would have been discontented with the proceedings of the Lords in asserting the Prerogative of a King in that matter of the Scedule if he had perceived any such thing in their purposes Add hereunto that the Lords themselves justified the matter of the Scedule in their own proceedings all which tended to inforce the King to govern according to their Councells and otherwise then suited with his good pleasure By force they removed Gaveston from the Kings presence formerly and afterward the Spencers in the same manner So they removed the King from his Throne and not long after out of the World Last of all I shall make use of one or two Concessions which hath passed the Reporters own Penne in this discourse of his for the maintaining that the Legiance of an English man is neither Naturall nor Absolute nor Indefinite nor due to the Naturall Capacity but qualified according unto Rules The first is this English men doe owe to their Kings Legiance according to the Lawes therefore is it not Naturall or Absolute or Indefinite The inference is necessary for the later is boundlesse and naturall the former is limited and by civill constitution If any branch therefore of English Legiance be bounded by Lawes then the Legiance of an English man is circumscribed and not Absolute or Naturall The major Proposition is granted by the Reporter who saith that the Municipall Lawes of the Kingdome hath prescribed the order and form of Legall Legiance fol. 5. b. And therefore if by the Common Law the Service of the Kings Tenant as of his Mannor be limited how can that consist with the absolute Legiance formerly spoken of which bindeth the Tenant being the Kings Subject to an Absolute and Indefinite Service Or if the Statute-Lawes have settled a Rule according to which each Subject ought to goe to Warre in the Kings Service beyond the Sea as the Reporter granteth fol. 7. 8. Then cannot the Legiance be absolute to binde the Subject to goe to War according to the Kings own pleasure Secondly an English Kings Protection of his Subjects is not Naturall Absolute Indefinite nor Originally extendeth unto them in their Naturall Capacity therefore is not the Legiance of an English Subject to his King Naturall Absolute Indefinite nor Originally extendeth to the King in his Naturall Capacity The dependance of these two resteth upon the Reporters owne words who tells us that Protectio trahit Subjectionem Subjectio Protectionem Protection drawes with it Subjection and Subjection drawes with it Protection so as they are Relata and doe prove mutually one anothers Nature fol. 5. a. And in the same Page a few lines preceding he shewes why this Bond between King and Subject is called Legiance because there is a reciprocall and double Bond for as the Subject is bound in Obedience to the King so is the King bound to the Subject in Protection But the King is not Naturally bound to protect the People because this Bond begins not at his Birth but when the Crown settles upon him Thirdly this Protection is not absolute because the King must maintaine the Lawes fol. 5. a. and the Lawes doe not Protect absolutely any man that is a breaker of the Lawes Fourthly this Protection is not Indefinite because it can extend no further then his Power and his Power no further then his Dominions fol. 9. b. The like also may be instanced in continuance of time Lastly the Kings Protection extendeth not Originally to the Naturall Capacity but to the Politique Capacity therefore till a Forrainer commeth within the Kings Legiance he commeth not within his Protection And the usuall words of a Writ of Protection shewes that the party Protected must be in Obsequio nostro fol. 8. a. The summe then is that as Protection of an English King so neither is Legiance or Subjection of an English man Naturall Absolute Indefinite or terminated in the Naturall Capacity of the King And to make a full Period to the Point and make the same more cleare I shall instance in one President that these times of Edward the Third produced The former English Kings had Title to many Teritories in France but Edward the Third had Title to all the Kingdome And being possibly not so sensible of what he had in possession as of what he had not He enters France in such a way and with that successe that in a little time he gaines the highest Seate therein and so brought much Honour to the English Nation and more then stood with the safety of the Kingdome For in the union of two Kingdoms its dangerous for the smaller least it be swallowed up by the greater This was foreseen by the English who knew England did bear but a small proportion to France and complained of that inconvenience and thereupon a Law was made that the People of England should not be subject to the King or his Heires as Kings of France which manifestly importeth that an English King may put himselfe in such a Posture in which Legiance is not due to him and that this Posture is not onely in Case of Opposition but of diversity when he is King of another Nation and doth not de facto for that Time and Place rule as an English King which if so I suppose this notion of Naturall Absolute and Indefinite Legiance to the King in his Naturall Capacity is out of this Kingdome if not out of the World and then the foot of the whole Account will be that the Legiance of an English man is Originally according to the Lawes The summe of all being comprehended in the joynt safety of the People of England CAHP. IX Of Courts for Causes criminall with their Lawes THe great growth of Courts founded upon Prerogative derogated much in these times from the ancient Courts that formerly had attained the Soveraignty over the People and in the hearts of them all This was a hard Lesson for them to learn but especially of the Kings Bench that was wont to learn of none and yet must be content to part with many of their Plumes to deck the Chancellor much of their work to busie the Prerogative Courts holden Coram Rege and more to those holden Coram Populo I mean The Courts of Oier and Terminer Goale delivery and Juâ—tices of Peace Those of Oier and Terminer were now grown very common but lesse esteemed as being by men of mean regard nominated for the most part by the party that sued out the Commission which for the most part was done in behalfe of those that were in danger and meaned not to be justified by Works but by Grace These escapes though small in the particulars yet in the full summe made the matter so foul as it became a common greivance and a Rule thereupon set by the Parliament for the regulating both of the Judges of such Court and the Causes The Commissions for Goale delivery likewise grew more mean and ordinary The chief sort of men in
the State would trust it with and because it pretended Cognisance onely of matters of Record before them they found out a way of examining of witnesses by Commission and returning their Depositions in writing which being become a Record before them they gave their Sentence upon the whole matter without the ancient ordinary tryall Per pares It becomes a kinde of Peculiar exempting it selfe from the ordinary course in manner of triall and from the ordinary rules of Law in giving of Sentence and as a back doore for the Kings Arbitry in case of Judicature in matters of Common Pleas as the Councell Table was in Crowne Pleas they both are looked upon with a very pleasing eye of Majesty which loves not to be straite laced yet all is imbattelled under the colours of Equity Honor Conveniency and Conscience like a Monopoly that is bred under the wings of the Publique but feeds it selfe upon it That this had attained the Title of a Court so anciently as in K. Stevens time as the Honorable Reporter noteth I much question by the Title that Fleta gives it in later times nor under his favour will that Testimony cited out of the History of Ely warrant it but upon a mistaken ground of misplacing the note of distinction for I take the words to be thus translated King Etheldred determined and granted that the Church of Ely should for ever in the Kings Court hold the dignitie of the Chancery and not hold the dignitie of the Kings Court of Chancery Neverthelesse its clear that these times brought it to that condition that it might well carry that name if formerly it had not For it grew very fast both in honour and power and this not by usurpation though it did exceed but by expresse donation from the Parliament Yet is this power much darkned in the limits and extent thereof chiefly in regard that the Chancellor is betrusted with many things whereof there is no evidence for the Chancery to claim any Cognisance For he was in these times a person of many interests and relations being one of the Quorum in the Star-Chamber of the Kings Councell chief in the Chancery most commonly a Clergy man and therewith Legate è latere and in these severall Relations might act directly and yet in severall Courts And therefore though he had power with others to punish neglects of Execution of the Statutes of Wines by Act of Parliament and also of the Statute concerning Victuall and to determine matters of controversie between parties in Cases depending before the Parliament and in some matters that concern the Kings Revenue yet cannot these be said to be the proper worke belonging to the Cognisance of the Chancery but to the Chancellor by speciall Commission in another relation Allbeit I cannot deny but the Court it selfe had Cognisance in matters of as strange a nature Viz. To punish disturbances of Merchants in their trade to see to the executing of the Statutes of Purveiors and to remedy greivances contrary to other Statutes which generall words let in a wilde liberty to that Court to intermeddle in Lawes which were never intended for their touch to punish Nusances according to discretion to give remedy to Merchants upon the Statute of Staple so that its clear enough the Parliament intended it should be a Court and gave their Seale to their power of Judicature Nor as it seemeth was this any regret to the Courts of Common Law but as a thing taken for granted For the Reports tell us that if the King grants Tythes arising from without the bounds of any Parish the Patentee shall sue in the Chancery by Scire Facias and shall there proceed to issue or demurrer and then to the common Law where upon triall if the Defendant make default the Plaintiffe shall have Judgement and Execution And if the Heire be in Ward to the King the Mother shall sue and recover her Dower in the Chancery And they tell us that it had power to prohibite Spirituall Courts and Courts of common Law yea to over-rule or reverse judgements and yet the common Law held its ground when it was concerned for neither were all suites there by Bill as in cases of Equity nor determined according to such rules nor did the power of Judicature rest in the breast of one Chancellor but in him joyntly with other Councell of the King which were also learned Judges of the Law For the Report informeth that Edward the Second had granted a Rent in Taile to the Earle of Kent who dying his Sonne under age and Ward to the King Edward the Third seised amongst other Lands the rent and granted it to Sir John Molins Upon Petition the King refers the matter to the Arch Bishop and others of the Councell calling to them the Chancellor A Scire Facias goes forth to Sir John Molins he upon appearance pleaded to the jurisdiction as a case belonging to the common Law but it would not be allowed because it was to repeale the Kings Charter And whereas it was objected that the reference was to the Arch Bishop and others and therefore the cause ought not to be determined in the Chancery it was resolved that it did properly belong to the Chancery by the Law And in the Argument of the case it appeares clearely that the Kings Councell there were learned in the Law And the same is yet more evident by the Title of Bills in those dayes exhibited in the Chancery which was directed to the Chancellor and the Kings Councell and the rule given Per tout les Justices which I rather note for the shortnesse of the forme of Bills in those dayes farre different from these times wherein the substance of the complaint however small in it selfe is oftentimes blowne out into so great a bubble that it breakes to nothing And the Statutes formerly mentioned do assert the same thing as touching the Kings Councell For though they speake of the Councell or Chancery in the English Tongue yet in the Originall the words are Conceill en Chancery Having thus touched upon the matters under the Judicatory of the Chancery and Judges in the same in the next place the manner of proceedings comes to consideration For it seems they had been formerly very irregular and that contrary to the Grand Charter upon a bare suggestion in the Chancery the party complained of was imprisoned and no proceedings made thereupon for remedy whereof it was ordained that upon suggestions so made the complainant was to finde Sureties to pursue the suggestions and that the processe of Law should issue forth against the party without imprisoning him and that if the suggestions were not proved true the complainant should incur the like penalty that the Defendant should have done in case be had beene found guilty but afterwards this later clause was altered by another Statute because it was full of uncertainty and it was ordained that in such case the Complainant
