henry the Eighth undertakes to set them free so as they would acknowledge his Supremacy they all are struck dumb till a Premuniri taught them to speak and so were scared into a better condition then they would have had and into a more absolute Estate of Jurisdiction then they received from their Predecessors The Pope had now usurped a power supra ordinary over all Appeals gained the definitive Sentence to the Roman See and had holden this power by the space of foure hundred years and the King finding the root of all the mischeif to his Crown from abroad springing from that Principle meaned not to dispute the point with the Casuists but by one Statute took away all Appeals to Rome and determined Appeals from the Bishops Court in the Arch-Bishops Court and the Appeals from the Arch-Bishops Commissary in the Court of Audience So as though in the Kings own Case the Convocation had the last blow yet in matters concerning the Subjects the Arch-Bishop was either more worthy or more willing with that trust For though the Convocation might have as well determined all as well as the Pope yet for dispatch sake of a multitude of Appeals now depending at Rome and to prevent long attendance on the Convocation that now had much to doe in matters of more publick nature the utmost Appeal in such Cases is made Provinciall This whether priviledge or prejudice the Ecclesiasticall Causes gained above the Civill whose definitive Sentence was reserved to the
Justice of Queen Elizabeth to grant Commissions of Array Secundum formam Statutorum and do hurt to no man its true her Commissions of Lord Lievtenancy wanted that limitation in words yet they carried the sense for if the Crown were bound by the Law the Lord Leivtenants were much rather but the danger arose after the death of Queen Elizabeth for when King James came to the Crown under colour of pleasing the People and easing them of a burthen he pleased himself more and made the yoke upon the People much more heavy in the conclusion for where no declared Law is there the discretion of them that have the care lying upon them must be the rule thus came the Scottish blood to have pretentions to a greater Prerogative then all their Predecessors had upon this supposal that the Statute of Queen Mary took away all former Lawes of that kinde and then the taking away of the Statute of Q. Mary takes away all declared Law as to that point But more truly it may be inferred that if all Statute-Laws be taken away then the rule of Tenures at the Common Law must remain in force and no other Nevertheless this Statute of Queen Mary though in force for the present was not a generall rule for Armes in all places of this Nation for the Marches of Scotland were a peculier jurisdiction as to this point They stood in more constant need of Armes then any other part of this Nation in regard of their uncertain condition in relation to their Neighbouring jurisdiction and therfore were the Farmes of these parts generally contracted for upon a speciall reservation of Armes for each particular which being now decaied are again reduced by Queen Elizabeth to their ancient condition in the time of Henry the eighth A second thing which may come under this generall consideration of arming is the arming of places by making of Forts and Castles which was not in the immediate determinate will of the Crown to order as it pleased for though they may seem to be meanes of Peace and present safety yet they are Symptomes of Warr and in the best times are looked upon with a jealous eye especially such as are not bordering upon the Coasts Because that Prince that buildeth Castles within the Land is supposed to feare the Neighbourhood This was more especially regarded in the dayes of Phillip and Mary For when that marriage was to be solemnized it was one of the Articles to provide for the safety of such Forts and Castles as then were maintained to the end they might be preserved free from usurpation for the Use Profit Strength and Defence of the Realme onely by the naturall borne of the same And afterwards when occasion was offered for the building of more of that nature a new power is given to King Phillip and Queen Mary to re-edifie or make Forts and Castles which must be executed by Commission to the Legies for ten years and only within the Counties bordering upon Scotland and these perticularly named in the Statute so as the Crown had not power to build in all places nor to any end they pleased nor to place therein or betrust the same to whom it would Nor yet had Edward the sixth that absolute power although not ingaged in forrain interests as his sister Mary was and therefore whereas Castellanes had been made for life by Patent and so the absolute power of the Crown was barred in the free disposal of the same during such time The Parliament gave the King power to remove such as were not liked or thought faithfull to the publique interest although they gave no cause of Seisure by any disloyal act The like also may be observed of the Ships and Ordnance for they also do belong to the State as the Jewels of the Crown and therefore upon the Marriage of Queen Mary they also are by Articles preserved and saved for the use profit strength and defence of the Realm by the natural born of the same Thirdly as touching the ordering of the Souldiery the matter is not much to be insisted upon for little doubt is to be made but that power that raiseth them also ordereth them to the same ends that they are raised and therefore as the sole power of the Crown doth not the one so neither doth it the other but in cases formerly mentioned and yet in no case though the War b be never so absolutely defensive and the Souldiers raised by the Kings own and onely power yet hath not the King absolute Authority and arbitrary power in the ordering of them when they are raised but he must so behave himself to them as to Free-men according to Laws made by themselves in their Representative in Parliament and therefore are particular Laws made to that end against undue levying and discharging of Souldiers and Defaults in paying of them as also against the Souldiers departing from their Service without Licence or wasting their Arms and such as wilfully absent themselves from Musters as also for the preserving the Castles Forts Ships and Munition for War from being with-holden from their due use or from burning or destroying Lastly as touching the charge of the War and pay of the Souldies It s evident that in all offensive Wars the Souldier was paid by the Crown although they might be said in some manner to be in order to the Defence and Safety of the Nation nevertheless where the same was so apparent to the people it was the common course in these Times to have often Parliaments and often Subsidies which were no less in a good measure satisfactory to the Crown for the Charges of the War then Testimonies of the Peoples good Acceptance of the Government of Affairs and so accepted at their hands The particular Records will warrant all this For of all the Wars in these Times that of 88. excepted not any of them were ever managed at the Peoples charge by Contribution but by Retribution So happy were these Times wherein the People looking upon the Crown as under a kinde of infirmity of Childhood or Womanhood did therefore bear a kinde of compassionate regard thereunto without jealousie at Prerogative could condiscend and allow the Crown its full Grains and somewhat more yea more then was meet for some other Princes to desire or the People to give up and yet more happy were they wherein the Crown knew no interest but in dependence upon the People good and so understanding were rightly understood CHAP. XXXIX Of the Peace IT is but little that can be said of Peace in these Times wherein so little freedom was found from forrain pretentions and intestine irregularities or both and yet the People were never more resolved against the former nor secure against the later and had God to Friend in all But most apparently was this observable in the Times of Queen Elizabeth whose Government took up four parts of five of these Times whereof we
them Church-motes For the first of them which is sayd to be holden in the yeare 816. is called a Synod and both Preists and Deacons were there present which are no Members of Parliament consisting onely of the House of Lords and they all of them did Pariter tractare de necessarijs utilitatibus Ecclesiarum The second of them is called a Synodall Councill holden Anno 822. and yet there were then present Omnium dignitatum optimates which cannot be understood onely of those of the House of Lords because they ought all to be personally present and therefore there is no Optimacy amongst them The last of these three is called Synodale Conciliabulum a petty Synod in great letters and besides there were with the Bishops and Abbots many Wise men and in all these respects it cannot be a Parliament onely of the great Lords The next Councill said to be holden in the yeare 823. cannot also be called properly a Parliament but onely a consultation between two Kings and their Councill to prevent the invasion of the Danes and the attests of the Kings Chapplain and his Scribe doe shew also that they were not all Members of the House of Lords The Councill cited by the Opponent in the next place was holden An 838. being onely in nature of a Councill for Law or Judicature to determine the validity of the Kings Grant made to the Church of Canterbury which is no proper worke for a Parliament unlesse it befall during the fitting of the same The next is but a bare title of a Councill supposed to be holden An. 850. And not worth its room for it neither sheweth whether any thing was concluded nor what the conclusions were The worke of the next Councill alleadged to be holden An. 851. was to confirme the Charter of the Monastry of Croyland and to determine concerning affaires belonging to the Mercinies and if it had beene a Parliament for that people it might be worthy of inquiry how regularly the Arch-Bishop of Canterbury and the Bishop of London and the Ambassadors from the West Saxons could sit amongst them and attest the conclusions therein made as wel as the proper members of that Nation He commeth in the next place to a Councill holden in the yeare 855. which is more likely to be a Parliament then most of them formerly mentioned if the Tithes of all England were therein given to the Church but hereof I have set downe my opinion in the former part of the discourse And though it be true that no Knights and Burgesses are therein mentioned as the Opponent observeth out of the Title yet if the body of the Lawes be duly considered towards the conclusion thereof it will appeare that there was present Fidelium infinita multitudo qui omnes regium Chirographum Laudaverunt Dignitates vero sua nomina subscripserunt And yet the Witagen-motes in these times began to be rare being continually inrerrupted by the invasions of the Danes The three next Councills alleaged to be in the yeares 930. 944. 948. Were doubtlesse of inferiour value as the matters therin concluded were of inferiour regard being such as concerne the passing of the Kings Grants Infeodations and confirmations The Councill mentioned to be in the yeare 965. is supposed to be one and the same with the next foregoing by Sir Henry Spelman which calls it selfe a generall Councill not by reason of the generall confluence of the Lords and Laity but because all the Bishops of England did then meet The Primi and Primates were there who these were is not mentioned but its evident that the King of Scots was there and that both he and diverse that are called Ministri Regis attested the conclusions It will be difficult to make out how these should be Members of the House of Lords and more difficult to shew a reason why in the attesting of the acts of these Councills which the Opponent calls Parliaments we finde so few of the Laity that scarce twelve are mentioned in any one of them and those to descend so low as the Ministri Regis to make up the number Five more of these instances remaine before the comming in of the Normans The first of which was in the yeare 975. and in a time when no Parliament according to the Opponents principles could sit for it was an Inter regnum The two next were onely Synods to determine the difference between the Regulers and the Seculers in the Kings absence by reason that he was under age and they are sayd to be in the yeares 977 and 1009. But it s not within the compasse of my matter to debate their dates The last two were Meetings or Courts for Judicature to determine the crime of Treason which every one knowes is determinable by inferiour Courts before the high Steward or Judges and therefore not so peculiar to a Parliament as to be made an argument of its existence And thus are we at an end of all the instances brought by the Opponent to prove that Parliaments before the Norman times consisted of those whom we now call the House of Lords All which I shall shut up with two other notes taken out of the Book of Councils published by Sir Henry Spelman The first of which concerneth a Grant made by Canutus of an exemption to the Abby of Bury Saint Edmonds in a Councill wherein were present Arch-Bishops Bishops Abbots Dukes Earles Cum quamplurimis gregariis militibus cum populi multitudine copiosa votis regiis unanimiter consentientes The other taken out of the confessors Lawes which tells us that Tithes were granted to the Church A Rege Baronibus populo And thus shall leave these testimonies to debate with one another whiles the Reader may judge as seemeth most equall to himselfe Being thus come to the Norman times and those ensuing I shall more summarily proceed with the particulars concerning them because they were times of force and can give little or no evidence against the customes rightly setled in the Saxon times which I have more particularly insisted upon that the originall constitution of this government may the better appeare Now for the more speedy manifesting of the truth in the particulars following I shall pre-advise the Reader in three particulars First that the Church-motes grew more in power and honor by the aide of the Normans Law refusing the concurrence and personall presence of Kings whom at length they excluded from their Councils with all his Nobles and therefore it is the lesse wonder if we heare but little of the Commons joyning with them Secondly that the Norman way of government grew more Aristocraticall then the Saxon making the Lords the cheif Instruments of keeping Kings above and people underneath thus we meet with much noise of meetings betweene the King and Lords and little concerning the grand meetings of the Kings and the representative of the people although some footsteps wee finde even of them
Government more readily doe appeare the corruptions in natures of men more frequently discover themselves and thereby the body of the Statute-Lawes begin to swell so bigg that I must be inforced to contract my account of them into a narrower compasse and render the same unto the Reader so farr forth onely as they shall concerne the generall streame of Government leaving those of privater regard unto every mans particular consideration as occasion shall lead him For what ever other men please to insist upon this I take for a Maxime That though the Government of a King is declared by his actions yet the Government of a Kingdome is onely manifested by ancient Customes and publique Acts of Parliament And because I have undertaken a generall Survey of the Reignes of thirteene severall Kings and Queenes of this Nation for I shall not exceed the Issue of Henry the eighth and to handle each of them apart will leave the Reader in a Wildernesse of particulars hard to comprehend in the generall summ I shall therefore reduce them all into three heads Viz. Interest of Title Interest of Prerogative and Interest of Religion the last of which swayed much the three Children of Henry the Eighth the second as much in their two Ancestors Viz. Henry the Eighth and Henry the Seventh and the first in the three Henries of Lancaster and three succeeding Kings of the House of Yorke And because Edward the Third and his Grandchilde Richard the Second doe come under none of these Interests I shall consider them joyntly as in way of Exordium to the rest although the course of the later was as different from the former as Lust falls short of a generous Spirit CHAP. I. A summ of the severall Reignes of Edward the Third and Richard the Second SEverall I may well call them because they are the most different in their wayes and ends of any two of that race that ever swayed their Scepter and yet the entrance of the first gave countenance to the conclusion of the last For the Scepter being cast away or lost by Edward the Second it was the Lot of his Son Edward the Third a Youth of fifteen yeares of age to take it up he knowing whose it was and feeling it too heavy for him was willing enough it should returne but being overswayed by Councels drawn from reason of State and pressed thereto by those that resolved not to trust his Father any more he wisely chose to manage it himselfe rather then to adventure it in another hand but that is not all for as its never seene that the Crowne doth thrive after Divorce from the Scepter but like a blasted blossome falls off at the next gale of adversity such was the issue to Edward the Second his Power once gone his Honour followed soon after he had ceased to be King and within a small time did cease to be Edward His Son thus made compleate by his Fathers spoyle had the honour to be the Repairer of the ruines that his Father had made and was a Prince which you might thinke by his story to be seldome at home and by his Lawes seldome abroad nor can it be reconciled without wonder that Providence should at once bestow upon England a couragious People brave Captaines wise Councell and a King that had the endowments of them all Otherwise it had out-reached conceit it selfe that this small Island wasted by the Barons Warrs the people beaten out of heart by all Enemies in the time of the Father should neverthelesse in the time of the Son with honour wade through so many difficulties of mighty Warrs on every side abroad and devouring Pestilence at home and yet lay a platforme of an Epulent wise and peaceable Government for future Generations Yet hee had his failings and misfortunes a great part whereof may be attributed to infirmity of Age which in the first part of his Reigne was too little and in the later part too much True it is that Governours of the Persons of Kings may in some measure supply defects of Non-age but seldome where the Governours are many and never if they be ambitious And it was this Kings fate to miscarry in both for he had in his Youth twelve Governours by constitution and they two supreame by usurpation Viz. The Queen and Mortimer till they were both consumed in the flame which themselves had kindled And this disparity wrought somewhat unsuccessefully in the Kings first Warr For the generosity of his spirit himselfe being young and active minded his Councell to advise him imployment in a Forraine Warr rather then they would adventure its motion at home least it might prove circular which is most dangerous for Government if the Prince be not under command of himselfe This first Warr was with Scotland whose power was inferiour to that of France the King young and the danger neerer and therefore though the last affront was from France that more fresh in memory and more peinant yet the King was advised to give place and speake faire till he had tryed masteries with Scotland and thereby secured his Rere This he wisely hearkened unto and met with such a successefull turne of Providence that like an O Yes before a Proclamation gives warning to Scotland that the Wheele is turned upon them and that there is somewhat more then humane motion in the matter that exasperates the English upon an enterprize so often crossed by Providence hitherto and the King also being but a Souldier in hope as yet to dare against those that had so shamefully foyled his Father and also put himselfe already once to the Retreat And yet there did concurr a kinde of necessity of second Causes for the King found the Crowne ingaged and the minds of the Scots so elate as the English mans case was not to live to Fight but to Fight to live and so imbittered against one another by the fierce Warrs under the Barrons that nothing could quench the fire but the withdrawing of the Brands into Forraine action like some angry spirits that spoyle their owne bodyes unlesse they chide or fight it out with others In the first brunt with Scotland the King gained nothing but understanding of the humours of some of his great Lords which once purged out he renues the Warr prevailes and after ten yeares stirr wherein hee became a trained Souldier against the Scots hee wann the Crosse and then goes to play his Prize in France to compleat his Crowne with the Flower De lis Which was the great worke of the rest of his Reigne in which foure parts of five was Victorious the fifth and last was declining like some Gamesters that winn at the first and for want of observation of the turning of the Dice come off loosers at the end For the King being rather satiated then satisfied with Victory and Honour returned home to enjoy what he had leaving his Son the Black Prince to pursue the Warr and to act the Souldiers alone who
