the people for the present must endure In deposito of the King and other persons that a kind of Interim might be composed and the Church for the present might enjoy a kind of twilight rather than lie under continual darkness and by waiting for the Sun-rising be in a better preparation thereunto For the words of the Statute are That all must be done without any partial respect or affection to the Papistical sort or any other Sect or Sects whatsoever Unto this Agreement both parties were inclined by divers regards For the Romanists though having the possession yet being doubtful of their strength to hold the same if it came to the push of the Pike in regard that the House of Commons wanted Faith as the Bishop of Rochester was pleased to say in the House of Lords and that liberty of Conscience was then a pleasing Theme as well as liberty of Estates to all the People These men might therefore trust the King with their interests having had long experience of his Principles and therefore as Supream Head they held him most meet to have the care of this matter for still this Title brings on the Van of all these Acts of Parliament On the other side that party that stood for Reformation though they began to put up head yet not assured of their own power and being so exceedingly oppressed with the six Articles as they could not expect a worse condition but in probability might find a better they therefore also cast themselves upon the King who had already been baited by the German Princes and Divines and the outcries of his own People and possibly might entertain some prejudice at length at that manner of Worship that had its original from that Arch-enemy of his Head-ship of the Church of England Nor did the issue fall out altogether unsuitable to these expectations For the King did somewhat to unsettle what was already done and abated in some measure the flame and heat of the Statute although nothing was established in the opposite thereto but the whole rested much upon the disposition of a King subject to change As touching the constitution of this Law that also shews that this was not derived from the ancient Right of the Crown now restored but by the positive concession of the People in their representative in regard it is not absolute but qualified and limited diversly First This power is given to this King not to his Successors for they are left out of the Act so as they trusted not the King but Henry the Eighth and what they did was for his own sake Secondly They trusted the King but he must be advised by Counsel of men of skill Thirdly They must not respect any Sect or those of the Papistical sort Fourthly All must be according to Gods Word and Christs Gospel And Lastly Nothing must be done contrary to the Laws and Statutes of this Realm And thus though they trusted much yet not all nor over-long For it was but a temporary Law and during the present condition of affairs Nor did the King or People rest upon this Law for within three years following another Law is made to confirm what was then already done by the King and a larger power granted to the King to change and alter as to his Wisdom shall seem convenient Thus the Kings Injunctions already set forth were established all opposal to them inhibited and the King hath a power of Lawing and Unlawing in Christ's Kingdom and to stab an Act of Parliament in matters of highest concernment And the reason is the King will have it so and who dares gainsay it as Cranmer said The King loves his Queen well but his own opinion better For new things meeting with new love if it be once interrupted in the first heat turns into a displeasure as hot as the first love Nor had either party great cause to boast in their gainings for none of them all had any security but such as kept close to a good Conscience All this though much more than any of his Predecessors ever attained was nevertheless not enough till his Title was as compleat The Pope had fashioned him one now above twenty years old for his service done against Luther and others of that way and sent it to him as a Trophee of the Victory this was Defender of the Faith which the King then took kindly but laid it up till he thought he had deserved it better and therefore now he presents it to the Parliament who by a Statute annexed it to the Crown of England for ever now made triple by the Royalizing of that of Ireland amongst the rest A third Prerogative concerned the Kings power in temporal matters And now must England look to it self for never had English King the like advantage over his People as this man had His Title out-faced all question left rich by his Father trained up in the highest way of Prerogative absolute Lord of the English Clergy and of their Interest in the People of a vast spirit able to match both the Emperour and French abroad and yet more busie at home than all his Predecessors A King that feared nothing but the falling of the Heavens the People contrarily weary of Civil Wars enamoured with the first tastes of Peace and Pleasures whiles as yet it was but in the blushing child-hood over-awed by a strange Giant a King with a Pope in his belly having the Temporal Sword in his hand the Spiritual Sword at his command Of a merciless savage nature but a word and a blow without regard even of his bosome-Companions What can then the naked relation of a Subject do with such an one if Providence steps not in and stops not the Lions mouth all will be soon swallowed up into the hungry maw of Prerogative To set all on work comes Steven Gardiner from his Embassage to the Emperour sad apprehensions are scattered that the motions abroad are exceeding violent and sudden that the Emperour and French King are fast in nothing but in change according to occasion that like the Eagle they make many points before they stoop to the Prey that if the motions at home do wait upon debates of Parliament things must needs come short in execution and the affairs of this Nation extreamly suffer A dangerous thing it is that the King should be at disadvantage either with the Emperour or French King for want of power in these cases of sudden exigencies and for some small time during the juncture of these important affairs that seeing likewise at home the point concerning Religion is coming to the Test the minds of men are at a gaze their Affections and Passions are on their Tiptoes It is reason the King should steer with a shorter Rudder that this care might meet with every turn of Providence which otherwise might suddenly blow up the Peace and good Government of this Nation These and the like represented a fair face to that
