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
confusion in stead of Law CAHP. VI. Of the Churchmens Interest BUt the Churchmens interest was yet more tarte standing in need of no lesse a lay then that of the Kings Authority for that the King is no lesse concerned therein then the People and the rather because it was now growne to that pitch that it is become the Darling of Kings and continually henceforth courted by them either to gaine them from the Papall Jurisdiction to be more ingaged to the Crowne or by their means to gaine the Papall Jurisdiction to be more favourable and complying with the Prerogative Royall The former times were tumultuous and the Pope is gained to joyne with the Crowne to keep the people under though by that means what the Crowne saved to it selfe from the people it lost to Rome Henceforth the course of Affairs grew more civill or if you will graced with a blush of Religion and it was the pollicy of these times whereof we now Treat to carry a benigne aspect to the Pope so farre onely as to stave him off from being an enemy whiles Kings drove on a new designe to ingratiate and ingage the Churchmen of their owne Nation unto its owne Crowne This they did by distinguishing the Office or Dignity of Episcopacy into the Ministeriall and Honourable parts the later they called Prelacy and was superadded for incouragement of the former and to make their work more acceptable to men for their Hospitalities sake for the maintenance whereof they had large Endowments and Advancements And then they reduced them to a right understanding of their Originall which they say is neither Jus Divinum nor Romanum but that their Lordships Power and great Possessions were given them by the Kings and others of this Realm And that by vertue thereof the Patronage and custody of the Possessions in the vacancy ought to belong to the Kings and other the Founders and that unto them the right of Election into such advancements doe belong and not unto the Pope nor could he gain other Title unto such power but by usurpation and incroachment upon the right of others But these Great men were not to be wonne by Syllogismes Ordinarily they are begotten between Ambition and Covetousnesse nourished by Riches and Honour and like the Needle in the Compass turn ever after that way Edward the Third therefore labours to winne these men heaped Honour and Priviledges upon them that they might see the gleanings of the Crowne of England to be better then the vintage of the triple Crown Doubtlesse he was a Prince that knew how to set a full value upon Churchmen especially such as were devout and it may be did somewhat outreach in that course For though he saw God in outward events more then any of his Predecessors and disclaiming all humane merits reflected much upon Gods mercy even in smaller blessings yet we finde his Letters reflect very much upon the Prayers of his Clergy and loved to have their Persons nigh unto him put them into places of greatest Trust for Honour and Power in Judicature that not altogether without cause he had thereby purchased unto his Kingdome the name and repute of being a Kingdome of Preists But all this is but Personall and may give some liking to the present Incumbents but not to the Expectants and therefore the Royall Favor extended so far in these times as to bring on the Parliament to give countenance to the Courts and Judiciary power of the Ordinaries by the Positive Law of the Kingdome although formerly the Canons had already long since made way thereto by practice I shall hereof note these few particulars ensuing Ordinaries shall not be questioned in the Kings Court for Commatation Testamentory Matters or Matrimoniall Causes nor other things touching Jurisdiction of Holy Church Things formerly bred by the Canon nourished by continuall practise allowed by Ordinance of Parliament or Grant from Kings in Parliament are now confirmed by solemne concurrence of the whole representative Body of the Kingdome to have and to hold with Warranty And yet the sense is not so generall as the words nor doth it seeme much other then a Confection made for the Arch Bishops appetite to cure a distemper between him and the King for the Civill Judge lost nothing hereby nor would the Crowne as may appear by a Law of equall Authority with the former for though an Executor or Administrator may cheat yet it tells us that Ordinaries onely can oppresse and extort from dead men and therefore in such cases doth provide remedy by inquiry and Indictment before the Kings Justices They shall have Cognisance of Vsury during the Delinquents life and the King after the Delinquents death The difference ariseth from the different end the first being to reforme the Person by Church-censures and to urge him to restitution the latter is for the Kings Fine or Forfeiture For as touching the Usurers estate the offence was in the nature of Felony forfeiting both Lands and goods to the King after the Delinquents death And it seemeth the manner was to Indict the Delinquent during