determined to be against the King but against the Man and though against the private will of the Commander yet not against the Law nor therefore can it be said illegall or unjust The Parliament in these times held forth this Doctrine plainly to the World that it is their proper work in Cases needfull to doe right to such as are wronged by the King his command is no Warrant in such Cases If a man be wrongfully imprisoned by him he shall be released and set at liberty by them Let his Act be never so authenticall under the Broad-Seale it can take no mans right away Richard the Second did his utmost to satisfie and quiet the tumultuous rabble under Cade and Straw and granted store of Manumissions to the Bond-men by Declaration and by his Letters Patents but not one of them good enough to deprive any one of the meanest of the Free-men of their rights in those Bond-men The priviledge of shewing mercy and granting pardon hath beene antiently betrusted to the King as to an Overseer of the execution of Law yet he hath not that Prerogative To have mercy on whom he will have mercy Ever since this Narion had learned to read the Bible Murder hath been excepted from mercy nor did the Law ever allow any King any Prerogative to pardon that Edward the Third did not challenge any such not onely bound thereto by his Coronation Oath but by publique Acts of State declaring the same yet because the Parliament was not alwayes sitting and Kings were ever subject to this Temptation to favour Servants by granting mercy to Malefactors a generall rule of Inhibition is made against all pardon to be granted by the King in Case of Fellony but onely in Cases allowed by advise of the Councel It s true that in the first times of Richard the Second he liked not to be thus girt in his power which he pretended was more at liberty in his Predecessors possibly he meaned King John and Edward the Second who many times did what they listed yet under his favour no Law was so shamelesse as to hold forth such a power till Richard the Seconds Law countenanced it But why doe I call it a Law which is onely a Declaration by consent of the Lords such as then were the Commons would never owne such an opinion and therefore it soone proved abortive for within three or foure yeares by publique Act of Parliament it s peremptorily declared that the Kings Pardon shall not extend to murther So as upon the whole matter its plain that it is not the Kings will though supported by the Councell of Lords and backed by the opinion of the Judges that must be a rule for the government of this Kingdome nor doth any Allegience binde obedience thereunto in Case where Justice or the liberty of the People is concerned Three things yet remain which Kings have claimed to be their own Viz. Conferring Titles of Honour and places of Trust and the Legislative power The first is but a Feather and not worthy of regard yet it is plain that these times produce many presidents of Dukes Marquesses and Earles made in Parliament and possibly it may be apparent that the first motion of any such Title of Honour did first fetch its Originall thence if not in the field But it s not worthy of the labour The second is more considerable Viz. The power of conferring places of Publique Trust This Kings have pretended unto although in course of Congruity it will be thought more meet that it belongeth rather to that cheife and grand Trust of the whole Kingdome committed to the Parliament and the Practice of these times is not much discrepant whether we regard such as are for advice or execution Of the first of these are those whom we commonly call the Privie-Councell whose advise in course toucheth first upon the Kings Person but by reflexion worketh strong impressions upon the People so far as the influence of the Kings power extends And therefore it s not beyond the Sphear of the Parliament to interpose and qualifie that influence so as it may be for the generall good of the whole Kingdome For many times Kings are either above or beneath themselves and in such Cases if the Councell be of the Kings suite he is of the deeper die and proves more Malignant to the People Edward the Third growing into great opinion in the World his Proportion exceeds his own Portion and the Peoples good wills to boote they think the fault is in the privy Councell and an Inquisition set upon it So also they doe in his fiftieth yeare when he growes downward And the like in the beginning of Richard the Seconds Reigne he being now a Youth and therefore unstable in his Resolutions and unable to make Election So as upon the whole matter if the King fall short in point of judgement or Resolution or inordinate in his Affections But more especially where they observe the Major or more considerable part of the Councell to draw towards a designe in such Cases as these the Parliament as its own duty undertooke to settle a good Councell about the Kings Person that might advise him during their Recesse For the Privy Councell is never more it selfe then when it is an Epitome of the Common Councell of the Kingdome In like manner such Officers as concern Execution of Law and Councell are as narrowly to be inquired into for if their motion be irregular it s lesse materiall what the rule be the Parliament therefore held it their duty to interpose in the Election of grand Officers of the Kingdome such as are the Chancellors Judges and Justices or to confirm or displace them or binde them by Oath the Rolls of the eighth fourteenth fifteenth and thirty sixth years of Edward the Third and the sixth tenth and eleventh years of Richard the Second do manifest this sufficiently I have done with the Subject matter or work of the Parliament in the mutuall Relation of the King and it the manner of proceeding was either joyntly with the King or without him and either joyntly with the two Houses or severally and either immediately by themselves or their Committees As touching the first its evident that in all matters wherein gain ariseth to the Crown from the people by Subsidy or otherwise the strength of the Grant by Act of Parliament resteth in the two Houses and that the Kings assent is but Pro forma as touching that matter and therefore such Grants have been made as tended in some measure to derogate either from the Kings wisedome care or fidelity yet even these have passed with the Royall Assent though the full Assent or good will of the Person of the King was not correspondent thereto as in these Cases formerly noted where Subsidies were given with Limitations and Conditions and upon rendering account to the People And it is as evident that where the Kings Person is
would pick and chuse and prohibite the Kings Bench as they pleased and to that end would order Originalls out of the Chancery as they thought most meet for it is observed by Fleta that the Kings Bench hath no Jurisdiction of it selfe but by speciall Warrant that is to say by Originall Writs returned thither Neverthelesse it may seeme that such Crimes as are contrary to common honesty or the publique profit or peace in a more exemplary way then ordinary and therefore may be called Crimina laesi Regni or against the State These I say might more properly belong to the subline Judicature of the Councell Table as knowing better how far the publique State was interested or indammaged in such Cases then the other Judges that were experienced onely in ordinary matters of a more private concernment To recite the particular Cases upon record concerning racing of Records Forgeries and other crimes of falshood conspiracies combinations to abate and levell the prices of Commodities Ryots and such like will be superfluous In all which and others of that Cognisance the Sentence exceeded not Fine and Imprisonment or ransome Neither yet were the Common Pleas so rural but the Councel Table could rellish them also and digest them well enough and therefore did not stick to prohibite the Courts of Common Law under colour of a strange maxime That it is neither just nor honest for a man to be sued at the Common Law for a matter depending before the King and his Councell No though the Court of Common Law had the precedency and therefore although the right of Tithes being depending at the Common Law the Arch-Bishop in opposition to the jurisdiction sueth before the Kings Councell and the proceedings at the Law are thereby stayed and no wonder for the Councell Table challenged to hold the ballance of all Courts of Law within their owne Order and so if any doubt concerning the Jurisdiction depended the Councell Table gave the word and all stooped thereto But enough of the Subject matter the manner followes a new form of Processe is taken up that the Common Law and ancient Custome never knew and which grew so noisome to the People that complaints are made thereof as of common greivance and remedies are thereto applyed by the Lawes of these times For whereas by the Grand Charter nothing could be done in Judgement but according to the Lawes of the Land and in affirmance thereof a Law was made in these times that no Accusation nor Attachment nor forejudging of Life or Member nor seisure of Lands Tenements Goods or Chattels should be against the form of the Grand Charter and Law of the Land the course of affaires grew so stale that amongst other innovations a trick of a new kind of triall is brought forth by suggestions upon Articles exhibited against any man before the Councell Table and thereupon issued forth Attachments against the party complained of by meanes whereof and other courses for they could also sequester much vexation arose unto the People Hereunto upon complaints multiplied a remediall Law is made whereby it is Enacted that all such suggests made shall be carried to the Chancellor Treasurer and the Kings Grand Councell and the Informer shall finde surety to prosecute with effect and to incurre the like penalty intended for the Defendant if the Plaintiffes proofes be not compleat and then the Processe of Law shall issue forth and the Defendant shall not be taken against the form of the great Charter that is he shall not be taken untill first the fault appear upon Record by Presentment or by due Processe or by originall Writ according to the Ancient Law of the Kingdome Either therefore the Privy Councell had no power to hold any Pleas at all or else no power of triall The first of these was concluded in open Parliament and the second as good as so for if the first then the second will come on undeniably But suppose all this be given up yet was this Liberty to hold Pleas so qualified that the person could not be touched till the thing did appear by Inquisition and then in a Legal way such proceedings was had upon suggestion made against the City of London in Henry the Thirds time for one of the Judges was first sent into the City to finde the suggestion by a Jury and then the Lord Maior appeared before the Lords and traversed the matter and in a manner appealed or rather demanded to be tryed according to the custome of the City And the like course doe we finde observed in our Law Reports of these times in a Case concerning the price of Wooll by a false Report The foote of the whole account will be this That the work of Judicature of the Privy Councell in these times in Cases of Crimes was to receive Articles and award Inquisitions and after return in nature of a Grand Inquest to recover Traverse and to order triall at the Common Law and upon Verdict returned to Fine and Ransome In other Cases either of right or equity in matters of private property they were determined either by Judges of the Bench or Chancery although possibly the suite was Coram Concilio for that all the said Judges were of the Kings Councell And yet as I dare not affirme so I cannot deny but it might also be possible that some matters especially these of a greater consequence either in their own nature or in regard of the persons whom they concerned were determined by the major Vote of the whole Councell in a prudentiall or rather Arbitrary way But this was Invita minerva and used so rarely as the Path is growne out of view saving some few footsteps here and there remaining which shew that the Grand Councell of Lords had been there CHAP. IV. Of the Chancerie IT is the birth of the Kings Power in Judicature and may deserve the name of the first born For though it had no better Title in these later times then Officium because amongst other of the Kings Escripts it formed Writs remediall for such as had received wrong yet even by that work it was in repute for so much skill in the Law of the Land that by the consent of all it was as well able to advise a remedy as to advise the Complainants where to have it and yet it had one adventage further that it was an Office of remembrance to the King who is a Person of great trust in the Law and gave such credit to all Acts done before him as being entred into the remembrance became of the highest nature of Record against which no Plea did lie Amongst these matters of debt and contract coming into the account this Office taking notice of the Record tooke Cognisance of the thing and for the executing thereof and thus in these and such like Cases granted Judiciall Writs and so found out a way of Judicature to as many Causes as
the State would trust it with and because it pretended Cognisance onely of matters of Record before them they found out a way of examining of witnesses by Commission and returning their Depositions in writing which being become a Record before them they gave their Sentence upon the whole matter without the ancient ordinary tryall Per pares It becomes a kinde of Peculiar exempting it selfe from the ordinary course in manner of triall and from the ordinary rules of Law in giving of Sentence and as a back doore for the Kings Arbitry in case of Judicature in matters of Common Pleas as the Councell Table was in Crowne Pleas they both are looked upon with a very pleasing eye of Majesty which loves not to be straite laced yet all is imbattelled under the colours of Equity Honor Conveniency and Conscience like a Monopoly that is bred under the wings of the Publique but feeds it selfe upon it That this had attained the Title of a Court so anciently as in K. Stevens time as the Honorable Reporter noteth I much question by the Title that Fleta gives it in later times nor under his favour will that Testimony cited out of the History of Ely warrant it but upon a mistaken ground of misplacing the note of distinction for I take the words to be thus translated King Etheldred determined and granted that the Church of Ely should for ever in the Kings Court hold the dignitie of the Chancery and not hold the dignitie of the Kings Court of Chancery Neverthelesse its clear that these times brought it to that condition that it might well carry that name if formerly it had not For it grew very fast both in honour and power and this not by usurpation though it did exceed but by expresse donation from the Parliament Yet is this power much darkned in the limits and extent thereof chiefly in regard that the Chancellor is betrusted with many things whereof there is no evidence for the Chancery to claim any Cognisance For he was in these times a person of many interests and relations being one of the Quorum in the Star-Chamber of the Kings Councell chief in the Chancery most commonly a Clergy man and therewith Legate è latere and in these severall Relations might act directly and yet in severall Courts And therefore though he had power with others to punish neglects of Execution of the Statutes of Wines by Act of Parliament and also of the Statute concerning Victuall and to determine matters of controversie between parties in Cases depending before the Parliament and in some matters that concern the Kings Revenue yet cannot these be said to be the proper worke belonging to the Cognisance of the Chancery but to the Chancellor by speciall Commission in another relation Allbeit I cannot deny but the Court it selfe had Cognisance in matters of as strange a nature Viz. To punish disturbances of Merchants in their trade to see to the executing of the Statutes of Purveiors and to remedy greivances contrary to other Statutes which generall words let in a wilde liberty to that Court to intermeddle in Lawes which were never intended for their touch to punish Nusances according to discretion to give remedy to Merchants upon the Statute of Staple so that its clear enough the Parliament intended it should be a Court and gave their Seale to their power of Judicature Nor as it seemeth was this any regret to the Courts of Common Law but as a thing taken for granted For the Reports tell us that if the King grants Tythes arising from without the bounds of any Parish the Patentee shall sue in the Chancery by Scire Facias and shall there proceed to issue or demurrer and then to the common Law where upon triall if the Defendant make default the Plaintiffe shall have Judgement and Execution And if the Heire be in Ward to the King the Mother shall sue and recover her Dower in the Chancery And they tell us that it had power to prohibite Spirituall Courts and Courts of common Law yea to over-rule or reverse judgements and yet the common Law held its ground when it was concerned for neither were all suites there by Bill as in cases of Equity nor determined according to such rules nor did the power of Judicature rest in the breast of one Chancellor but in him joyntly with other Councell of the King which were also learned Judges of the Law For the Report informeth that Edward the Second had granted a Rent in Taile to the Earle of Kent who dying his Sonne under age and Ward to the King Edward the Third seised amongst other Lands the rent and granted it to Sir John Molins Upon Petition the King refers the matter to the Arch Bishop and others of the Councell calling to them the Chancellor A Scire Facias goes forth to Sir John Molins he upon appearance pleaded to the jurisdiction as a case belonging to the common Law but it would not be allowed because it was to repeale the Kings Charter And whereas it was objected that the reference was to the Arch Bishop and others and therefore the cause ought not to be determined in the Chancery it was resolved that it did properly belong to the Chancery by the Law And in the Argument of the case it appeares clearely that the Kings Councell there were learned in the Law And the same is yet more evident by the Title of Bills in those dayes exhibited in the Chancery which was directed to the Chancellor and the Kings Councell and the rule given Per tout les Justices which I rather note for the shortnesse of the forme of Bills in those dayes farre different from these times wherein the substance of the complaint however small in it selfe is oftentimes blowne out into so great a bubble that it breakes to nothing And the Statutes formerly mentioned do assert the same thing as touching the Kings Councell For though they speake of the Councell or Chancery in the English Tongue yet in the Originall the words are Conceill en Chancery Having thus touched upon the matters under the Judicatory of the Chancery and Judges in the same in the next place the manner of proceedings comes to consideration For it seems they had been formerly very irregular and that contrary to the Grand Charter upon a bare suggestion in the Chancery the party complained of was imprisoned and no proceedings made thereupon for remedy whereof it was ordained that upon suggestions so made the complainant was to finde Sureties to pursue the suggestions and that the processe of Law should issue forth against the party without imprisoning him and that if the suggestions were not proved true the complainant should incur the like penalty that the Defendant should have done in case be had beene found guilty but afterwards this later clause was altered by another Statute because it was full of uncertainty and it was ordained that in such case the Complainant