make a Law somewhat short of a full freedom and yet outreaching that of Bondage which we since have commended to posterity under the Forest-Charter And yet for all that it proved a hard matter for Kings to hunt by Law and the Law it self is a Yoke somewhat too heavy for a Commonwealth to bear in old age if self-denying Majesty shall please to take it away CHAP. XXXV Concerning Judges in Courts of Justice THus far of the several Tribes and numbers of this Commonwealth which like so many Conduit-heads derived the influence of Government through the whole body of this Island and in every of which Judiciary power acted it self in all Causes arising within the verge of that Precinct some of which had more extraordinary trial before the King and his Council of Lords according as the parties concerned were of greater degree or the Cause of more publick concernment Examples hereof are the Cases between the Bishop of Winchester and Leoftin in Aetheldred's time and between the two Bishops of Winchester and Durham in Edward's time But custom made this Court stoop to smaller game in latter times and to reach at the practice of the County-Court by sending the Kings Writs to remove certain Causes from the cognizance of those rural Judicatories to their sublime determination And thus became the Council of Lords as an Oracle to the whole Nation and the King amongst the rest as the Priest that many times rendred the Answer or Sentence of that Oracle in his own sense and had it confirmed to him by an Oath se judicium rectum in Regno facturum justitiam per concilium procerum regni sui tenturum so as though he was the first in view yet the Council of Lords was the first in nature and the Cynosure to direct his tongue and actions From this Fountain issued also streams of Judicature into all parts by Judges itinerant under the Kings Commission to reform errors punish defaults in the ordinary rural Judicatories and to dissolve hard and knotty Cases and these were occasioned at the instance of the party and Alfred whose birth this was sent them forth in way of Association with the Sheriff Lord of the Fee or other ordinary Magistrate CHAP. XXXVI Of the Proceedings in Judicature by Indictment Appeal Presentment and Action FOr the proceedings in course the Saxons were wont to begin with matters belonging to the Church and afterward to Secular causes in which if the matters were criminal the most ancient way of proceeding was by Appeal of the party complaining But afterward in cases that concerned Damage Injury or Violence done to the Body of a man or his Estate the King was found to be therein prejudiced besides the prejudice immediately done to the Subject for a man disabled in Body or Estate is disabled to serve the King and the Publick and upon this ground a way was found out to punish the offender by Indictment besides the satisfaction done to the party wronged The proceedings against such Delinquents were by attachment of the party who thereupon gave Pledges for his appearance If the party could not be found a fugam fecit was returned and that was a conviction in Law and pursuit was made after the party by Huy and Cry. If he was thereby taken the ancient way was that of Hallifax-Law but in latter times he was imprisoned or admitted to Bail if the offences were bailable and if the party bailed made default or did not abide the Trial his Bail suffered as Principal If no Bail could be procured the Delinquent was imprisoned till he was legally acquitted but this imprisonment was only in nature of restraint If the Delinquent was found upon the Huy and Cry and would not yield himself he was in repute a common Enemy and as a Wolf any man might kill him as the Law was also the same in case of Vtlary At the time of tryal if at the Kings suit the Delinquent was indicted in this manner by any party present I D. C. do say for the King that I. S. is defamed by good men that he upon day of c. into the House and Goods of did cast fire and the same did burn or if it were for Bloodshed with a Sword did strike and wound him in the left arm and that this was done Feloniously or if the case required Traiterously and if I. S. deny the same I will for the King prove the matter against him as the King ought to do that is to say by Witnesses and Twelve men But if the complaint was at the suit of the party then the Prosecutor sued him upon Appeal in manner following I. C. appealeth D. H. here present for that E. Father Brother Son or Vncle according as the case was to I. C. being in the peace of God and of our Soveraign Lord the King at the dwelling house of E. at c. the said D. H. upon the day of in the year of with a Sword made a Wound of two inches long and six inches deep in the left pap of the body of the said E. whereof he died and this was done Feloniously and of Malice forethought And if the said D. H. shall deny the same the said I. C. is ready to prove the same against him in his body or as a Monk Woman or Clerk behoveth to prove the same that is by Champion for neither Monk Woman nor Clerk was by Law to justifie by Battle in their own person The several causes of Appeal and Indictment may be found in the Law-books to whom I refer the Reader it not being within the compass of this Discourse to fall upon the particulars I shall onely observe the difference between Indictments former and latter and between them and Appeals viz. that Appeals are positive Accusations in the name of the Prosecutor of the fact done by the party appealed whereas Indictments were onely a publication or affirmation of the same of a fact done by the party indicted and wherein Not guilty pleaded served onely as in nature of a Quere to usher in the votes of the Freemen concerning the fact Secondly the difference between former Indictments from these in these days consists in this that the ancient Indictments were in the name of one man those of the later sort are in the name of the Jury and the former were onely of a same the later of the fact A third way of bringing Controversies unto judgement concerned onely such matters as were of less consequence and these were introduced by way of Presentment in the name or behalf of the King in nature of a positive Accusation of one for a Crime first laid down generally and then asserted by a particular fact in this manner I say for our Soveraign Lord the King That H. here is perjured and hath broken saith against the King because whereas H. is or was Chancellour of the King and was