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
also left to an indefinite Construction For they are not onely Preachers in publique which might be an Order of Men within the Church Cognisance as things then stood in regard it was permitted to the Church to Authorize Men to preach but also their Factors and Abbettors words that might comprehend any other person whatsoever according to the passion or discretion of the Church-men Thirdly the manner of this Inquisition must be according to the Canon and then the people are at the Church-mens mercy to returne Complaints against whom they please upon such Grounds as they shall thinke meet The Persons that must make this Inquisition by this Law are the Ordinaries or any one of them and for ought appeares the same might be done by Pope Councell generall Nationall Provinciall Diocessan or their Delegates according to the Canon Although the last president that I met with was executed by a Grand Councell of Lords and Prelates in the time of Henry the Second But now the Clergy finding the Laity began to swell against the Canon they thought it high time to get the Civill Sword to joyne in the worke to be as their Hands to apprehend and Goalers to hold in Custody such as they should complain of without any other Legall Conviction although hereby they not onely disclaimed the exercising of their owne power of Imprisoning which they by the Canon formerly claimed to have in such Cases but also acknowledged to receive their power Judicatory in such Cases from the Parliament Thus was this Ordinance levelled as I said but the shot fell short For this Law attained no further perfection then a meere shape and was complained of by the Parliament within few moneths after its first noise that it was made and published without the Commons consent or knowledge and that the Nature thereof was directly contrary to the Liberties of the people and therefore they prayed that it might be repealed and the same was done accordingly although the times have been such as would not suffer the same to come into the publique Booke of Statutes in Print But whether Statute or no Statute they tell the King plainly that they will not further be bound or justified by the Prelates then they or their Ancestours were anciently used to be and besides that they thought somewhat more which they laid up against future times nor was it long ere they discovered it For a Subsidy being offered to the King by the Laity under a Proviso that the Clergy would grant a tenth the Clergy tooke this Articulating of the Commons in snuffe and protested that the Laity should not charge them The Commons hereat begin to bid battell to the Temporalties of the Clergy and had not the King been a fast freind in good earnest unto the Clergy the Laity had won the Feild Thus were these times like the motion of the Ballance unto the Churchmen sometimes up sometimes down getting somewhat which they formerly had not with lesse assurance in what they had CAHP. VII Concerning Trade KINGS hitherto had lived upon the main stocke improving the same to the utmost penny few of them laid up for the future much lesse indevoured to advance the principall for their successors There had now beene ten Kings of this Nation since the Conquest all of them spending what they had or could get from the people in the maintenance of their Patrimony or their own Lusts if any overplus was either gained by or saved from the game their Executors might be the better for it their Heires were not but Edward the third had a new game to play he must gaine his right by his Sword or he must loose it his Spirit was too big to sit still and bear blows and yet pre-advising himselfe about the poverty of the people and that their patience would be spent soone after their supplies if they continually saw much going out and nothing comming in he had a rule upon his private expences a good glosse upon the publique and a platforme for the augmenting of the treasure of the Kingdome as well for the benefit of the people as of the Crowne In order to the first it is considerable that the Royal family was great and numerous above all his predecessors that besides the King and Queene who were of a gallant and accomplisht deportment they had a son a Prince of as great renoune as ever Prince had and he also family sutable to his generosity that they had other children every on like their Father both for Warr and Peace and that for the maintenance of all these the expences must be in reason larger then formerly they were wont to be neverthelesse because purveyance for the King had already swelled so big that all other oppressions seemed to be swallowed up into that one the King to moderate the rigor thereof made nigh twenty Statutes first excluding all servants at wages and Horses and Dogs which were put to board with the Sheriffs then reducing the purveyance only to the families of himselfe his wife and children then to the families of himselfe the Queen and Prince and in the levy hereof some mens estates were absolutely priviledged and some kind of goods as sheep before shearing and trees about the dwelling house Nor is the settling of the manner lesse considerable It must be levied by authority in writing under the seale and it must not be taken against the owners will or upon malice nor must be spared for reward the price must be the same with the true Market price the measure according to the common measure stricked and the payment must be immediatly if the price be under twenty Shillings if above it must be made in a quarter of a year and no man must charge more carrige then is necessary and thus was this wild Ivie of purveyance that like some kinds of plants spreads over all by rooting up and cutting downe brought into some kind of fashion that if did no good it might do the lesse hurt unto the People Secondly although it be true that Edward the third was a King of many taxes above all his predecessors yet cannot this be imputed as a blot to the honour of the Law or liberty of the people for the King was not so unwise as either to desire it without evident cause or to spend it in secret or upon his owne private interests nor so weak and irresolved as not to imploy himselfe and his Souldiers to the utmost to bring to passe his pretentions nor so unhappy as to faile of the desirable issue of what he took in hand so as though the people parted with much money yet the Kingdome gained much honour and renoune and becomming a terror to their neighboures injoyed what they had in fuller security and so were no loosers by the bargaine in the conclusion Secondly although they parted with much yet nothing to Prerogative but in a Parliamentary way and so it was not taken but given Thirdly though
by Law The first served as a scare for though it were but by Proclamation men might justly fear that he that was so stout against the Pope would not stick to scourge his owne Subjects out of his way in the time of his heat The King thus entered the Lists both against Pope and Cardinall now under Praemuniri whereof he died meets the English Clergy thus loosing their top-gallant standing up in the reare against him and talking at large Neverthelesse the King stops not his carreere puts them to the rout for maintaining the power Legatine They soon submit crave pardon give a summe of money and perfume their Sacrifice with that sweet Incense of Supreame Head of the Church of England This was done not by way of Donation for the Convocation had no such power but by way of acknowledgement in flat opposition to the Jurisdiction of the Pope It became the common subject of discourse amongst all sorts but of wonderment to the Pope Yet for fear of worse he speaks faire for he was not in Posture to contest but all would do no good the Queen had appealed to Rome the Pope by Woolsies advice makes delayes The Parliament espying the advantage at once tooke all appeales to Rome away and established all sentences made or to be made within this Land notwithstanding any Act from Rome and enjoyned the English Clergy to administer the severall acts of publique worship notwithstanding any inhibition or excommunication from any forrain pretended Power The grounds upon the preamble of the Law will appeare to be two First that the King of England is supream head in rendring Justice within the Nation in all causes therein arising which is more then the recognisance of the Clergy two yeares before this Act did hold forth yet this acknowledgment is not absolute but in opposition to Forraine pretentions Secondly that the Clergy in England having Power may in matters spirituall determine all doubts without forrain help and administer such duties as to their place do belong not hereby determining that the Church-men ever had such Power by Law nor that they ought originally to have such Power They never had it for no sooner were they disjoyned from the Laity in these affaires but immediately they were under the Pope and received their Power from him And De jure they cannot challenge such power but by a positive Law such as this Law of Henry the eighth which also giveth but a restrictive and limited power Viz In matters testamentary of divorce matrimony tithes oblations and obventions So as if they will challenge such power they must thanke the Parliament for it and use the same accordingly as persons deputed therunto and not in their owne right or right of their places In all this the Kings supremacy is but obscurely asserted and rather by implication shewing what in reason may be holden then by declaration of what was making way thereby First into the opinions of men before they were enjoyned to determine their actions but within two yeares ensuing or thereabout the Law is made positive The King shall be taken and accepted the onely supreame head on earth of the Church of England and have power to visite correct represse redresse reforme restraine order and amend all such errours heresies abuses offenses contempts and enormities as by any manner of spirituall authority or jurisdiction ought or may lawfully be reformed Which in the preamble is saide to be made to confirm what the Clergy in their Convocation formerly had recognized The corps of his Act is to secure the Kings Title the Kings Power and the Kings Profit As touching the Kings Title it is sayde that in right it did formerly belong to him which is to be granted by all so far as the Power is rightly understood But as touching the Kings Profit it cannot be saide that the whole lump thereof did belong to the King because much thereof was not so ancient but De novo raised by the Popes extortion and therefore the true and reall Profits are by particular Acts of Parliament ensuing in speciall words devolved upon him The nature of this power is layd downe in this Statute under a three fold expression First it is a visitatory or a reforming Power which is executed by inquiry of offences against Lawes established and by executing such Lawes Secondly it is an ordinary jurisdiction for it is such as by any Spirituall authority maybe acted against irregularities and thus the Title of supreame Ordinary is confirmed Thirdly it is such a Power as must be regulatd by Law and in such manner as by any spirituall Authority may lawfully be reformed It is not therefore any absolute arbitrary Power for that belongs onely to the supreame Head in Heaven Nor is it any legislative Power for so the Law should be the birth of this Power and his Power could not then be regulated by the Law nor could ever Ordinary execute such a Power nor did Henry the eighth ever make claime to any such Power though he loved to be much trusted Lastly this Power was such a Power as was gained formerly from the King by forraine Usurpation which must be intended De rebus licitis and once in possession of the Crown or in right thereto belonging according to the Law for the King hath no Power thereby to confer Church-livings by Provisorship or to carry the Keyes and turn the infallible Chaire into an infallible Throne In breife this Power was such as the King hath in the Common-wealth neither legislative nor absolute in the executive but in order to the Unity and Peace of the Kingdome This was the right of the Crowne which was ever claimed but not enjoyed further then the English Scepter was able to match the Romish Keyes And now the same being restored by Act of Parliament is also confirmed by an Oath enjoyned to be taken by the People binding them to acknowledge the King under God supreame head on earth of the Church of England Ireland and the Kings Dominions in opposition to all Forraine jurisdiction And lastly by a Law which bound all the People to maintaine the Kings Title of Defender of the faith and of the Church of England and Ireland in earth the supream head under the perill of Treason in every one that shall attempt to deprive the Crowne of that title We must descend to particulars for by this it will appeare that these generall Lawes concerning the Kings refined title contained little more then matters of Notion otherwise then a generall barr to the Popes future interests And therefore the Wisdome of the State as if nothing had been already done did by degrees parcell out by severall Acts of Parliament the particular interests of the Popes usurped Authority in such manner as to them seemed best And First concerning the Legislative Power in Church government It cannot be denied but the Pope De facto had the Power of a negative vote in all