Arrest although contrary to them made voyde as touching the Process The goods of the Clergy are discharged from Purveyance and their Houses from Quarter The later of these was an Incroachment 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 Kings Horses Dogs and Haukes c. But the point of Purveyance was an ancient Prerogative belonging to Kings and by no Custome 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 rudenesse of the times did not those acts prevaile to that settlement that was promised till now Edward the third renued the Law nevertheless could not this Law of Edward the third perfect that worke because it was but a bare command till Richard the second made a remediall Law giving thereby the Clergie 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 soone pardoned as asked These condiscentions might have wedded the English Clergy to the English Crowne but that it was coy and expected further gratuities besides they beheld their old Stepdame Rome now in its full Splendor and power and deeply interested in the sway of affaires in this Kingdome and above all the rest the nigh affinity between the Prelate and the Pope was such that they sucked one milke breathed one aire and like the Philosophers twinns lived in each other The later 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 then to cut it asunder But Edward the Third and his successor espied 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 comonly slower upon Governments that are less Eclesiastical for Churches continue longer in a growing condition then in their compleat estate like a Christian that seldom endures long after his full ripenesse Thus England it s hitherto above a thousand yeares since the Gospel came to the Saxons and well nigh a thousand yeares 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 downe in his lapp a heavy burden questionlesse he was considering his claime of jurisdiction his provisions pensions exemptions impositions and such like oppressions and therefore it s no wonder if the King feeling the incumbrance gives a lift at the Popes power by stoping the currant of mony from England Rome-wards To this end the Statute made at Carlile is revived wherby the Clergy are inhibited from conveying treasure beyond the Seas but the Pope knew how to ride and will not so easily forego his saddle The Roman Eagle had made many a faire flight in England and had not yet fully gorged himselfe he grants ten thousand Marks yearly out of taxes layd upon the Church livings in England unto two Cardinals neither of which did nor by the Canon could live in England the treasurership of Yorke also to another Cardinall after that the King had conferred the same else where 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 yeares in the recovery of his right and was deluded in the conclusion he now sees it bootelesse to stand alwayes upon his defence and receive affronts he resolves therefore to enter the lists and maketh seisure of the Deanery of York which formerly by usurpation the Pope had conferred upon a Cardinall and of all Church livings given by the Pope to aliens Then a Law is made more sharp then those in the eighteenth yeare wherein Provisors of Abbies and Priories are made lyable to a Praemuniri and Provisors of other Ecclesiasticall Livings and Dignities whereby the presentation of the rightfull Patron is disturbed to be fined and imprisoned untill the fine and damages to the party wronged be paide And all such as draw men to plead out of England in cases that belong to the cognisance of the Kings Court and all obtainers of provisions in the Court at Rome these were also subject to a Praemuniri For whiles these things were thus in action the Pope bestirred himselfe notably with Citations Excommunications interdictions and such other birds of prey not only against meane men but Judges Bishops and the Kings Councell as amongst others the case of the Bishop of Ely at the solicitation of some of inferior regard as I remember a Clerke or some such thing yet as these Bull-drivers or summoners to the Romish Court were no late upstarts so were not these times the first that tooke them to task for before the Statuts of Praemuniri we find provision was made against Provisors and that some Statute did precede those in Print which punished a disturber of the Kings Incumbent by a Bull from Rome with perpetuall imprisonment or at the Kings will besides the party wronged was allowed an action for his damages Qui tam pro Domino Rege quam pro seipso sequitur and before that time also bringers of Bulls from Rome were imprisoned although in all these cases aforesaide the liberty of the Persons both of Lords and Praelats was saved And thus all the while King Edward the third kept the field he gave the Pope cuffe for cuffe but retiring himselfe to take his ease he waxing wanton waxed weake and more slowly pursued the vindication of his owne right and his Subjectes liberty The Lawes are layde aside and Rome had further day given to plead and in the mean time execution is staid the double minde is double died and advantage is soon espied above sixty Church livings more are suddainely catched and given to the favorites at Rome the Parliament rings herewith yet the King delayes the remedy and in this Edy of affaires Edward the third dies and Richard the second takes up the place who had witt enough to observe what concerned his owne interest and courage enough to pursue it But neither witt nor courage to over-rule his lusts which in the conclusion over-ruled all rule and brought himselfe to destruction He found the people at his entrance into the Throne irritated with the Popes opressions and vexed at his Grandfathers desidiousnes His Spirit is also stirred within him and himselfe thereby pressed to tread in his Grandfathers former wayes and to outrunne him in his later
tokens and liveries utterly inhibiting the meaner sort of the people from giving of Liveries to maintain quarrells upon pain of Fine and Imprisonment and the triall to be before the Justices of Assize which it seems was in affirmance of former Lawes as by the Preamble of the Statute doth appeare though the Lawes themselves are not extant About fifteen years after it was by sad experience found that the Lords maintained quarrells by multitude of Liveries and therefore another Law was made inhibiting the Lords to give Liveries to any but their meniall Servants and it s ordered that the Justices of the Peace shall make inquiry of such offences and punish them according to their discretion A third prevention was provided against gathering together of parties after they are sorted For the humors may so abound as nothing will keep them in they must either breake out into a sore or a long sicknes of State will certainly follow To this end therefore the Statute made at Northampton is again revived expresly forbidding all Persons to ride Armed unles in some particular Cases of executing Justice or guarding the Person of the King or his Justices and such like And if men will be so adventerous as to outdare Law by publique force Troopings together and Riotous ridings Another course is taken not by Commission of the Peace but rather of Warre directed unto valiant persons in every County and they have power thereby to apprehend such Offenders and imprison them untill the Goale-delivery though no Indictment be found thereof untill the Goale-delivery shall be By this Commission therefore power is given of Posse Comitatus in nature of a Commission of Array with an additionall power of fighting and destroying so as though the King granteth the Power by the Commission yet the Parliament giveth the power to the Commission and be it a Commission for Peace or Warre it is Originally from that power The fourth and last prevention was the taking away means of continuance and supporting such Riotous wayes Viz. Castles and Goales out of the Custody of private hands and restoring them to their Counties For Goales and Castles are taken promiscuously for places of security in times of Peace to keep ill persons from going out and in times of Warre from getting in Amongst these some belonged to the King and were committed to such as he favoured who commonly in such times of Oppression and Violence grew too big for Justice usurping a Gaole-delivery and making such places of strength many times even to the innocent a Prison to keep them from the Law but unto guilty persons an Assilum to defend them against the Law And these thus belonging to the King were under no Law but of Prerogative whereas other Castles of private persons were under the yoake of the Statute 13 E. 1. For remedy of all which the Kings Castles are once more returned to the Sheriffes Custody by Act of Parliament who questionlesse hath the power to dispose of all places of Strength whether in order to Peace or Warre and could not dispose them into a more fafe and indifferent hand then the Sheriffes who is as well the Kings Officer as the Kingdomes Servant and much intrusted by the Law in the execution of its owne power And thus is this Nation now prepared for a settled Peace a Condition that is long in ripening and soon rotten unlesse it be well fenced and over-awed by a good Conscience But Richard the Second was neither so good nor so happy his Heart affected to be high but his Head could not bear it he turns giddy and runs far wide Those that would reduce him he inforces into Forrain Countries and himselfe holds on his careere over hedge and ditch into Ireland where under pretention of holding Possession of that Kingdome he lost England and whiles he playes his game in that Country another playes King by your leave in this and steps into the Throne teaching the King thereby this lesson though too late That Nonresidency is dangerous for a Preist but unto a Prince fatall unlesse his Subjests be fast to him when he is loose to them CHAP. XIII A view of the summary Courses of Henry the Fourth Henry the Fifth and Henry the Sixth in their severall Reignes HE that played this pranke was the banished Duke of Hertford sonne of John of Gaunt and by his death now become Duke of Lancaster by Title and as the times then were it proved not hard to get more For in uncertain Common-wealths it is an easie thing for a man of opinion that hath lesse then his due to get more then he ought As sonne of John of Gaunt this Duke had the peoples good wishes he a wise and a brave man and under oppression gained the more upon the people by how much they love brave men and compassionate such as suffer wrong especially from such persons from whom they all found the like measure All these concurring with the Kings absence invited the Duke to adventure himself upon the influence of the peoples favour to gain his own right and what more the people would allow him and if no more yet his Honour is saved he came for his own and attained his end Thus then he comes over without Army or Forraine power or other help saving the advice and interest of Arch-Bishop Arundell who was his Companion in suffering Partner in the Cause and no lesse welcome to the Clergy then the Duke himself was to the people and so gained power to the Duke though he brought none Upon their Arivall the aspects of all are benigne the Dukedome waits for him and in that as in a mirrour he beholds the way fair and easie yet further it pities him to see the Kingdome so torne in peices and spoyled The People knew him able and hoped him willing to amend all they offer him their Service which he accepts and therewith the Crowne so hard a thing it is for to put a stop to a Conquerour in his careere By this time was the Duke of Hertford thus become Duke of Lancaster and King of England under the name of Henry the Fourth by a designe that in the proof was more easie then commendable and which being effected cost more skill to make that seem fair which was so foul then to accomplish the thing He therefore first heaps together Titles enough to have buried the clamour of Usurpation if it would have succeeded Conquest was a Title freest from dispute whiles Power holds but it lookes better from a Forrain Enemy then one sworn to the English Crowne and therefore after that had served his turne he disclaymed it as that which was though meet enough to have yet unmeet to hold His right by Designation from his Predecessour he glanced upon but durst not adventure it too deep into the Peoples consideration whose Ancestors had formerly over-ruled the Case against King John He then stayed upon a concealed Title from a concealed Sonne of
Clergy gave their Vote if not the first vote and therefore certainly did neither beleeve nor honor that infallible Chaire as their owne Mother nor did they beare her yoake further then their owne benefit and reason of State did require for though the immediate benefit of this Law did descend upon the Prelacy yet it also much concerned the interest both of the honor and benefit of the Nation that the Clergy should not be at the Popes pleasure to tax and assesse as he thought good Secondly Henry the fifth added unto the Prelacy some kinde of increase both of Honour and Power Viz. To visit Hospitalls that were not of the Kings owne foundation and to reforme abuses there for the Patrons either had no Power to punish or will or care to reform them and thus upon the point although they lost a right yet they gained ease Thirdly the same King confirmed by a Statute unto Ordinaries the Cognisance of accompts of Executors for their Testators Estates which formerly was granted by the Canon Law but they wanted power to execute and a right to have and receive In all these the Clergy or Prelacy were the immediate gainers In as many other things the People were made gainers and yet the Clergy were no loosers otherwise then like the Kite that prey which was none of their owne First they refused formerly to grant copies of Libells either thereby to hinder the course of Prohibitions or to make the copies the more dear and Mony more Cheap with them Henry the fifth finding this a greivance to the People passeth a Law that all Ordinaries shall grant the copies of Libells at such time as by Law they are grantable Secondly as the Probate of Wills had anciently belonged to the Ordinary by the Canon Law and formerly also confirmed to them by the Parliament so it also regulated and setled the Fees for such Service But the Clergy having been ever under the nouriture of their Mother Rome that loved to exceed they likewise accounted it their liberty to take what they could get but the nigher they come to ingage with Kings in their government according to Law the more reformed they grow Formerly Edward the third had setled their Fees but they would not hold to the rule now the Law is redoubled by Henry the fifth with a penalty of treble dammages against delinquents Furthermore the very Preists could not containe their Paternosters Requiems Masses and such wares they had ingrossed and set thereof what price they pleased The Market was risen to that height that Edward the third undertooke to set a rate upon those commodities but that also would not hold long Henry the fifth he sets a certaine Stipend somewhat more then Edward the third had done and yet lesse then the Preists had formerly Lastly some Lawes were made wherein the Common-wealth gained and the Church were loosers First whereas the Church-men formerly held all holy things proper and peculiar to their owne Cognisance especially such as concerned the worship of God the Parliament now began to be bold with that and never asked leave It had now for a long time even since the Saxon times been the unhappy condition of this Church of England amongst others to decay continually in Piety and right devotion but through the light that now revived and Gods goodnesse it in these times came to passe that the People did entertain some sense of their duty towards God more then formerly and begin to quarrell the abuses done to the Lords day in the manner of the keeping thereof London hath the honor for beginning this reformation by an Act of their Common Councell The Parliament within seven yeares after that ingage the whole Kingdome in that service though therewith also are adjoyned other holy Feasts then holden And all Faires and Markets are injoyned to cease on that day under paine of forfeiture of Goods exposed to sale excepting Victuall and excepting the foure Sundayes in