would have been discontented with the proceedings of the Lords in asserting the Prerogative of a King in that matter of the Scedule if he had perceived any such thing in their purposes Add hereunto that the Lords themselves justified the matter of the Scedule in their own proceedings all which tended to inforce the King to govern according to their Councells and otherwise then suited with his good pleasure By force they removed Gaveston from the Kings presence formerly and afterward the Spencers in the same manner So they removed the King from his Throne and not long after out of the World Last of all I shall make use of one or two Concessions which hath passed the Reporters own Penne in this discourse of his for the maintaining that the Legiance of an English man is neither Naturall nor Absolute nor Indefinite nor due to the Naturall Capacity but qualified according unto Rules The first is this English men doe owe to their Kings Legiance according to the Lawes therefore is it not Naturall or Absolute or Indefinite The inference is necessary for the later is boundlesse and naturall the former is limited and by civill constitution If any branch therefore of English Legiance be bounded by Lawes then the Legiance of an English man is circumscribed and not Absolute or Naturall The major Proposition is granted by the Reporter who saith that the Municipall Lawes of the Kingdome hath prescribed the order and form of Legall Legiance fol. 5. b. And therefore if by the Common Law the Service of the Kings Tenant as of his Mannor be limited how can that consist with the absolute Legiance formerly spoken of which bindeth the Tenant being the Kings Subject to an Absolute and Indefinite Service Or if the Statute-Lawes have settled a Rule according to which each Subject ought to goe to Warre in the Kings Service beyond the Sea as the Reporter granteth fol. 7. 8. Then cannot the Legiance be absolute to binde the Subject to goe to War according to the Kings own pleasure Secondly an English Kings Protection of his Subjects is not Naturall Absolute Indefinite nor Originally extendeth unto them in their Naturall Capacity therefore is not the Legiance of an English Subject to his King Naturall Absolute Indefinite nor Originally extendeth to the King in his Naturall Capacity The dependance of these two resteth upon the Reporters owne words who tells us that Protectio trahit Subjectionem Subjectio Protectionem Protection drawes with it Subjection and Subjection drawes with it Protection so as they are Relata and doe prove mutually one anothers Nature fol. 5. a. And in the same Page a few lines preceding he shewes why this Bond between King and Subject is called Legiance because there is a reciprocall and double Bond for as the Subject is bound in Obedience to the King so is the King bound to the Subject in Protection But the King is not Naturally bound to protect the People because this Bond begins not at his Birth but when the Crown settles upon him Thirdly this Protection is not absolute because the King must maintaine the Lawes fol. 5. a. and the Lawes doe not Protect absolutely any man that is a breaker of the Lawes Fourthly this Protection is not Indefinite because it can extend no further then his Power and his Power no further then his Dominions fol. 9. b. The like also may be instanced in continuance of time Lastly the Kings Protection extendeth not Originally to the Naturall Capacity but to the Politique Capacity therefore till a Forrainer commeth within the Kings Legiance he commeth not within his Protection And the usuall words of a Writ of Protection shewes that the party Protected must be in Obsequio nostro fol. 8. a. The summe then is that as Protection of an English King so neither is Legiance or Subjection of an English man Naturall Absolute Indefinite or terminated in the Naturall Capacity of the King And to make a full Period to the Point and make the same more cleare I shall instance in one President that these times of Edward the Third produced The former English Kings had Title to many Teritories in France but Edward the Third had Title to all the Kingdome And being possibly not so sensible of what he had in possession as of what he had not He enters France in such a way and with that successe that in a little time he gaines the highest Seate therein and so brought much Honour to the English Nation and more then stood with the safety of the Kingdome For in the union of two Kingdoms its dangerous for the smaller least it be swallowed up by the greater This was foreseen by the English who knew England did bear but a small proportion to France and complained of that inconvenience and thereupon a Law was made that the People of England should not be subject to the King or his Heires as Kings of France which manifestly importeth that an English King may put himselfe in such a Posture in which Legiance is not due to him and that this Posture is not onely in Case of Opposition but of diversity when he is King of another Nation and doth not de facto for that Time and Place rule as an English King which if so I suppose this notion of Naturall Absolute and Indefinite Legiance to the King in his Naturall Capacity is out of this Kingdome if not out of the World and then the foot of the whole Account will be that the Legiance of an English man is Originally according to the Lawes The summe of all being comprehended in the joynt safety of the People of England CAHP. IX Of Courts for Causes criminall with their Lawes THe great growth of Courts founded upon Prerogative derogated much in these times from the ancient Courts that formerly had attained the Soveraignty over the People and in the hearts of them all This was a hard Lesson for them to learn but especially of the Kings Bench that was wont to learn of none and yet must be content to part with many of their Plumes to deck the Chancellor much of their work to busie the Prerogative Courts holden Coram Rege and more to those holden Coram Populo I mean The Courts of Oier and Terminer Goale delivery and Juâ—tices of Peace Those of Oier and Terminer were now grown very common but lesse esteemed as being by men of mean regard nominated for the most part by the party that sued out the Commission which for the most part was done in behalfe of those that were in danger and meaned not to be justified by Works but by Grace These escapes though small in the particulars yet in the full summe made the matter so foul as it became a common greivance and a Rule thereupon set by the Parliament for the regulating both of the Judges of such Court and the Causes The Commissions for Goale delivery likewise grew more mean and ordinary The chief sort of men in
irregularity which no doubt both was and ever will be in stormy times nor did it conquer the Law For though Warre may seem to be but a sicknesse of the State yet being in Truth as the Vltimum refugium and onely reserve unto Law beaten to a retreat by oppression It is no wonder if this motion or rather commotion that brings on the Law of Peace in the reare be still and ever subject to a rule of Law how unruly soever it selfe seemeth to be Now because Law imports execution and that presupposes a triall and it a Court therefore did our Ancestors amongst other Courts not regulated by the Common Law forme a Court for the Service of Warre called The Court Martiall or the Constables Court according as the Office of one or the other had the pre-eminence The proceedings herein were ordered as I said not according to the Common Law for that is like the Land much distant from all other Nations and the negotiation of this Iland with other Nations as in time of Peace so of Warre require a rule common to all those Nations or otherwise no negotiation can be maintained And for this cause the proceedings in this Court were ever according to the rule of the Civill Law The work of this Court is principally judiciall and in some Cases Ministeriall The first reflects upon causes Forrain and Domestick and both of those are either Criminall and such as concern the common Peace of the place of warre or more civill relating onely unto private interest As touching the first of these I suppose it is no Bull to speake of a Common Peace in the place of Warre for a Common Peace must be in each party within it selfe or otherwise no party at private variance can subsist within it selfe much lesse make Warre with the other and therefore in order unto Warre there must be a Law of Peace for the triall of Offenders and punishing them for offences committed against the good government of the Warre such as are breaking of ranks deserting the Standard running away from the Colours mutinies murders rapes plunderings private quarrells disobedience to command and such like all which doe bear the shew of Crimes against the Common Peace of the Army and the Countrey Of the second sort are matters concerning Quarter and Contracts in order to the government of the Warre saving such as are made before either party be Inrolled for the Warre For if a man doth covenant to serve in the Warre and keepeth not his day at the first Rendezvouz he is to be attached by Writ at the Common-Law Causes Domesticall likewise fall under the like division for whatsoever Cause may be Forrain may also be Domestick because the Army is ever imbodied within the Kingdom and must be under the Directory of the martial-Martial-Law upon the first forming thereof Now though the particular Lawes of the Army for the government thereof be ordinarily according to the Prudence of the Generall yet certain Fundamentalls have been ab Antiquo made by Custome and the Parliament against which the course of Judicature must not goe and as the Parliament saw need it set also particular Directions as for the payment of Souldiers wages for remedy of wastings and plunderings in their owne Countrey and other such Emergencies But the execution of all these Lawes Originally was in the Martiall of the Army and because that the Army was generally dissolved or such persons ingaged in such matters of Controversie departed