make a Law somewhat short of a full freedom and yet outreaching that of Bondage which we since have commended to posterity under the Forest-Charter And yet for all that it proved a hard matter for Kings to hunt by Law and the Law it self is a Yoke somewhat too heavy for a Commonwealth to bear in old age if self-denying Majesty shall please to take it away CHAP. XXXV Concerning Judges in Courts of Justice THus far of the several Tribes and numbers of this Commonwealth which like so many Conduit-heads derived the influence of Government through the whole body of this Island and in every of which Judiciary power acted it self in all Causes arising within the verge of that Precinct some of which had more extraordinary trial before the King and his Council of Lords according as the parties concerned were of greater degree or the Cause of more publick concernment Examples hereof are the Cases between the Bishop of Winchester and Leoftin in Aetheldred's time and between the two Bishops of Winchester and Durham in Edward's time But custom made this Court stoop to smaller game in latter times and to reach at the practice of the County-Court by sending the Kings Writs to remove certain Causes from the cognizance of those rural Judicatories to their sublime determination And thus became the Council of Lords as an Oracle to the whole Nation and the King amongst the rest as the Priest that many times rendred the Answer or Sentence of that Oracle in his own sense and had it confirmed to him by an Oath se judicium rectum in Regno facturum justitiam per concilium procerum regni sui tenturum so as though he was the first in view yet the Council of Lords was the first in nature and the Cynosure to direct his tongue and actions From this Fountain issued also streams of Judicature into all parts by Judges itinerant under the Kings Commission to reform errors punish defaults in the ordinary rural Judicatories and to dissolve hard and knotty Cases and these were occasioned at the instance of the party and Alfred whose birth this was sent them forth in way of Association with the Sheriff Lord of the Fee or other ordinary Magistrate CHAP. XXXVI Of the Proceedings in Judicature by Indictment Appeal Presentment and Action FOr the proceedings in course the Saxons were wont to begin with matters belonging to the Church and afterward to Secular causes in which if the matters were criminal the most ancient way of proceeding was by Appeal of the party complaining But afterward in cases that concerned Damage Injury or Violence done to the Body of a man or his Estate the King was found to be therein prejudiced besides the prejudice immediately done to the Subject for a man disabled in Body or Estate is disabled to serve the King and the Publick and upon this ground a way was found out to punish the offender by Indictment besides the satisfaction done to the party wronged The proceedings against such Delinquents were by attachment of the party who thereupon gave Pledges for his appearance If the party could not be found a fugam fecit was returned and that was a conviction in Law and pursuit was made after the party by Huy and Cry. If he was thereby taken the ancient way was that of Hallifax-Law but in latter times he was imprisoned or admitted to Bail if the offences were bailable and if the party bailed made default or did not abide the Trial his Bail suffered as Principal If no Bail could be procured the Delinquent was imprisoned till he was legally acquitted but this imprisonment was only in nature of restraint If the Delinquent was found upon the Huy and Cry and would not yield himself he was in repute a common Enemy and as a Wolf any man might kill him as the Law was also the same in case of Vtlary At the time of tryal if at the Kings suit the Delinquent was indicted in this manner by any party present I D. C. do say for the King that I. S. is defamed by good men that he upon day of c. into the House and Goods of did cast fire and the same did burn or if it were for Bloodshed with a Sword did strike and wound him in the left arm and that this was done Feloniously or if the case required Traiterously and if I. S. deny the same I will for the King prove the matter against him as the King ought to do that is to say by Witnesses and Twelve men But if the complaint was at the suit of the party then the Prosecutor sued him upon Appeal in manner following I. C. appealeth D. H. here present for that E. Father Brother Son or Vncle according as the case was to I. C. being in the peace of God and of our Soveraign Lord the King at the dwelling house of E. at c. the said D. H. upon the day of in the year of with a Sword made a Wound of two inches long and six inches deep in the left pap of the body of the said E. whereof he died and this was done Feloniously and of Malice forethought And if the said D. H. shall deny the same the said I. C. is ready to prove the same against him in his body or as a Monk Woman or Clerk behoveth to prove the same that is by Champion for neither Monk Woman nor Clerk was by Law to justifie by Battle in their own person The several causes of Appeal and Indictment may be found in the Law-books to whom I refer the Reader it not being within the compass of this Discourse to fall upon the particulars I shall onely observe the difference between Indictments former and latter and between them and Appeals viz. that Appeals are positive Accusations in the name of the Prosecutor of the fact done by the party appealed whereas Indictments were onely a publication or affirmation of the same of a fact done by the party indicted