Harvest And thus though places had their consecration allowed by the Parliament and immunity from trading in Faires and Markets by the space of 160. yeares before this time yet that time which God by his owne Law had reserved to his owne selfe never came under regard to be allowed till now and yet not by the motion of the Clergy nor by their furtherance for by their thrusting in the holy dayes they made them equal with the Lords day and in Harvest time superiour by preserving them in force when as the Lords dayes were set aside So God had somewhat of these men but the Pope more Secondly as the Church-men lost in the former so the Prelacy in this that follows The Prelates had long since obtained the triall of Bastardy and therein could straine themselves so far as to put the Case of inheritance into danger where the point otherwise was cleare enough and this grew to that height that it indangered the disinheriting of the heires of the Earle of Kent It is therefore now provided that before the Ordinary in such Cases Proceed to triall Proclamations shall be made in Chancery to summon all pretenders of Interests or Titles to come before the Ordinary to make their Allegations and all trials of Bastardy otherwise made shall be voide so as whatever the Canon did the Parliament would not trust to the Ordinaries Summons nor allow of their power in any other manner then the Parliament thought meet One thing more remaineth wherin the true Church of Christ seemed to lose and yet gained and the Clergy joyning with the King seemed to gain and yet lost this was the point of worship which had long stumbled the mindes of the People and was now growne to that strength that nothing but an Act of Parliament can keep it under This opinion concerning worship was at the first so young that it was not yet baptized with any proper name but called Opinion contrary to the Church determinations or Catholique faith And against this the Clergy now stormed more then ever formerly because it was grown to such a height as if it meaned to over-top theirs To this end they procure an Act to passe That all Preachers Teachers Writers Schoolemasters Favorers or notoriously defamed Persons for the maintenance of such opinions shall be upon conviction before the Ordinarie according to the Canons imprisoned in the Diocessans Prison Fined according to the Diocessans discretion If upon Conviction he shall not abjure or shall relapse he shall be delivered unto the Seculer Power and be burned And that Preachers without Licence of the Diocessan should be restrained Concerning which Law I shall first shew what change in the Lawes of this Kingdome was endeavoured and what was really effected First it is an undeniable ground that no Free-man can be put to answer before any Judge but upon Presentment or other matter of Record foregoing and by due Processe of Law and yet it hath been ruled that strong
wage so as none were then compelled to enter into Service by imprest or absolute command nor is there any authority amongst all those cited in Calvins Case that doth mention any such thing but contrarily that Opinion of Thirning is expresse That the King cannot send men beyond Seas to Warres without wages and therefore no man is bound to any such Service by any absolute Legiance as the Reporter would understand the point but if he receiveth wages thereto he by that Contract binds himselfe Secondly it seemeth also to be granted that such as went voluntarily in the Kings Service ever had the Kings pay after they were out of their Counties if the King ruled by his Lawes for by the Statute formerly mentioned the King did likewise confirm the Statute of 18 Ed. 3. Stat. 2. cap. 7. which is expresse in that point and the matter in Fact also is evident upon the Records Thirdly touching the Arming of those that were thus Levied as their was a certain Law by which all men were Assessed to certain Armes either by the Service and Tenure of their Lands or by Parliament for such as were not bound to finde sufficient Armes by their Tenure according as is contained in the Statute 25 Ed. 3. Stat. 5 cap. 8. So did Henry the Fourth by the Statute formerly mentioned to be made in his time Confirm that Law of Edward the Third In the Argument of Calvins Case it is much insisted upon to prove the Legiance of an English man to the King to be absolute because he hath power to send men to Warre at his pleasure and he hath onely power to make Warre and if so then hath he absolute power in the Militia As touching the power of sending men to Warre hath been already spoken but as touching the power to make Warre there is no doubt but where a King hath made a League with another King he onely can break that League and so make Warre and that Opinion of Brian must be agreed for good in that sense But if a League be made by Act of Parliament or if the King will have Warre and the Parliament will make a League without him no authority doth in such case avouch that it is the right of the King or that he hath a Legall Power to break that League as he pleaseth Neither in the next place hath the King any right or Legall power to make War with his own Subjects as he pleaseth but is bound to maintain the Peace not onely by his Oath at his Coronation but also by the Lawes whereto he is bound if he will reign in right of an English King For every man knoweth that the grounds of the Statutes of wearing of Liveries was for the maintaining of the Publique Peace And Henry the Fourth amongst other provisions made against that trick hath this That the King shall give onely his Honourable Livery to his Lords Temporall whom shall please him and to his Knights and Esquires meniall and to his Knights and Esquires which be of his retinue and take of him their yearely Fee for Terme of Life and that no Yeoman shall take or weare any Livery of the King nor of none other Lord. And another Law was made within one yeare ensuing confirming the former and providing the Prince may give Liveries to such Lords as he pleases and to his meniall Gentlemen and that they may weare the same as in the Kings Case By both which the King and Prince are both in one Case as touching the power of giving Liveries if the one hath absolute power then hath the other the like If one be under the Directory of Law in that point then is also the other For it is clear that the King is intended by the Statute to be bound from giving Liveries and the people from wearing them otherwise then in especiall Cases and then the Conclusion will be that if the King may not give Liveries to prejudice of the Peace then may he much lesse break the Peace at his pleasure or Levy Men Armes and Warre when he shall think most meet Take then away from the King absolute Power to compell men to take up Armes otherwise then in case of Forrain Invasion power to compell men to goe out of their Counties to War power to charge men for maintenance of the wars power to make them find Armes at his pleasure and lastly power to break the Peace or doe ought that may tend thereto Certainly the power of the Militia that remaineth though never so surely setled in the Kings hand can never bite this Nation Nor can the noise of the Commission of Array Intitle the King unto any such vast power as is pretended For though it be granted that the Commission of Array was amended by the Parliament in these times and secondly that being so amended it was to serve for a President or Rule for the future yet will it not follow that Henry the Fourth had or any Successours of his hath any power of Array originally from themselves absolutely in themselves or determinatively to such ends as he or they shall thinke meete First as touching the amendment of the Commission it was done upon complaint made by the Commons as a greivance that such Commissions had issued forth as had been greivous hurtfull and dangerous And the King agrees to the amendments upon advice had with the Lords and Judges and if it be true that the amendments were in the materiall Clauses as it is granted then it seemeth that formerly a greater power was exercised then by Law ought to have been and then hath not the King an absolute power of Array for the just power of a King can be no greivance to the Subject Secondly if the Commission of Array thus mended was to serve as a rule of Array for the future then there is a rule beyond which Henry the Fourth and his Successors may not goe and then it will also follow that the power of Array is not Originally nor absolutely in the King but from and under the Rule and Law of the Parliament which rule was not made by the Kings own directions but as we are told beyond expectation alterations were made in materiall parts of the Commission and the powers in execution there whereof no complaint of greivance had been made The issue then is if the King had an Universall Power in the Array the Parliament likewise had a generall Liberty without any restriction to correct that power Lastly suppose that this power of the Parliament is executed and concluded by the Commission thus amended and that thereby the Kings Power is established yet can it not be concluded that this Power is Originally or absolutely in the King It s not absolutely in him because it is limited in these particulars First it s not continuall because its onely in case of eminent danger Secondly It s not generall upon all occasions but onely in case of a
beyond all which was the purchase of the Union between the two Houses of Yorke and Lancaster and a peaceable succession in the Throne for a long while to come It must be granted that there fell therewith an unhappy inconvenience in the raising of a new Nobility of the Queenes kindred of whom the ancient stock of Nobility thought scorn and yet they were so considerable as to be envied A wound hard to be cured and yet easily avoyded by such as know how to deny themselves And therefore can be no prejudice unto that conclusion That for an English King to marry his own Subject is more safe for the King and beneficiall for the Kingdome then to marry a Stranger But Edward the fourth did not long lye underneath upon the next faire Gale he comes from beyond the Sea and like his first predecessor of the House of Lancaster claimes only his Dutchy which no man could in reason deny to be his right and therfore were the sooner ingaged with him in that accoust This was an Act that in the first undertaking seemed modest but when it was done appeared too bold to adventure it upon the Censure of Henry the sixth and therefore they were not more ready to ingage then slack to disingage till they were secure in the Kings interest which not long after ensued by the death of Henry the sixth Thus Edward the fourth recovered the Crowne to save his Dutchy His Government was not sutable for he came in by the People but indeavored to uphold himself by forrain dependences as if he desired to spread his roots rather wide then deep how ill this choise was the event shewed for plants that root wide may be strong enough against an outward storme but they soon grow old barren and roâ—t irrecoverably from beneath Such was the end of this mans Government himselfe lived and died a King and left Issue both male and female the one tasted the Government the other kissed it but neither of them ever enjoyed further then a bare title Nor was the Government of Edward the fourth so secured by these ingagements of Forrainers for as he sought to delude so he was deluded both by Burgundy and Scotland to the prejudice of all three Towards his owne People his carriage was not so much by Law as by Leave for he could fetch a course out of the old way of rule satisfie himselfe dissatisfie others and yet never was called to account What was done by intreaty no man could blame and where entreaties are countenanced by Power no man durst contradict Thanks to his Fate that had brought him upon a People tyred by Warrs scared by his successe and loath to adventure much for the House of Lancaster in which no courage was left to adventure for it selfe The greatest errour of his way was in the matter of Revenue the former times had been unhappy in respect of good husbandry and Edward the fourth was no man to gather heaps His occasions conduced rather to diffuse and his minde generally led the way thereto so as its the lesse wonder if he called more for accommodations then the Ordinary Treasury of the Crowne could supply Hereto therefore he used expedients which in his former times were more moderate for whiles Henry the sixth lived he did but borrow by privy Seale and take tonnage and poundage by way of hire Afterwards when no Starr appeared but what was inlightned from his own Sun he was more plaine and tried a new trick called Benevolence unwelcome it was not onely in regard of its owne nature but much more in the end for it was to serve the Duke of Burgundy in raising a Warr against France in the first view but in the conclusion to serve his own purse both from freinds and foes And yet this also passed without much controll for when displeasure was like to ensue he could speak faire and feast and if need was kisse away all discontent Towards his end as stale drinke he grew sowre For as in the first part of his reigne he had beene supplyed by good will against Law so in his later times he had gotten a trick of supply by Law against good will This was by penall Laws which are a remedy if they be used Ad terrorem but if strained beyond that the remedy proveth worse then the disease in their first institution they are formes of courtesie from the People to the King but in the rigorous execution of them are trialls of mastery of the King over the People and are usually laid up against dayes of reckoning between the Prince and them Those penall Laws are best contrived that with the greatest terrour to the Delinquent bring the least profit to the Kings Coffers Once for all this Kings Acts were many his enterprises more but seldome attaining that end which they faced He was a man of Warr and did more by his Fame then his Sword was no sooner resolved in good earnest but he died left a Kingdome unassured his Children young and many freinds in shew but in truth very few Now if ever was the Kingdome in a trance Edward the fourth left a Son the Prima materia of a King and who lived long enough to be inrolled amongst English Kings yet served the place no further then to be an occasion to fill up the measure of the wickednesse of the Duke of Glocester and a monument of Gods displeasure against the House of Edward the fourth whether for that breach of oath or treachery against Henry the sixth or for what other cause I cannot tell But at the best this Prince was in relation to his Unkle the Duke of Glocester little other then as an Overseer to an Executor that might see and complaine but cannot amend For the Duke ruled over-ruled and mis-ruled all under the name of Edward the fifth and left no monument of good Government upon record till he changed both the Name and Person of Edward the fifth to Richard the third his Fame had lifted him up and might have supported him had he regarded it But as no man had more honor before he ascended the Throne so no man ever entred and sate theron with lesse his proceeds were from a Protector to an Usurper and thence to a Tyrant a scourg to the whol Nation especially the Nobility and lastly an instrument of Gods revenge upon himself a man made up of Clay and Blood living not loved and dying unlamented The manner of his Government was strained having once won the saddle he is loath to be cast knowing himself guilty all over and that nothing could absolve his Fame but a Parliament he calls it Courts it and where his wit could not reach to Apologize hee makes whole by recompence takes a way benevolences he is ready to let them have their present desires what can they have more He promiseth good behaviour for the future which he might the better do because he had already attained
his ends Thus in one Parliament for he could hold no more he gave such content as even to wonderment he could as soone finde an army in the feild to fight for him as the most meritorious of his Predecessors His ill title made him very jealous and thereby tought his best freinds to keep at a distance after which time few escaped that came within his reach and so he served Gods judgement against his adjutants though he understeod it not Amongst the rest the Duke of Buckingham his great Associate both in the Butchery of the two young Princes and usurpation of the Royall Scepter he lived till he had laid the Foundation of better times in the Person of Henry the seventh and then received his reward But an ill Conscience must be continually fed or it will eat up its owne wombe The Kings minde delivered from feare of the Sonnes of Edward the Fourth now dead torments himselfe with thoughts of his Daughter alive ashamed he is of Butchery of a Girle he chooseth a conceit of Basterdizing the Children of Elizabeth Graye that calleth her self Queen of England but this proved too hard to concoct soon after that he goes a contrary way The Lady Elizabeth Graye is now undoubted Wife of Edward the Fourth and her eldest Daughter as undoubted Heire to the Crown And so the King will now be contented to adventure himself into an incestuous Marriage with her if his own Queen were not in the way onely to secure the Peace of the Kingdome which he good King was bound in Conscience to maintain though with the perill of his owne Soule and in this zeale of his Conscience his Queen soon went out of the way and so Love is made to the young Lady But Henry Earle of Richmond was there before and the Lady warily declined the choice till the golden Apple was won which was not long after accomplished the King loosing both the Lady his Crowne and owne life together put an end to much wickednesse and had the end thereof in Bosworth-Feild CHAP. XXIV Of the Government in relation to the Parliament THe seasons now in Tract were of short continuance lives passed away more speedily then years and it may seem uselesse to inquire what is the nature of the Government in such a time when as the greatest work was to maintain life and soul together and when all is done little else is done For though the Title of the House of Yorke was never so clear against that of Lancaster yet it had been so long darkned with a continuall Succession of Kings of the Red-Rose that either by their merit had gained a Throne in the Peoples hearts or by their facility had yeilded their Throne up to the Peoples will as it proved not easie to Convince them that liked well their present Lot and were doubtfull of change or to make them tender of the right of Edward the Fourth above their own quiet Above threescore years now had England made triall of the Government of the Lancastrian Princes and thereof about thirty years experience had they of Henry the Sixth they saw he was a gentle Prince On the other side Edward the Fourth newly sprung up out of a Root watered with blood himself also a Man for the Feild This might well put the minds of the People to a stand what to think of this Man whose nature and ends are so doubtfull and brought nothing to commend him to the good wills of the People but his bare Title which the common sort usually judge of according as they see