right and so the Lord became both Judge and Party which was soon felt and prevented as shall appear hereafter Another priviledge of the Lords power was over the Tenants Heir after the Tenants death in the disposing of the Body during the minority and marriage of the same As touching the disposing of the Body the Lord either retained the same in his own power or committed the same to others and this was done either pleno jure or rendring an account As concerning the marriage of the Females that are Heirs or so apparent the Parents in their life-time cannot marry them without the Lords consent nor may they marry themselves after their Parents death without the same and the Lords are bound to give their consent unless they can shew cause to the contrary The like also of the Tenants Widows that have any Dowry in the Lands of such Tenure And by such-like means as these the power of the Barons grew to that height that in the lump it was too massie both for Prince and Commons Of the power of the last Will. It is a received opinion that at the common-Law no man could devise his Lands by his last Will. If thereby it be conceived to be against common reason I shall not touch that but if against custom of the ancient times I must suspend my concurrence therewith until those ancient times be defined for as yet I find no testimony sufficient to assert that opinion but rather that the times hitherto had a sacred opinion of the last Will as of the most serious sincere and advised declaration of the most inward desires of a man which was the main thing looked unto in all Conveyances Voluntas donatoris de caetero observetur And therefore nothing was more ordinary than for Kings in these times as much as in them did lie to dispose of their Crowns by their last Will. Thus King John appointed Henry the Third his Successour and Richard the first devised the Crown to King John and Henry the first gave all his Lands to his Daughter and William the Conqueror by his last Will gave Normandy to Robert England to William and to Henry his Mothers Lands If then these things of greatest moment under Heaven were ordinarily disposed by the last Will was it then probable that the smaller Free-holds should be of too high esteem to be credited to such Conveyances I would not be mistaken as if I thought that Crowns and Empires were at the disposal of the last Will of the possessor nor do I think that either they were thus in this Kingdom or that there is any reason that can patronize that opinion yet it will be apparent that Kings had no sleight conceit of the last Will and knew no such infirmity in that manner of conveyance as is pretended or else would they never have spent that little breath left them in vain I have observed the words of Glanvil concerning this point and I cannot find that he positively denyeth all conveyance of Land by Will but only in case of disherison the ground whereof is because it is contrary to the conveyance of the Law and yet in that case also alloweth of a disposing power by consent of the Heir which could never make good conveyance if the Will in that case were absolutely void and therefore his Authority lies not in the way Nor doth the particular customs of places discountenance but rather advance this opinion for if devises of Lands were incident to the Tenure in Gavel-kind and that so general in old time as also to the burgage Tenures which were the rules of Corporations and Cities Vbi Leges Angliae deperiri non possunt nec defraudari nec violari how can it be said contrary to the common Law And therefore those Conveyances of Lands by last Will that were in and after these times holden in use seem to me rather remnants of the more general custom wasted by positive Laws than particular customs growing up against the common rule It is true that the Clergy put a power into the Pope to alter the Law as touching themselves in some cases for Roger Arch-bishop of York procured a faculty from the Pope to ordain that no Ecclesiastical persons Will should be good unless made in health and not lying in extremity and that in such cases the Arch-bishop should possess himself of all such parties goods but as it lasted not long so was himself made a president in the case for being overtaken with death e're he was provided he made his Will in his sickness and Henry the Second possessed himself of his Estate And it is as true that Feme coverts in these days could make no Will of their reasonable part because by the Saxon Law it belonged joyntly to the Children Nor could Vsurers continuing in that course at the time of their death make their Will because their personal Estate belonged to the King after their death and their Lands to their Lords by escheat although before death they lie open to no censure of Law but this was by an especial Law made since the Conquerour's time for by the Saxon-Law they were reputed as Out-Laws Nevertheless all these do but strengthen the general rule viz. That regularly the last Will was holden in the general a good conveyance in Law. If the Will were only intended and not perfected or no Will was made then the Lands passed by descent and the goods held course according to the Saxon Law viz. the next Kinsmen and Friends of the intestate did administer and as administrators they might sue by Writ out of the Kings Court although the Clergy had now obtained so much power as for the recovery of a Legacy or for the determining of the validity of the Will in its general nature it was transmitted to the Ecclesiastical Court. CHAP. LXIII Of the Militia of this Kingdom during the Reign of these Kings I Undertake not the debate of right but as touching matter of fact shortly thus much that from the Norman times the power of the Militia rested upon two principles the one the Allegiance for the common defence of the King's person and honour and Kingdom and in this case the King had the power to levy the force of the Kingdom nevertheless the cause was still under the cognizance of the great Council so far as to agree or disavow the War if they saw cause as appeared in the defections of the Barons in the quarrel between King Steven and the Empress and between King John and his Barons The other principle was the service due to the Lord from the Tenant and by vertue hereof especially whenas the liberty of the Commons was in question the Militia was swayed by the Lords and they drew the people in Arms either one way or the other as the case appeared to them the experience whereof the Kings from time to time felt to their extream prejudice and the Kingdoms
respect he may be said to be less his own man and more the Kingdoms than any of the inferiour sort This befel in both these Kings in a special manner each entring upon the grand Government of a Kingdom before they were able to understand the work or govern themselves and therefore were under power of Protectors for the guard of their Persons and their Education and of the Parliament for Counsel and Direction in Cases relating to the Kingdom The child of a mean man when its Parents are dead is Filius Amici but a King is Filius Populi to be by them trained up in such manner that he may be Pater Populi when he is come to age In the mean time though he be a King yet his Person like a precious Jem must not out of the Ring but must be directed by Council though under some kind of restraint and the Counsellors all the while no Offenders in such cases against the Prerogative Royal. And therefore though it be true that Kings grow faster than other men and sooner come to full age than they yet Edward the Third now in his sixteenth year might not pass over Sea into France though it were for restoring of Peace but by direction of the