Government more readily doe appeare the corruptions in natures of men more frequently discover themselves and thereby the body of the Statute-Lawes begin to swell so bigg that I must be inforced to contract my account of them into a narrower compasse and render the same unto the Reader so farr forth onely as they shall concerne the generall streame of Government leaving those of privater regard unto every mans particular consideration as occasion shall lead him For what ever other men please to insist upon this I take for a Maxime That though the Government of a King is declared by his actions yet the Government of a Kingdome is onely manifested by ancient Customes and publique Acts of Parliament And because I have undertaken a generall Survey of the Reignes of thirteene severall Kings and Queenes of this Nation for I shall not exceed the Issue of Henry the eighth and to handle each of them apart will leave the Reader in a Wildernesse of particulars hard to comprehend in the generall summ I shall therefore reduce them all into three heads Viz. Interest of Title Interest of Prerogative and Interest of Religion the last of which swayed much the three Children of Henry the Eighth the second as much in their two Ancestors Viz. Henry the Eighth and Henry the Seventh and the first in the three Henries of Lancaster and three succeeding Kings of the House of Yorke And because Edward the Third and his Grandchilde Richard the Second doe come under none of these Interests I shall consider them joyntly as in way of Exordium to the rest although the course of the later was as different from the former as Lust falls short of a generous Spirit CHAP. I. A summ of the severall Reignes of Edward the Third and Richard the Second SEverall I may well call them because they are the most different in their wayes and ends of any two of that race that ever swayed their Scepter and yet the entrance of the first gave countenance to the conclusion of the last For the Scepter being cast away or lost by Edward the Second it was the Lot of his Son Edward the Third a Youth of fifteen yeares of age to take it up he knowing whose it was and feeling it too heavy for him was willing enough it should returne but being overswayed by Councels drawn from reason of State and pressed thereto by those that resolved not to trust his Father any more he wisely chose to manage it himselfe rather then to adventure it in another hand but that is not all for as its never seene that the Crowne doth thrive after Divorce from the Scepter but like a blasted blossome falls off at the next gale of adversity such was the issue to Edward the Second his Power once gone his Honour followed soon after he had ceased to be King and within a small time did cease to be Edward His Son thus made compleate by his Fathers spoyle had the honour to be the Repairer of the ruines that his Father had made and was a Prince which you might thinke by his story to be seldome at home and by his Lawes seldome abroad nor can it be reconciled without wonder that Providence should at once bestow upon England a couragious People brave Captaines wise Councell and a King that had the endowments of them all Otherwise it had out-reached conceit it selfe that this small Island wasted by the Barons Warrs the people beaten out of heart by all Enemies in the time of the Father should neverthelesse in the time of the Son with honour wade through so many difficulties of mighty Warrs on every side abroad and devouring Pestilence at home and yet lay a platforme of an Epulent wise and peaceable Government for future Generations Yet hee had his failings and misfortunes a great part whereof may be attributed to infirmity of Age which in the first part of his Reigne was too little and in the later part too much True it is that Governours of the Persons of Kings may in some measure supply defects of Non-age but seldome where the Governours are many and never if they be ambitious And it was this Kings fate to miscarry in both for he had in his Youth twelve Governours by constitution and they two supreame by usurpation Viz. The Queen and Mortimer till they were both consumed in the flame which themselves had kindled And this disparity wrought somewhat unsuccessefully in the Kings first Warr For the generosity of his spirit himselfe being young and active minded his Councell to advise him imployment in a Forraine Warr rather then they would adventure its motion at home least it might prove circular which is most dangerous for Government if the Prince be not under command of himselfe This first Warr was with Scotland whose power was inferiour to that of France the King young and the danger neerer and therefore though the last affront was from France that more fresh in memory and more peinant yet the King was advised to give place and speake faire till he had tryed masteries with Scotland and thereby secured his Rere This he wisely hearkened unto and met with such a successefull turne of Providence that like an O Yes before a Proclamation gives warning to Scotland that the Wheele is turned upon them and that there is somewhat more then humane motion in the matter that exasperates the English upon an enterprize so often crossed by Providence hitherto and the King also being but a Souldier in hope as yet to dare against those that had so shamefully foyled his Father and also put himselfe already once to the Retreat And yet there did concurr a kinde of necessity of second Causes for the King found the Crowne ingaged and the minds of the Scots so elate as the English mans case was not to live to Fight but to Fight to live and so imbittered against one another by the fierce Warrs under the Barrons that nothing could quench the fire but the withdrawing of the Brands into Forraine action like some angry spirits that spoyle their owne bodyes unlesse they chide or fight it out with others In the first brunt with Scotland the King gained nothing but understanding of the humours of some of his great Lords which once purged out he renues the Warr prevailes and after ten yeares stirr wherein hee became a trained Souldier against the Scots hee wann the Crosse and then goes to play his Prize in France to compleat his Crowne with the Flower De lis Which was the great worke of the rest of his Reigne in which foure parts of five was Victorious the fifth and last was declining like some Gamesters that winn at the first and for want of observation of the turning of the Dice come off loosers at the end For the King being rather satiated then satisfied with Victory and Honour returned home to enjoy what he had leaving his Son the Black Prince to pursue the Warr and to act the Souldiers alone who
Livery so long as he may live without care and spend without controll For by this time the humour of his great Grand-father budded in him he pawned his heart to young men of vast desires and some say so inordinately as he prostituted his chastitie unto them And it s no wonder if the Revenues of the Crowne are insufficient for such Masters Thiâ— the people soon felt and feared their own Free-holds for they are bound saith he not to see the Crowne deflowred for want of maintenance it s very true nor to see the Crowne deflowred of its maintenance A Parliament therefore is called in which diverse Lords associate and prepare Physick for the Kings lavish humour which being administred wrought for ten yeares after till it had purged him of his life and the Kingdome of their King It was an Act of Parliament that gave power to fourteen Lords and others to regulate the Profits and Revenues of the Crowne and to doe Justice to the People this was to continue for one whole yeare The Parasites no sooner found the effect hereof to their Cost but the King growes sicke of it and findes an Antidote to over-rule Acts of Parliament by Acts of Privy Councell declares this ill-favoured Commission voide and the Contrivers Advisers and Inforcers Traytors To make it more Majesticall he causeth the Judges to Subscribe this Order and so it becomes Law in repute This foundation thus laid he buildeth in hast an Impeachment of these Commissioners of high Treason and supposing that they would not readily stoope himselfe stoopes lower for he would put his Right to triall by battell which was already his owne by the judgement of the Masters of the Law For so they may be well called seeing they had thus Mastered it In this the King had the worst for he lost his Honour and himselfe God hath a care of common right even amongst Idolaters Then comes the Parliament of Wonders wherein the Kings Party are declared Traytors and the chiefe Judges with their Law judged by another Law The King not medled with thinks it high time to come out of his Minority and assumes the Government of the Kingdome and himselfe to himself being now three and twenty yeares of age old enough to have done well if he had cared for it But resolving to follow the way of his owne will at length it led him to his owne ruine onely for the present two things delayed it Viz. The Authority Wisedome and Moderation of his Unckles especially of the Duke of Lancaster now come out of Spain and the great affection which the King pretended to the Queen who had also gained a good opinion amongst the People The benevolent aspect of the People not for their owne advantage but for the Publick quiet procured many Parlies and interviewes between the King and People and many Lawes for the upholding of the Court and Government although both Warre Lawes Justice and Councells all are faint as all is faint in that man that hath once dismanned himself This he perceives well enough and therefore Peace he must have by any means The Queen dies himselfe being nigh eight and twenty yeares old takes a Creature like a Wife but in truth a Childe of eight yeares old and this is to get Peace with France It s no wonder if now he hunts after unlawfull game and that being ill taken brings all things out of order For abused Marriage never wants woe Civill men are now looked upon as severe Cators and his Unckles especially the Duke of Glocester with a jealous eye which accomplished his death in the conclusion The Dukes of Lancaster and Yorke forsake the Court Favorites step into their roomes The old way of the eleventh yeare is re-assumed Belknap and others are pardoned and made of the Cabinet The Pardon of the Earle of Arundell is adnulled contrary to the advise of the major part and the Arch Bishop the Earles brother is banished The Lords forsake the wilfull King still the Kings jealousie swells The Duke of Hertford is banished or rather by a hidden Providence sent out of the way for a further worke The Duke of Lancaster dies and with him all hope of moderation is gone for he was a wise Prince and the onely Cement that held the joynts of the Kingdome in