it prosper more or lesse Add hereunto that Divine Providence did not so clearly nor suddenly determine his secret purpose concerning this change by any constant successe to either part by means whereof the one half of Edward the Fourths reign was spent while as yet Henry the Sixth was in veiw and the minds of men left unassured neither trusting much to Edward the Fourth nor he to them and after that Henry the Sixth was gone out of the way Edward the Fourth could not readily change his posture used Arguments of force and power and for the most part looked like a Man in Armes with his hand on his sword ready to draw upon the next man that stands in his way Thus are the People partly driven and partly drawn into an Oath of Allegiance unto Edward the Fourth under perill of Attainder and the Parliament assured unto him once more For immediately upon the departure of Edward the Fourth beyond Sea after tenne yeares of his Reign the Parliament never staying for the issue of Providence declared the Throne void of Edward the Fourth and Henry the Sixth King The Judges likewise of the Courts at Westminster determined the same thing as may appear by the Law Reports of those times in Print wherein Re-attachments were often granted by them upon discontinuance of processe by this Demise of Edward the Fourth And thus Henry the Sixth is once more King for six moneths Viz. from October to Aprill at which time the ballance turns Edward the Fourth returns gets into the Throne Henry the Sixth is again Dethroned all things are as they were and all confirmed by Act of Parliament For that Body is ever wise enough to side with power rather then to spend much time upon fruitless Orders and Votes that will peirce no Armour and therefore like the times must needs be subject to fits of distemper at the comming in of every Tide and did build and pull down Enact and disenact turn and return the English Crown from Yorke to Lancaster and back again and in conclusion for some time did do little but undo Nor can they be justly censured herein for Councells of men are not ordained to hinder Divine Providence or over-rule Fate but to foresee and close with occasions in the most advantageous way for the Publique good and when both winds and Currents are uncertain to ride at flote till they can discern the most commodious Haven to Winter in To impute therefore fault unto the Parliament in such Cases for want of Uniformity and Immutability of Councells is somewhat like the Notion that Batchelours conceit of Wives they would have but they do not know what other then an Idea of their own Fancy Now if it be inquired which course prevailed in order either to the Kings Royalty or the Peoples Liberty I shall answer neither of these but the House of Yorke prevailed to hold the Crown and might have advanced the Authority thereof had they not falne out amongst themselves for the spoyle and Edward the Fourth was not altogether disposed thereto The successe that he had in the Feild and his Souldiery made him look big like a King of the greater size but Kings sleep not securely upon such pillowes when the Militia is on hors-back it is as ready to be a Guard upon the King as for him and when it is most sober not so easily governed as a Common-wealth And
any countenance in any way of gain upon themselves but rather made bold with what the Church-men in former times challenged as their own and upon this Account whereas formerly it had inhibited Fairs and Markets upon the Lords Day Now it inhibited the sale of Boots Shooes c. upon that day though done never so privately which they did at the first onely within the City of London and three miles thereof I suppose it was made onely by way of Triall it being dangerous in such times to give a stop to all England at once otherwise it might be wondered why Gods Honour should be better regarded in London then all the Realm besides Of this Inchroachment we finde no complaint made by the Church-men another touched them to the quick although it befell onely the Archbishopricke of Yorke Hitherto that so held ordinary Jurisdiction over all the Bishops of Scotland as being their Provinciall Now it is disclaimed by them all and they are backed therein by their King under pretence of great inconvenience to his Bishops in their so far travells but in truth not unlike to Jeroboam though he pretended it was too much for them yet he thought it unsafe for himself that his Bishops should owe Canonicall obedience to the Subject of another Prince and upon this ground prevailed with Pope Sixtus the Fourth to make the Divorse and left it to future Ages to try the validity thereof if they would This is all that I shall observe of the Government of these three Kings whose Reigns in the whole exceeded not twenty six yeares and their compleat power therein not much above half so many CHAP. XXVI A short summ of the Reignes of Henry the Seventh and Henry the Eighth THe course of English policy hitherto wandering in the different Currents springing from the double head of Monarchy and Democracy and in them likewise often tossed up and down partly by the blasts of windy Titles and Pretentions and partly by the raging Tides from the Roman Sea now begin to come to Anchor within veiw of Shore Happy England if the same prove good Harbarage for a fainting Nation Two Kings now undertake the Stearage the worke of the first was to still the Winds the other the Seas and so to bring the Adventure safe home Henry the Seventh hapned upon a good preparative for this work in that he delivered the Kingdom from a Tyrant whose irregular and bloody way was so odious to the People that it set a foil upon his Successors Government and made his Wisdom Vallour and Justice appear greater then possibly it was His Vallour made way for the other two he had enough thereof to serve a wise Man in case of Extremitie at other times he made more use of his Majesty then Manhood being confident that the People knew not where to mend themselves but would be at his Devotion so long as he was better then his Predecessor though he cared not how little His Wisdome was his greatest part of which upon all occasions he made the greatest improvement he could without reflecting upon Conscience or Religion whereof he had tasted no more then would render him a civill man whereunto his Education did lead the way thus though his Vallour brought him to the Crown yet it was his wisdome that settled him in the Throne For though he loved himself so well that he was loath to pretend allowance of any access of Forrain help to his own atcheivement in his Title or that he was guilty in the least manner in his Entry upon the Throne yet to keep danger far off he provided one guard for his Person and many for his Title That of his Person he pretended onely as a Ceremony of State brought from the French Court and yet its strange that it went so well down with a Free People For that Prince that will keep guards about his Person in the midst of his own People may as well double them into the pitch of an Army whensoever he pleases to be fearfull and so turn the Royall power of Law into force of Armes but it was the French Fashion and the Kings good hope to have all taken in the best sense His Title setting aside the saying of Phillip the hardy That Kingdomes onely belong to them that can get them would hardly endure the touch till Pope Inocent by his Bull confirmed the Crown to him to hold by a sixfold right Viz. Of Inheritance of Warre of Espousals of Election of gift by Parliament and lastly of Pontificiall Benediction which the King liked marvellous well and the rather because his Title by marriage was buried up in the middle and so made the lesse noyse For though it was his best guard yet he liked not that it should be so reputed least his Title should seem rather conferred upon him then gained by him and so should hold by a Woman or at the best by the Courtesie of England if the Peoples favour should so far extend the Law in that Point by both which he holds the Honour of a compleat English King diminished His Title by Inheritance is much disputable if the right Heires of John of Gaunt be inquired after and much more that of Warre for although that brought the Possession yet no right or Title but by wrong which may indeed be plaistred over by Election or Act of Parliament but then he must be Tenant to the People As touching the Pontificiall Benediction himselfe tooke that but as a redundancy that might sway with the Clergy and do his Title no hurt Neverthelesse what severally they cannot do by joynt concurrence he accounts so fully done as if he were a King against all the world and more yet is he not sure enough but as one jealous is more tender so is his eye ever upon his Title there is his guard and regard as if it were the outworks of his Crown which once lost the Crown cannot hold out long In this work he minded so much his greatnesse that he lost the repute of his goodnesse then casting his eye upon the government and finding it of a mixt temper wherein if Royalty prevails not popularity will like a good Souldier whiles his strength is full he sallies upon the peoples liberties in regard of their persons with such cunning conveyance as he taught the people to dance more often and better to the tune of Prerogative and Allegiance then all his Predecessors had done nor did the People perceive it til they were over their shoos and then they clearly saw their condition and that it was in vaine for them to wrangle with their own acts of which more particularly in the next Chapter The Legiance of persons of the People once gained their Estates more easily follow and therefore though in the former he wrought by Ambuscado in this he may be more brave and charge them in the Van yet this also he did by degrees first by light Skermishes of borrowing smaller sums of
durst not deeply ingage either not being assured of their own Title or imployed in pursuit of other game or being of a weak Spirit were scared with the Thunder-bolt of the Popes Curse But the Laity were under another Law and such an one as by clear and unquestionable Custome had established bounds between the way of Kings and the rights of the People Neither did Kings directly invade those Borders either led thereto by a kind of Conscience in such of them as were Morally inclined or in others by a kind of fear of raising up Earth-quakes from beneath which commonly doth overthrow high Towers sooner then windes from above But now such interests are laid aside fast asleep by two Kings whereof one cared not much for fear and neither of them for Conscience For Henry the Seventh having leisure to study the Nature and contemplate the Fashion of the English Crown dislikes the Modell in some particulars It was not rich enough nor well poysed to his minde which ever was not to be poore but towards his later time to be exceeding rich as supposing that to be the onely way to be more desirable to Freinds formidable to Enemies and absolute over his People And this opinion of his missed in the main end though it attained his immediate desire for by mistaking the right way it made a rich King but not a rich Crown he delighted more in the riches of his People then in a rich People and this bred no good blood because the People thought that the Law was not on his side in that matter They suffered him to visit their purses but are loath it should prove Customary least they should loose their common right they therefore choose rather to give him power by Act of Parliament to revoke Letters Patents and Grants and make resumptions of Offices Fees Annuities and the like that he might rather repossesse his owne then possesse theirs many penall Lawes likewise of a limited and Temporary regard are made and as Cheese after a full dinner they close up all with Subsidies For it was evident to all men that the Royall mind of the King served no further then to take what was given provided that the people would give what else would be taken By this means Henry the Seventh left rich Coffers to descend to Henry the Eighth but the Crown was still the same in price In this Act of the Play the People carry away the plaudite The second Act was the Point of Allegiance wherein both parts carry themselves so cunningly as its hard to adjudge the Garland yet it may be thought the King observed it rather because he offered all the play whiles the People did onely lie at their close guard The whole Project consisted in this to gaine a more absolute Allegiance from the English to their King and because this is exemplified partly in Warre and partly in Peace that part which concerneth Warre will more properly fall under the consideration of the Militia and therefore I shall refer the same to that head in the 32. Chapter ensuing and will come to the second consideration of Allegiance in relation to Peace and therein touch upon the Kings power in making of Lawes and of Judicature according to those Lawes As touching the making of Lawes the ingenuity of Henry the Seventh could not suffer him to make any claim thereto in any Positive way yet his Actions declare that his heart was that way For being beset with troubles he could often fancy dangers and Arme himself then call a Parliament who were wise enough to grant as readily as he asked rather then to be compelled thereto so he had Lawes made according to his own will though he made them not The matter of Judicature comes next and therein he made his Judges appear and not himselfe though they did not onely represent his Person but his minde so things were done according to his minde though he did them not And thus his Excellency seemed more eminent in finding and making instruments fitting to do his work then in doing his own work Neverthelesse all this was but from hand to mouth no fundamentall Law is altered all this while if the Lawes were made by Parliament the King made them not if the Judges turned the Law to the Kings eare the Law was still the Crown though the King wore it But Henry the Eighth was no such man he had not this skill of undermining nor desired it he was tender of the least diminution of his Honour industrious in finding out the occasion and a most resolved man to remove it out of the way though it reached as high as the Triple Crown a man underneath many Passions but above fear What need â—he care for pretences his Father loved Riches he Power when he came to traverse his ground he found quickly where the Church-men trespassed upon him and began with them resting upon the wisdome of his Father and the infallibility of the Pope Henry the Eighth had taken to Wife Katherine his Brothers Dowager and continued in that condition eighteen years without wrinkle of Fame till the great successe of Charles the Fifth the Queens brother against the Pope and French scared the King into a jealousie of his greatnesse and the Emperours failing in courtesie to Cardinall Woolsy the Kings Achates stirred the Cardinals Spirit to revenge for the losse of his hopes in the Popedome For the Cardinall finding the Kings mind to linger after another Bed-fellow by whom he might have a Sonne he made the French Embassadour his instrument to mind the King of his unlawfull marriage with the Queen and to mention unto him Margaret D' Allanson a Princesse of France both in blood and beauty The King liked the Notion of Divorse but disliked the motion concerning the French Lady himself being prepossessed with a fair Object at Home the Lady Anne Bullen then attending upon the Queen and thus being moved entered into a scrutiny concerning the condition of his marriage wherein he had been formerly touched both by the French and Spaniards themselves upon severall motions made First between Charles the Fifth and afterwards between the Dauphine and the Lady Mary afterwards Queen Hereat the Cardinall winked all the while till the infallibility of the Chair at Rome came upon the Stage then bestirring his wits he lodged the Case upon appeale thither as he hoped beyond all further appeale and so held the King there fast till himself might accomplish his own ends But the wheele once set a running would not stay the King espies the Cardinall in his way and bears him down then finding the fallacy of the infallible Chair he hearkens after other Doctors followes their light and being loath to hear what he expected from Rome he stopped the way to all Importation of such Merchandize as might be any wayes prejudiciall to the Prerogative Royall with the penalty of losse of Land or Liberty and Fine the two later being formerly warranted