and wherein Not guilty pleaded served onely as in nature of a Quere to usher in the votes of the Freemen concerning the fact Secondly the difference between former Indictments from these in these days consists in this that the ancient Indictments were in the name of one man those of the later sort are in the name of the Jury and the former were onely of a same the later of the fact A third way of bringing Controversies unto judgement concerned onely such matters as were of less consequence and these were introduced by way of Presentment in the name or behalf of the King in nature of a positive Accusation of one for a Crime first laid down generally and then asserted by a particular fact in this manner I say for our Soveraign Lord the King That H. here is perjured and hath broken saith against the King because whereas H. is or was Chancellour of the King and was
over-spread the body of the Clergie in those days and therefore I shall sum them up as follows Rights of Advowsons shall be determined in the King 's Court. This had been quarrelled from the first Normans time but could never be recovered by the Clergie Before the Normans time the County-courts had them and there they were determined before the Bishop and Sheriff but the Ecclesiastical Causes being reduced to Ecclesiastical Courts and the Sheriff and the Laity sequestred from intermeddling the Normans according to the custom in their own Country reduced also the tryal of rights of Advowsons unto the Supreme Courts partly because the King's Title was much concerned therein and the Norman Lords no less but principally in regard that Rights require the consideration of such as are the most learned in the Laws Rights of Tythes of a Lay-fee or where the Tenure is in question belong to the King 's Court. Pleas of Debts by troth-plight belong to the King 's Court. These were Saxon Laws and do intimate that it was the endeavour of the Clergie to get the sole cognizance of Tythes because they were originally their dues and of Debts by troth-plight because that Oaths seemed to relate much to Religion whereof they held themselves the onely Professors The King's Justice shall reform Errours of the Ecclesiastical Courts and Crimes of Ecclesiastical persons Appeals shall be from Arch-Deacons Courts to the Bishops Courts and thence to the Archbishops Courts and thence to the King's Court and there the Sentence to be final No man that ever was acquainted with Antiquity will question that these were received Laws in the Saxons time nor did the Clergie ever quarrel them till the Normans taught them by courtesie done to Rome to expect more from Kings than for the present they would grant whereof see Cap. 47. But King Steven that was indebted to the Clergie for his Crown and could not otherwise content them parted with this Jewel of Supreme power in Causes Ecclesiastical to the Roman cognizance as hath been already noted but Henry the second would have none of this Cheat at so easie a rate This struck so smart a blow as though the Popedom had but newly recovered out of a paralytick Schism yet seeing it so mainly concerned the maintenance of the Tripple-Crown Alexander the Pope having lately been blooded against a brave Emperour made the less difficulty to stickle with a valiant King who is conclusion was fain to yield up the Bucklers and let the Pope hold what he had gotten notwithstanding against this Law and all former Law and Custom And thus the Popes Supremacy in Spiritual Causes is secured both by a Recovery and Judgment by confession thereupon The King shall have vacancies of Churches and power to elect by his secret Council The Party elected shall do homage salvo ordine and then shall be consecrated This certainly was none of the best yet it was a custom not altogether against reason although not suitable to the opinion of many yet we meet two alterations of the ancient custom First that the election shall be by the King and secret Council whereas formerly the election of Bishops and Archbishops was of such publick concernment as the Parliament took cognizance thereof and that which was worse a Council was hereby allowed called a secret Council which in effect is a Council to serve the King's private aims and unto this Council power given in the ordering of the publick affairs without advice of the publick Council of Lords which was the onely Council of State in former times And thus the publick affairs are made to correspond with the King 's private interest which hath been the cause of much irregularity in the Government of this Island ever since The second alteration resteth in the salvo which is a clause never formerly allowed unless by practice in Steven's time whenas there was little regard of the one or the other Nor doth it concur with the file of story that it should be inserted within these Constitutions seeing that Writers agree it was the chief cause of quarrel between him and Becket who refused submission without the clause and at which the King stuck with the Archbishop for the space of seven years which was six years after the Constitutions were consented unto and concluded upon No Clergie-man or other may depart the Realm without the King's License It is a Law of Nations and must be agreed on all hands that no reason of State can allow dispensations therein especially in a doubtful Government where the Supremacy is in dispute and this the wilful Archbishop never questioned till he questioned all Authority but in order to his own for but the year before when he went to Turonn to the general Council upon summons he first obtained License