correspondency And he was ill requited for all his Estate is seised upon The Duke of Hertford and his Party are looked upon by the People as Martyrs in the Common Cause and others as Royalists Extremities hasten on and Prerogative now upon the wing is towering above reach In full Parliament downe goes all the worke of the tenth and eleventh yeares Parliament which had never bin if that Parliament had continued by adjournment The King raiseth a Power which he calleth his Cuard of Cheshire men under the terror of this displaying rod the Parliament Kingdom are brought to Confession Cheshire for this service is made a Principality thus goes Counties up and Kingdoms down The Kings Conscience whispers a sad Message of dethroning and well it might be for he knew he had deserved it Against this danger he intrenches himself in an Act of Parliament That made it Treason To purpose and endeavor to depose the King or levy War against him or to withdraw his Homage hereof being attainted in Parliament And now he thought he was well guarded by Ingagement from the Parliament but he missed the right Conclusion for want of Logique For if the Parliament it self shall depose him it cannot be made a Traytor or attaint it selfe and then hath the King gain'd no more then a fals birth But the King was not thus quiet the sting of guilt still sticks within and for remedy he will unlaw the Law and gets it enacted that all Procurers of the Statute of 10. Richard the Second and the Commission and Procurers of the Kings assent thereto and hinderers of the Kings proceedings are adjudged Traitors All these reach onely the branches the root remains yet and may spring again and therefore in the last place have at the Parliament it self For by the same its further declared That the King is the sole Master of the Propositions for matters to be treated in Parliament and all gainsayers are Traitors Secondly That the King may dissolve the Parliament at his pleasure and all gainsayers are Traitors Thirdly That the Parliament may not proceed against the Kings Justices for offences by them committed in Parliament without the Kings consent and all gainsayers are Traitors These and the like Aphorismes once Voted by the Cheshire men assented unto by the Parliament with the Kings Fiat must passe for currant to the Judges and if by them confirmed or allowed will in the Kings opinion make it a Law for ever That the King and all Parliaments is Dominus fac primum and Dominus fac totum But the Judges remembred the tenth yeare and Belknaps intertainment and so dealt warily their opinion is thus
their work is to lead the Kings Conscience in dark wayes or rather into them commonly he hath a devout outside and that is the Kings Idol but if while his eye be towards Jerusalem his minde be towards the dead Sea the King is his and then the blinde leads the blinde Like some Ignis fatuus to such as know it not No man is so well knowne by his company as Kings are by these men and these men by their Actions Although some have bin so witty as to cheat the whole generation of Mankinde by entertaining holy men to be their Chaplains themselves the mean time without any sparke of that holy Fire Yet this King was not so cunning he had a Confessor of his own choice and according to his owne heart who was complained of as a grievance and the Parliament removed him So nigh they adventured even to invade the Kings owne conscience if it may be called conscience that will acknowledge no Law but that of its owne minde Thirdly The Kings Revenue was under the check and controll of the Parliment for it befalls some Princes as other men to be somtimes poore in abundance by riatous flooding treasure out in the lesser currents and leaving the greater channells dry This is an insupportible evill because it is destructive to the very being of affaires whether for Warr or Peace For the Kings treasure is of a mixt nature much of it being intended for publique service as himselfe is a publique person And for this cause he hath Officers of severall natures attending upon this treasury Some for land some for Sea some for the generall treasure of the Kingdome some for that of the houshold and some for the privy purse the common end of all being to maintaine state in time of peace and strength against time of Warr because it s no easie matter to maintaine the just proportions for each of the said ends it is the lesse wonder that such a brave Prince as Edward the Third should Labour under want for maintenance of the Warrs and so lavish a Spendthrift as Richard the Second should Labour under more want to maintaine his port and countenance in peace And therefore though it be true that the publique treasure is committed to the King as the cheife Steward of the Realme yet it is as true that he is but a Steward and that the supreame survey of the Treasure resteth in the Parliment who are to see that the treasure be not irregularly wasted to reduce the same into order and for that end to call the Treasurers and Receivers to account to see to the punishing of such as are unfaithfull and encouraging of others that are faithfull for when by extravagant courses the Treasure is wasted by extraordinary courses it must be supplied which ever is out of the Subjects purses And in such cases it is great reason that they should observe which way the course lies of such expenses If then in such cases sometimes the Parliament hath stayed the issuing out of the Kings Revenue for some time or otherwise viewed and examined the same charged it with conditions 22 E. 3. n. 29.14 R. 2. n. 15. limitted it to certaine uses and in case of misuser refused to levy or make payments the case will be without dispute that the Parliament ordered the publique treasure as they saw most need But much more if wee consider how the greatest part of this treasure was raised Viz. Not from the old Revenues of the Crowne but by new impositions levies and assesments layd upon the people even what they pleased and in what manner they thought meet and not otherwise Aydes are lawfull if they be legally given by common consent of Parliament Taxes if legally given by Parliament are no lesse lawfull yet they must be collected in such manner and by such means as the Parliaments Order doth direct Loans of monys to the King may be made by them that will but the King must not demand them because the subject hath no means to recover the debt This trick had been lately tryed by Edward the Second much mony he got and it was repaied by the order of the Parliament But of all the rest nothing shewed more absolute authority in the publique Revenue then the care that was had of the Demesnes of the Crown for whereas the expenses of Kings grew so vast that neither the yeerly Revenue could suffice nor aides assesments and taxes could satisfie however ordinary they in these times were become rather then Kings would contiane themselves they would invade their own Demesnes by pauning selling and giving them a way either for love or mony and thus was poverty treasured up against the future both for King and Crown The Parliament espying this leake that was like to undoe all applyed a speedy remedy undoing what was done and undoing some by an act of Resumption and thereby taught Kings to looke to their honor better for the future and people also to take heed of medling with such considerated matters and to know that he that hath such in his possession hath them by a cract title that cannot bee amended but by Act of Parliament Fourthly An English King is no Out-law nor can he do any wrong though the man may he hath a double relation one as a King the other as a man and the uniting of both in one Person hath cheated many a man of his judgement in the Case of Prerogative he hath a double will and these many times contrary equally as in other Relations and in this contrariety sometimes the King overcomes the man and sometimes the man the King so as if any man the King hath much more cause to cry out O miserable Man These divers wills are generally led by diverse rules One of a man w ch many times reacheth no higher then the Affections and if the man be weak they deserve little better name then Lusts The rule of a King is Law or Councells of these in place and unto these in all prudentialls he must submit his judgement and will as he is a King nor can he doe otherwise unlesse he will presume to be wiser then his Councell Sutable hereunto doth that clause in one of the Statutes of these times conclude Viz. That the King is bound by his Oath to passe all Lawes that are for the good of the Kingdome For were the power of election or determination of the Point onely in the King then were the Oath in vain nor is the Parliament at all in case of the Kings dissent to judge of the convenience or inconvenience of Proposalls made for the good of the whole body according to that power which it exercised in these times Nor is it irrationall to inferre here from that if Law and Councell be the rule of a King then the obedience of the people unto this King must be in order to Law and Councell otherwise the disobedience cannot be
he made the penalty of Praemuniri to extend to all Farmores or others in nature of Bailiffs that held any Church maintenance to the use of any alien and unto all Aliens that are Purchasors of such Provisions to any use and unto all Lieges that shall in like manner purchase such Provisions But as touching such as shall accept such provisions he ordained Banishment for their Persons and Forfeiture of their Estate Notwithstanding all this the Romane Horse-leach would not so give over The King grew into displeasure with his Subjects and they with him and with one another they see the Pope still on Horseback and fear that the English Clergy their own Countrey men if not Friends and Abbettors yet are but faint and feigned Enemies to the Popes Cause Nor was it without Cause that their fear was such for as the Pope had two hands to receive so they had two hearts making show of forming blowes at the Pope but then alwayes at a distance or when without the Popes Guard and thus the Lawes begin to stammer and cannot speake so plain English as they were wont The people hereat offended resolve to put the Clergy into the Van and to try their mettle to the full At the last Parliament that Richard the Second did hold both the Lords Temporall and Spirituall are opposed one by one The Lords Temporall like themselves resolve and enter their Resolutions to defend the right of the Crowne in the Cases of Provisors although even amongst these great men all were not equally resolute for Sir William Brian had purchased the Popes Excommunication against some that had committed Burglary and he was committed to the Tower for his labour But the Prelates answer was ambiguous and with modifications which was all one to cry as men use to say Craven yet was the Statute made peremptory according to what was formerly Enacted And though the Prelates cautionary way of proceeding might be a principall reason why the Popes power held so long in England in an usurping way yet Kings also much conduced thereto by seeking too much their Personall ease above the Honour of their Place and the Popes blessings and opinion of his Favour more then their owne good or the Peoples liberty for there was no other balme for a distracted minde then that which dropped from the Popes lips In like manner Richard the Second being already at least in purpose estranged from his People sought to get freinds at Rome to hold by the Spirituall Sword what he was in danger to loose by laying aside the Sword of Justice which is the surest Tenure for Kings to hold by And though the Popedome was now under a Schisme between two Popes Clement and Vrban yet he was so farre won for Vrban that he not onely ingaged himselfe and the Parliament to determine his Election and uphold the same but also Ex abundante did by Implication allow to him an Indefinite Power to grant Provisions and so at once he lost the Die and gained a Stake that like a bubble looked faire but soon vanished away Neverthelesse these two Comrades whiles they were together resolved to make the most of each other that they could and therefore though the Popedome liked not the King yet the Pope had his love so farre as he could deny himselfe for he had already denied his Kingdome And if the Articles exhibited against the King by Henry the Fourth be true the Pope had his Faith also For that he might be rid of his reputed Enemy Arch Bishop Arundell he trusted the Pope with that Complement of making Walden