by Law The first served as a scare for though it were but by Proclamation men might justly fear that he that was so stout against the Pope would not stick to scourge his owne Subjects out of his way in the time of his heat The King thus entered the Lists both against Pope and Cardinall now under Praemuniri whereof he died meets the English Clergy thus loosing their top-gallant standing up in the reare against him and talking at large Neverthelesse the King stops not his carreere puts them to the rout for maintaining the power Legatine They soon submit crave pardon give a summe of money and perfume their Sacrifice with that sweet Incense of Supreame Head of the Church of England This was done not by way of Donation for the Convocation had no such power but by way of acknowledgement in flat opposition to the Jurisdiction of the Pope It became the common subject of discourse amongst all sorts but of wonderment to the Pope Yet for fear of worse he speaks faire for he was not in Posture to contest but all would do no good the Queen had appealed to Rome the Pope by Woolsies advice makes delayes The Parliament espying the advantage at once tooke all appeales to Rome away and established all sentences made or to be made within this Land notwithstanding any Act from Rome and enjoyned the English Clergy to administer the severall acts of publique worship notwithstanding any inhibition or excommunication from any forrain pretended Power The grounds upon the preamble of the Law will appeare to be two First that the King of England is supream head in rendring Justice within the Nation in all causes therein arising which is more then the recognisance of the Clergy two yeares before this Act did hold forth yet this acknowledgment is not absolute but in opposition to Forraine pretentions Secondly that the Clergy in England having Power may in matters spirituall determine all doubts without forrain help and administer such duties as to their place do belong not hereby determining that the Church-men ever had such Power by Law nor that they ought originally to have such Power They never had it for no sooner were they disjoyned from the Laity in these affaires but immediately they were under the Pope and received their Power from him And De jure they cannot challenge such power but by a positive Law such as this Law of Henry the eighth which also giveth but a restrictive and limited power Viz In matters testamentary of divorce matrimony tithes oblations and obventions So as if they will challenge such power they must thanke the Parliament for it and use the same accordingly as persons deputed therunto and not in their owne right or right of their places In all this the Kings supremacy is but obscurely asserted and rather by implication shewing what in reason may be holden then by declaration of what was making way thereby First into the opinions of men before they were enjoyned to determine their actions but within two yeares ensuing or thereabout the Law is made positive The King shall be taken and accepted the onely supreame head on earth of the Church of England and have power to visite correct represse redresse reforme restraine order and amend all such errours heresies abuses offenses contempts and enormities as by any manner of spirituall authority or jurisdiction ought or may lawfully be reformed Which in the preamble is saide to be made to confirm what the Clergy in their Convocation formerly had recognized The corps of his Act is to secure the Kings Title the Kings Power and the Kings Profit As touching the Kings Title it is sayde that in right it did formerly belong to him which is to be granted by all so far as the Power is rightly understood But as touching the Kings Profit it cannot be saide that the whole lump thereof did belong to the King because much thereof was not so ancient but De novo raised by the Popes extortion and therefore the true and reall Profits are by particular Acts of Parliament ensuing in speciall words devolved upon him The nature of this power is layd downe in this Statute under a three fold expression First it is a visitatory or a reforming Power which is executed by inquiry of offences against Lawes established and by executing such Lawes Secondly it is an ordinary jurisdiction for it is such as by any Spirituall authority maybe acted against irregularities and thus the Title of supreame Ordinary is confirmed Thirdly it is such a Power as must be regulatd by Law and in such manner as by any spirituall Authority may lawfully be reformed It is not therefore any absolute arbitrary Power for that belongs onely to the supreame Head in Heaven Nor is it any legislative Power for so the Law should be the birth of this Power and his Power could not then be regulated by the Law nor could ever Ordinary execute such a Power nor did Henry the eighth ever make claime to any such Power though he loved to be much trusted Lastly this Power was such a Power as was gained formerly from the King by forraine Usurpation which must be intended De rebus licitis and once in possession of the Crown or in right thereto belonging according to the Law for the King hath no Power thereby to confer Church-livings by Provisorship or to carry the Keyes and turn the infallible Chaire into an infallible Throne In breife this Power was such as the King hath in the Common-wealth neither legislative nor absolute in the executive but in order to the Unity and Peace of the Kingdome This was the right of the Crowne which was ever claimed but not enjoyed further then the English Scepter was able to match the Romish Keyes And now the same being restored by Act of Parliament is also confirmed by an Oath enjoyned to be taken by the People binding them to acknowledge the King under God supreame head on earth of the Church of England Ireland and the Kings Dominions in opposition to all Forraine jurisdiction And lastly by a Law which bound all the People to maintaine the Kings Title of Defender of the faith and of the Church of England and Ireland in earth the supream head under the perill of Treason in every one that shall attempt to deprive the Crowne of that title We must descend to particulars for by this it will appeare that these generall Lawes concerning the Kings refined title contained little more then matters of Notion otherwise then a generall barr to the Popes future interests And therefore the Wisdome of the State as if nothing had been already done did by degrees parcell out by severall Acts of Parliament the particular interests of the Popes usurped Authority in such manner as to them seemed best And First concerning the Legislative Power in Church government It cannot be denied but the Pope De facto had the Power of a negative vote in all
rest upon this Law for within three yeares following another Law is made to confirme what was then already done by the King and a larger power granted to the King to change and alter as to his Wisdome shall seeme convenient Thus the Kings injunctions already set forth were established all opposall to them inhibited and the King hath a power of Lawing and Unlawing in Christs Kingdome and to stab an Act of Parliament in matters of highest concernment And the reason is the King will have it so and who dares gain-say it as Cranmer said the King loves his Queene well but his own opinion better for new things meeting with new love if it be once interrupted in the first heat turnes into a displeasure as hot as the first love nor had either party great cause to boast in their gainings for none of them all had any security but such as kept close to a good conscience All this though much more then any of his Predecessors ever attained was neverthelesse not enough till his Title was as compleat The Pope had fashioned him one now above twenty yeares old for his service done against Luther and others of that way and sent it to him as a Trophee of the victory this was Defender of the faith which the King then took kindly but laid it up till he thought he had deserved it better and therefore now he presents it to the Parliament who by a Statute annexed it to the Crown of England for ever now made triple by the Royallizing of that of Ireland amongst the rest A third Prerogative concerned the Kings Power in temporall matters and now must England look to it selfe for never had English King the like advantage over his people as this man had His Title out-faced all question Left rich by his Father trained up in the highest way of Prerogative absolute Lord of the English Clergy and of their Interest in the People of a vast spirit able to match both the Emperour and French abroad and yet more busie at home then all his Predecessors A King that feared nothing but the falling of the Heavens the People contrarily weary of civill Wars enamored with the first tastes of Peace and Pleasure whiles as yet it was but in the blushing child-hood overawed by a strange Giant a King with a Pope in his belly having the temporall Sword in his Hand the spirituall Sword at his command Of a mercilesse savage nature but a word and a blow without regard even of his bosome companions what can then the naked relation of a Subject do with such an one if providence steps not in and stops not the Lions mouth all wil be soon swallowed up into the hungry maw of Prerogative To set all on work comes Steven Gardiner from his Embassage to the Emperor sad apprehensions are scattered that the motions abroad are exceeding violent and sudden that the Emperor and French King are fast in nothing but in change according to occasion that like the Eagle they make many points before they stoop to the prey That if the motions at home do wait upon debates of Parliament things must needs come short in execution and the affaires of this Nation extreamly suffer A dangerous thing it is that the King should be at disadvantage either with the Emperour or French King for want of power in these cases of suddaine exegencies and for some small time during the juncture of these importent affaires that seeing likewise at home the point concerning Religion is comming to the Test the mindes of men are at a gaze their affections and passions are on their tiptoes It s reason the King should steare with a shorter Rudder that this care might meete with every turne of providence which otherwise might suddainly blow up the Peace and good Government of this Nation These and the like represented a faire face to that which followed and made way for the King without shame to ask what no King before him suffered ever to enter into conceit I meane a Legislative power to this effect That Proclamations made by the greater part of the King for the time being and his Councell whose names hereafter follow with such penalties as by them shall be thought meet shall be of equall force to an Act of Parliament provided it shall not extend to forfeiture of Estates or Priviledges nor to losse of Life but in cases particularly mentioned in the Law provided no Proclamation shall crosse any Statute or lawfull or laudable Custome of this Realme All which at length comes to be demanded by a formall Bill with as ill favored a preface as the matter it self which was much worse ere it was well licked in the House of Commons and when all was done proved a Bare still Whatever it was it passed in manner above said neither much to the desire of the Commons that so much was given nor to the good liking of the King that there was no more For in stead of a Legislative power which he grasped at for himself he received it in common with his Councell and so becomes ingaged neither to alter nor destroy that Brother-hood if he intended to reape any fruit of this Law leaving the point in doubt whither his gaine or losse was the greater For this Law thus made for this King these Councellors and these times and occasions can be no president to the future unlesse to informe Kings that the Parliament hath a power to give more Authority and prerogative to Kings then they or the Crowne have by common right and to give it with such limitations and qualifications as seemeth good to them And secondly that even Henry the eighth acknowledged that the Legislative power was not in the Crown nor was the Crowne capable thereof otherwise then it was conferred by the Parliament Onely Steven Gardiner might glory in this atcheivement having for the present obtained much of his ends by perswading the King that forrain Princes estranged from him not so much for his departure from the Pope as for some apprehensions they had of his departure from that way of Religion and Worship which they apprehend every Christian ought to maintaine And therefore if he meaned to gaine better correspondency amongst these Princes he must ingage more resolvedly to the fundamentalls of the Worship though he shook of some sleighter ceremonies with the Romish supremacy for he knew that they were willing enough with the later though the other could not go downe with them thus did forraine correspondency float above when as the Church as then it stood was underneath and gave the tincture to every wave And it was holden more safe by the Romish party to trust the King thus attempered with the legislative power in the Church matters then the rough Parliament whose Course steered quite wide from the Roman shore as if they never meant to look that way any more though Cranmer and the cheif Officers of State and of the Houshold
were by the Law Judges of the matter in fact as well as the King yet in the conclusion the King only was of the Quorum all this yet further appears in the penalty for by a Provisor it is moderated as to all forfeitures of Life Limb or Estate and in the conclusion extended only to Fine and Imprisonment unlesse in some cases mentioned and excepting offences against Proclamations made by the King or his Successors concerning Crimes of Heresie For it is the first clause of any positive Law that ever intimated any power in the King of such Cognisance and punishment of Heresie too weake a principle it is to settle a prerogative in the King and his Successors as supream head of the Church thus by a side winde to carry the keyes of Life and Death at their girdle and yet a better ground cannot I find for the martyrdome of diverse brave Christians in those times then this touch of a Law glancing by All which passing Sub silentio and the Parliament taking no notice thereof made way for the Statute 32. H. 8. ca. 26. Formerly mentioned to come more boldly upon the Stage This was one wound to the legislative power of the Parliament thus to divide the same Another ensues that in its consequence was no lesse fatall to that power which remained and it was wrought by some Engine that well saw that the disease then so called grew to be epidemicall amongst the more considerable party in the Kingdome that the Lady Jane Seymor now Queene was no freind to the Romanists that she was now with child which if a Sonn as it proved to be was like to be Successor in the Throne and be of his Mothers Religion and so undoe all as in the issue all came so to passe To prevent this neverthelesse they fancy a new conceit that Lawes made by English Kings in their minority are lesse considerately done then being made in riper yeares And so by that one opinion countenanced a worse which was that the Legislative power depended more upon the judgment of the King then the debates and results of the Parliament a notion that would down exceeding well with Kings especially with such an al-sufficient Prince as Henry the eight conceived himself to be upon this ground a Law is made to enable such of the Kings Successors by him appointed as shall be under the age of twenty and foure yeares when Lawes by him are made to adnull the same by Letters Patents after such Prince shall attaine the said age of twenty foure yeares Thus the Armes of the Parliament are bound from settling any Reformation let them intend it never so much a Muse is left open for the Romish Religion still to get in when the Season proves more faire The Parliament was now in its minority and gives occasion to the Reader to bewaile the infirmities of the excellency of England A fourth advance of Prerogative concerned the executive Power in the Government of the Church This had formerly much rested in the Prelacy and that upon the cheife Praelatissimo at Rome now there is found in England a Prelater then he the Pope was already heheaded and his head set upon the Kings shoulders To him it is given to nominate all Bishops and Arch-Bishops within his dominions by long desire and that the party once elected shall sweare fealty and then shall be consecrated by Commission and invested but if upon the long desire no election be certified within twelve dayes the King shal by Commission cause his own Clerke to be consecrated and invested The occasion that first brought in this President was the accesse of Cranmer to the See at Canterbury for though the head-ship had beene already by the space of two yeares translated from Rome to England and yet the course of Episcopizing continued the same as formerly it had beene I mean as touching the point of Election For though in their originall Bishops were meerely Donatives from the Crowne being invested by delivery of the Ring and pastoral staffe and untill King Johns time the Canonicall way of Election was disallowed yet King John by his Charter De communi consensu Baronum granted that they should be eligible which also was confirmed by diverse publique Acts of Parliament in after times and now by this Law last recited and with this way the King was contented for the space of six yeares for the Reformation intended by the King was not done at once but by degrees and therefore though this course of long desire was brought into use yet the Parliament being of six yeares continuance a necessary thing in times of so great change of policy began this course of Election by giving the King Power to nominate and allowing of the Pope Power to grant to such his Bulls or Pall at his owne will otherwise they should be consecrated by Commission without his consent this at the first the Popes concurrence was not excluded though his Negative was In this posture of Affaires comes Cranmer to be consecrated Arch-Bishop And being nominated therunto by the King the wily Pope knowing the Kings aime meaned not to withstand least he should loose all but granted the Pall as readily as it was desired so as Cranmer is thus far Arch-Bishop of Canterbury without all exception yet he must go one step further and take the old oath to the Pope which the King allowed him to do Pro more and which he did Renitente conscientia say some and with a salvo say others and all affirme it was done Perfunctoriè like some worne Ceremony or civill Complement Neverthelesse it was not so soone turned over the Arch-Bishop loved not the Office the King loved no partnorship in this matter and it was evident to all that no man could serve these two Masters any longer an agreement is soon concluded in Parliament to exclude the Popes Power quite out of this game and all is left to be done by the King and his Commissioners by the Law formerly propounded In all this the Pope is the looser the English Clergy the savers for the Pall cost Cranmer nine hundred markes And the Crown is the great gainer for hereby the King got the men sure to him not onely by their own acknowledgment and submission but also by a Statute Law And lastly by Oath which to make sure was treble twined once upon their first submmission in the Kings twenty second yeare when they had beene under Premuniri Secondly soone after the decease of Queene Katherine Dowager in the twenty sixth yeare which Oath was more compleat then the former containing First A Renunciation of all fealty to the Pope or any sorraine Power Secondly an obligation to adheare to the cause of the King and his Successors Thirdly a disavowing of the Pope otherwise then as another Bishop or fellow Brother Fourthly an ingagement to observe all Lawes already established against the Popes Power Fifthly A disavowing of all appeales to