his life and that stuck to him as a deadly arrow in his side till he died Nor did it lye in the power of the Ordinary by Ecclesiasticall censure so to reforme the Offender as to cleare him to the King unlesse the party offending made his peace with the King by Composition and thus the Law continued for ought appeareth to mee till the time of Henry the Eighth They shall have Cognisance of avoydance of Benefices of Right They shall certifie Bigamy and Bastardy had beyond the Sea and whether a Prior be perpetuall or dative The first of these concerning avoydance of Churches it seemeth was somewhat doubtfull in point of Practice for that the Civill Judge used to determine all manner of avoydances as well in Fact as of right but by this Statute they are restrained onely unto avoydances in Fact so as after this Statute it is holden that avoydances by death shall be tried by the Countrey but if the avoydance be by Deprivation Resignation Creation or otherwayes it shall be tried by the Ordinary because by common intendment he is more connusant of the thing then Countrey people But as touching the point of Bigamy the matter is more doubtfull in regard that commonly the marriage of a second Wife or Widow is a matter in Fact done in the face of the People and of which they take notice especially where the life of man is concerned which rather requireth the judgement of his Peires then where the outward maintenance onely is ingaged Neverthelesse because the main point is whether the Party be a Clerk or not and the same anciently rested upon the Certificate of the Ordinary It s by this Law again allowed to him to try and certifie this point of Bigamy also although the Statute of Bigamists might seeme to Intitle the civill Magistrate thereto as the Law
therefore safe if not necessary that every eye should be open and Counsells ready for every Occasion A law at length is agreed upon that A Parliament shall be holden once every yeare or more if need be But in thirty yeares the power of this Law is wasted out of minde and the evill reviving revives also the Statute and yet they had thirteen or fourteen Parliaments in thirty yeares space and not above three or but once foure yeares distance of time between any two of them in Succession This was the sense of the Members of the Houses in their meeting but at home they had homely conceits and it s found no lesse difficult to bring them to the meeting then to continue the meeting according to the Law being either loath to adventure their thoughts into the troublesome affaires of the Publique or their Persons to expence and hazard But the Publique must be served and therefore an Act of Parliament is made That all such Members as decline their appearance at the Parliament after Summons made shall be amerced and the Sheriffes likewise that shall neglect return of Summons And the Statute implyeth that it was no Introduction of a new Law but a reviving of former Law now or lately difused or a Custome now out of Custome And to take away all Objection in point of charges and expences another Law was made to establish the assessments and levying of their Wages upon the Lands that anciently were chargeable therewith in whose hands soever the same shall come I shall conclude with this that the Parliament though like a Garment it sometimes covers the goodly feature and proportion of a well composed body yet it keepes the same warme and as a Sheild is first in all dangers and meets with many a knock which the body feels not This is their worke and reward It s true that in the wearing it is felt heavy but it is the easier born if it be duely considered that it is better to be so clothed then to be naked CHAP. III. Of the Privy Councell and condition of the Lords THe later must make way for the former for according to their Personall esteeme in their own Countries such is their Authority at the Board in joynt Councells And it was one point of happinesse in a sad time of Warre that all men looked one way The Lords were much addicted to the Feild and could doe much with Edward the Third who was a brave Leader and more with the People who had bin so long time used to the rough trade of Souldiery that they loved not to be at home about matters of Husbandry wherein they had so little experience And having so fair a Garland in their eye as France it s no wonder if Domestick designes seemed meaner or more dangerous Thus did God doe England a good turn although it was made for the present thereby neither so rich or populous as it might have bin in a time of Peace This French Heate wasted many a tumultuous Spirit and Innobled the Fame of the King and Lords not onely abroade but won them much Honour and Repute of those that remained at home and so by congregating Homogenealls and severing Heterogenealls rendered the body of the People more Univecall which tended much to the settling of the joynts of this distracted Nation A timely birth hereof doubtlesse was the peaceable entry of Richard the Second upon the Throne and quiet sitting there