Arch Bishop of Canterbury in Arundells stead which the Pope tooke so kindly as he made it a President for Provisors for the future Nor did the King stick in this one Singular but made it his Custome in passing of Lawes especially such as the King was most devoted unto to put more Confidence in the Popes Amen then in all the Prayers of his Commons with his owne Soit fait to boot The summe then will be that the Prize was now well begun concerning the Popes power in England Edward the Third made a fair blow and drew blood Richard the Second seconded him but both retired the former left the Pope to lick himself whole the later gave him a salve and yet it proved a Gangrene in the conclusion The second means used to bring down the power of the Pope in this Nation was to abate the power or height of the English Clergy for though the times were not so cleare as to espy the Root of a Pope in Prelacy yet experience had taught them that they were so nigh ingaged that they would not part And therefore first they let these men know that Prelacy was no Essentiall Member to the Government of the Kingdome but as there was a Government established before that ranke was known so there may be the like when it is gone For Edward the Third being troubled with a quarrell between the two Arch Bishops of Canterbury and Yorke concerning Superiority in bearing the Crosse and the important Affaires of Scotland so urging Summoned a Parliament at Yorke which was fain to be delaied and adjourned for want of appearance and more effectuall Summons issued forth but at the day of Adjournment none of the Clergy of the Province of Canterbury would be there and upon this Occasion the Parliament was not onely interrupted in their proceedings but an ill president was made for men to be bold with the Kings Summons in such Cases as liked not them and thereupon a Statute was made to inforce Obedience upon Citizens and Burgesses and such Ecclesiasticks as held per Baroniam Neverthelesse when the matters concerning Provisors began to come upon the Stage which was within two yeares after that Law was made the Clergy found that matter too warme for them and either did not obey the Summons or come to the Parliament or if they came kept aloofe or if not so would not Vote or if that yet order their tongues so as nothing was certainly to be gathered but their doubtfull or rather double minde These Prelates thus discovered the Parliament depended no more upon them further then they saw meet At sixe or seven Parliaments determined matters without their Advice and such as crossed the Principles of these men and therefore in a rationall way might require their Sense above all the rest had they not beene prepossessed with prejudice and parties in the matter Nor did Edward the Third ever after hold their Presence at so high Repute at such meetings and therefore Summoned them or so many of them as he thought meet for the Occasion sometimes more somtimes fewer and at a Parliament in his fourty and seventh yeare he Summoned onely foure Bishops and five Abbots And thus the matter in Fact passed in these times albeit the Clergy still made their claim of Vote and desired the same to be entered upon Record And
from an English man is due to England and Faith to the King which I suppose must be intended to be in order to that Allegiance because by the former Plea England had them both and the King was wholly left out of the Case Neverthelesse I rather thinke that the present Point in controversie will receive little light herefrom on either part We are now come to the fourth Property of English Legiance that it is due to the Kings Naturall Capacity and not to his Politique Capacity or due to the Office of a King in regard of the Person of the man and not to the Person in regard of the Office fol. 20. And because this is of no small importance neither easily understood nor granted Therefore he backeth his Opinion by many reasons First he saith that the King sweareth to his Subjects in his Naturall Capacity therefore the Subjects swear to him in his Naturall Capacity This reason was intended to be taken from Relatives and then it should have been thus A King doth sweare to his Subjects in their Naturall Capacity therefore Subjects sweare to a King in his Naturall Capacity but it being otherwise it is mistaken and proves not the Point Yet if we should take the Reporter in sano Sensu there is no question but the Oath is made to the Naturall Capacity yet not Terminative more then the Oath of the Tenant to his Lord which this Author pleaseth to couple with the mutuall dependence between King and Subject fol. 4. b. 5. a. Nor doth the Oath of an English man binde him to the Obedience of all or any Commands which the King shall give in relation onely to his Naturall Capacity or in opposition to his Politick Capacity Nor will the Reporter himself allow that the Politique Capacity of the King can be separate from his Naturall Capacity fol. 10. And yet it is evident that a King may in his Naturall Capacity command that of which in his Politique Capacity cannot give allowance The second reason of this Opinion is taken from the nature of Treason which saith the Reporter is committed against the Naturall Person of the King and this is against due Legiance according to the form of Indictments in that Case provided This is not demonstrative because that crime which is done against the Naturall person of a man may as well extend to it in relation to his Place or Office and so may Treason be plotted against the Naturall Person of a King as he is King neither is their any other difference between the murther of a King and a private Man but onely in regard of the Place and Office of a King which makes the murther of him Treason for which cause all Indictments that doe conclude Contra Legiantiae debitum doe as well also conclude Contra Coronam Dignitatem c. The third reason is this A body politique can neither make nor take Homage 33. H. 8. Bro. tit Fealty Therefore cannot the King in his Politique Capacity take Legiance The first must be granted onely sub modo for though it cannot take Homage immediately yet by the means of the Naturall Capacity it may take such service and therefore that Rule holds onely where the Body Politique is not aggregate and not one person in severall Capacities for the Tenant that performes his service to his Lord performs the same to his Lord in his Naturall Capacity but it is in relation to his Politique Capacity as he is his Lord For Lord and Tenant King and Subject are but Notions and neither can give nor take service but that man that is Lord or Tenant or King or Subject may even as the power of Protection is in a King not as he is a Man but as a King The fourth reason is this The Kings naturall Person hath right in the Crowne by Inheritance therefore also in the Legiance of the Subject This is the strength as nigh as I can collect of that which is set down as a sixth reason but I make it the fourth because the third as I conceive is but an illustration of the second and the fifth is upon a supposall of a Fides ficta whereas that Faith of an English Subject which is according to Law is the truer of the twaine But to the substance of this fourth reason If the first be granted yet the Reporter cannot attain his conclusion for the King may in his Naturall Capacity have right to the Crowne by Inheritance and yet not right in the Legiance of his Subjects otherwise then in right of the Crowne As in the Case of Lord and Tenant the Lord may inherite the Lordship in his naturall Capacity but the Service is due to him as Lord and not as by Inheritance in the Service in the abstract And though it be granted that the Legiance to a King is of a higher strain then that of a Tenant to his Lord fol. 4. b. 5. a. Yet doth the Reporter bring nothing to light to prove them to be of a different Nature in this regard The fifth and last reason that commeth to consideration is from a Testimony of the Parliament for it is said That this damnable Tenet of Legiance to the King in his Politique Capacity is condemned by two Parliaments But in truth I can finde but one under that Title that mentioneth this Opinion and that is called Exilium Hugonis which in summe is nothing else but Articles containing an enumeration of the particular offences of the two Spencers against the State and the Sentence thereupon The offences are for compassing to draw the King by rigor to govern according to their wills for withdrawing him from hearkning to the advice of his Lords for hindering of Justice and Oppression and as a means hereunto They caused a Bill or Scedule to be published containing that Homage and Legiance is due to the King rather in relation to the Crowne then absolutely to his Person because no Legiance is due to him before the Crowne be vested upon him That if the King doe not govern according to Law the Leiges in such case are bound by their Oath to the Crown to remove him either by Law or Rigor This is the substance of the Charge and upon this exhibited in the Lords House the Lords super totam materiam banish them before their Case is heard or themselves had made any appearance thereto So as to the matter of this Scedule which contains an Opinion suitable to the Point in hand with some additionall aggravations the Parliament determineth nothing at all but as to the publishing of the same to the intent to gather a party whereby they did get power to act other enormities mentioned in the Charge and in relation to these enormities the Lords proceeded to Sentence of banishment all which was done in the presence of the King and by his disconsent as may appear by his discontent thereat as all Historians of those Affaires witnesse and it is not probable that the King
the most part grounded upon self respects and private prudence laboured to conceale that which could not be made whole by revealing and by after consent skind over the sore as to themselves which corrupted inwardly and indangered the whole body to cure which a Law is made to restrain such late connivance in the Woman by depriving her both of her Joyncture and Inheritance which otherwise had been saved to her by such compliance as after consent unto such violations CHAP. X. Of the Course of Civill Justice during these Times HOwever the course of the Law concerning matters of the Crown passed in a troubled wave yet in matters of Common Pleas it passed in a calme and full Channell as the Reports in Print doe sufficiently witnesse nor was their any change of Principles but onely some alteration tending to a clearer manifestation of the same I will not touch upon every particular but onely upon two which reflect somewhat upon the Publique pollicy the one touching the course of Inheritance in some particular Cases the other touching pleading in the Courts of Civill Justice The first of these was occasioned from Conjuncture of Affaires the Case being such that Edward the Third had now gotten himselfe a new Kingdome unto that of England and must looke to maintaine that by Power which he obtained by force and conducing thereunto must have continuall imployment of the English in that Service as being most trusty to his Cause And that it is un reasonable that such English as had devoted themselves to his Service in this Cause and in order thereunto had transported themselves and their Families into those Forrain parts should thereby loose the benefit of Leiges in the Birth-right of their Children borne in those Forraine parts Upon consideration had hereof and of a former leading Opinion of the Lawyers and Parliament a Declarative Law was made That all Children borne without the Kings Legiance whose Father and Mother at the time of their Birth shall be under the Faith and Legiance of the King of England shall have the benefit of Inheritance within the same Legiance as other Inheritors have These are the words of the Statute and doe occasion a double observation one from the matter the other from the manner of the Expression The Subject matter is so delivered not as an Introduction of a new Law but as a Declarative of the old that lay more obscurely hidden for want of occasion to reveale it and the substance thereof resteth onely in this to enable the Children of English Natives borne beyond the Seas not the Children of those that are of Forraine birth though within the Kings Teritories in those parts as the opinion hath beene nor doth any ancient President or Case warrant the same as might be at large manifested if it might conduce to the end of this discourse and for the same