not so fill he would have Souldiers but they must be his Patentees not for any skill or valour in them above others but he hoped they would compound with him for Licenses to absent rather then to adventure themselves and so he might get the more Money that could finde pay for Souldiers more and better then they were or would be for otherwise the Patentees might by the Statute have beene allowed to serve the King by their Deputies which would have done the King better Service in the Warrs then themselves could have done and for this very purpose much use was made of these Statutes as well by Henry the seventh as Henry the eighth both for Licenses and Pardons for composition in such Cases as their Records do plentifully shew Secondly let the Claime of Kings be what they will yet the matter in fact shew plainly that they never had possession of what they claimed Both these Kings pretended a Forraine-Warr each of them once against one and the same Nation and to that end advanced unto one place with their Armies although the one went in good earnest the other in jest Their Armies were not gathered by Prerogative but of Volunteirs this not only the Records but also the Statutes do clearly set forth Some souldiers served under Captaines of their own choise and therefore the Law inflicteth a penalty upon such Captains as bring not their number compleat according to their undertaking other Souldiers are levied by Commission by way of imprest which in those dayes were Volunteirs also and expecting favour from the publique the rather because they devoted themselves thereto without relation to any private Captaine willingly therefore received imprest Money And of this course the State saw a necessity both for the better choise of men and for the more publique owning of the worke For such as had been usually levied by the Captaines were fit only to fill up room and make up the number and yet many times there was a failing in that also and this manner of raising the Infantry was continued by Henry the eighth as by the like Law in his time may appeare As touching the levying of the Horse although diverse Statutes were made for the maintenance of the breed of Horses and Persons of all degrees of ability were assessed at the finding and maintaining of a certaine number of Horses yet do none of them tell us that they shall finde and maintaine them armed compleatly for the Warrs nor shall send them forth upon their own charge and therefore I suppose they were raised as formerly these two Kings had the happinesse to be admired the one for his shrewd cunning Head the other for a resolute and couragious Heart And it was no hard matter to finde men that loved to ingratiate themselves and indeavour to catch their favour though with the adventure of their Lives especially if they looked after Honour and Glory which as a Crowne they saw pitched at the Goale of their Actions Thirdly Concerning the pay of the Souldier the Law was the same as formerly the same was ascertained by the Statute-Law the payment was to be made by the Captaine under perill of imprisonment and forfeiture of Goods and Chattels and the true number of his Souldiers to be maintained and listed under the like perill Fourthly As touching the Souldiers service the same course also was taken as before if they dissert their Colours they shall be punished as Felons and the manner of tryall to be at the Common Law Fifthly For Fortifications the power properly belongeth to the supream Authority to give order therein For the people may not fortifie themselves otherwise then in their particular Houses which are reputed every mans Castle because publique Forts are enemies to the publique peace unlesse in case of publique danger concerning which private persons can make no determination And furthermore no Fortifications can be made and maintained without abridgement of the Common liberty of the people either by impairing their Freehold or exacting their labour or other Contribution none of which ought to be done but by publique Law and therefore when the Inhabitants of the County of Cornwall were to make defence against Invasion and Piracy from the Coast of Little Brittaine in regard they were a long slender County and upon sudden surprisals people could not so readily flock together for their joint defence they obtained an act of Parliament to give them power to fortifie the Sea coasts according to the direction of the Sheriff and Justices of the Peace Lastly Warrs once begun must be maintained at the charge of the undertakers If they be the Kings own Wars he must maintaine them out of his owne Treasury till the benefit of them doe prove to the common good and in such cases the charges have been sometimes provided before the work by Act of Parliament and sometimes after Henry the Seventh and Henry the eighth both of them at their severall times went to Boloigne with their Armies Henry the seventh with an intent to gaine profit to himselfe by an advantagious peace and had his ends therein and was ashamed to aske ayde of the people towards the charges of that Warr. Henry the Eighth went upon his owne charge also with his Army trusting to the Parliament for consideration to be had of his imployment wherein his expectation did not faile and in his absence made Queen Katharine Generall of all the Forces of England in his absence and gave her power with other five Noble Personages to take up Money upon Loane as occasion should require and to give security for the same for the maintaining and raising of Forces if need should require as is more particularly set forth in the Patent Rolls of these times Neverthelesse the Warr at Sea Infra quatuor maria was ever reputed Defensive as to the Nation and under the publique charge because no Warr could be there but an Enemy must be at hand and so the Nation in eminent danger and therefore the maintenance of the Navy Roiall in such cases was from the publique Treasury To conclude therefore If the Parliament and Common Law in all these cases of Levies of men for Warr payment of Souldiers and their deportment in cases of Fortifications and of maintenance of Warrs at Sea and the deportment of such as are imployed therein I say if they give the Law and carry the supream directory then certainely the Law rules in that which seemes most Lawlesse and though Kings may be cheife Commanders yet they are not the cheife Rulers CHAP. XXXIII Of the Peace PEace and Warr originally depend upon the same power because they relate each to other as the end to the meanes and receive motion from one and the same fountaine of Law that ruleth both in Peace and Warr It is very true that severall Ages hitherto have been troubled with arbitrary exhalations and these very times whereof we now treat are not altogether cleare
Bed and missed what she expected and lost what She had and thereby learned to call into question the possibility for her to gaine the private contentments of a married Life and therewith maintain her publique Interest in the Kingdome and therefore resolved rather to sit alone then to sit below and to refuse the help of any Consort rather then to part with any one jot of her Interest in the people So She remained above the People and her self and thereby enjoyed both But Custom in Government growing together with infirmities of age made her Regency taste somwhat stale and spiritless and gave occasion to mens Mindes to wander after the next Successor before She had been nine years Queen this scrutiny was once begun but it received a faire answer of delay because it was then taken as don in love now the apprehensions hereof according to her age are more sad She thinks them weary of her and therupon She is weary of her self and them She supposes She can no longer give them content the Lords have the power they will not be ruled and such like dark thoughts working upon an aged body weakned with other infirmities wasted her spirits and hastned a conclusion unto a weary life her self not unwilling herewith and her Courtiers lesse who expecting more from Successors then they find lived to disdesire and unwish their former choise by late repentance thus making the ending of her dayes the renewing of her Reign in the hearts of all that observed her alive or consider her now dead in the written Registers of her Fame CHAP. XXXV Of the Supreme Power during these Times THe Supreme Power but ere while monstrous in the two former Kings times for Greatness now suffers as great a diminution over-shadowed by infancy woman-hood and Coverture and gives the People breath to beware for the future Ne potentes si nocere velint non possent nevertheless the loss was only of the Hydropical humor and the Government came forth more clearly like it self In the point of Infancy Edward the sixth bears it forth being the seventh President of Infancy ruling under Protectorship since the Norman times yet beyond all the rest in managing his Supremacy in Church matters which none of them all did ever ingage upon before him English Prerogative and Supremacy are Notions of a sublime Nature and commonly looked upon as the holy Mount at the Delivery of the Law at a great distance for fear of death or undoing and yet it is such a thing as a childe may handle without hurt done either to the Estates Persons or Consciences of any Man because it s presupposed he does nothing but what the Law first dictates by his Councel unto him There is then no infancy in the Crown though in the Person because the wisedom of the Crown is not intended to rest in one Person but in the Councels of many who are equally wise whether the Person of the King be old or young And that Statute made by Henry the eighth by which this King had power by his Letters Patents after the age of 24 years to adnull any Act of Parliament made by him before that time was not grounded either upon Principles of Law or general Reason of State but upon some particular Circumstances of the state of the Affairs as then they stood and therefore is this power limited onely to such Heirs or Assignees of Henry the eighth to whom the Crown shall come by his appointment Nor did it ever thrive to that desired end whereto it was intended for upon the entry of Edward the sixth the Councels changed and the Parliament took this Statute away as scandalous to the fundamental Government of the Nation and in stead of the power of Adnulling allowed of the power of Repealing yet so as untill such time of Repeal the said Statutes and all Acts thereupon done shall for ever be deemed warrantable and good This was too much but that the Times were yet in Equi lubrio and men were loath to part with their Interests which they did hang upon that Power of Reserve unto the Kings Letters Patents yet in that the Power is limited not onely in regard of the manner and time but of the persons and also of the Statutes that are to be repealed it is sufficient to vindicate the nature of this Prerogative if such it were to be no ways inherent but acquired by Concession But as touching the Legislative Power they would not trust it in the least manner to any other King The Parliament had crowned Proclamations at the instance of Henry the eighth with that royal Title of Laws in manner as formerly hath been noted Now all Interests both of the Popish and of the Reformed parties of this Nation are against it the former because they saw the Kings present way to be against them and both it and the later because the thing it self was abominable unto the Liberties of the People and therefore it is soon taken away by Repeal and the Legislative Power is wholly re-assumed to themselves as formerly for though in matters Ecclesiastical the Power of the Crown might seem to be more pre-eminent in regard of the Supremacy and some particular Powers in making Bishops by Election without Conge destire yet did the Parliament neither yeild or acknowledge any Legislative Power to be in the Crown thereby but proceeded on in that way of the thirty and two Commissioners formerly agreed upon by them in the time of the Kings father Thus the King though an Infant was a Gainer and the Crown nevertheless still the same Secondly that Crown that may be worn by an Infant may much rather be worn by a Woman whose natural Indowments do far exceed the other and are not inferior unto the most of men of this we have two Examples in these Times Queen Mary and Queen Elizabeth of severall professions in matters of Religion and liable to Exceptions in regard of their Sex by men of the counter-profession on both sides yet both upheld the honor of the Crown though therein the one more especially being neither ingaged in the Roman Cause nor in the Estate of Marriage as the other was This was Queen Elizabeth in person a Woman but in minde indowed with all the perfections of a man she could not indure to abate one hairs breadth of her State and yet upon the sole regard of her Sex she submitted her Title of Supremacy to a more moderate name of Supreme Governour whereas her father would be called Supreme Head as if it were not onely hazardous but hideous for a Woman to be Supreme Head of the Church and for this cause would she not revive that Statute made by her Father and continued by her Brother Edward the Sixth and repealed by her Sister Queen Mary nevertheless such as she was she had all such Jurisdictions Priviledges Superiorities and Pre-eminencies Spiritual or Ecclesiastical as by any Ecclesiastical
the People However unequall it may seem yet both that and other advantages were gained by the House of Lords after the seperation was once made as many of the ancient Statutes by them only made do sufficiently hold forth which although in the generall do concern matters of Judicature wherin the Lords originally had the greatest share yet other things also escaped the Commons Vote which in after ages they recovered into their consideration again And the condition of the People in those times did principally conduce hereunto For untill the Norman times were somwhat settled the former ages had ever been uncertain in the changes between War and Peace which maintained the distance between the Lords and their Tenants and the Authority of the one over the other savouring of the more absolute command in War And after that the Sword was turned into the plough-share the distance is established by compact of Tenure by Service under perill of default although in a different degree for the Service of a Knight as more eminent in War so in Peace it raised the minde to regard of publique Peace but the Service of the plough supporting all is underneath all yet still under the common Condition of free men equally as the Knight Peace now had scarcely exceeded its minority before it brought forth the unhappy birth of Ambition Kings would be more absolute and Lords more Lordly the Commons left far behinde seldom come into mention amongst the publique Acts of State and as uselesse set aside this was the lowest ebb that ever the Commonage of England indured which continued till Ambition brought on contention amongst the great men and thence the Barons Warrs wherein the Commons parting asunder some holding for the King who promised them Liberty from their Lords others siding with the Lords who promisied them Liberty from the King they became so minded of their Liberties that in the conclusion they come off upon better advantage for their Liberties then either King or Lords who all were Loosers before their reckoning was fully made These Wars had by experience made the King sensible of the smart of the Lords great Interest with the People and pointed him to the pin upon which the same did hang to take which away a Designe is contrived to advance the value of the Commoners and to levell the Peerage that they both may draw in one equall yoke the Chariot of Prerogative The power of the Commons in publique Councells was of some efficacy but not much Honour for their meetings were tumultuary time brought forth a cure hereof the flowers of the People are by Election sent to the Representative and so the Lords are matched if not over-matched the People lesse admiring the Lords and more regarding themselves This was but a dazle an eclips ensues for Kings having duely eyed the Nature of Tenures between the Lords and Commons look upon it as an out-work or block-house in their way of approach Their next endeavour is therefore to gain the Knighthood of England within the compass of their own Fee and so by priority to have their Service as often as need should require by a trick in Law as well for their own safety in time of War as for their benefit in time of Peace This was a work of a continuing Nature and commended to Successors to accomplish by degrees that the whole Knighthood of England is become no more the Lords till Kings be first served and thus the power of the People is wholly devolved into the Kings Command and the Lords must now stand alone having no other foundation then the affections of the People gained by beneficense of Neighbourhood and ordinary society which commonly ingratiates the inferiour rank of men to those of higher degree especially such of them as affect to be popular Henry the seventh found out this sore and taught his Successors the way to avoid that occasion of jealousy by calling up such considerable men to attend the Court without other wage but fruitlesse hopes or under colour of Honour to be had by Kings from the presence of such great men in their great Traines or of other Service of speciall note to be done onely by men of so high accomplishment And by this meanes Lordship once bringing therewith both Authority and Power unto Kings before Kings grew jealous of their greatness in these later dayes is become a meer jelly and neither able to serve the Interest of Kings if the People should bestir themselves nor their own any longer henceforth the Commons of England are no mean Persons and their representative of such concernment as if Kings will have them to observe him he must serve them with their Liberties and Lawes and every one the publique good of the People No mans work is beneath no mans above it the best Honour of the Kings work is to be Nobilis servitus as Antigonus said to his Son or in plain English supreame Service above all and to the whole I now conclude as I found this Nation a Common-Wealth so I leave it and so may it be for ever and so will it be if we may attain the happinesse of our Fore-Fathers the ancient Saxons Quilibet contentus sorte propria A Table of the Principall Matters conteined in this Book A A Betting of Felony made Felony 299 Administration granted to the next of the Kindred 51 Admirals power from the Parliament 41. formerly under many brought into one 42. once gained jurisdiction to the high water-mark 44. and his Power regulated by Law ibid. over Sea-men Ports and Ships 44 Allegiance according to Law 18. vide Supremacy the nature thereof in general 79. its not natural 79 89. not absolute or indefinite 82. not to the King in his natural capacity 86. it obligeth not the People to serve in forrain War 10â— it is due to the person of the King for the time being 246 279. what it is in time of War and relation thereunto 247. Henry the seventh and Henry the eighth indeavoured to advance it in relation to the Crown but effected it not 204. Appeals in cases Ecclesiastical restrained from Rome and given in the Kings case to the Convocation and in the cases of the People the Archbishop afterwards to the Delegates and were never setled in the Crown 227 233. vide Archbishop Archbishop hath the lawfull power of the Pope in Appeals and Dispensations Licenses and Faculties 233. the Archbishop of York looseth his jurisdiction over the Scottish Bishops 193 Arrays Commission of Array 178 vide War Assent of the King to Acts of Parliament serveth onely to the execution of the Law and not to the making thereof 21 Association of the People for the common safety before the Statute inabling the same 298 B. BAstardy not to be determined by the Ordinary before Summons to the Pretendors of Title to be heard 156 Bench the Kings Bench at Westminster abated in power by the Commissions of Oyer and Terminer and Gaol delivery