Parliament nor is it meet in such cases that Kings should stand upon the Prerogative of a Negative Secondly it may likewise be said That his Family is less his own as he is a man than other mens For private Families are no further under the publick Law than in relation to the publick Peace to punish after breach made but the Families of Kings are looked upon by all in relation to the honour and profit of the Publick not onely because the King's servants have by their nigh attendance upon his person a more powerful influence into his actions which may reflect a malevolent Aspect upon the whole course of affairs if they be not better ordered that are so nigh him but more especially in regard that the government and order of the Royal Family trencheth deep upon the Honour of the Kingdom and Purses of the People who are concerned to see the same accommodated suitable to the State and Port which the Nation would bear forth to the World. And therefore for the Parliament to intermeddle in the King's Family is not foreign nor new Alice Piers was a Familiar if not of the Family of Edward the Third yet both her self and others of that Family were complained of as a grievance Richard the Second was once a young man and ever a young King and what Edward the Third wanted onely in his Youth and in his infirm old Age this man ever wanted for he that knew not how to govern himself how much less could he govern his Family And if in this condition the Parliament become his Stewards to set a yearly Survey and Check upon his Servants and Family in order to the good order of the same and Kingdom other wise men must conclude it did that which was just though Richard the Second and those of his mind think not so But this is not all Kings have not onely such as serve the outward man but some that serve their Consciences of old time called Confessors in these days without name for fear of Superstition yet the thing remaineth still in some well-favoured Chaplain and their work is to lead the King's Conscience in dark ways or rather into them Commonly he hath a devout outside and that is the King's Idol but if while his eye be towards Jerusalem his mind be towards the dead Sea the King is his and then the blind leads the blind Like some Ignis fatuus to such as know it not No man is so well known by his company as Kings are by these men and these men by their actions Although some have been so witty as to cheat the whole Generation of Mankind by entertaining holy men to be their Chaplains themselves the mean time without any spark of that holy Fire Yet this King was not so cunning he had a Confessor of his own choice and according to his own heart who was complained of as a grievance and the Parliament removed him So nigh they ventured even to invade the King 's own Conscience if it may be called Conscience that will acknowledge no Law but that of its own mind Thirdly the King's Revenue was under the check and controul of the Parliament for it befals some Princes as other men to be sometimes poor in abundance by riotous flooding treasure out in the lesser currents and leaving the greater channels dry This is an insupportable evil because it is destructive to the very being of affairs whether for War or Peace For the King's Treasure is of a mixt nature much of it being intended for publick service as himself is a publick person And for this cause he hath Officers of several natures attending upon his Treasury Some for Land some for Sea some for the general Treasure of the Kingdom some for that of the Houshold and some for the Privy Purse The common end of all being to maintain State in time of Peace and Strength against time of War. Because it is no easie matter to maintain the just proportions for each of the said ends it is the less wonder that such a brave Prince as Edward the Third should labour under want for maintenance of the Wars and so lavish a Spendthrift as Richard the Second should labour under more want to maintain his port and countenance in peace And therefore though it be true that the publick Treasure is committed to the King as the chief Steward of the Realm yet it is as true that he is but a Steward and that the Supreme survey of the Treasure resteth in the Parliament 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 unfaithful and encouraging of others that are faithful 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 Expences If then in such cases sometimes the Parliament hath stayed the issuing out of the King's 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. limited it to certain uses and in case of misuser refused to levy or make payments the case will be without dispute that the Parliament ordered the publick Treasure as they saw most need But much more if we consider how the greatest part of this Treasure was raised viz. not from the old Revenues of the Crown but by new Impositions Levies and Assessments laid upon the People even what they pleased and in
this power within its own bounds than the watry Element upon which it sloated but it made continual waves upon the Franchise of the Land and for this cause no sooner had these great men savoured of the Honour and Authority of that Dignity but comes a Statute to restrain their Authority in the Cognizance of Cases only unto such matters as are done upon the main Sea as formerly was wont to be And within two years after that Act of Parliament is backed by another Act to the same purpose in more full expressions saving that for Man-slaughter the Admirals power extended even to the high water-mark and into the main streams And this leadeth on the next consideration viz. What is the subject matter of this Jurisdiction and Authority I shall not enter into the depth of particulars but shall reduce all to the two heads of Peace and Justice The Lord Admiral is as I formerly said a Justice of Peace at Sea maintaining the Peace by power and restoring the Peace by setting an Order unto matters of Difference as well between Foraigners as between the English and Foraigners as may appear by that Plea in the fourth Institutes formerly mentioned Secondly That point of Justice principally concerneth matters of Contract and Complaints for breach of Contract of these the Admiral is the Judge to determine according to Law and Custom Now as subservient unto both these he hath Authority of command over Sea-men and Ships that belong to the State and over all Sea-men and Ships in order to the service of the State to arrest and order them for the great voyages of the King and Realm and during the said voyage but this he cannot do without express Order because the determining of a voyage Royal is not wholly in his power Lastly the Lord Admiral hath power not only over the Sea-men serving in the Ships of State but over all other Sea-men to arrest them for the service of the State and if any of them run away without leave from the Admiral or power deputed from him he hath power