from the King before he went. No Sentence of Excommunication or Interdiction to pass against the King's Tenant or any Minister of State without License first had of the King or his Chief Justice in the King's absence Till the Conquest no Excommunication passed without Warrant of Law made by the joynt assembly of the Laity and Clergy but the Conquerour having let loose the Canons and the Clergie having got the upper hand in Councils made Canons as they pleased and so the Laity are exposed to the voluntary power of the Canon onely as well the Normans as until these times Kings have saved their own associates from that sudden blow and upon reason of religious observance lest the King should converse with excommunicate persons e're he be aware The Laity are not to be proceeded against in Ecclesiastical Courts but upon proof by Witnesses in the presence of the Bishop and where no Witnesses are the Sheriff shall try the matter by Jury in the presence of the Bishop A negative Law that implieth another course was used upon light Fame or Suspition ex officio although the Oath at that time was not born into the World and that all this was contrary to the liberty of the Subject and Law of the Land And it intimates a ground of prohibition in all such cases upon the Common Law which also was the ancient course in the Saxons times as hath been formerly noted Excommunicated persons shall be compelled onely to give pledge and not Oath or Bail to stand to the Judgement of the Church Upon the taking and imprisoning of the party excommunicate the course anciently was it seemeth to give Pledge to stand to Order Of this the Bishops were weary soon as it seemeth and therefore waved it and betook themselves to other inventions of their own viz. to bind them by Oath or Bail both which were contrary to Law for no Oath was to be administred but by Law of the Kingdom nor did it belong to the Ecclesiastical Laws to order Oaths or Bail and therefore this Law became a ground of prohibition in such
which shew him to be a brave King if he was not a very rich man. Henry the second was more heavy because he had more to do yet find we but one assessment which was Escuage unless for the holy War which was more the Clergy-mens than his Richard was yet a greater burthen his Reign was troublesome to him and he deserved it for from the beginning thereof to the ending could never the guilt of his disobedience to his Father be blotted out but it was more troublesome to the people because it cost so much treasure was managed by such ill Governours except the Archbishop of Canterbury and was unsuccessful in most of his undertakings yet never invaded the liberties of the Commons by any face of Prerogative But what wanted in him was made compleat and running over in his Successor John who to speak in the most moderate sence of his Government being given over to himself when he was not himself robbed the Lords of their authority bereaved the Church of its Rights trod under foot the Liberties of the people wasted his own Prerogative and having brought all things into despair comes a desperate cure the head is cut off to save the body and a president left for them that list to take it up in future ages And thus that which Steven gave Henry the second lost Richard the first would not regain and John could not and so all were gainers but the Crown CHAP. LXI Of Judicature the Courts and their Judges IT is no silent argument that the Commons gain where Laws grow into course and it was the lot of these troublesome times to lay a foundation of a constant Government such as all men might learn which formerly was laid up onely in the breasts of wise experienced men The two most considerable points in Government is the Law and the Execution the latter being the life of the former and that of the Common-wealth I say not that the Law was augmented in the body of it or that the Execution had a freer course than in the best of the former times but both were more and more cleared to the world in many particulars as well touching matters concerning practice of the Law as touching rules of righteousness For the first whereof we are beholding to Glanvil in Henry the second 's time and for the latter to King John or rather the Barons in his time in the publishing of the Grand Charter or an enumeration of the Liberties or Customes of the people derived from the Saxons revived continued and confirmed by the Normans and their Successors which for the present I shall leave in lance dubio to stand or fall till occasion shall be of clearing the point in regard that King John soon repented of his Oath the Bond of his consent and to heal the Wound got the Pope's pardon and blessing thereupon so easie a thing it was for a Son of the Roman Church to pass for a good Catholick in an unrighteous way The execution of the Law was done in several Courts according to the several kinds of affairs whereof some concerned matters of Crime and Penalty and this touched the King's honour and safety of the persons of himself and his Subjects and therefore are said to be contra coronam dignitatem c. The second sort concern the profits of the Crown or treasure of the Kingdom The third concern the safety of the Estates of the people These three works were appointed unto three several Courts who had their several Judges especially appointed to that work Originally they were in one viz. in the supream Court of Judicature the Court of Lords whereof formerly was spoken but after through increase of affairs by them deputed or committed to the care of several men that were men of skill in such affairs