in this Nation one way by the Regulars the other by the Seculars the Parliament by the dissolutions of Monastries c. consumed one to ashes and by breaking the fealty between the other and the Pope parted the other root and the stock asunder thence ensued the downfal of this tal Cedar in this Nation and Prelacy now left alone must fawn elsewhere or lye along a posture wherein that rank of men can never thrive Up againe they peepe and espying a King that loved to towre aloft they suddainely catch hold promising their help to maintaine his flight and so are carried up and like a Cloud borne between Heaven and Earth making the Commons beholding to them for the Kings Sunn-shine and the King for their interests in the People and for his superlative advancement above them all Now though the English Prelates may thinke their Orbe above the winds yet were they herein deceived The Parliament had power in their Election before the Pope usurped that to himself now that they are discharged Kings are possessed of them by long desire but it is not by way of restitution for Kings were never absolutely possessed of any such power but as Committees of Parliament and by delegation and concession from them and therefore must render an account to them and abide their judgment when they are thereto called Thirdly the Parliament had the disposing and ordering of all the Church Revenues as the Lawes concerning Monastries Sanctuaries Mortuaries First Fruits Tenths Annates and such like sufficiently manifesteth Fourthly the Parliament had the power of granting Licenses Dispensations and Faculties setting a rule thereunto as in case of Nonresidency and delegating the power to Committees whereof see more in the Chapter following concerning ordinary jurisdiction Fifthly the Parliament reserved the Cognisance of all appeales for finall sentence unto themselves and disposed of all the steps thereunto as unto them seemed most convenient For though it be true in some cases the Arch-Bishop of Canterbury had the definitive sentence and in other Cases the Convocation yet was this but by a temporary Law and this also granted to them by the Parliament which took it away from the Pope and never interested the Crowne therein but made the Arch-Bishop and the Convocation their immediate Delegates so long as they saw good Afterwards when they had done their work Viz. The determining the appeal and Divorce of Queen Katharine and some other matters the same hand that gave that power tooke it away and gave it not to the King or Crowne but to Delegates from the Parliament from time to time to be nominated by the King and may as wel alter the same settle the power elsewhere when they please And therefore after the appeale of the Dowager thus determined and the sentence definitive thus settled upon Delegates The Parliament neverthelesse determined the other causes of the Marriages of the Lady Anne Bullen and the Lady Anne of Cleve the jurisdiction of the Crown never intermedling therein so as upon the whole it must be acknowledged that however the King was supreame head of causes Ecclesiasticall yet had not the definitive sentence in Appeales nor absolute Supremacy but that the same was left to the Parliament Sixthly and Lastly what attempts the Parliament had met with partly from the designes of some great men that sought their own ends and partly from the endeavors of these Kings that sought their own heighth and greatnesse above their Peoples good hath beene already related and the utmost issue hath beene truly stated Viz. That the gaines have come to the Kings Persons and not to their Crowne and that therein they have put their Seale to the Law and made their submission to the Parliament as touching both their Persons and Power Add hereunto that however Henry the eighth aimed much at himself in his ends in two other maine Interests that most nighly concerned him yet the cheife gaine came to the Parliament The one concerned his owne Wife which-however so nighly related to him as next to his owne Person and under the determination of the immediate Law of God yet was so cast upon their sentence as if he durst adventure his owne Soule at their direction The other concerned the Crowne to which he ought relation above his owne person which he laid downe at the feet of the Parliament seeking to their power to fulfill his owne pleasure The ball is tossed up and downe somtimes amongst the issue betweene the King and the Lady Ann Bullen another while amongst the issue betweene him and the Lady Jane Seymor or such as the King should nominate by Letters Patents or last Will. After that to the Ladyes Mary and Elizabeth to performe conditions declared by the Kings Letters Patents or his last Will. The King then is trusted but he hath his trust from the Parliament the Crowne is intailed as it hath beene ever since Richard the seconds time but it is done by the Parliament The reversion is in the the Clouds but the right of inheritance much more The Conclusion of all is this the Parliament by serving these Kings turnes turned their turnes into their owne CHAP. XXIX Of the power of the Clergy in their Convocation THe Convocation of the Clergy like some froward Children loves not new dressing though it be a gainer thereby Before the Pope and Henry the Eighth were falne asunder their masters their minds their work all was double their Councels uncertain their Conclusions slow in Production and sleight in their Fruit and Consequence sometimes displeasing to the Pope sometimes to the King generally to themselves who naturally lingering after their own interests were compelled to feed that body that breathed in them rather then that wherein themselves breathed and so like hunted Squirrells from bough to bough were ever well tired yet hardly escaped with their owne skins in the conclusion Now Henry the Eighth tenders them better conditions both for ease and Honour and more suitable to their own Interest yet they are loath to accept because they had been slaves by prescription Formerly they were troubled with multiplicity of Summons somtimes from the King sometimes from the Pope sometimes from the Metropolitan and alwayes overdripped by a Forrain Power that they could propound nothing for the good of the Souls of themselves or others but must be blasted from without their labours lost their undertakings vain and themselves in the conclusion sit downe hoaked in their Consciences and desires Now they are at no mans call but the Kings and that by Writ both Provinciall and Legate è Latere must meddle no more Formerly it s taken for granted that Kings have no Vote in matters Ecclesiasticall though themselves be interested therein and therefore if he will accept of a Disme he must accept it Statu quo it is granted nor can he interpose his Dissent nor do they much care for his Consent But whether the King be
Parliament And thus is the Arch-Bishop made Heire to the Pope in the greatest priviledge of a Pope to be chief Judge on Earth in matters Ecclesiasticall within his own Province A trick that in my opinion much darkened the Glory of the Kings Title of Supream Head which the Church-men had formerly offered up to the Honour of the Crown of this Realm For be it so that the Title is in the Crown by Remitter yet cannot the same carry along with it any more then a lawfull power and whether all the Popes former power allowed him by the Canon or gained by Usurpation and Custome shall be said a lawfull power or whether the power of Review by Appeal shall be derived to the Crown under the generall Notion of Supremacy upon the Clergies submission is to me a doubt albeit I must give Honour to the Judgement in Print in regard that after the submission of the Clergy the matter concerning the Divorce of the Lady Katharine Dowager came before the Pope by Appeal and there depended the King himself also waiting upon that See for Justice and a definitive Sentence in that matter and thereby acknowledged the Popes power De facto Notwithstanding the Clergies foregoing submission and being occasioned by the delay at Rome he procured this Statute concerning Appeals to be made whereby at one breath he took the Appeals to Rome away and settled them as formerly hath been mentioned all which was done two years before the Title of Supremacy was annexed or declared for to be to the Crown by Act of Parliament And therfore as to me it appears the power of supream Cognisance of appeals was not in actuall possession of the Crown by the Clergies submission so was it actually vested in the Arch-Bishop before the Title of Supremacy was confirmed by Act of Parliament and so it never was in the Crowne actually possessed much lesse had the Crown the same by Remitter For the Kings turn once served by the Convocation and the matter of the Divorce of Queen Katharine settled the King perceiving the slow Progresse of the Convocation the Members of the same not being yet sufficiently tuned to the present Affairs And moderate Arch-Bishop Cranmer likewise foreseeing that the Odium of these Definitive Sentences would be too great for him to bear another Appeal is provided more for the Honour of the Crown to be from the Arch-Bishop to Delegats to be appointed by the King his Heirs and Successors so as though their Nomination be the Kings yet their power is deduced immediately from the Parliament which took the same from the Arch-Bishop and conferred it upon them A second advantage not inferiour hereto which the Arch-Bishop gained out of the ruines of the Popedome was the power of Licenses and Dispensations or Faculties In the Pope it was a transcendent power without any rule but what was tuned to him by the Bird in his own breast and was the ground of much license or rather licentiousnesse in the World But in the Arch-Bishop they seem to be regulated To be First in Causes not repugnant to the Law of God Secondly such as are necessary for the Honour and Security of the King Thirdly such as were formerly wont to be remedied at the See of Rome yet in truth left as much scope for the Conscience of the Arch-Bishop to walk in as the Pope had in former times a large Teather and greater priviledge then ever the Crown had by which although the King himself be like Saul higher by the head then all the People yet in many things Samuel is higher then he The moving cause hereof is not difficult to find out the King had but lately married the Lady Anne Bullen a thing that many startled at and the King himself not extreamly resolved in he would therfore have his way like that of the Zodiack broad enough for Planetary motion of any one that could not contain himself within the Eccliptick line of the Law and so shipped over the Popes power to the Chair of Canterbury and had made a Pope in stead of an Arch-Bishop but that the man was not made for that purpose What the Ordinary Jurisdiction got or lost wee come in the next place to observe First they had still their Courts and Judiciary power but upon what right may be doubted Their first foundation was laid by the Civill power of a Law in the time of William the first Norman King yet the power of the Pope and Bishop growing up together they came to hold the Power of the Keyes by a Divine right and so continued untill these times of Henry the Eighth wherein they have a Retrospect to the Rock from whence they were first hewen and many seem to change their Tenure and therewith therefore are in right to change the Style of their Courts and Title of summons but the times not being very curious and the worke of Reformation but in fieri the more exact lineaments must be left to time to finish and beautifie A greater blow did light upon the Lawe of these Courts which was left as doubtfull as the Canons all which are now put to the question and to this day never received full resolution but were left to the Parliament to determine them at leisure and in the meane time to the Judges of the common Law to determine the same Lawfull or Unlawfull as occasion should require Neverthelesse the Courts still hold on their course according to their old Lawes and Customes for their forme of proceedings some say by prescription yet more rightly by permission it being a difficult matter to make prescription hold against a Statute Law As touching the matters within their Cognisance the Law settled some and unsettled others First as touching Heresie the Church-men formerly thought scorne the Lay Magistrate should intermeddle but not being able to stop the growth thereof by their Church-Censures prayed aid of the Civill Magistracy so by degrees arose the penalties of Imprisonment and burning which brought the whole matter into Cognisance before the Civill Magistrate because no Free-man might be proceeded against for losse of Life or Liberty but by the Lawes of the Nation and for this cause the Civill Magistrate granted the Writ of Habeas corpus and releived many times the party Imprisoned wrongfully or granted prohibition as they saw cause And therefore it cannot be saide rightly that the sole or supreame Cognisance of this Crime of Heresie belonged to the Clergy before these times Nor did their proceedings upon the Writ of Burning Warrant any such thing partly because till these times the Canon Law was the best ground that these proceedings had and the course therein was not so Uniforme as to permit the Title of a Custome to warrant the same Conviction being sometimes by jury sometimes according to the Canon somtimes before the Ordinary sometimes before the Convocation sometimes before the King sometimes before speciall Delegates as the Histories of the
Martyrs more particularly set forth and no Act of Parliament positive in the point But the time is now come when nighest reformation that the thing is settled more to the prejudice of reformation then all the endeavoures foregoing like to the darknesse of the night that is at the Superlative degree when nighest break of Day A Statute is now made that indeed quite blotted out the very name of the Statute of Henry the fourth De haeretico comburendo but made compleat that Statute of 5 Rich. 2. and the other of 2 Hen. 5. both which were formerly neither good in Law nor effectuall otherwise then by Power and gave more settlement to the Ordinaries proceedings in such Cases For the Delinquent might be convict before the Ordinary by Witnesses or might be indicted at the Common Law and the indictment certified to the Ordinary as Evidence yet did the Parliament carve them out their work and in expresse words declared That opinions against the Authority and Laws of the Bishop of Rome were not Heresie and by the same reason might have done more of that kind but that was enough to tell all the World that the Parliament could define what was not Heresie although they did not then determine what was Heresie And thus the judgment of the Romane Church is called into question in one of their fundamentals and the Clergy left in a Muse concerning the rule upon which they were to proceed against this Crime The Parliament within six yeares after undertakes though somewhat unhappily to determine and define certain points of Controversie which had some relation to the Worship of God and the publique Peace and declared the contrary to these determinations to be Heresie and the punishment to be Death and Forfeiture and the triall to be before Commissioners by Jury or testimony of two Witnesses or by examination in the Ecclesiasticall Court or inquisition in the Leete or Sessions of the Peace Upon the whole matter therefore the Ordinary had a particular Power to determine Heresie but the Parliament determined such Heresies as were punishable with Death and Forfeiture by enumeration in the six Articles This was the Clergies Primmer wherin they imployed their study as making most for their designe and laid aside thoughts of all other Heresies as drie Notions or old fashions laid aside and not worthy the setting forth to common sale Secondly the Lesson concerning Marriage was no lesse difficult for the Clergy to take out They were put by their former Authority derived from abroad and their ancient rule of the Canon Law with the Kings leave they do what they do and where they doubt they take his Commission so did the Arch-Bishop of Durham in the Case betweene John and Jane Fisher in the Kings Case the determining part is put to the Parliaments Conclusion and for a rule in other Cases some persons are enabled to Marry which formerly were not Viz Masters of the Chancery and Doctors of the Civill Law and some forbidden Marriage as all Preists by the Statute of the six Articles And unto the rest concerning degrees of Consanguinity or Affinity a particular enumeration is appointed to be observed within which Marriage is declared unlawfull all other further off are made lawfull In all which regards the Cognisance of Matrimoniall Causes is theirs onely by leave Thirdly Residency and Nonresidency was a Theame formerly learned from the Canon Law in which as also in the thing it self the Clergy were the onely skilfull men The rule of the Canon Law was strict enough considering the times but it was not steel to the back The Parliament now undertakes the cause and though it gave in some respects more liberty then the Canon yet stood it better to its tackling and kept a stricter hand upon the reines then was formerly used and by giving a generall rule for Dispensation took away all arbitrary Dispensations and Licences which were formerly granted beyond all rule but that of Silver or Gold and made all practises contrary to the rule damageable to the party Thus far concerning the matters in Cognisance now touching the Power of the Keyes English Prelacy having laid aside the pretentions of Rome they put the World to a gaze to see which way they would go In the inocent infancy of Prelacy it was led by the hand by the Presbytery and would doe nothing without them afterwards having gained some degree of heighth and strength they entred themselves to be Chariot Horses to the Roman Sun till they had set all on fire now unharnest it is expected they should returne to their former wits neverthelesse forgetting their ancient yokefellowes the rurall Presbyters they stable with the King use his name sometimes but more often their owne serving him with Supremacy as he them with Authority beyond their Spheare they raise him above Parliament he them above Councills so as they do what they list let the Plebeian Presbyter wil or nill they are the onely numerall Figures and the other but Ciphers to make them Omnibus numeris absoluti Neverthelesse the Canon still remaines the same Episcopi se debent scire Presbyteros non Dominos nec debent in clerum dominari Episcopus se sedente non permittat Presbyterum stare Episcopi noverint se magis consuetudine quam dispensatione Presbyteris majores Kings may make them Lords but as Bishops they hold their former rank assigned by the Canon as Lords the King never gave them the keyes and as Bishops the Canon did not yet as under the joynt Title of Lord Bishops they hold themselves priviledged to get what power they can two things they reach at Viz. The absolute power of Imprisonment and of Excommunication in all causes Ecclesiasticall The common Law would never yeeld this some Statutes in some cases did pretend First as touching Imprisonment the Statute of Henry the fourth concerning Heresie doth lispe some such Power of what force the same Statute is hath been already observed in case of incontinency of Church-men it is more directly given them by a Statute in Henry the sevenths time before which time the Statute it self doth initimate that an Action did lye against them for such imprisonment which Law also was made uselesse by another in Henry the eighths time who gave away to Statutes for the punishing them at the common Law First with Death which continued for some Months and that being found too heavy it was punished by another Law with Forfeiture and Imprisonment And the same King likewise gave way to a law for the like punishment in case of Heresie By that Law that revoked the Statute of Henry the fourth formerly mentioned although till triall the same was bailable And thus continued till the time of Edward the sixth But as touching Excommunication it was to no purpose for them to struggle the common Law would never permit them to hold possession quietly but did examine their Authority