by enquiry to make a Record thereof and certifie the same to the Sheriffs Mayors Bailiffs c. who shall cause them to be apprehended and imprisoned By all which and divers other Laws not only the power of the Admiral is declared but the original from whence it is derived namely from the Legislative power of the Parliament and not from the single person of the King or any other Council whatsoever But enough hath been already said of these Courts of State in their particular precincts One general interest befalls them all That as they are led by a Law much different from the Courts of Common-Law so are they thereby the more endeared to Kings as being subservient to their Prerogative no less than the Common-Law is to the peoples liberty In which condition being looked upon as Corrivals this principal Maxime of Government will thence arise That the bounds of these several Laws are so to be regarded that not the least gap of intrenchment be laid open each to other lest the Fence once broken Prerogative or Liberty should become boundless and bring in Confusion instead of Law. CHAP. VI. Of the Church-mens Interest BUt the Church-mens interest was yet more Tart standing in need of no less allay than that of the King's Authority for that the King is no less concerned therein than the people and the rather because it was now grown to that pitch that it is become the Darling of Kings and continually henceforth courted by them either to gain them from the Papal Jurisdiction to be more engaged to the Crown or by their means to gain the Papal Jurisdiction to be more favourable and complying with the Prerogative Royal. The former times were tumultuous and the Pope is gained to joyn with the Crown to keep the people under though by that means what the Crown saved to it self from the people it lost to Rome Henceforth the course of Affairs grew more civil or if you will graced with a blush of Religion and it was the policy of these times whereof we now treat to carry a benign Aspect to the Pope so far only as to slave him off from being an enemy whilst Kings drove on a new design to ingratiate and engage the Church men of their own Nation unto it's own Crown This they did by distinguishing the Office or Dignity of Episcopacy into the Ministerial and Honourable Parts the later they called Prelacy and was superadded for encouragement of the former and to make their work more acceptaple 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 Original 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 doth belong not unto the Pope nor could he gain other Title unto such power but by usurpation and encroachment upon the right of others But these great men were not to be won by Syllogisms Ordinarily they are begotten between Ambition and Covetousness nourished by Riches and Honour and like the Needle in the Compass turn ever after that way Edward the Third therefore labours to win these men heaped Honour and Priviledges upon them that they might see the gleanings of the Crown of England to be better than the vintage of the Tripple Crown Doubtless he was a Prince that knew how to set a full value upon Church men especially such as were devout and it may be did somewhat outreach in that course For though he saw God in outward events more than any of his Predecessors and disclaiming all humane merits reflected much upon God's mercy even in smaller blessings yet we find his Letters reflect very much upon the Prayers of his Clergy he loved to have their Persons nigh unto him put them into places of greatest Trust for Honour and Power in Judicature and not altogether without cause he had thereby purchased unto his Kingdom the name and repute of being a Kingdom of Priests But all this is but Personal and may give some liking to the present Incumbents but not to the expectants and therefore the Royal Favour 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 Kingdom 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 King's Court for Commutation Testamentary Matters or Matrimonial Causes nor other things touching Jurisdiction of Holy-Church Things
at length setled the Staple in certain places in several parts of the Kingdom But this extended onely unto the Commodities of Wool Leather and Lead for as yet the Manufactures were not come to maturity Secondly the endeavour was to advance Manufacture and principally such of them as are made of the Staple Commodities amongst all which Wool had the precedency as being the most principal and ancient Commodity of the Kingdom and the Manufacture of Wool of long use but had received little encouragement before these times for that it formerly had been the principal flower in the Flemish Garden and nourished from this Nation by the continual supply of Wool that it received from hence which was the principal cause of the ancient League between the House of Burgundy and this Crown But Edward the Third was now too well acquainted with the Flemings affairs by a joynt engagement with them in the Wars of France and therein had gained so good an opinion amongst them that he might adventure to change a Complement for a Courtesie The Staples beyond the Sea were now taken away he now inhibiteth the Importation of forein Cloaths and having gained these two steps onward of his way he represents to the Flemings their unsetled condition by these bordering Wars with France the peaceable condition of England and Freedom of the people then propounds to them an invitation to come over into England promiseth them share and share like with his own people with such other Immunities as they take his offer come over and brought their Manufacture with them which could never after be recalled So as now the Wool and Manufacture dwell together and like to Man and Wife so long as they care for one another both will thrive but if they come to play their Games apart both will be losers in the conclusion The third step to the advance of Trade was the Exportation of the Surplusage of the Staple Commodities that remained over and besides that proportion that should suffice for the Manufactures to which end it was ordered that no Wool should be exported till it had remained at the Staple by the space of Fifteen days That time was necessary and longer time might have been convenient but that the Markets beyond the Sea could not be delayed longer time without much damage to the Merchant and Owner for as much as Winter-time is no time to prepare Wool for the Manufacture and by over-long continuance of the Commodity upon the hand of the Merchant or Owner both the Commodity and the Manufacture might surfeit lie in despair and Trade choaked thereby For it is a necessary preparative to Trade to keep the Nation in some kind of hunger after the Staple-Commodities so as the main Stock be not too great to occupy and yet to leave enough to use But because this Nation formerly had been and as yet were used too much to forein Manufactures the