from the Army before the same were concluded Therefore the Martialls Court continued in order to the determining of these matters and in continuance of time other matters also crouded into that Society although sometimes under the Directory of the Constable of England as well as at other times under the Martiall more particularly that power of determining matters concerning Torniament a sport that like a Sarcisme tickles the fancy but wounds the heart and being of as little use in a Common-Wealth as of benefit therefore is laid aside nor need I to speake any more concerning it There is one thing more somewhat like a Torniament but that it is in good earnest and that is called Duell This commeth likewise within the Cognisance of this Court but in a Ministeriall way and as subservient to the Common Law in Cases of appeale and right Hereof needs likewise little more then the naming and therefore I shall leave the Reader that would understand the particular managing thereof unto the discourse compiled by the Duke of Glocester in Richard the Seconds time Lastly as touching the Antiquity of this Court though it may be great yet the power thereof was doubtfull and scarce taken notice of in any publique Act of State till about these times when as a complaint was made by the Commons for the incroachment of that Court upon the liberty of the People and bounds of the Courts of Common Law Nor is it strange that such unquiet times brought forth such Presidents but much more strange that the Common Law held up its head against such violent irruptions of Warre CHAP. XII Of the Peace YOu have seen the Kingdome in Armor now see it in Robes and you will say that its Majesty therein is as grave as it was in the other brave It s true the tempers are so contrary as it may be wondred how one and the same should be wise and willing for both but when God will doe much he gives much and can make a people as one man like unto Caleb fitted both for Warre and Peace Besides the times were now much conducing hereto its vain to indeavour to allay humours in the body which are maintained by Agitation they must be purged out or the whole will still be indangered and therefore although Kings hitherto did indeavour to establish a peaceable Government yet being led by ill Principles of private Interests they laboured to little purpose but now the Scene is altered and one wise moderate King that was as wise as valiant did more then they all And first set a rule upon his own desires contenting himself with the condition of an English King and then upon his people making them contented with the condition of English men The order herein was no lesse observable for the former wrangling times having trained up the minds of men in a tumultuous way nor could they skill to pace in the steps of Peace the King led them into Forrain parts to spend their heat till being either weak or weary they are contented to return home and study the happinesse of a quiet life these men thus ordered the rest at home are made more coole like a body after Physick and all are now contented to submit to Law and Magistracy A fitting time now it was for Justices of Peace to come upon the Stage in their best garbe For though the work was more ancient yet like some loose notes laid aside in severall places it was not to be found but
the severall Counties had formerly the power but were found to savour too much of Neighbourhood and Alliance the leading of the work therefore is now committed to the Judges at Westminster and the other made onely Associates to them But above all the Courts of Sheriffes Coroners and Leets were now grown soure with Age having attained courses by common Practice differing from Oppression onely in name and yet were the times so unhappy as by these courses they had obtained fovour and respect amongst the great men and so gained more power from above to abuse them below These men loved to be Commissioners of Oier and Terminer and having learned how to make capitall offences pecuniary found such sweetnesse as they used not to be weary of their places though the Countrey grew weary of them and therefore disliking uncertainties in such matters of benefit they cannot rest till they obtaine more certaine settlement in their places some for yeares others for life and some for ever The disease thus contracted by degrees the cure must be accordingly first the Sherifwicks much dismembred to please the Court Favorites and fill the Kings privy purse and all raised to the utmost penny of the full and beyond the just vallue A Law is made to restore the severall Hundreds and Wepentakes to the Sheriffs and their Counties and all of them are reduced to the old rent and it is likewise provided that none shal execute that place in County or Hundred who shall not then have sufficient Lands in that County to answer dammages for injustice by them done And that no Sheriff shall serve in that place above one yeare and then not to be chosen againe for that service till three yeares be past which later clause was only a medium taken up for the present occasion in regard that men of ability became very rare in these times especially in some of the Counties The election of the Sheriff is likewise not to be forgotten for though the Counties had the election of Coroners in regard they looked that no man should come nigh their blood but whom they trusted yet the Sheriffe came not so nigh their skinne nor yet so nigh their freeholds as anciently they had done for that their power in judicature was much abated and so not worthy of so high regard yet in respect he was still to be a Minister of justice and his place valuable more then formerly it was holden convenient that such as had the cheife power of judicature at Westminster Viz. the Chancellor Treasurer Cheife Baron and the two cheife Justices should nominate the man that should be their Servant and in the Parliament neverthelesse interposed in that Election as often as they saw cause Secondly as touching Causes criminall which more ordinarily come within the Cognisance of these Courts They generally held the same regard in the eye of Law in these times that they had done formerly neverthelesse in two crimes these times wrought diversly urging the edge of Law against the one and abating it as to the other The later of these is commonly called Petit Treason which is a murder destructive to the Common-wealth in an inferiour degree and at a further distance because it is destructive to that Legiance by which Families doe consist and of whom Kingdomes are derived In former times it extended unto the Legiance between Lord and Tenant and Parents and Children but by this Law of 25. E. 3. it is reduced to the Legiance onely of Man and Wife Master and Servant Clerk and his Ordinary the last of which was now lately taken up and might have beene as well laid aside as divers others were but that in these times much is to be yeilded to the power of the Prelacy who loved to raise the power of the Ordinary to an extraordinary pitch that themselves might be the more considerable This reducing of Treason into a narrower ground made the Regiment of Fellonies to swell A hard thing it was in a Warring time for men to conceit themselves well drest untill they were compleatly armed Some used it for a Complement and amongst others honest men had as good cause to use it as some that were ill affected had a bad and of the last sort some did aime at private revenge though many aimed against the Publique quiet But however the intentions of men thus harnessed might be different the lookes of them all are so soure that its hard to know a man for Peace from a man for Warre And therefore the People were now so greedy after Peace as they are ready to magnifie or multiply all Postures of Armed men into the worst fashion being well assured that the readiest way to keep themselves from the hurt of such men is to have none of them at all But Edward the Third had more need of them then so and will therefore allow men to ride Armed but not to Troope together to rob kill or imprison any man and if any Person did otherwise it should be Fellony or Trespasse but not high Treason All this was in favour to the People and yet it was not all for when Mercy groweth profuse it becomes cruelty Murder is very incident to times of Warre yet is an Enemy to the Peace of so high a nature that though the Kings pardon may doe much yet both King and People declare it an impardonable crime by the Common Law and that the Kings Prerogative shall not extend so farre as to Pardon the same This justice done to the party dead was a mercy to them that were alive a means to save blood by blood-shed and not so much by the Kings Grant as by his Release One thing more in these cases of blood the people obtained of the King which they had not so much by Release as by Grant and that was the taking away of Englishire an ancient Badge of the Imperiall Power of the Danes over the Saxons and which had either continued through the desidiousnesse of the Saxons in the times of Edward the Confessor unto the Normans time or by them taken up again and continued untill these times that Edward the Third was so farre desirous to declare his readinesse to maintaine the Liberties of the people as to be willing to restore them where they failed and in particular tooke away the manner of Presentment of Englishire blotting out the Title and Clause concerning it out of the Articles of inquiry for the Judges Itinerant And thus whether Native or Forrainer all men are now made in death equall and one Law serves all alike Next unto blood these times grew more sensible of Ravishments then former times had done For though they had determined a severe Penalty against so foule a Crime and made it in the nature of Fellony capitall which was enough to have scared any man from such attempts yet for the proof of the matter in Fact much rested upon the will of the Woman which for