whiles as yet he was but a Childe the Princes of the blood many and they of generous Active and daring Spirits yet doe we not meete with a whisper in Story of any turbulent or aspiring humor in them or the People during those tenderer times of that Kings reigne But after that he came to know more in himselfe then was to be found and to outreare his abilities having some of the Lords ready at his elbow to help him these changed the Kings course although the generall part of that Noble Band kept still their Array and retaining the body of the People in due composure thereby declared themselves to be the Kings Friends though the others were Richards Favorites so as he was fain to stoop to occasion and submit to be a King that would have otherwise beene more or lesse And thus the Lords were become Supporters to the Crown Studds to the Throne and a Reserve to the People against the violent motions of an unbridled minde in their King who seeing them so united and indeavouring to break them into parties to obtain his desire lost both it and himselfe It is a degree of cleanly modesty to impute the miscarriages of unruly Kings to their Councell For however during their minority Councellors are more rightly Officers of State yet when Kings will be their owne Men their Councellors are no other then the breath of the Kings owne breast and by which a King may be more truely discerned then any man by his bosome Friends Edward the Third was a man of a publique Spirit and had a Councell suitable to his aime Richard the Second a man that desired what him pleased would have what he desired and a Councell he had that served him in all for God answers the desires of mens hearts in Judgement as well as in Mercy and a sore judgement it is both to King and People when the corrupt desires of the King are backed by a flattering Councell It must be granted that the Privy Councell of Kings hath been an old ginne of State that at a sudden lift could doe much to the furthering of the present Estate of publique Affaires Neverthelesse through the Riot of Kings their Designes generally tended to make more worke for the Parliament then to dispatch to doe much rather then well like workes for sale rather then for Master-peice and sometimes to undermine yea to outface the Parliament it selfe like some unruly servants that will put away their owne Masters Nor can it otherwise be expected unlesse the Kings elected ones be turned into the Parliaments Committee or that constant annuall Inquisition by Parliament be made into their Actions for occasionall inquiries breed ill blood though no attainder be nor are they easily undertaken whereas constancy in such Cases makes the worst to be resolved but into a matter of common course The naturall and originall power of the Privy Councell is very obscure because there are severall Degrees of them that occasionally have beene used all of whom may deserve the name of Privy Councell in regard of the Parliament which is the most publique Councell of all the rest and alwayes hath a generall interest in all Causes in the Kingdome The first of these is that which was called The Grand Councell of the King which as I thinke was not the House of Lords who are called by Summons and were onely to attend during the Parliament but a body made up of them and other wise men of his owne retinue and of this it seems
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
from the Truth some of the common Books have the words thus None shall be destrained to goe out of their Counties unlesse for cause of necessity and of sudden coming of Strangers or Enemies into the Kingdome Others reade it thus But where necessity requireth and the coming of strange Enemies into the Kingdome The Kings answer to the Parliaments Declaration concerning the Commission of Array would reade it thus Vnlesse in case of Necessity or of sudden coming of strange Enemies c. But the words in the Roll are these Et que nulls ne soient distresses d'aller hors de les Countees Si non pur Cause de necessity de suddaine venue des Stranges Enemies en Reqaulme In English thus word for word And that none be destrained to goe out of the Counties if not for cause of Necessity of sudden coming of strange Enemies into or in the Kingdome which words determine the Point That none shall be by Commission of Array drawn out of their County but in case of Necessity And secondly that this Case of Necessity is onely the coming of strange Enemies into or in the Kingdome so as probably the Invasion must be actuall before they be drawn out of their Counties and not onely feared and it must be a sudden Invasion and not of publique note and common fame foregoing for then the ordinary course either of Parliament or otherwise must be used to call those that are bound by Statute or Tenures or Volunteires to that Service seeing every Invasion is not so fatall as to require a Commission for a Generall Array Against what hath been thus noted the judgement of Sir Edward Coke in Calvins Cafe lies yet in the way who affirmeth