importing of which did debase the home-made Manufactures and discouraged that work therefore the Law was made to reduce the vanity of Apparel which infected these times to more Sobriety Some delight in forein Commodities and Manufactures is doubtless 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 poor and the people want work because it is a noted vanity of this Nation That they love things far fetcht and dear bought As a cure therefore to this disease English Cloth by Law is enjoyned to be worn by all persons under the degree of a Lord and so the former Inhibition of Importation of forein Cloaths was strengthned thereby And because the English Clothiers should not take advantage hereby to raise the price of their Cloaths to their own covetous pin therefore the Law also setled a certain Price and Measure and the same before sale was to be allowed upon view and for the goodness of the Cloaths and perfect working thereof Laws were likewise made against Exportation of all such as were not perfectly made A fourth step to the advancement of Trade was the compelling men to work for when publick employment calls men forth for service in the Field their mindes once in commotion or upon the Wing can hardly settle any where or stoop to the Perk again unless upon hope of prey or gain to be gotten 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 Workmen were scarce and dear but even the Mass it self was grown stately the private delights of Kings and great men and scarce vouchsafing to be seen by common gaze but at a great distance The Priests had little Charity and the Poor had as little Money so as no Penny no Pater Noster A sick and very crazy time questionless was it when the Clergie were stately and the Poor idle The Priests Wages for this cause are now setled and they that would get much must get many littles and do 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 Cloahts and the subsistence of the Clothier Lâ—aws therefore are made to compel them to work and to settle their Wages so as now it is as beneficial 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 enriching of this Kingdom with forein Commodities and the maintaining of Shipping which was and is a principal means not onely of strength unto all Sea-bordering Countries especially regard being had to these three Considerations First That Importation does bring in more profit than Exportation disburseth Secondly That both Exportation and Importation be made by Shipping belonging to this Nation so far as may consist with the benefit of this Nation Thirdly That 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 receiveth more dead Commodities from abroad than it can spend at home or vend into forein parts especially if it be vended in its proper kind and not in Money And therefore the Laws provided that no Merchant should Export more Money than he Importeth and what he doth Export must be of the new stamp which it seemeth was inferiour in value to the old yet the times may prove so penurious that this rule may be waved for a season The second is no less beneficial for as it is in War so in all Trades the greater the number is that is employed the more effectual
formerly hath been already manifested Thirdly As touching Matrimonial Causes their former power of making Laws concerning them and Testamentary Causes is now absolutely taken away onely concerning Matrimonial 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 Katherine Dowager depending before the Archbishop Cranmer For the King supposed the Pope a Party and therefore meaned not that he should be his Judge And thus though the Clergie 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 losers of that which was none of their own CHAP. XXX Of the power of the Clergie in their Ordinary Jurisdiction THose Spirits are truly degenerate that being sensible of miserie cannot stir up desires of Change although the way thereto lies open before them And this shews 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 Popedom upon the Bishops Sphere and the people under their charge could never have provoked such complainings amongst all sorts in several 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 Praemuniri taught them to speak and so were scared into a better condition than they would have had and into a more absolute Estate of Jurisdiction than 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 four hundred years and the King finding the root of all the mischief 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 Archbishops Court and the Appeals from the Archbishop's Commissarie 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 Archbishop was either more worthie or more willing with that trust For though the Convocation might have 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 do in matters of more publick nature the utmost Appeal in such cases is made Provincial This whether priviledge or prejudice the Ecclesiastical Causes gained above the Civil whose definitive Sentences was reserved to the Parliament And thus is the Archbishop made Heir to the Pope in the greatest priviledge of a Pope to be chief Judge on Earth in matters Ecclesiastical within his own Province A trick that in my opinion much darkned 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 than a lawful power and whether all the Pope's former power allowed him by the Canon or gained by Usurpation and Custom shall be said a lawful power or whether the power of Review by Appeal shall be derived to the Crown under the general Notion of Supreamacy 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 Clergie the matter concerning the Divorce of the Lady Katherine 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 Pope's 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 setled 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 therefore as to me it appears the power of Supream Cognizance of Appeals was not in actual possession of the Crown by the Clergies submission so was it actually vested in the Archbishop before the Title of Supremacy was confirmed by Act of Parliament and so it never was in the Crown actually possessed much less had the Crown the same by Remitter For the King's turn once served by the Convocation and the matter of the Divorce of Queen Katherine setled the King perceiving the slow progress of the Convocation the Members of the same not being yet sufficiently tuned to the present Affairs And moderate Archbishop 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 Archbishop to Delegates 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 Archbishop and conferred it upon them A second advantage not inferiour hereto which the Archbishop gained out of the ruines of the Popedom 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 licentiousness in the world But in the Archbishop 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 Archbishop to walk in as the Pope had in former times A large Teather and greater priviledge than ever the Crown had by which although the King himself be like Saul higher by the Head than all the people yet in many things Samuel is higher than 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 therefore have his way like that of the Zodiack broad enough for Planetary motion of any one that could not contain himself within the Ecliptick line of the Law and so