THE CONTINUATION OF AN HISTORICALL DISCOURSE OF THE GOVERNMENT OF ENGLAND Vntill the end of the Reigne of Queene ELIZABETH WITH A Preface being a Vindication of the ancient way of Parliaments in ENGLAND By Nath Bacon of Grais-Inne Esquire LONDON Printed by Tho Roycroft for Matthew Walbanck and Henry Twyford and are to be sold at Grais-Inne Gate and in Vine Court Middle Temple 1651. The Contents of the severall Chapters of this Book I. THe sum of the severall Reignes of Edward the third and Richard the second fol. 3. II. The state of the King and Parliament in relation of him to it and of it to him fol. 13. III. Of the Privy Council and the condition of the Lords f. 26. IV. Of the Chancery fol. 35. V. Of the Admirals Court. fol. 41. VI. Of the Church-mens Interest fol. 45. VII Concerning Trade fol. 64. VIII Of Treason and Legiance with some considerations concerning Calvins Case fol. 76. IX Of Courts for causes criminall with their Laws fo 92. X. Of the course of Civill Justice during these times fo 96. XI Of the Militia in these times fol. 98. XII Of the Peace fol. 108. XIII A view of the summary courses of Henry the fourth Henry the fifth and Henry the sixth in their severall Reignes fol. 115. XIV Of the Parliament during the Reignes of these severall Kings fol. 127. XV. Of the Custos or Protector Regni fol. 134. XVI Concerning the Privy Councell fol. 141. XVII Of the Clergie and Church-government during these times fol. 146. XVIII Of the Court of Chancery fol. 162. XIX Of the Courts of Crown Plas and Common Law fo 165 XX. Concerning Sheriffs fol. 168. XXI Of Justices and Lawes concerning the Peace fol. 170. XXII Of the Militia during these times fol. 175. XXIII A short survey of the Reignes of Edward the fourth Edward the fifth and Richard the third fol. 181. XXIV Of the Government in relation to the Parliament fol. 187. XXV Of the condition of the Clergie fol. 191. XXVI A short sum of the Reignes of Henry the seventh and Henry the eighth fol. 194. XXVII Of the condition of the Crowne fol. 202. XXVIII Of the condition of the Parliament in these times fol. 223. XXIX Of the power of the Clergy in the Convocation f. 229. XXX Of the power of the Clergy in their ordinary Jurisdiction fol. 232. XXXI Of Judicature fol. 241. XXXII Of the Militia fol. 245. XXXIII Of the Peace fol. 253. XXXIV Of the generall Government of Edward the sixth Queen Mary and Queen Elizabeth fol. 259. XXXV Of the Supream power during these times fol. 268. XXXVI Of the power of the Parliament during these times fol. 277. XXXVII Of the Jurisdiction Ecclesiasticall during these last times fol. 283. XXXVIII Of the Militia in these later times fol. 290. XXXIX Of the Peace fol. 297. XL. A summary Conclusion upon the whole matter fol. 300. A PREFACE CONTAINING A Vindication of the Ancient way of the Parliament OF ENGLAND THE more Words the more Faults is a divine Maxime that hath put a stop to the publishing of this second part for some time but observing the ordinary humor still drawing off and passing a harsher censure upon my intentions in my first part then I expected I doe proceede to fulfill my course that if censure will be it may be upon better grounds when the whole matter is before Herein I shall once more minde that I meddle not with the Theologicall right of Kings or other Powers but with the Civill right in fact now in hand And because some mens Pens of late have ranged into a denyall of the Commons ancient right in the Legislative power and others even to adnull the right both of Lords and Commons therein resolving all such power into that one principle of a King Quicquid libet licet so making the breach much wider then at the beginning I shall intend my course against both As touching the Commons right jointly with the Lords it will be the maine end of the whole but as touching the Commons right in competition with the Lords I will first endeavour to remove out of the way what I finde published in a late Tractate concerning that matter and so proceede upon the whole The subject of that Discourse consisteth of three parts one to prove that the ancient Parliaments before the thirteenth Century consisted onely of those whom we now call the House of Lords the other that both the Legislative and Judiciall power of the Parliament rested wholly in them lastly that Knights Citizens and Burgesses of Parliament or the House of Commons were not knowne nor heard of till punier times then these This last will be granted Viz. That these severall titles of Knights Citizens and Burgesses were not known in Parliament till of later times Neverthelesse it will be insisted upon that the Commons were then there The second will be granted but in part Viz. That the Lords had much power in Parliament in point of Jurisdiction but neither the sole nor the whole The first is absolutely denyed neither is the same proved by any one instance or pregnant ground in all that Book and therefore not cleerly demonstrated by Histories and Records beyond contradiction as the Title page of that Book doth hold forth to the World First because not one instance in all that Book is exclusive to the Commons and so the whole Argument of the Discourse will conclude Ab authoritate Negativa which is no argument in humane testimony at all Secondly the greatest number of instances in that Booke are by him supposed to concerne Parliaments or generall Councils of this Nation holden by the Representative thereof whereas indeed they were either but Synodicall Conventions for Church matters whereunto the poore Commons he well knoweth might not come unlesse in danger of the Canons dint or if they did yet had no other worke there then to heare learne and receive Lawes from the Ecclesiasticks And the Lords themselves though present yet under no other notion were they then as Councell to the King whom they could not cast out of their Councell till after Ages though they often endeavoured it Thirdly the Author of that Tractate also well knoweth that Kings usually made Grants and Infeodations by advice of the Lords without the ayde of the Parliament And it is no lesse true that Kings with the Lords did in their severall ages exercise ordinarily Jurisdiction in cases of distributive Justice especially after the Norman entrance For the step was easie from being Commanders in Warr to be Lords in peace but hard to lay downe that power at the foot of Justice which they had usurped in the rude times of the Sword when men labour for life rather then liberty and no lesse difficult to make a difference between their deportment in commanding of Souldiers and governing of Countrey-men till peace by continuance had reduced them to a little more sobriety Nor doth it seeme irrationall that private differences
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
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
he made the penalty of Praemuniri to extend to all Farmores or others in nature of Bailiffs that held any Church maintenance to the use of any alien and unto all Aliens that are Purchasors of such Provisions to any use and unto all Lieges that shall in like manner purchase such Provisions But as touching such as shall accept such provisions he ordained Banishment for their Persons and Forfeiture of their Estate Notwithstanding all this the Romane Horse-leach would not so give over The King grew into displeasure with his Subjects and they with him and with one another they see the Pope still on Horseback and fear that the English Clergy their own Countrey men if not Friends and Abbettors yet are but faint and feigned Enemies to the Popes Cause Nor was it without Cause that their fear was such for as the Pope had two hands to receive so they had two hearts making show of forming blowes at the Pope but then alwayes at a distance or when without the Popes Guard and thus the Lawes begin to stammer and cannot speake so plain English as they were wont The people hereat offended resolve to put the Clergy into the Van and to try their mettle to the full At the last Parliament that Richard the Second did hold both the Lords Temporall and Spirituall are opposed one by one The Lords Temporall like themselves resolve and enter their Resolutions to defend the right of the Crowne in the Cases of Provisors although even amongst these great men all were not equally resolute for Sir William Brian had purchased the Popes Excommunication against some that had committed Burglary and he was committed to the Tower for his labour But the Prelates answer was ambiguous and with modifications which was all one to cry as men use to say Craven yet was the Statute made peremptory according to what was formerly Enacted And though the Prelates cautionary way of proceeding might be a principall reason why the Popes power held so long in England in an usurping way yet Kings also much conduced thereto by seeking too much their Personall ease above the Honour of their Place and the Popes blessings and opinion of his Favour more then their owne good or the Peoples liberty for there was no other balme for a distracted minde then that which dropped from the Popes lips In like manner Richard the Second being already at least in purpose estranged from his People sought to get freinds at Rome to hold by the Spirituall Sword what he was in danger to loose by laying aside the Sword of Justice which is the surest Tenure for Kings to hold by And though the Popedome was now under a Schisme between two Popes Clement and Vrban yet he was so farre won for Vrban that he not onely ingaged himselfe and the Parliament to determine his Election and uphold the same but also Ex abundante did by Implication allow to him an Indefinite Power to grant Provisions and so at once he lost the Die and gained a Stake that like a bubble looked faire but soon vanished away Neverthelesse these two Comrades whiles they were together resolved to make the most of each other that they could and therefore though the Popedome liked not the King yet the Pope had his love so farre as he could deny himselfe for he had already denied his Kingdome And if the Articles exhibited against the King by Henry the Fourth be true the Pope had his Faith also For that he might be rid of his reputed Enemy