that the Subjects of England are bound by their Legiance to goe with the King in his Warres as well within the Realme as without and this Legiance he telleth us is that Naturall Legiance which he saith is absolute and Indefinite c. and not Locall which if not so then were not the English bound to go out of England an inference that is neither necessary nor is the thing affirmed certain It is not necessary because English men may be bound to goe out of England by vertue of their Tenures particular Contract or else by speciall Act of Parliament and not by vertue of that Naturall Legiance which in Truth is no where Now for the maintenance of the Point the Reporter alledgeth two Statutes affirming the thing and Common practice and lastly Authorities of the Judges of the Common Law As touching the Statutes one in Henry the Sevenths time and the other in Edward the Sixths time I shall speake of them in the succeeding times when we come at them for they are no Warrant of the Law in these times whereof we now treat much lesse is the modern practice of these later dayes a Demonstration of the Law in the times of Edward the Third nor of the Nature of the Law in any time seeing that it is obvious to times as well as particular Persons to doe and suffer things to be done which ought not so to be and therefore I shall for the present lay those two Considerations aside But as touching the Opinions of the Judges of the Common Law two Cases are cited in the Affirmative which seeme in the Negative and the rest conclude not to the Point The first of the two cases is the opinion of Justice Thirning in the time of Henry the Fourth word for word thus A Protection lies for the Defendant in a Writ upon the Statute of Labourers and yet the Defendant shall not have such matter by way of Plea Viz. That the King hath retained him to goe beyond the Sea for the King cannot compell a man to goe out of the Kingdome That is as the Reporter saith Not without Wages intimating thereby that if the King shall tender wages to any man he must goe whither the King shall please to send him which is not onely destructive to the opinion of Thirning concerning the Plea but also though granted is destructive to the Reporters judgement in the main point For if an English man may refuse to goe without wages then is he not bound to goe by any naturall absolute Legiance as the Reporter would have it And as touching the second Case which is Bigots and Bohuns Case it cleareth the same thing for it was resolved that they ought to goe but in manner and form according to the Statutes then is not the ground in the absolute Legiance for that is not qualified but in the Positive Statute-Law which tieth onely in manner and form and that by voluntary consent in Parliament The rest of the Cases do neither conclude the main point nor the particular thing that the Reporter intendeth for he would imply to the Reader that English men were anciently used to be imprested for the Warres in France and hereunto he voucheth one Authority out of ancient Reports of Law in Edward the Thirds time one authority in the time of Henry the Fourth and three in the time of Henry the Sixth none of all which doe speake one word concerning impresting and that in Edward the hird doth imply the contrary for the Case is that in a Praecipe quod reddat a Protection was offered by the Defendant as appointed to goe beyond Sea with the Duke of Lancaster and the Plaintiffes Councell alledged that the Defendant had been beyond Sea with the Duke and was returned To this the Defendants Councell answered that the Duke was ready to return again and for this cause the Protection was allowed Yet a Quere is made upon this ground that it might be that the Defendant would not goe over with him nor was it proved that he would which sheweth plainly the party was not imprested for then the thing had not been in his power to will or nill The last instance that the Reporter produceth is that of Forinsecum Servitium or Forrain Service and that seemerh to be Knight Service to be performed abroad But this falleth short of the Reporters intention in three respects First though it belongeth to the King yet not to him onely but to other cheif Lords so saith Bracton Secondly it is not due from every English man And lastly it is a Service due by vertue of Tenure and then the Conclusion will be That which is due by Tenure of Lands is not due by naturall and absolute Legiance and so this Forrain Service arising meerly by compact and agreement between Lord and Tenant and not by the naturall duty of an English born Subject which is the thing that the Reporter driveth at in all this discourse will be so far from maintaining the Reporters opinion as it will evidently destroy the same And thus the Posture of this Nation in the Feild remaineth regular in the rule what ever hath been said against it notwithstanding that in the very instant of Action there may be some
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