and made all practices contrary to the rule damageable to the party Thus far concerning the matters in Cognizance now touching the power of the Keys English Prelacy having laid aside the pretentions of Rome they put the world to a gaze to see which way they would go In the innocent infancy of Prelacy it was led by the hand by the Presbytery and would do nothing without them afterwards having gained some degree of height and strength they entred themselves to be Chariot-horses to the Roman Sun till they had set all on fire Now unharnest it is expected they should return to their former Wits nevertheless forgetting their ancient Yoak-fellows the rural Presbyters they stable with the King use his name sometimes but more often their own serving him with Supremacie as he them with authority beyond their Sphere They raise him above Parliament he them above Councils so as they do what they list let the Plebeian Presbyter will or nill they are the onely numeral Figures and the other but Cyphers to make them Omnibus numeris absoluti Nevertheless the Canon still remains the same Episcopi se debent scire Presbyteros non Dominos nec debent in clerum dominari Episcopus se sedente non permittat Presbyterum stare Episcopi noverint se magis consuetudine quam dispensatione Presbyteris majores Kings may make them Lords but as Bishops they hold their former rank assigned by the Canon as Lord s the King never gave them the Keys and as Bishops the Canon did not yet as under the joynt Title of Lord-Bishops they hold themselves priviledged to get what power they can Two things they reach at viz. The absolute power of Imprisonment and of Excommunication in all causes Ecclesiastical The Common Law would never yield this some Statutes in some Cases did pretend First As touching Imprisonment the Statute of Henry the Fourth concerning Heresie doth lisp some such power of what force the same Statute is hath been already observed In case of incontinency of Church-men it is more directly given them by a Statute in Henry the Seventh's time before which time the Statute it self doth intimate that an Action did lie against them for such Imprisonment which Law also was made useless by another in Henry the Eighth's time who gave a way to Statutes for the punishing them at the Common Law. First with Death which continued for some Moneths and that being found too heavy it was punished by another Law with Forfeiture and Imprisonment And the same King likewise gave way to a Law for the like punishment in case of Heresie By that Law that revoked the Statute of Henry the Fourth formerly mentioned although till Trial the same was bailable And thus continued till the time of Edward the Sixth But as touching Excommunication it was to no purpose for them to struggle the Common Law would never permit them to hold possession quietly but did examine their Authority granted Prohibition enjoyned the Ordinary to grant Absolution where it saw cause Nevertheless in some cases Henry the Eighth gives way to some Statutes to allow them this power as in the â—evying of Tenths In the next place the Prelacy had not this Ecclesiastical Jurisdiction in themselves so as to grant it to others but the Parliament did dispose thereof not onely to Bishops but to Chancellors Vicars general Commissaries being Doctors of the Law and not within holy Orders and limiting their Jurisdiction in cases concerning the Papal Jurisdiction and their manner of sending their Process and Citations to draw men from their proper Diocess and also their inordinate Fees in Cases Testamentary The Prelates therefore might possibly make great claim hereof for generally they were still of the old stamp loved to have all by Divine Right and lived they cared not by what wrong But the Laity enclining too much to the new Religion as then it was termed refused to yield one foot unto their pretentions And so like two Horses tied together by their Bits they endeavour after several courses ever and anon kicking one at another yet still bestrode by a King that was joynted for the purpose and so good a Horseman that neither of them could unhorse him till Death laid him on the ground And thus was the Roman Eagle deplumed every Bird had its own Feather the great men the Honours and Priviledges the meaner men the Profits and so an end to Annates Legatine levies Peter-pence Mortuaries Monasteries and all that Retinue the vast expences by Bulls and Appeals to Rome to all the cares expences and toil in attendance on the Roman Chair The beginning of all the happiness of England CHAP. XXXI Of Judicature THese two Kings were men of towring Spirits liked not to see others upon the Wing in which regard it was dangerous to be great and more safe not to be worthy of regard Especially in the times of Henry the Eighth whose motion was more eager and there was no coming nigh to him but for such as were of his own train and would follow as fast as he would lead and therefore generally the Commons had more cause to praise the King for his Justice than the Nobility had Both the Kings loved the air of profit passing well but the latter was not so well breathed and therefore had more to do with Courts which had the face of Justice but behind were for the Kings Revenue Such were the Court of Requests of mean Original mean Education yet by continuance attained to a high growth The Court of Tenths and first-Fruits The Court of Surveyors The Court of the Lord Steward of the Houshold The Court of Commission before the Admiral The Court of Wards The Court of the President of the North The Prerogative Court The Court of Delegates The Court of Commission of Review Others of more private regard And that which might have given the name to all the rest the Court of Augmentation Besides these there were some in Wales but that which concerned more the matter of Judicature was the loss of that grand Liberty of that Country formerly a Province belonging to this Nation and now by Henry the Eighth incorporated into the same and made a Member thereof and brought under the same Fundamental Law a work that had now been long a doing and from the time of Edward the Third brought on to perfection by degrees First by annexing the Tenure of the Marches to the Crown Then upon occasion of their Rebellion by loss of many of their wonted Liberberties Afterwards Henry the Eighth defaced the bounds of divers the ancient Counties and setled them anew and the bounds of the Marches also and appointed Pleas in Courts of Judicature to be holden in the English Tongue And last of all re-united them again to the English Nation giving them vote in Parliament as other parcel of the English Dominions had True it is that from their