Arch Bishop Arundell he trusted the Pope with that Complement of making Walden Arch Bishop of Canterbury in Arundells stead which the Pope tooke so kindly as he made it a President for Provisors for the future Nor did the King stick in this one Singular but made it his Custome in passing of Lawes especially such as the King was most devoted unto to put more Confidence in the Popes Amen then in all the Prayers of his Commons with his owne Soit fait to boot The summe then will be that the Prize was now well begun concerning the Popes power in England Edward the Third made a fair blow and drew blood Richard the Second seconded him but both retired the former left the Pope to lick himself whole the later gave him a salve and yet it proved a Gangrene in the conclusion The second means used to bring down the power of the Pope in this Nation was to abate the power or height of the English Clergy for though the times were not so cleare as to espy the Root of a Pope in Prelacy yet experience had taught them that they were so nigh ingaged that they would not part And therefore first they let these men know that Prelacy was no Essentiall Member to the Government of the Kingdome but as there was a Government established before that ranke was known so there may be the like when it is gone For Edward the Third being troubled with a quarrell between the two Arch Bishops of Canterbury and Yorke concerning Superiority in bearing the Crosse and the important Affaires of Scotland so urging Summoned a Parliament at Yorke which was fain to be delaied and adjourned for want of appearance and more effectuall Summons issued forth but at the day of Adjournment none of the Clergy of the Province of Canterbury would be there and upon this Occasion the Parliament was not onely interrupted in their proceedings but an ill president was made for men to be bold with the Kings Summons in such Cases as liked not them and thereupon a Statute was made to inforce Obedience upon Citizens and Burgesses and such Ecclesiasticks as held per Baroniam Neverthelesse when the matters concerning Provisors began to come upon the Stage which was within two yeares after that Law was made the Clergy found that matter too warme for them and either did not obey the Summons or come to the Parliament or if they came kept aloofe or if not so would not Vote or if that yet order their tongues so as nothing was certainly to be gathered but their doubtfull or rather double minde These Prelates thus discovered the Parliament depended no more upon them further then they saw meet At sixe or seven Parliaments determined matters without their Advice and such as crossed the Principles of these men and therefore in a rationall way might require their Sense above all the rest had they not beene prepossessed with prejudice and parties in the matter Nor did Edward the Third ever after hold their Presence at so high Repute at such meetings and therefore Summoned them or so many of them as he thought meet for the Occasion sometimes more somtimes fewer and at a Parliament in his fourty and seventh yeare he Summoned onely foure Bishops and five Abbots And thus the matter in Fact passed in these times albeit the Clergy still made their claim of Vote and desired the same to be entered upon Record And
these times to more Sobriety Some delight in Forrain Commodities and Manufactures is doubtlesse profitable both for Trade and Shipping so as what is Imported exceeds not what is Exported for too much of that makes the Domestick Commodity contemptible the Nation poore and the People want work because its a noted vanity of this Nation That they love things far fetcht and dear bought As a cure therefore to this disease English Cloath by Law is injoyned to be worn by all Persons under the Degree of a Lord and so the former Inhibition of Importation of Forrain Cloathes was strengthened thereby And because the English Clothiers should not take advantage hereby to rais the price of their Cloathes to their own covetous pin Therefore the Law also settled a certain price and measure the same before sale was to be allowed upon view and for the goodnesse of the Cloathes and perfect working thereof Lawes were likewise made against Exportation of all such as were not perfectly made A fourth step in the advancement of Trade was the compelling men to work for when publique imployment calls men forth for service in the Feild their minds once in Commotion or upon the Wing can hardly settle any where or stoop to the Perke again unlesse upon hope of prey or gain to be gotton thereby Such were the times of Edward the Third wherein partly for that cause and partly for the scarcity of men left from the Sword and Pestilence not onely work-men were scarce and deare but even the Masse it self was grown stately the private delights of Kings and great Men and scarce vouchsafeing to be seen by common gaze but at a great distance The Priests had little Charity and the Poore had as little money so as no penny no Pater Noster A sick and very crazy time questionlesse was it when the Clergy were stately and the Poore idle The Preists wages for this cause are now settled and they that would get much must get many littles and doe much but the greater sore was amongst the poorer sort either they would not serve or at such wages as could not consist with the price of the Cloaths and the subsistance of the Clothier Lawes therefore are made to compell them to work and to settle their wages so as now it s as beneficiall to them to serve the meaner sort of Clothiers as the richer sort For the Master must give no more nor the Servant take more and thus became labour currant in all places A fifth means to advance Trade was the setling of a Rule upon Exportation and Importation this wrought a double effect Viz. The inriching of this Kingdome with Forrain Commodities and the maintaining of Shipping which was and is a principall means not onely of riches but of strength unto all Sea bordering Countries especially regard being had to these three Considerations First that Importation do bring in more profit then Exportation disburseth Secondly that both Exportation and Importation be made by Shipping belonging to this Nation fo farre as may consist with the benefit of this Nation Thirdly that the Exportation be regulated to the overplus saving the main stock at home The truth of the first will be evident from this ground That no Nation can be rich that receives more dead Commodities from abroad then it can spend at home or vend into Forrain parts especially if it be vended in its proper kinde and not in money and therefore the Lawes provided that no Merchant should Export more money then he Importeth and what he doth Export must be of the new stamp which it seemeth was inferiour in vallue to the old yet the times may prove so penurious that this rule may be waved for a season The second is no lesse beneficiall for as it is in Warre so in all Trades the greater the number is that is imployed the more effectuall the issue will be and therefore though it in the generall be more beneficiall that all Exportation and Importation might be by our own shipping yet in regard times may be such as now they were that the shipping of this Nation is more then ordinarily imployed for the service of the State And that every Nation striveth to have the benefit of Exportation by Vessels of their owne And lastly in regard the case may be such as Importation may be at a cheaper rate by Forrain Vessels and Exportation likewise may for the time be more prejudiciall to this Nation if done by our own shipping then those of other Nations Therefore the course must be changed so far forth as will stand with the occasions of the State and common profit of this Nation And for these causes and such like in the times whereof we now Treat the Lawes often varied sometimes no Staple Commoditie must be Exported in English bottomes sometimes all must be done by them and within a yeare again that liberty was restrained and after that liberty given to Forrainers to Export as formerly The third and last Consideration is as necessary as any of the former for if Trade be maintained out of the maine Stock the Kingdome in time must needs be brought to penury because it is their Magazine and for this cause it was provided that all Wooll should remaine at the Staple 15 dayes to the end it might be for the Kingdomes use if any one would buy they must doe it within that time otherwise it might be Exported The sixth means of advancement of Trade was the settling of the Staple for as it was an incouragement to the first establishing of the Manufacture that the Staples were let loose so when the Manufactures had taken roote the Staple especially now fixed to places within this Kingdome brought much more incouragement thereto First for preserving a full Market for whiles the Commodity lies scattered in all places the Market must needs be the leaner partly in regard the Commodity lies in obscurity and partly because when it is known where yet it s not easily discovered whether it be vendible or not and besides small parcells are not for every mans labour and the greater are not for every mans money Secondly Staples are convenient for the stating of the generall price of the Commodities in regard the quantity of the Commodity is thereby the more easily discovered which commonly maketh the price And the quantity of the Commodity thus discovered will not onely settle the price to it selfe but also ballance the price of the Manufacture Thirdly the Staple having thus discovered the quantity of the Commodity will be a ready way to settle the quantity of the main Stock that must be preserved and regulate Exportation as touching the overplus But it cannot be denied that the first and principall mover of the making of the Staple was the benefit of the Crown for when the Commodity was gone beyond the Sea it importeth not to the Subjects in England whether the same be sold at one place