rest upon this Law for within three yeares following another Law is made to confirme what was then already done by the King and a larger power granted to the King to change and alter as to his Wisdome shall seeme convenient Thus the Kings injunctions already set forth were established all opposall to them inhibited and the King hath a power of Lawing and Unlawing in Christs Kingdome and to stab an Act of Parliament in matters of highest concernment And the reason is the King will have it so and who dares gain-say it as Cranmer said the King loves his Queene well but his own opinion better for new things meeting with new love if it be once interrupted in the first heat turnes into a displeasure as hot as the first love nor had either party great cause to boast in their gainings for none of them all had any security but such as kept close to a good conscience All this though much more then any of his Predecessors ever attained was neverthelesse not enough till his Title was as compleat The Pope had fashioned him one now above twenty yeares old for his service done against Luther and others of that way and sent it to him as a Trophee of the victory this was Defender of the faith which the King then took kindly but laid it up till he thought he had deserved it better and therefore now he presents it to the Parliament who by a Statute annexed it to the Crown of England for ever now made triple by the Royallizing of that of Ireland amongst the rest A third Prerogative concerned the Kings Power in temporall matters and now must England look to it selfe for never had English King the like advantage over his people as this man had His Title out-faced all question Left rich by his Father trained up in the highest way of Prerogative absolute Lord of the English Clergy and of their Interest in the People of a vast spirit able to match both the Emperour and French abroad and yet more busie at home then all his Predecessors A King that feared nothing but the falling of the Heavens the People contrarily weary of civill Wars enamored with the first tastes of Peace and Pleasure whiles as yet it was but in the blushing child-hood overawed by a strange Giant a King with a Pope in his belly having the temporall Sword in his Hand the spirituall Sword at his command Of a mercilesse savage nature but a word and a blow without regard even of his bosome companions what can then the naked relation of a Subject do with such an one if providence steps not in and stops not the Lions mouth all wil be soon swallowed up into the hungry maw of Prerogative To set all on work comes Steven Gardiner from his Embassage to the Emperor sad apprehensions are scattered that the motions abroad are exceeding violent and sudden that the Emperor and French King are fast in nothing but in change according to occasion that like the Eagle they make many points before they stoop to the prey That if the motions at home do wait upon debates of Parliament things must needs come short in execution and the affaires of this Nation extreamly suffer A dangerous thing it is that the King should be at disadvantage either with the Emperour or French King for want of power in these cases of suddaine exegencies and for some small time during the juncture of these importent affaires that seeing likewise at home the point concerning Religion is comming to the Test the mindes of men are at a gaze their affections and passions are on their tiptoes It s reason the King should steare with a shorter Rudder that this care might meete with every turne of providence which otherwise might suddainly blow up the Peace and good Government of this Nation These and the like represented a faire face to that which followed and made way for the King without shame to ask what no King before him suffered ever to enter into conceit I meane a Legislative power to this effect That Proclamations made by the greater part of the King for the time being and his Councell whose names hereafter follow with such penalties as by them shall be thought meet shall be of equall force to an Act of Parliament provided it shall not extend to forfeiture of Estates or Priviledges nor to losse of Life but in cases particularly mentioned in the Law provided no Proclamation shall crosse any Statute or lawfull or laudable Custome of this Realme All which at length comes to be demanded by a formall Bill with as ill favored a preface as the matter it self which was much worse ere it was well licked in the House of Commons and when all was done proved a Bare still Whatever it was it passed in manner above said neither much to the desire of the Commons that so much was given nor to the good liking of the King that there was no more For in stead of a Legislative power which he grasped at for himself he received it in common with his Councell and so becomes ingaged neither to alter nor destroy that Brother-hood if he intended to reape any fruit of this Law leaving the point in doubt whither his gaine or losse was the greater For this Law thus made for this King these Councellors and these times and