cause after this Statute when as the Commons would have had a generall Naturalizing of all Infants borne beyond the Sea within the Kings Segniories the same would not be granted otherwise then according to the former Statute and the Common Law That which in the next place concerneth the manner of expression is this That a Childe is said to be borne out of the Kings Legiance and yet the Father and Mother at the same time to be of the Faith and Legiance of the King of England It seemeth to me that it intendeth onely those Children of English Parents borne within the Kings Teritories beyond the Seas because the words insuing concerning Certification of Bastardy of such Children are that the same shall be made by the Bishop of such place upon the Kings Writ directed to him which could never have passed into those places that are not of the Kings Teritories and so the Issue will be that the Legiance of those born in those parts though they are Leiges to the King yet they are not of the Legiance of the King of England but as Lord of that Teritory The other matter to be observed concerning pleading in the Courts of Civill Justice is this That whereas anciently from the Normans time till these times the pleadings were in the Norman tongue they shall be henceforth in English out of an inconvenience I beleive rather supposed then felt for though some kinde of knowledge of Law-termes may be increased thereby yet unlesse that shall be professedly studied it will breed nothing but Notions and they an overweening conceit which many times sets men to suites in Law to their owne losse like some weake influence of the Celestiall bodies that are strong enough to stirre up humours but not to expell them or draw them out However even thus in part is the reproach of Normandy rolled away like that of Egypt from the Israelites at Mount Gilgall CHAP. XI Of the Militia in these Times WArre is ever terrible but if just and well governed majesticall the one may excite resistance and defence but the other Conquers before blow given because it convinceth the judgement and so prevails upon the Conscience For that heart can never be resolute in its own defence that is at Warre with its own understanding nor can such a heart consider such a Warre otherwise then as Divine and bearing the face of an Ordinance of God and then how can the Issue be unsuccessfull It is no strange thing for Kings to miscarry in their Warres because it s rarely seen that they are under good Councell but if a Christian Councell miscarry we may conclude it extraordinary in the efficient Cause and no lesse wonderful in the issue and end Upon this ground it concerneth a Christian Nation not onely in point of Honour but of safety and continuance to settle fundamentall Lawes for War against time of War as of Peace in time of Peace Neither was England deficient herein saving that ancient times were more obscure in the particulars and these dayes revealed them at such a time wherein we may say that Edward the Third approved himself not onely King of England but of himself above the ordinary strain of expectation for being now become a famous Commander and Conquerour having also an Army inured to fight and overcome and so might have given a Law he neverthelesse received the same submitting both it and himself to the Directory of the Parliament in making a Warre with France which was three to one against him in every respect but in the Title besides the disadvantage from Scotland that lay continually beating upon his reare The like may be observed of his Warre with Scotland in both which he evidently telleth the World that he held it unreasonable to enter upon the managing of an offensive Forraine Warre without the concurrence of the common consent of the people and that not onely for the thing it selfe but also for his owne personall ingagement in the Service For a King though he be the Generalissimo yet is he so from the people and his person being of that
blamed herein for its a certain Truth that its much better that Election of a King should be grounded upon a rule that is known though it be by discent of Inheritance then upon none at all For if a Childe should succeed or a Lunaticke yet where the Principle of Government resteth upon the Representative of the People there is the lesse cause of complaint the Government being still the same both for Wisedome Strength and Uniformity though it may be the Nation not so active and brave For a Common-wealth can admit of no Minority though a Monarchy by descent may Secondly this deficiency in Nature might have been supplied but that these times were unhappy in the great power of the Lords to please whom the Government is parcelled out into two shares One is made Protectour of the Kings Person the other Protectour of the Kingdome too many by one For let their Persons be never so eminent for Abilities if they be not as eminent for Humility and selfe-Command their hearts will soon over-rule their heads into a Faction And therefore though the Earle of Warwicke was a wise man and the Duke of Glocester a wise man yet the Earle of Warwicke with the Duke of Glocester were not wise On the other side the Protectorship of the Kings Person being in the Duke of Exceter and that of the Realm in the Duke of Glocester things succeeded passing well for they both had one publique aime and the Duke of Exceter could comply with the Spirit of the Duke of Glocester who otherwise was not so pliant But after five years the Duke of Exceter dying and the government of the Kings Person devolving to the Earle of Warwicke who sided with the proud Cardinall of Winchester against the Duke of Glocester and so not onely consumed the rest of the Kings Nonage in a restlesse disturbance of Affaires but also dispoyled Henry the Sixth of the spirit of a King for the future and so the Kingdome of a King For it was not the condition of Henry the Sixth to be indowed with a spirit of such height but might well have been led by advice and needed not the Earle of Warwicke rugged brow to overlooke him who was not content to have the King onely attendant upon his advice but must likewise have him under his rod to be corrected for his faults and that by a Commission under the Kings owne hand and seale dated in the eleventh yeare of the Kings Reigne and so under colour of Curbing he killed that spirit in the King which otherwise doubt lesse had both spirit and pride enough to act himself above his due height and could not have been so long a Childe and so little a Man as he was It is very true that Henry the Fifth by Will seemed to countenance his Brothers and it cannot be denied but the Duke of Glocester was of such noble parts that they could hardly dilate in any work inferiour to the government of a Kingdome Neverthelesse to yeild much to the will of a diseased King in such Cases is as ill a President as the making of a King by Adoption and it had been better for the People to have adhered to the Duke of Glocester alone then by joyning him with another bring into president such a luxurient Complement of State as a Protectorship of a Kingdome which is of such little use to a Common-wealth and of so bitter Fruit to the Party as must needs bring repentance when it is too late For he that can manage the Protectorship of a Realme without anger of good men or envy of bad men is fitting to live onely with Angels and too good for the World Nor did the Duke of Glocester meet with better measure how wise soever he was and truely devoted to the good of the Realme For after foure and twenty years government so wisely and faithfully carried on by him that Justice it self could not touch his Person unjustice did and he received this reward from his Nephew Henry the Sixth that he died in the darke because the Cause durst not indure the light Now is Henry the Sixth perswaded that he is of full age he had laid aside his Guardian the Duke of Glocester but forgetting to sue out his Livery he betakes himself from the Grace of God into the warm Sunne as the Proverb is changing the advice of a faithfull experienced wise Councellour for the government of an Imperious Woman his Queen who allowed him no more of a King then the very Name and that also she abused to outface the World and after she had removed the Duke of Glocester out of the way undertook the sway of the Kingdome in her own Person being a Forrainer neither knowing nor caring for other Law then the will of a Woman Thus the glory of the House of Lancaster goes down and now a Star of the House of Yorke appears in the rising and the People looke to it The Queene hereat becomes a Souldier and begins the Civill Warres between the two Houses wherein her English party growing wise and weary she prayes aide of Ireland a Nation that like unto Crowes ever wait to prey upon the infirmities of England The Warres continue about sixteen yeares by fits wherin the first losse fell to the English party the pretentions being yet onely for good Government Then the Feild is quiet for about foure yeares after which the clamor of ill Government revives and together therewith a claime to the Crown by the House of Yorke is avouched thereupon the Warres grew hot for about foure yeares more and then an ebbe of as long quiet ensues The Tide at last returnes and in two yeares Warre ends the quarrell with the death of fourescore Princes of the blood Royall and of this good man but unhappy King Unhappy King I say that to purchase his Kingdomes Freedome from a Forraine Warre sold himselfe to a Woman and yet lost his bargaine and left it to Observation That a Conscientious man that marries for by-regards never thrives For France espied their advantage they had maintained Warre with England from the death of Henry the Fifth with various successe The Duke of Bedford being Regent for the English for the space of fourteen yeares mightily sustained the fainting condition of the English affaires in those parts and having Crowned his Master Henry the Sixth in Paris in the ninth yeare died leaving behinde him an Honourable Witnesse even from his Enemies That he was a brave Commander a true Patriot and a faithfull Servant to his Lord and Brother Henry the Fifth and to his Sonne Henry the Sixth But now the Duke of Bedford is dead and though France had concluded a Peace with the English yet they could not forget the smart of their Rod but concluded their Peace upon a Marriage to be had with a Woman of their own blood and interest and what they could not effect by Armes in their own Feild they did upon English ground by a
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
in this Nation one way by the Regulars the other by the Seculars the Parliament by the dissolutions of Monastries c. consumed one to ashes and by breaking the fealty between the other and the Pope parted the other root and the stock asunder thence ensued the downfal of this tal Cedar in this Nation and Prelacy now left alone must fawn elsewhere or lye along a posture wherein that rank of men can never thrive Up againe they peepe and espying a King that loved to towre aloft they suddainely catch hold promising their help to maintaine his flight and so are carried up and like a Cloud borne between Heaven and Earth making the Commons beholding to them for the Kings Sunn-shine and the King for their interests in the People and for his superlative advancement above them all Now though the English Prelates may thinke their Orbe above the winds yet were they herein deceived The Parliament had power in their Election before the Pope usurped that to himself now that they are discharged Kings are possessed of them by long desire but it is not by way of restitution for Kings were never absolutely possessed of any such power but as Committees of Parliament and by delegation and concession from them and therefore must render an account to them and abide their judgment when they are thereto called Thirdly the Parliament had the disposing and ordering of all the Church Revenues as the Lawes concerning Monastries Sanctuaries Mortuaries First Fruits Tenths Annates and such like sufficiently manifesteth Fourthly the Parliament had the power of granting Licenses Dispensations and Faculties setting a rule thereunto as in case of Nonresidency and delegating the power to Committees whereof see more in the Chapter following concerning ordinary jurisdiction Fifthly the Parliament reserved the Cognisance of all appeales for finall sentence unto themselves and disposed of all the steps thereunto as unto them seemed most convenient For though it be true in