or more or in what place the same be settled untill the Manufacture was grown to some stature and then the place became Litigious The benefit of Exportation pretended much interest in the settling thereof beyond the Sea but in truth it was another matter of State for when it was beyond sea it was a moveable Engine to Convey the Kings pleasure or displeasure as the King pleased for it was a great benefit to the Countrey or place where ever it settled or else it moved or stayed according to the inclination of the people where it was either for Warre or Peace But on the contrary the Interest of the People began to interpose strongly and for these Causes the Parliament likewise intermedâ—ed in the place and thus the Scene is altered some times it s beyond the Seas in one place or in another sometimes in England In Edward the Thirds time we finde it sometimes at Calis sometimes in England In Richard the Seconds time we finde it again beyond the Seas at Middleburgh thence removed to Calis and after into England where at length the People understood themselves so well that the Parliament settled the same it being found to burdensome for the Manufactures to travell tâ— the Staple beyond the Seas for the Commodity that grew at their owne doores besides the inhancing of the price by reason of the carriage which falling also upon the Manufactures must needs tend to the damage of the whole Kingdome This was one way indeed and yet possibly another might have been found for if a Computation had been made of the main Stock and a Staple settled within the Kingdom for that and the overplus exported to a Staple beyond the Sea it might have proved no lesse commodious and more complying It is very true that there are many that call for the liberty of the People that every man may sell his own Commodity as he pleases and it were well that men would consider themselves as well in their Relations as in their own Personall respects for if every man were independent his liberty would be in like manner independent but so long as any man is a Member of a Common-wealth his liberty must likewise depend upon the good of the Common-wealth and if it be not good for the Nation that every man should sell his owne Commodity as he pleaseth he may claim the liberty as a Free man but not as an English man nor is that liberty just so long as his Countrey hath an interest in his Commodity for its safety and welfare as in his own person I doe not assert the manner of buying the Staple Commodities by Merchants of the Staple to sell the same again in kinde for their private advantage divers limitations must concur to save it from an unlawfull ingrossing nor doth it appear to me that the Staplers in these times used such course or were other then meer Officers for the regulating of the Staple in nature of a Court of Piepouders belonging to some Faire or Market Neverthelesse I conjecture that it may well be made evident from Principles of State that Mart Markets and Staples of Commodities that are of the proper Ofspring of this Nation are as necessary to Trade as Conduits are to places that want water The seventh and last means that was set on foot in these times for the advance of Trade was the regulating of the Mint and the current of Money This is the life and soule of Trade for though exchange of Commodities may doe much yet it cannot be for all because it is not the lot of all to have exchangeable Commodities nor to work for Apparell and Victuall Now in the managing of this tricke of Money two things are principally looked unto First that the Money be good and currant Secondly that it should be plentifull As touching the excellency of the Money severall Rules were made as against imbasing of Money against Forrain Money not made currant against counterfeit and false Money For according to the goodnesse of the Money so will the Trade be more or lesse for the Merchant will rather loose in the price of his Commodity in Money then in exchange for other Commodity because the vallue thereof is lesse certain and the Transportation more chargeable Secondly as touching the plentie of Money that is as necessary to the advance of the Trade as of the goodness of it for according to the plenty thereof will be the plenty of the Manufactures because Handy-crafts men having no Commodities but their labour cannot work for exchange nor can exchange supply Rents and maintenance to the greater sort of people To this end therefore it is provided against melting of Money and Exportation of Silver and Gold And yet to incourage or not discourage Importation of Silver and Gold liberty was given to every man to Export so much as they did Import provided that what they carry away must be of the new stamp or Minted in this Nation By this means Bullion came in with probability that much thereof would remain in the Nation in liew of Commodities exported or if not the greater part yet at least the Mint gained and that was some benefit to the Nation Thirdly for the fuller currence of the Money the Mint was established in severall parts of this Kingdome according to the ancient custome and this was advantageous both to the Mint and to the stocke of Money in the Kingdome This establishment was with this difference that though the Mint was settled by the Parliament yet the Exchange was left to the Directory of the King and his Councell because the Exchange is an uncertain thing subject to sudden alteration in other Nations and its necessary that in this Countrey it be as suddenly ballanced with the Exchange in other Countreyes or in a short time the Nation may receive extreame damage In regard whereof and many other sudden exigencies in Trade it seemeth to me convenient That a particular Councell were established for continuall influence into all parts of these Dominions to take into consideration the quantity of the Staple Commodities necessary to be retained as a Stock at home for the use of the People and the Manufactures and accordingly to ballance the Trade of Exportation and Importation by opening and inlarging or shutting and straitning the Streame as occasion doth require And lastly to watch the course of the Exchange in Forrain Parts and to parallell the course thereof in this Land thereto For otherwise the Publique must necessarily suffer so long as Private men seeke their own particular interests onely in their course of Trade CHAP. VIII Of Legiance and Treason with some Considerations upon Calvins Case AS times change manners so doe manners change Lawes For it s the wisedome of a State when it cannot over-rule occasion to pursue and turn it to the best issue it can Multitude of Lawes therefore are not so much a sore to the People as a Symptome of a
sore People yet many times Lawes are said to be many when as they are but one branched into many Particulars for the clearing of the Peoples understanding who usually are not excellent in distinguishing and so becomes as new Plaisters made of an old Salve for sores that never brake out before Such sore times were these whereof we now Treate wherein every touch made a wound and every wound went to the heart and made the Category of Treason swell to that bignesse that it became an individuum vagum beyond all rule but the present sence of timerous Judges and a touchy King Thus were many of the ignorant and wel meaning people in an hideous danger of the gulfe of forfeiture before they found themselves nigh the brimme All men do agree that treason is a wound of Majesty but all the doubt is where this Majesty resteth originally and what is that legiance which is due therto the breach whereof amounteth to so high a censure for some men place all Majesty in one man whom they call an absolute Monarch Others in the great men and others in the people and some in the concurrence of the King and body of the people and it is a wild way to determine all in one conclusion when as the same dependeth wholy upon the constitution of the body looke then upon England in the last posture as the rigider sort of monarchiall polititians do and Majesty will never be in glory but in the concurrence of the King and Parliament or convention of Estates so upon the whol account it wil be upon the people whose welfare is the supream Law Rome had Kings Consuls Dictators Decemviri and Tribunes long before the Orators time and he saw the foundation of an Empire or perpetuall Dictatorship in the person of the first of the Caesars any of all which might have challenged the supremacy of Majesty above the people and yet the often change of Government shewed plainly that it rested upon another pinne and the Orator in expresse words no lesse when speaking of the Majesty of that Government he allotteth it not to those in cheife command but defineth it to be magnitudo populi Romani afterwards when the pride of the Emperors was come to its ful pitch in the times of Augustus Tiberius an Historian of those times in the life of Tiberius tels us that he declared the bounds of Treason to be determined in three particular instances of treachery against the Army Sedition amongst the people and violating the Majesty of the People of Rome in al which men were not punishable for words but actions and indeavors I do not herein propound the Government of the Roman Empire as a modell for England but à majori may conclude that if the proper seat of Majesty was in the people of Rome when Emperours were in their fullest glory it s no defacing of Majesty in England to seat it upon the whole body from whom the same is contracted in the representative and so much thereof divided unto the person of the King as any one member is capable of according to the work allotted unto him These severall seats of Majesty making also so many degrees do also imply as many degrees of wounding for it s writen in nature that the offence tending to the immediate destruction of the whol body is greater then that which destroyeth any one member only and when the written Law maketh it treason to compasse the destruction of the Kings Person it leaveth it obvious to common sense that its a higher degree of Treason to compasse the destruction of the representative and above all to destroy