occasions can be no president to the future unlesse to informe Kings that the Parliament hath a power to give more Authority and prerogative to Kings then they or the Crowne have by common right and to give it with such limitations and qualifications as seemeth good to them And secondly that even Henry the eighth acknowledged that the Legislative power was not in the Crown nor was the Crowne capable thereof otherwise then it was conferred by the Parliament Onely Steven Gardiner might glory in this atcheivement having for the present obtained much of his ends by perswading the King that forrain Princes estranged from him not so much for his departure from the Pope as for some apprehensions they had of his departure from that way of Religion and Worship which they apprehend every Christian ought to maintaine And therefore if he meaned to gaine better correspondency amongst these Princes he must ingage more resolvedly to the fundamentalls of the Worship though he shook of some sleighter ceremonies with the Romish supremacy for he knew that they were willing enough with the later though the other could not go downe with them thus did forraine correspondency float above when as the Church as then it stood was underneath and gave the tincture to every wave And it was holden more safe by the Romish party to trust the King thus attempered with the legislative power in the Church matters then the rough Parliament whose Course steered quite wide from the Roman shore as if they never meant to look that way any more though Cranmer and the cheif Officers of State and of the Houshold
were by the Law Judges of the matter in fact as well as the King yet in the conclusion the King only was of the Quorum all this yet further appears in the penalty for by a Provisor it is moderated as to all forfeitures of Life Limb or Estate and in the conclusion extended only to Fine and Imprisonment unlesse in some cases mentioned and excepting offences against Proclamations made by the King or his Successors concerning Crimes of Heresie For it is the first clause of any positive Law that ever intimated any power in the King of such Cognisance and punishment of Heresie too weake a principle it is to settle a prerogative in the King and his Successors as supream head of the Church thus by a side winde to carry the keyes of Life and Death at their girdle and yet a better ground cannot I find for the martyrdome of diverse brave Christians in those times then this touch of a Law glancing by All which passing Sub silentio and the Parliament taking no notice thereof made way for the Statute 32. H. 8. ca. 26. Formerly mentioned to come more boldly upon the Stage This was one wound to the legislative power of the Parliament thus to divide the same Another ensues that in its consequence was no lesse fatall to that power which remained and it was wrought by some Engine that well saw that the disease then so called grew to be epidemicall amongst the more considerable party in the Kingdome that the Lady Jane Seymor now Queene was no freind to the Romanists that she was now with child which if a Sonn as it proved to be was like to be Successor in the Throne and be of his Mothers Religion and so undoe all as in the issue all came so to passe To prevent this neverthelesse they fancy a new conceit that Lawes made by English Kings in their minority are lesse considerately done then being made in riper yeares And so by that one opinion countenanced a worse which was that the Legislative power depended more upon the judgment of the King then the debates and results of the Parliament a notion that would down exceeding well with Kings especially with such an al-sufficient Prince as Henry the eight conceived himself to be upon this ground a Law is made to enable such of the Kings Successors by him appointed as shall be under the age of twenty and foure yeares when Lawes by him are made to adnull the same by Letters Patents after such Prince shall attaine the said age of twenty foure yeares Thus the Armes of the Parliament are bound from settling any Reformation let them intend it never so much a Muse is left open for the Romish Religion still to get in when the Season proves more faire The Parliament was now in its minority and gives occasion to the Reader to bewaile the infirmities of the excellency of England A fourth advance of Prerogative concerned the executive Power in the Government of the Church This had formerly much rested in the Prelacy and that upon the cheife Praelatissimo at Rome now there is found in England a Prelater then he the Pope was already heheaded and his head set upon the Kings shoulders To him it is given to nominate all Bishops and Arch-Bishops within his dominions by long desire and that the party once elected shall sweare fealty and then shall be consecrated by Commission and invested but if upon the long desire no election be certified within twelve dayes the King shal by Commission cause his own Clerke to be consecrated and invested The occasion that first brought in this