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-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
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
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
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