some cases the Arch-Bishop of Canterbury had the definitive sentence and in other Cases the Convocation yet was this but by a temporary Law and this also granted to them by the Parliament which took it away from the Pope and never interested the Crowne therein but made the Arch-Bishop and the Convocation their immediate Delegates so long as they saw good Afterwards when they had done their work Viz. The determining the appeal and Divorce of Queen Katharine and some other matters the same hand that gave that power tooke it away and gave it not to the King or Crowne but to Delegates from the Parliament from time to time to be nominated by the King and may as wel alter the same settle the power elsewhere when they please And therefore after the appeale of the Dowager thus determined and the sentence definitive thus settled upon Delegates The Parliament neverthelesse determined the other causes of the Marriages of the Lady Anne Bullen and the Lady Anne of Cleve the jurisdiction of the Crown never intermedling therein so as upon the whole it must be acknowledged that however the King was supreame head of causes Ecclesiasticall yet had not the definitive sentence in Appeales nor absolute Supremacy but that the same was left to the Parliament Sixthly and Lastly what attempts the Parliament had met with partly from the designes of some great men that sought their own ends and partly from the endeavors of these Kings that sought their own heighth and greatnesse above their Peoples good hath beene already related and the utmost issue hath beene truly stated Viz. That the gaines have come to the Kings Persons and not to their Crowne and that therein they have put their Seale to the Law and made their submission to the Parliament as touching both their Persons and Power Add hereunto that however Henry the eighth aimed much at himself in his ends in two other maine Interests that most nighly concerned him yet the cheife gaine came to the Parliament The one concerned his owne Wife which-however so nighly related to him as next to his owne Person and under the determination of the immediate Law of God yet was so cast upon their sentence as if he durst adventure his owne Soule at their direction The other concerned the Crowne to which he ought relation above his owne person which he laid downe at the feet of the Parliament seeking to their power to fulfill his owne pleasure The ball is tossed up and downe somtimes amongst the issue betweene the King and the Lady Ann Bullen another while amongst the issue betweene him and the Lady Jane Seymor or such as the King should nominate by Letters Patents or last Will. After that to the Ladyes Mary and Elizabeth to performe conditions declared by the Kings Letters Patents or his last Will. The King then is trusted but he hath his trust from the Parliament the Crowne is intailed as it hath beene ever since Richard the seconds time but it is done by the Parliament The reversion is in the the Clouds but the right of inheritance much more The Conclusion of all is this the Parliament by serving these Kings turnes turned their turnes into their owne CHAP. XXIX Of the power of the Clergy in their Convocation THe Convocation of the Clergy like some froward Children loves not new dressing though it be a gainer thereby Before the Pope and Henry the Eighth were falne asunder their masters their minds their work all was double their Councels uncertain their Conclusions slow in Production and sleight in their Fruit and Consequence sometimes displeasing to the Pope sometimes to the King generally to themselves who naturally lingering after their own interests were compelled to feed that body that breathed in them rather then that wherein themselves breathed and so like hunted Squirrells from bough to bough were ever well tired yet hardly escaped with their owne skins in the conclusion Now Henry the Eighth tenders them better conditions both for ease and Honour and more suitable to their own Interest yet they are loath to accept because they had been slaves by prescription Formerly they were troubled with multiplicity of Summons somtimes from the King sometimes from the Pope sometimes from the Metropolitan and alwayes overdripped by a Forrain Power that they could propound nothing for the good of the Souls of themselves or others but must be blasted from without their labours lost their undertakings vain and themselves in the conclusion sit downe hoaked in their Consciences and desires Now they are at no mans call but the Kings and that by Writ both Provinciall and Legate è Latere must meddle no more Formerly it s taken for granted that Kings have no Vote in matters Ecclesiasticall though themselves be interested therein and therefore if he will accept of a Disme he must accept it Statu quo it is granted nor can he interpose his Dissent nor do they much care for his Consent But whether the King be
Parliament And thus is the Arch-Bishop made Heire to the Pope in the greatest priviledge of a Pope to be chief Judge on Earth in matters Ecclesiasticall within his own Province A trick that in my opinion much darkened the Glory of the Kings Title of Supream Head which the Church-men had formerly offered up to the Honour of the Crown of this Realm For be it so that the Title is in the Crown by Remitter yet cannot the same carry along with it any more then a lawfull power and whether all the Popes former power allowed him by the Canon or gained by Usurpation and Custome shall be said a lawfull power or whether the power of Review by Appeal shall be derived to the Crown under the generall Notion of Supremacy upon the Clergies submission is to me a doubt albeit I must give Honour to the Judgement in Print in regard that after the submission of the Clergy the matter concerning the Divorce of the Lady Katharine Dowager came before the Pope by Appeal and there depended the King himself also waiting upon that See for Justice and a definitive Sentence in that matter and thereby acknowledged the Popes power De facto Notwithstanding the Clergies foregoing submission and being occasioned by the delay at Rome he procured this Statute concerning Appeals to be made whereby at one breath he took the Appeals to Rome away and settled them as formerly hath been mentioned all which was done two years before the Title of Supremacy was annexed or declared for to be to the Crown by Act of Parliament And therfore as to me it appears the power of supream Cognisance of appeals was not in actuall possession of the Crown by the Clergies submission so was it actually vested in the Arch-Bishop before the Title of Supremacy was confirmed by Act of Parliament and so it never was in the Crowne actually possessed much lesse had the Crown the same by Remitter For the Kings turn once served by the Convocation and the matter of the Divorce of Queen Katharine settled the King perceiving the slow Progresse of the Convocation the Members of the same not being yet sufficiently tuned to the present Affairs And moderate Arch-Bishop Cranmer likewise foreseeing that the Odium of these Definitive Sentences would be too great for him to bear another Appeal is provided more for the Honour of the Crown to be from the Arch-Bishop to Delegats to be appointed by the King his Heirs and Successors so as though their Nomination be the Kings yet their power is deduced immediately from the Parliament which took the same from the Arch-Bishop and conferred it upon them A second advantage not inferiour hereto which the Arch-Bishop gained out of the ruines of the Popedome was the power of Licenses and Dispensations or Faculties In the Pope it was a transcendent power without any rule but what was tuned to him by the Bird in his own breast and was the ground of much license or rather licentiousnesse in the World But in the Arch-Bishop they seem to be regulated To be First in Causes not repugnant to the Law of God Secondly such as are necessary for the Honour and Security of the King Thirdly such as were formerly wont to be remedied at the See of Rome yet in truth left as much scope for the Conscience of the Arch-Bishop to walk in as the Pope had in former times a large Teather and greater priviledge then ever the Crown had by which although the King himself be like Saul higher by the head then all the People yet in many things Samuel is higher then he The moving cause hereof is not difficult to find out the King had but lately married the Lady Anne Bullen a thing that many startled at and the King himself not extreamly resolved in he would therfore have his way like that of the Zodiack broad enough for Planetary motion of any one that could not contain himself within the Eccliptick line of the Law and so shipped over the Popes power to the Chair of Canterbury and had made a Pope in stead of an Arch-Bishop but that the man was not made for that purpose What the Ordinary Jurisdiction got or lost wee come in the next place to observe First they had still their Courts and Judiciary power but upon what right may be doubted Their first foundation was laid by the Civill power of a Law in the time of William the first Norman King yet the power of the Pope and Bishop growing up together they came to hold the Power of the Keyes by a Divine right and so continued untill these times of Henry the Eighth wherein they have a Retrospect to the Rock from whence they were first hewen and many seem to change their Tenure and therewith therefore are in right to change the Style of their Courts and Title of summons but the times not being very curious and the worke of Reformation but in fieri the more exact lineaments must be left to time to finish and beautifie A greater blow did light upon the Lawe of these Courts which was left as doubtfull as the Canons all which are now put to the question and to this day never received full resolution but were left to the Parliament to determine them at leisure and in the meane time to the Judges of the common Law to determine the same Lawfull or Unlawfull as occasion should require Neverthelesse the Courts still hold on their course according to their old Lawes and Customes for their forme of proceedings some say by prescription yet more rightly by permission it being a difficult matter to make prescription hold against a Statute Law As touching the matters within their Cognisance the Law settled some and unsettled others First as touching Heresie the Church-men formerly thought scorne the Lay Magistrate should intermeddle but not being able to stop the growth thereof by their Church-Censures prayed aid of the Civill Magistracy so by degrees arose the penalties of Imprisonment and burning which brought the whole matter into Cognisance before the Civill Magistrate because no Free-man might be proceeded against for losse of Life or Liberty but by the Lawes of the Nation and for this cause the Civill Magistrate granted the Writ of Habeas corpus and releived many times the party Imprisoned wrongfully or granted prohibition as they saw cause And therefore it cannot be saide rightly that the sole or supreame Cognisance of this Crime of Heresie belonged to the Clergy before these times Nor did their proceedings upon the Writ of Burning Warrant any such thing partly because till these times the Canon Law was the best ground that these proceedings had and the course therein was not so Uniforme as to permit the Title of a Custome to warrant the same Conviction being sometimes by jury sometimes according to the Canon somtimes before the Ordinary sometimes before the Convocation sometimes before the King sometimes before speciall Delegates as the Histories of the