the whole body of the People crimes that never entred into the conceit of wickednesse it selfe in those more innocent times much lesse saw they any cause to mention the penalty by any written Law Neverthelesse because many sadd examples had accurred within the memory of this present age of the danger of the person and honor of Kings and yet on the otherside they saw that in such cases of Treason the Kings honor was made of retching leather and might easily be strained within the compasse of a wound of Majesty therefore Edward the third imitating Tiberius reduced the crime of wound of Majesty in the Person of the King into certaine particular instances out of the compasse whereof the Judges of the Law in ordinary course must not determine Treason These concerne either the safety of the Person of the King or of the succession in the Royall Throne or lastly the safegard of the publique right by the board and privy seale the vallue of Mony and by persons in matters of judicature judicially presiding all of them reflecting upon the King considered in his politick capacity for otherwise many crimes might have beene mentioned more fatally reflecting upon the King in his naturall capacity which nevertheless are omitted as not worthy of so high a censure Other Treasons are left to the determination of the Parliament as occasion should offer it selfe whereof divers examples of a new stamp accurred within forty yeares next ensuing which were of a temporary regard and lived and died with the times To these two notions of Majesty and treason I must add a third called Legiance for it is that which maketh Majesty to be such indeed and lifteth it into the Throne and whereof the highest breach makes Treason and because that which hath been already sayd reflecteth upon an opinion or rather a knot of opinions for I find them not punctually adjudged in Calvins case I must a little demur to them because as their sense is commonly taken it alters the fundamental nature of the Government of this nation from a commonweal to a pure Monarchy In handling of this case the ho. Reporter took leave to range into a generall discourse of legiance although not directly within the conclusion of the case and therin first sets down the general nature therof that it is a mutual bond between an English King and his people and then more particularly sets forth the nature of this bond in the severall duties of obedience and fealty fo 5. a. and those also in their severall properties Viz. naturall absolute fo 7. a. due to the King omni soli semper fo 12. a. in his naturall and not politick capacity fo 10. a. whereas he saith this bond is natural he meaneth that its due by birth fo 7. a. By absolute if I mistake him not he meaneth that it is indefinite fo 5. b. Viz. not circumscribed by Law but above Law and before Law fo 13. a. and that Laws were after made to inforce the same by penalties fo 13. b. and therefore he concludeth that this legiance is immutable fo 13. b. and fo 14. a. Thus having stated the point as truely as I can both for the nature of legiance and the object thereof Viz. the King and not the people otherwise then in order to the safety
the most part grounded upon self respects and private prudence laboured to conceale that which could not be made whole by revealing and by after consent skind over the sore as to themselves which corrupted inwardly and indangered the whole body to cure which a Law is made to restrain such late connivance in the Woman by depriving her both of her Joyncture and Inheritance which otherwise had been saved to her by such compliance as after consent unto such violations CHAP. X. Of the Course of Civill Justice during these Times HOwever the course of the Law concerning matters of the Crown passed in a troubled wave yet in matters of Common Pleas it passed in a calme and full Channell as the Reports in Print doe sufficiently witnesse nor was their any change of Principles but onely some alteration tending to a clearer manifestation of the same I will not touch upon every particular but onely upon two which reflect somewhat upon the Publique pollicy the one touching the course of Inheritance in some particular Cases the other touching pleading in the Courts of Civill Justice The first of these was occasioned from Conjuncture of Affaires the Case being such that Edward the Third had now gotten himselfe a new Kingdome unto that of England and must looke to maintaine that by Power which he obtained by force and conducing thereunto must have continuall imployment of the English in that Service as being most trusty to his Cause And that it is un reasonable that such English as had devoted themselves to his Service in this Cause and in order thereunto had transported themselves and their Families into those Forrain parts should thereby loose the benefit of Leiges in the Birth-right of their Children borne in those Forraine parts Upon consideration had hereof and of a former leading Opinion of the Lawyers and Parliament a Declarative Law was made That all Children borne without the Kings Legiance whose Father and Mother at the time of their Birth shall be under the Faith and Legiance of the King of England shall have the benefit of Inheritance within the same Legiance as other Inheritors have These are the words of the Statute and doe occasion a double observation one from the matter the other from the manner of the Expression The Subject matter is so delivered not as an Introduction of a new Law but as a Declarative of the old that lay more obscurely hidden for want of occasion to reveale it and the substance thereof resteth onely in this to enable the Children of English Natives borne beyond the Seas not the Children of those that are of Forraine birth though within the Kings Teritories in those parts as the opinion hath beene nor doth any ancient President or Case warrant the same as might be at large manifested if it might conduce to the end of this discourse and for the same cause after this Statute when as the Commons would have had a generall Naturalizing of all Infants borne beyond the Sea within the Kings Segniories the same would not be granted otherwise then according to the former Statute and the Common Law That which in the next place concerneth the manner of expression is this That a Childe is said to be borne out of the Kings Legiance and yet the Father and Mother at the same time to be of the Faith and Legiance of the King of England It seemeth to me that it intendeth onely those Children of English Parents borne within the Kings Teritories beyond the Seas because the words insuing concerning Certification of Bastardy of such Children are that the same shall be made by the Bishop of such place upon the Kings Writ directed to him which could never have passed into those places that are not of the Kings Teritories and so the Issue will be that the Legiance of those born in those parts though they are Leiges to the King yet they are not of the Legiance of the King of England but as Lord of that Teritory The other matter to be observed concerning pleading in the Courts of Civill Justice is this That whereas anciently from the Normans time till these times the pleadings were in the Norman tongue they shall be henceforth in English out of an inconvenience I beleive rather supposed then felt for though some kinde of knowledge of Law-termes may be increased thereby yet unlesse that shall be professedly studied it will breed nothing but Notions and they an overweening conceit which many times sets men to suites in Law to their owne losse like some weake influence of the Celestiall bodies that are strong enough to stirre up humours but not to expell them or draw them out However even thus in part is the reproach of Normandy rolled away like that of Egypt from the Israelites at Mount Gilgall CHAP. XI Of the Militia in these Times WArre is ever terrible but if just and well governed majesticall the one may excite resistance and defence but the other Conquers before blow given because it convinceth the judgement and so prevails upon the Conscience For that heart can never be resolute in its own defence that is at Warre with its own understanding nor can such a heart consider such a Warre otherwise then as Divine and bearing the face of an Ordinance of God and then how can the Issue be unsuccessfull It is no strange thing for Kings to miscarry in their Warres because it s rarely seen that they are under good Councell but if a Christian Councell miscarry we may conclude it extraordinary in the efficient Cause and no lesse wonderful in the issue and end Upon this ground it concerneth a Christian Nation not onely in point of Honour but of safety and continuance to settle fundamentall Lawes for War against time of War as of Peace in time of Peace Neither was England deficient herein saving that ancient times were more obscure in the particulars and these dayes revealed them at such a time wherein we may say that Edward the Third approved himself not onely King of England but of himself above the ordinary strain of expectation for being now become a famous Commander and Conquerour having also an Army inured to fight and overcome and so might have given a Law he neverthelesse received the same submitting both it and himself to the Directory of the Parliament in making a Warre with France which was three to one against him in every respect but in the Title besides the disadvantage from Scotland that lay continually beating upon his reare The like may be observed of his Warre with Scotland in both which he evidently telleth the World that he held it unreasonable to enter upon the managing of an offensive Forraine Warre without the concurrence of the common consent of the people and that not onely for the thing it selfe but also for his owne personall ingagement in the Service For a King though he be the Generalissimo yet is he so from the people and his person being of that