once concerned his own Wife which however so nighly related to him as next to his own person and under the determination of the immediate Law of God yet was so cast upon their Sentence as if he durst adventure his own Soul at their direction The other concerned the Crown to which he ought relation above his own person which he laid down at the feet of the Parliament seeking to their power to fulfil his own pleasure The Ball is tossed up and down sometimes amongst the issue between the King and the Lady Anne Bullen another while amongst the issue between him and the Lady Jane Seymor or such as the King should nominate by Letters-Patents or last Will. After that to the Ladies Mary and Elizabeth to perform conditions declared by the King's Letters-Patents or his last Will. The King then is trusted but he hath his trust from the Parliament the Crown is intail'd as it hath been ever since Richard the Second's time but it is done by Parliament The reversion is in the Clouds but the right of Inheritance much more The Conclusion of all is this The Parliament by serving these Kings turns turned their turns into their own CHAP. XXIX Of the power of the Clergie in their Convocation THe Convocation of the Clergie like some froward Children loves not new dressing though it be a gainer thereby Before the Pope and Henry the Eighth were faln asunder their masters their minds thâ—â—r work all was double their Councils uncertain their Conclusions â—ow in Production and sleight in their Fruit and Consequence sometimes displeasing to the Pope sometimes to the King generally to themselves Who naturally lingering after their own interests were compelled to feed that bodie that breathed in them rather than that wherein themselves breathed and so like hunted Squirrels from bough to bough were ever well tired yet hardly escaped with their own Skins in the conclusion Now Henry the Eighth tenders them better conditions both for ease and Honour and more suitable to their own Interest yet they are loath to accept because they had been Slaves by Prescription Formerly they were troubled with multiplicity of Summons sometimes from the King sometimes from the Pope sometimes from the Metropolitan and always over dripped by a Forein power that they could propound nothing for the good of the Souls of themselves or others but must be blasted from without their labours lost their undertakings vain and themselves in the conclusion sit down choaked in their Consciences and Desires Now they are at no man's call but the King 's and that by Writ Provincial and Legate à Latere must meddle no more Formerly it is taken for granted that Kings have no Vote in matters Ecclesiastical though themselves be interested therein and therefore if he will accept of a Disme he must accept it Statu quo it is granted nor can he interpose his Dissent nor do they much care for his consent But whether the King be concerned or not concerned what they conclude they must maintain Vi Clavibus although in right his Prerogative is above theirs Now by the Statute the Kings Vote is asserted and a Negative Vote restored and himself made as well Head of the Convocation as the Church Nothing can pass there without his concurrence nor come to the consideration of the Parliament without his pleasure and thus the King hath a double Vote in every Church-Ordinance One as in the Parliament to pass the same as an Act of Parliament of which I conceive the Opinion of the Honourable Judge is to be understood the other as a Member of the Convocation to pass their advices to the Parliament and therefore he might either sit in person amongst them or by his Vicar as Henry the Eighth did by the Lord Cromwol By the first the whole Kingdom was engaged By the Second the Convocation onely and that as a Court onely and not the representative of the Clergie because as they had a Spiritual relation so also they had the Common Right of Free-men and therefore could not be bound without the Common Consent of the Free-men Thirdly As their power of Convention and power in Vote so their original Right of the Law-making suffered a change Formerly they depended wholly upon a divine Right which some setled originally in the Pope others in the Prelacie and some in the Clergie But now they sit by a derivative power from the Act of Parliament from which as from their head they receive life and power Fourthly They suffered some change in the very work of their Convention for though formerly they claimed power to meddle onely with Ecclesiastical matters yet that notion was ambiguous and they could many times explicate it more largely than naturally It is not to be denied but the matters concerning the Service and Worship of God are of Spiritual consideration but that such should be so strictly deemed to lie in the way of Church-men onely is to bring all Spirits within the Verge of Ecclesiastical Jurisdiction and to leave the Civil power to rule onely dead Carcasses Much less can any other thing which by prescription hath not been of Ecclesiastical Cognizance be called Spiritual But to come to particulars because generals edifie not The Convocation claimed formerly power as originally from its self to impose Rules for Government upon Church-men and Church-Officers and upon the Laity so far as extended to their Service of God And also to charge the Estates of the Clergie and concerning Matrimonial and Testamentarie Causes They claimed also a power to determine Doctrine and Heresies Yet de Facto divers of these they never acted in that right wherein they claimed to hold Cognizance First As touching the charging of the Estates of the Clergie If it was for the King's Service they were ever summoned by the King 's Writ yet was not their act binding immediately upon the passing of the Vote till the Parliament confirmed the same and therefore the old form of granting of Dismes was Per Clerum Communitatem as by the pleading in the Abbot of Waltham's Case appears For without their concurrence they had no power to charge any Free-man nor to levie the same but by their Church-Censures which would stand them in no stead And in this the Convocation suffered no alteration either in Right or Power by the change thus wrought by Henry the Eighth Secondly As touching imposing Laws upon the Laity in points of Worship and Doctrine it is evident though they claimed such power they had it not For when all is done they were contented at length to get the support of the Statute-Laws of this Kingdom as may appear in the particular Laws concerning the Lords day and proceedings against Herâ—ticks setling the Popedom in the time of the great Schism c. But now all Title of claim is quite taken from them and all is left in the Supream Legislative power of this Nation as