Martyrs more particularly set forth and no Act of Parliament positive in the point But the time is now come when nighest reformation that the thing is settled more to the prejudice of reformation then all the endeavoures foregoing like to the darknesse of the night that is at the Superlative degree when nighest break of Day A Statute is now made that indeed quite blotted out the very name of the Statute of Henry the fourth De haeretico comburendo but made compleat that Statute of 5 Rich. 2. and the other of 2 Hen. 5. both which were formerly neither good in Law nor effectuall otherwise then by Power and gave more settlement to the Ordinaries proceedings in such Cases For the Delinquent might be convict before the Ordinary by Witnesses or might be indicted at the Common Law and the indictment certified to the Ordinary as Evidence yet did the Parliament carve them out their work and in expresse words declared That opinions against the Authority and Laws of the Bishop of Rome were not Heresie and by the same reason might have done more of that kind but that was enough to tell all the World that the Parliament could define what was not Heresie although they did not then determine what was Heresie And thus the judgment of the Romane Church is called into question in one of their fundamentals and the Clergy left in a Muse concerning the rule upon which they were to proceed against this Crime The Parliament within six yeares after undertakes though somewhat unhappily to determine and define certain points of Controversie which had some relation to the Worship of God and the publique Peace and declared the contrary to these determinations to be Heresie and the punishment to be Death and Forfeiture and the triall to be before Commissioners by Jury or testimony of two Witnesses or by examination in the Ecclesiasticall Court or inquisition in the Leete or Sessions of the Peace Upon the whole matter therefore the Ordinary had a particular Power to determine Heresie but the Parliament determined such Heresies as were punishable with Death and Forfeiture by enumeration in the six Articles This was the Clergies Primmer wherin they imployed their study as making most for their designe and laid aside thoughts of all other Heresies as drie Notions or old fashions laid aside and not worthy the setting forth to common sale Secondly the Lesson concerning Marriage was no lesse difficult for the Clergy to take out They were put by their former Authority derived from abroad and their ancient rule of the Canon Law with the Kings leave they do what they do and where they doubt they take his Commission so did the Arch-Bishop of Durham in the Case betweene John and Jane Fisher in the Kings Case the determining part is put to the Parliaments Conclusion and for a rule in other Cases some persons are enabled to Marry which formerly were not Viz Masters of the Chancery and Doctors of the Civill Law and some forbidden Marriage as all Preists by the Statute of the six Articles And unto the rest concerning degrees of Consanguinity or Affinity a particular enumeration is appointed to be observed within which Marriage is declared unlawfull all other further off are made lawfull In all which regards the Cognisance of Matrimoniall Causes is theirs onely by leave Thirdly Residency and Nonresidency was a Theame formerly learned from the Canon Law in which as also in the thing it self the Clergy were the onely skilfull men The rule of the Canon Law was strict enough considering the times but it was not steel to the back The Parliament now undertakes the cause and though it gave in some respects more liberty then the Canon yet stood it better to its tackling and kept a stricter hand upon the reines then was formerly used and by giving a generall rule for Dispensation took away all arbitrary Dispensations and Licences which were formerly granted beyond all rule but that of Silver or Gold and made all practises contrary to the rule damageable to the party Thus far concerning the matters in Cognisance now touching the Power of the Keyes English Prelacy having laid aside the pretentions of Rome they put the World to a gaze to see which way they would go In the inocent infancy of Prelacy it was led by the hand by the Presbytery and would doe nothing without them afterwards having gained some degree of heighth and strength they entred themselves to be Chariot Horses to the Roman Sun till they had set all on fire now unharnest it is expected they should returne to their former wits neverthelesse forgetting their ancient yokefellowes the rurall Presbyters they stable with the King use his name sometimes but more often their owne serving him with Supremacy as he them with Authority beyond their Spheare they raise him above Parliament he them above Councills so as they do what they list let the Plebeian Presbyter wil or nill they are the onely numerall Figures and the other but Ciphers to make them Omnibus numeris absoluti Neverthelesse the Canon still remaines the same Episcopi se debent scire Presbyteros non Dominos nec debent in clerum dominari Episcopus se sedente non permittat Presbyterum stare Episcopi noverint se magis consuetudine quam dispensatione Presbyteris majores Kings may make them Lords but as Bishops they hold their former rank assigned by the Canon as Lords the King never gave them the keyes and as Bishops the Canon did not yet as under the joynt Title of Lord Bishops they hold themselves priviledged to get what power they can two things they reach at Viz. The absolute power of Imprisonment and of Excommunication in all causes Ecclesiasticall The common Law would never yeeld this some Statutes in some cases did pretend First as touching Imprisonment the Statute of Henry the fourth concerning Heresie doth lispe some such Power of what force the same Statute is hath been already observed in case of incontinency of Church-men it is more directly given them by a Statute in Henry the sevenths time before which time the Statute it self doth initimate that an Action did lye against them for such imprisonment which Law also was made uselesse by another in Henry the eighths time who gave away to Statutes for the punishing them at the common Law First with Death which continued for some Months and that being found too heavy it was punished by another Law with Forfeiture and Imprisonment And the same King likewise gave way to a law for the like punishment in case of Heresie By that Law that revoked the Statute of Henry the fourth formerly mentioned although till triall the same was bailable And thus continued till the time of Edward the sixth But as touching Excommunication it was to no purpose for them to struggle the common Law would never permit them to hold possession quietly but did examine their Authority
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
Justice of Queen Elizabeth to grant Commissions of Array Secundum formam Statutorum and do hurt to no man its true her Commissions of Lord Lievtenancy wanted that limitation in words yet they carried the sense for if the Crown were bound by the Law the Lord Leivtenants were much rather but the danger arose after the death of Queen Elizabeth for when King James came to the Crown under colour of pleasing the People and easing them of a burthen he pleased himself more and made the yoke upon the People much more heavy in the conclusion for where no declared Law is there the discretion of them that have the care lying upon them must be the rule thus came the Scottish blood to have pretentions to a greater Prerogative then all their Predecessors had upon this supposal that the Statute of Queen Mary took away all former Lawes of that kinde and then the taking away of the Statute of Q. Mary takes away all declared Law as to that point But more truly it may be inferred that if all Statute-Laws be taken away then the rule of Tenures at the Common Law must remain in force and no other Nevertheless this Statute of Queen Mary though in force for the present was not a generall rule for Armes in all places of this Nation for the Marches of Scotland were a peculier jurisdiction as to this point They stood in more constant need of Armes then any other part of this Nation in regard of their uncertain condition in relation to their Neighbouring jurisdiction and therfore were the Farmes of these parts generally contracted for upon a speciall reservation of Armes for each particular which being now decaied are again reduced by Queen Elizabeth to their ancient condition in the time of Henry the eighth A second thing which may come under this generall consideration of arming is the arming of places by making of Forts and Castles which was not in the immediate determinate will of the Crown to order as it pleased for though they may seem to be meanes of Peace and present safety yet they are Symptomes of Warr and in the best times are looked upon with a jealous eye especially such as are not bordering upon the Coasts Because that Prince that buildeth Castles within the Land is supposed to feare the Neighbourhood This was more especially regarded in the dayes of Phillip and Mary For when that marriage was to be solemnized it was one of the Articles to provide for the safety of such Forts and Castles as then were maintained to the end they might be preserved free from usurpation for the Use Profit Strength and Defence of the Realme onely by the naturall borne of the same And afterwards when occasion was offered for the building of more of that nature a new power is given to King Phillip and Queen Mary to re-edifie or make Forts and Castles which must be executed by Commission to the Legies for ten years and only within the Counties bordering upon Scotland and these perticularly named in the Statute so as the Crown had not power to build in all places nor to any end they pleased nor to place therein or betrust the same to whom it would Nor yet had Edward the sixth that absolute power although not ingaged in forrain interests as his sister Mary was and therefore whereas Castellanes had been made for life by Patent and so the absolute power of the Crown was barred in the free disposal of the same during such time The Parliament gave the King power to remove such as were not liked or thought faithfull to the publique interest although they gave no cause of Seisure by any disloyal act The like also may be observed of the Ships and Ordnance for they also do belong to the State as the Jewels of the Crown and therefore upon the Marriage of Queen Mary they also are by Articles preserved and saved for the use profit strength and defence of the Realm by the natural born of the same Thirdly as touching the ordering of the Souldiery the matter is not much to be insisted upon for little doubt is to be made but that power that raiseth them also ordereth them to the same ends that they are raised and therefore as the sole power of the Crown doth not the one so neither doth it the other but in cases formerly mentioned and yet in no case though the War b be never so absolutely defensive and the Souldiers raised by the Kings own and onely power yet hath not the King absolute Authority and arbitrary power in the ordering of them when they are raised but he must so behave himself to them as to Free-men according to Laws made by themselves in their Representative in Parliament and therefore are particular Laws made to that end against undue levying and discharging of Souldiers and Defaults in paying of them as also against the Souldiers departing from their Service without Licence or wasting their Arms and such as wilfully absent themselves from Musters as also for the preserving the Castles Forts Ships and Munition for War from being with-holden from their due use or from burning or destroying Lastly as touching the charge of the War and pay of the Souldies It s evident that in all offensive Wars the Souldier was paid by the Crown although they might be said in some manner to be in order to the Defence and Safety of the Nation nevertheless where the same was so apparent to the people it was the common course in these Times to have often Parliaments and often Subsidies which were no less in a good measure satisfactory to the Crown for the Charges of the War then Testimonies of the Peoples good Acceptance of the Government of Affairs and so accepted at their hands The particular Records will warrant all this For of all the Wars in these Times that of 88. excepted not any of them were ever managed at the Peoples charge by Contribution but by Retribution So happy were these Times wherein the People looking upon the Crown as under a kinde of infirmity of Childhood or Womanhood did therefore bear a kinde of compassionate regard thereunto without jealousie at Prerogative could condiscend and allow the Crown its full Grains and somewhat more yea more then was meet for some other Princes to desire or the People to give up and yet more happy were they wherein the Crown knew no interest but in dependence upon the People good and so understanding were rightly understood CHAP. XXXIX Of the Peace IT is but little that can be said of Peace in these Times wherein so little freedom was found from forrain pretentions and intestine irregularities or both and yet the People were never more resolved against the former nor secure against the later and had God to Friend in all But most apparently was this observable in the Times of Queen Elizabeth whose Government took up four parts of five of these Times whereof we