President was the accesse of Cranmer to the See at Canterbury for though the head-ship had beene already by the space of two yeares translated from Rome to England and yet the course of Episcopizing continued the same as formerly it had beene I mean as touching the point of Election For though in their originall Bishops were meerely Donatives from the Crowne being invested by delivery of the Ring and pastoral staffe and untill King Johns time the Canonicall way of Election was disallowed yet King John by his Charter De communi consensu Baronum granted that they should be eligible which also was confirmed by diverse publique Acts of Parliament in after times and now by this Law last recited and with this way the King was contented for the space of six yeares for the Reformation intended by the King was not done at once but by degrees and therefore though this course of long desire was brought into use yet the Parliament being of six yeares continuance a necessary thing in times of so great change of policy began this course of Election by giving the King Power to nominate and allowing of the Pope Power to grant to such his Bulls or Pall at his owne will otherwise they should be consecrated by Commission without his consent this at the first the Popes concurrence was not excluded though his Negative was In this posture of Affaires comes Cranmer to be consecrated Arch-Bishop And being nominated therunto by the King the wily Pope knowing the Kings aime meaned not to withstand least he should loose all but granted the Pall as readily as it was desired so as Cranmer is thus far Arch-Bishop of Canterbury without all exception yet he must go one step further and take the old oath to the Pope which the King allowed him to do Pro more and which he did Renitente conscientia say some and with a salvo say others and all affirme it was done Perfunctoriè like some worne Ceremony or civill Complement Neverthelesse it was not so soone turned over the Arch-Bishop loved not the Office the King loved no partnorship in this matter and it was evident to all that no man could serve these two Masters any longer an agreement is soon concluded in Parliament to exclude the Popes Power quite out of this game and all is left to be done by the King and his Commissioners by the Law formerly propounded In all this the Pope is the looser the English Clergy the savers for the Pall cost Cranmer nine hundred markes And the Crown is the great gainer for hereby the King got the men sure to him not onely by their own acknowledgment and submission but also by a Statute Law And lastly by Oath which to make sure was treble twined once upon their first submmission in the Kings twenty second yeare when they had beene under Premuniri Secondly soone after the decease of Queene Katherine Dowager in the twenty sixth yeare which Oath was more compleat then the former containing First A Renunciation of all fealty to the Pope or any sorraine Power Secondly an obligation to adheare to the cause of the King and his Successors Thirdly a disavowing of the Pope otherwise then as another Bishop or fellow Brother Fourthly an ingagement to observe all Lawes already established against the Popes Power Fifthly A disavowing of all appeales to
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
in his Warrs and with him to enter and abide in Service in Battell which is the lesse to be stood upon because there is a condition annexed if the case so require which must be determined by some Authority not particularly mentioned albeit that whatsoever is therin set down is only by way of supposal in a Preface annexed to the Law by the King and permitted by the Commons that were as willing the same should be allowed as the King himself both of them being weary of warrs and willing to admit this Conclusion for the better security of them both in these doubtfull times But to lay all these aside for the Case is not stated till the Cause be considered All this must be onely when and where the Kings Person and Kingdome is indangered by Rebellion Power or might reared against him So as the Kings Person must be present in the Warr for the defence of the Kingdome or no man is bound by his allegiance to hazzard his own Life and then this point of allegiance consisteth onely in defending the King in the defence of the Land or more particularly in defending the Kings Person he being then in the defence of the Land and defending him in order to the defence of the Land So as no man can rationally inferr from hence that the King hath an universall power of Array when he pleases because the King when he pleases may not levy Warr nor make other Warr then a defensive Warr when the Land is indangered or when need shall require as another Statute hath it But who shall determine this need or danger neither in these or any other Laws is mentioned either out of want of occasion or by reason of the tendernesse of the times wherein both Prince and People were willing to decline the question Secondly the Persons that are to do this service