Forrain and sudden invasion and attempts Thirdly the powers are not undefined but circumscribed 1. To Array such as are Armed so as they cannot assesse Armes upon such 2. To compell those of able Bodies and Estates to be Armed and those of able Estates and not able bodies to Arme such as are of able Bodies and not Estates but this must be Juxta facultates and salvo Statu 3. Whereas they straine themselves to make the Statute of Henry the Fourth and the Commission of Array to consist with the Statutes of 13 E. 1. 1 E. 3. and 25 E. 3. thereby they affirm so many more restrictions unto this power of Array as those Statutes are remediall in particular cases yet doe I not agree to their Glosses but leave them to the debate already published concerning the same Secondly as this power was not absolutely in the King so was it not originally from themselves because they had not the Legislative Power concerning the same but the same was ever and yet is in the Parliament hereof I shall note onely three particular instances First the Militia is a Posture that extendeth as well to Sea as Land That which concerneth the Sea is the Law of Marque and Reprisall granted to such of the People of this Nation as are pillaged by Sea by such as have the Kings Conduct or publique Truce And by this Law the Party pillaged had to recompence himself upon that man that had pillaged him or upon any other Subject of that Nation in case upon request made of the Magistrate in that Nation satisfaction be not given him for his wrong it was a Law made by the Parliament whereby the Chancellor had power to grant such Letters or Commission upon complaint to him made This was grounded upon the Statute of Magna Charta concerning Free Trade which had been prejudiced by the rigour of the Conservators of the Truce against the Kings Subjects although what was by them done was done in their own defence And by which means the Forrainers were become bold to transgress and the English fearfull in their own Charge and many laid aside their Trade by Sea and thereby the strength of the Kingdome was much impaired Nor is the Equity of this Law to be questioned for if the Magistrate upon complaint made grants not releif the offence becomes Publique and the Nation chargeable in nature of an Accessory after the Fact and so the next man liable to give satisfaction and to seek for releif at home The King then hath a power to grant Letters of Marque by Sea or Land and this power is granted by Parliament and this power is a limited power onely in particular cases in regard that many times these prove in nature of the first light skirmishes of a generall War Two other Instances yet remain concerning the Order and Government of the Souldiers in the Army the one concerning the Souldiers Pay Viz. That Captains shall not abate the Souldiers Wages but for their Cloathing under peril of Fine to the King The other concerning the Souldiers service That they shall not depart from their Colours without leave before the time of their Service be expired unlesse in case of sicknesse or other good cause testified and allowed by the Captain and such as shall doe otherwise shall suffer as Fellons Which Lawes could not have holden in force had they not been made by Parliament in respect that the Penalties concern the Estates and Lives of Men which are not to be invaded but by the Law of the Land so as both Captains and Souldiers as touching the Legislative power are not under the King in his Personall Capacity but under the Law of the Parliament Lastly as the rule of War was under the Legislative power of the Parliament so was the rule of Peace for whiles Henry the Sixth was in France which was in his tenth yeare from Saint Georges day till February following The Scots propound tearmes of Peace to the Duke of Glocester he being then Custos Regni which he referred to the Order of the Parliament by whom it was determined and the Peace concluded in the absence of the King and was holden as good and effectuall by both Kingdomes as if the King had been personally present in his full capacity CHAP. XXIII A Survey of the Reignes of Edward the Fourth Edward the Fifth and Richard the Third THe reign of Henry the Sixth was for the most part in the former parts of it like fire buried up in the ashes and in the later parts breaking out into a flame In the heat wherof the Duke of York after Fealty given by him to Henry the Sixth and dispensation gotten from the Pope to break his Faith lost his life and left his Sonne the Mark-grave to pursue his Title to the Crown which he claimed by Inheritance but more especially by Act of Parliament made upon the agreement between Henry the Sixth and his Father This was Edward the Fourth who neverthelesse reserved himself to the Election of the Lords and was by them received and commended to the Commons in the Feild by which meanes he gaining the Possession had also incouragement to maintain the same yet never held himself a King of full age so long as Henry the Sixth lived which was the one half of his reigne Nor did he though he held many Parliaments scarce reach higher then at reforming of Trade which was a Theame well pleasing to the People next unto their Peace which also the King carefully regarded For although he had been a Souldier of good experience and therewith successfull yet as one loath to trust too far either the constancy of the People of his own dominion or the fortune of War with his neighbouring Princes he did much by brave countenance and discourse and yet gain'd repute to the English for valour after the dishonorable times of Henry the sixth He had much to do with a wise King of France that knew how to lay out three or foure calme words at any time to save the adventure of his Peoples blood and make a shew of Mony to purchase the peaceable holding of that which was his only by force untill the winde proved more faire to bring all that continent under one head In his Government at home he met with many crosse gales occasioned principally by his owne rashnesse and neglect of the Earl of Warwicks approved freindship which he had turned into professed enmity And so weakned his own cause thereby that he was once under Water his Kingdome disposed of by a new intaile upon the Heires of Duke Clarence and so the Earle of Warwick remained constant to the House of York though this particular King was set aside Nor did he in all this gaine any thing but a Wife who though his subject and none of the greatest family neither brought any interest unto her Lord and Husband amongst forraine Princes brought neverthelesse a Pearle which was
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
concerned or not concerned what they conclude they must maintain Vi Clavibus although in right his Prerogative is above theirs Now by the Statute the Kings Vote is asserted and a Negative Vote restored and himself made as well Head of the Convocation as the Church nothing can passe there without his Concurrence nor come to the Consideration of the Parliament without his pleasure and thus the King hath a double Vote in every Church Ordinance One as in the Parliament to passe the same as an Act of Parliament of which I conceive the Opinion of that Honourable Judge is to be understood the other as a Member of the Convocation to passe their advices to the Parliament and therefore he might either sit in person amongst them or by his Vicar as Henry the Eighth did by the Lord Cromwell By the First the whole Kingdome was ingaged By the Second the Convocation onely and that as a Court onely and not the representative of the Clergy because as they had a Spirituall relation so also they had the Common right of Free-men and therefore could not be bound without the Common consent of the Free-men Thirdly as their power of Convention and power in Vote so their Originall right of Law making suffered a change formerly they depended wholly upon a Divine right which some settled Originally in the Pope others in the Prelacy and some in the Clergy But now they sit by a derivative power from the Act of Parliament from which as from their Head they receive life and power Fourthly they suffered some change in the very work of their Convention for though formerly they claimed power to meddle onely with Ecclesiasticall matters yet that Notion was ambiguous and they could many times explicate it more largely then naturally It is not to be denied but the matters concerning the Service and Worship of God are of Spirituall consideration but that such should be so strictly deemed to lie in the way of Church-men onely is to bring all Spirits within the Verge of Ecclesiasticall Jurisdiction and to leave the Civill power to rule onely dead Carkases much lesse can any other thing which by prescription hath not been of Ecclesiasticall Cognisance be called Spirituall But to come to particulars because generalls edifie not The Convocation claimed formerly power as Originally from it self to impose rules for government upon Church-men and Church-Officers and upon the Laity so far as extended to their Service of God And also to charge the Estates of the Clergy and concerning Matrimoniall and Testamentary Causes They claimed also a power to determine Doctrine and Heresies Yet De Facto divers of these they never acted in that right wherein they claimed to hold Cognisance First as touching the charging of the Estates of the Clergy If it was for the Kings Service they were ever summoned by the Kings Writt yet was not their Act binding immediately upon the passing of the Vote till the Parliament confirmed the same and therefore the old form of granting of Dismes was Per Clerum Communitatem as by the pleading in the Abbot of Walthams Case appears for without their concurrence they had no power to charge any Free-man nor to levy the same but by their Church Censures which would stand them in no stead And in this the Convocation suffered no alteration either in right or power by the change thus wrought by Henry the Eighth Secondly as touching imposing Lawes upon the Laity in points of Worship and Doctrine its evident though they claimed such power they had it not for when all is done they were contented at length to get the Support of