are to be considered of and although they are indefinitely set down under the word Subjects it may be supposed that the word is not to be taken in so large a sense as to comprehend all of all ages Sexes Callings and Conditions in regard that even by the Common Law some of each of these sorts are discharged from such service But it may seem the King was neither satisfied with the oppressions of this first Law concer-cerning the occasion or time of this Service nor did he see sufficient ground under the Notion of bare allegiance to desire more New wayes are by him found out his Patentees were not a few and although few or none could ever boast much of any cheap purchases gained from him for he was wont to be well payed before hand for his Patents either by Money or that which was as beneficiall to him yet he was resolved that their holding should be no lesse advantagious to him then their having and therefore in plaine words he lets them know that notwithstanding former consideration upon which they had their Patents at the first they must fight for him if they will live upon him and either adventure their Lives or their Benefit choose they which and if they finde fault with their condition he touches them with the Law of their allegiance and thus he makes way to intimate a claim of a more absolute allegiance for being to shew the Equity of the Law in regard of their Allegiance he tells them that every Subject is bound by his Allegiance to serve and assist his Prince and Soveraigne Lord at all seasons when need shall require generall words that affirm nothing in certainty yet do glance shrewdly upon an absolute and universal assistance Then comming to drive the naile home it is said that the Patentees are bound to give their attendance upon his Royall Person to defend the same when he shall fortune to go in his person in Warrs for the defence of the Realme or against his Rebells and Enemies and as another Statute addeth within the same Realme or without and according to their Allegiance and not to depart without especiall license or untill general Proclamation of dismission In shew therefore here is a new Militia as touching the Kings Patentees they must attend the Kings Person whither ever the King will lead them either within the Realme or without whether against such as he will suppose to be his Enemies abroad or if he will mistake his Subjects for his Enemies at home And this under the colour of Allegiance published in doubtfull expressions as if it were not meet that Henry the seventh that loved not to yoke himself to the Law should yoke his Lawes under the Lawes of plaine language Or rather that he held it a point of policy to publish his Laws in a doubtfull stile that such as durst question his Lawes might have no positive charge against them and such as dared not to enter into the lists with him might not be bold to come nigh the breach of them Nevertheless neither doth the glance of allegiance in the Preface of the former nor in the body of the later Statute any whit confirm that what is in them enacted is done upon the ground of Allegiance but contrarily when as the first Statute commeth to the point it Startles from the ground of Allegiance and flies to the ground of a kinde of Equity or reason And the second resorteth to the first as its proper ground as being a suppliment thereunto in cases forgotten and so omitted though it may be rather thought that the King creeping up into his heighth by degrees made the former onely as an essay to prepare the way for the later like the point of the Wedge that maketh way for the bulk and body thereof The truth of this assertion will be more manifest from the nature of both these Lawes being limited both in regard of time and person In regard of time for both these Lawes are but temporary and to continue onely during the Life of Henry the seventh in regard the advancements therein mentioned as the moving cause are onely the advancements made by himself In regard of the person for all persons that received advancements from him are not bound thereby namely those that come in to such advancement by purchase for Money Neither are Judges and other Officers excepted persons in the saide Statutes If therefore Allegiance had been the ground of these Lawes it had equally bound all who are under that Bond and no Equity could have given a generall rule of discharge unto such condition of men It had likewise bound as well formerly and afterward as during this Kings Reigne and therefore what ever semblance is made therein concerning Allegiance there had bin no need of such Law if Allegiance could have done the Deed or if the power of Array had been of that large extent as it hath lately been taken In my conceit therefore these two Lawes do hold forth nothing that is new but a minde that Henry the seventh had to fill his Coffers though his minde would
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
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
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