the Statute-Lawes of this Kingdome as may appear in the particular Lawes concerning the Lords Day and proceedings against Heretiques setling the Popedome in the time of the great Scisme c. But now all Title of claim is quite taken from them and all is left in the Supream Legislative power of this Nation as formerly hath been already manifested Thirdly as touching Matrimoniall causes their former power of making Lawes concerning them and Testamentary causes is now absolutely taken away onely concerning Matrimoniall matters they had so much of the Judicatory power concerning the same put upon them as might well serve the Kings own turn and that was for determining the matter between himself and the Lady Katharine Dowager depending before Arch-bishop Cranmer For the King supposed the Pope a party and therefore meaned not that he should be his Judge And thus though the Clergy had acknowledged the King to be their Supream Head yet in this he was content to acknowledge their Supremacy above him to judge between himself and his Queen and in other matters concerning himself So as upon the whole matter the Convocation were gainers in some things in other things they were onely loosers of that which was none of their owne CHAP. XXX Of the power of the Clergy in their Ordinary Jurisdiction THose Spirits are truely degenerate that being sensible of misery cannot stir up desires of change although the way thereto lies open before them and this shewes the nature of the Romish yoke that it lay upon the Spirits of Men did intoxicate and make them drunk with their condition otherwise the Usurpations Oppressions Extortions and Incroachments of the Popedome upon the Bishops Sphear and the People under their charge could never have provoked such complaynings amongst all sorts in severall Ages from time to time And now that Henry the Eighth undertakes to set them free so as they would acknowledge his Supremacy they all are struck dumb till a Premuniri taught them to speak and so were scared into a better condition then they would have had and into a more absolute Estate of Jurisdiction then they received from their Predecessors The Pope had now usurped a power supra ordinary over all Appeals gained the definitive Sentence to the Roman See and had holden this power by the space of foure hundred years and the King finding the root of all the mischeif to his Crown from abroad springing from that Principle meaned not to dispute the point with the Casuists but by one Statute took away all Appeals to Rome and determined Appeals from the Bishops Court in the Arch-Bishops Court and the Appeals from the Arch-Bishops Commissary in the Court of Audience So as though in the Kings own Case the Convocation had the last blow yet in matters concerning the Subjects the Arch-Bishop was either more worthy or more willing with that trust For though the Convocation might have as well determined all as well as the Pope yet for dispatch sake of a multitude of Appeals now depending at Rome and to prevent long attendance on the Convocation that now had much to doe in matters of more publick nature the utmost Appeal in such Cases is made Provinciall This whether priviledge or prejudice the Ecclesiasticall Causes gained above the Civill whose definitive Sentence was reserved to the
Parliament And thus is the Arch-Bishop made Heire to the Pope in the greatest priviledge of a Pope to be chief Judge on Earth in matters Ecclesiasticall within his own Province A trick that in my opinion much darkened the Glory of the Kings Title of Supream Head which the Church-men had formerly offered up to the Honour of the Crown of this Realm For be it so that the Title is in the Crown by Remitter yet cannot the same carry along with it any more then a lawfull power and whether all the Popes former power allowed him by the Canon or gained by Usurpation and Custome shall be said a lawfull power or whether the power of Review by Appeal shall be derived to the Crown under the generall Notion of Supremacy upon the Clergies submission is to me a doubt albeit I must give Honour to the Judgement in Print in regard that after the submission of the Clergy the matter concerning the Divorce of the Lady Katharine Dowager came before the Pope by Appeal and there depended the King himself also waiting upon that See for Justice and a definitive Sentence in that matter and thereby acknowledged the Popes power De facto Notwithstanding the Clergies foregoing submission and being occasioned by the delay at Rome he procured this Statute concerning Appeals to be made whereby at one breath he took the Appeals to Rome away and settled them as formerly hath been mentioned all which was done two years before the Title of Supremacy was annexed or declared for to be to the Crown by Act of Parliament And therfore as to me it appears the power of supream Cognisance of appeals was not in actuall possession of the Crown by the Clergies submission so was it actually vested in the Arch-Bishop before the Title of Supremacy was confirmed by Act of Parliament and so it never was in the Crowne actually possessed much lesse had the Crown the same by Remitter For the Kings turn once served by the Convocation and the matter of the Divorce of Queen Katharine settled the King perceiving the slow Progresse of the Convocation the Members of the same not being yet sufficiently tuned to the present Affairs And moderate Arch-Bishop Cranmer likewise foreseeing that the Odium of these Definitive Sentences would be too great for him to bear another Appeal is provided more for the Honour of the Crown to be from the Arch-Bishop to Delegats to be appointed by the King his Heirs and Successors so as though their Nomination be the Kings yet their power is deduced immediately from the Parliament which took the same from the Arch-Bishop and conferred it upon them A second advantage not inferiour hereto which the Arch-Bishop gained out of the ruines of the Popedome was the power of Licenses and Dispensations or Faculties In the Pope it was a transcendent power without any rule but what was tuned to him by the Bird in his own breast and was the ground of much license or rather licentiousnesse in the World But in the Arch-Bishop they seem to be regulated To be First in Causes not repugnant to the Law of God Secondly such as are necessary for the Honour and Security of the King Thirdly such as were formerly wont to be remedied at the See of Rome yet in truth left as much scope for the Conscience of the Arch-Bishop to walk in as the Pope had in former times a large Teather and greater priviledge then ever the Crown had by which although the King himself be like Saul higher by the head then all the People yet in many things Samuel is higher then he The moving cause hereof is not difficult to find out the King had but lately married the Lady Anne Bullen a thing that many startled at and the King himself not extreamly resolved in he would therfore have his way like that of the Zodiack broad enough for Planetary motion of any one that could not contain himself within the Eccliptick line of the Law and so shipped over the Popes power to the Chair of Canterbury and had made a Pope in stead of an Arch-Bishop but that the man was not made for that purpose What the Ordinary Jurisdiction got or lost wee come in the next place to observe First they had still their Courts and Judiciary power but upon what right may be doubted Their first foundation was laid by the Civill power of a Law in the time of William the first Norman King yet the power of the Pope and Bishop growing up together they came to hold the Power of the Keyes by a Divine right and so continued untill these times of Henry the Eighth wherein they have a Retrospect to the Rock from whence they were first hewen and many seem to change their Tenure and therewith therefore are in right to change the Style of their Courts and Title of summons but the times not being very curious and the worke of Reformation but in fieri the more exact lineaments must be left to time to finish and beautifie A greater blow did light upon the Lawe of these Courts which was left as doubtfull as the Canons all which are now put to the question and to this day never received full resolution but were left to the Parliament to determine them at leisure and in the meane time to the Judges of the common Law to determine the same Lawfull or Unlawfull as occasion should require Neverthelesse the Courts still hold on their course according to their old Lawes and Customes for their forme of proceedings some say by prescription yet more rightly by permission it being a difficult matter to make prescription hold against a Statute Law As touching the matters within their Cognisance the Law settled some and unsettled others First as touching Heresie the Church-men formerly thought scorne the Lay Magistrate should intermeddle but not being able to stop the growth thereof by their Church-Censures prayed aid of the Civill Magistracy so by degrees arose the penalties of Imprisonment and burning which brought the whole matter into Cognisance before the Civill Magistrate because no Free-man might be proceeded against for losse of Life or Liberty but by the Lawes of the Nation and for this cause the Civill Magistrate granted the Writ of Habeas corpus and releived many times the party Imprisoned wrongfully or granted prohibition as they saw cause And therefore it cannot be saide rightly that the sole or supreame Cognisance of this Crime of Heresie belonged to the Clergy before these times Nor did their proceedings upon the Writ of Burning Warrant any such thing partly because till these times the Canon Law was the best ground that these proceedings had and the course therein was not so Uniforme as to permit the Title of a Custome to warrant the same Conviction being sometimes by jury sometimes according to the Canon somtimes before the Ordinary sometimes before the Convocation sometimes before the King sometimes before speciall Delegates as the Histories of the
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