and yet retained the Supremacy in all such cases still And because that which concerned the publick Treasure was of more publick regard than the other the deputation thereof was committed probably to some of their own members who in those days were Barons of the Realm and afterwards retained the Title but not the Degree and therefore were called for distinction-sake Barons of the Exchequer The particular times of these deputations appear not clearly out of any monument of antiquity nevertheless it is clear to me that it was before Henry the second 's time as well because Henry the first had his Judex fiscalis as Glanvil so frequently toucheth upon the King's Court of Pleas which cannot be intended at the Court of Lords for that in those days was never summoned but in time of Parliament or some other special occasion But more principally because the Historian speaking of the Judges itinerant reciteth some to be of the Common-pleas which sheweth that there was in those days a distinction of Jurisdiction in Judicatures And it may very well be conceived that this distinction of Judicature was by advice of the Parliament after that the Grand Council of Lords was laid aside by Kings and a Privy-Council taken up unto whom could not regularly belong any juridical power because that remained originally in the grand assembly of the Lords Over these Courts or two of them one man had the prime Title of Chief Justice who then was called Lord Chief Justice of England and whose office was much of the nature of the King's Lieutenant in all causes and places as well in War as Peace and sometimes was appointed to one part of the Kingdom and by reason thereof had the name onely of that part and some other of the other parts The greatness of this Office was such as the man for necessity of state was continually resident at the Court and by this means the King's Court was much attended by all sorts of persons which proved in after-times as grievous the King as it was burthensome to the people Other Judges there were which were chosen for their learning and experience most of them being of the Clergie as were also the under-Officers of those Courts for those times were Romes hour and the power of darkness Other Courts also were in the Country and were Vicontiel or Courts of Sheriffs and Lords of Hundreds and Corporations and Lordships as formerly and these were setled in some place But others there were which were itinerant over which certain Judges presided which were elected by the Grand-Council of Lords and sent by Commission from King Henry the second throughout the Kingdom then divided into Six Circuits unto each of which was assigned Three Justices so as the whole number of Justices then was Eighteen The office was before the coming of the Saxons over hither but the assignation was new as also was their Oath for they were sworn But the number continued not long for within four years the King re-divided the Land into four Circuits and unto each Circuit assigned five Justices making in the whole the number of Twenty and one Justices for the Northern
demise he died a death meet to be for ever blotted out of the thoughts of all Subjects but to be had in everlasting remembrance of all Kings For if a Kingdom or Parliament misleads the King at the worst he is but misled by his Council but if he be drawn aside by favorites he must thank his own lust in the one he hath but the least share in the burthen in the other he must bear the whole CHAP. LXV Of the condition of the Nobility of England till the time of Edward the Third NOw was Prerogative mounted up to the highest pitch or endeavoured so to be either through the weakness or power of these Kings of whom the first and last had little to ground upon but their own will and the other I mean Edward the first had more wisdom and power but was otherwise distracted by foraign and more urgent employments so as the work fainted before it came to its full period The contest was between the King and Barons who till those days were rather the great and richer sort of men than Peers although they also were of the number I am not so sharp-sighted as to reach the utmost intentions of the Lords but their pretences are to such publick nature as it is plain that if their private interest was wrapped up therein they were inseparable And I shall never quarrel the Lords aim at private respects whenas it is plain the publick was so importantly concerned and yet I will not justiâ—ie all that I find written concerning their Words and Actions The Speech of the E. of Cornwal to his his elder Brother and King Henry the Third I will neither render up my Castle nor depart the Kingdom but by the judgment of the Peers and of Simon the E. of Leicester to the same King that he lyed and were he not a King the Earl would make him repent his word and of the Lords that they would drive the King out of his Kingdom and elect another and of the E. Marshal to Edward the first that he would neither go into Gascoine nor hang and such other do savour of passion especially that of the E. of Leicester and the Lords and may seem harsh and unmannerly and yet may admit of some allay if the general rudeness of the time the King 's injurious provocations and the passions of cholerick men be weighed together Yet will not all these trench upon the cause nor render the state of the Lords too high or disproportionable to their place in the policy of the Kingdom of England as things then stood I say it was not disproportionable for where the degree of a King was mounting up to such a pitch as to be above Law the Lords exceeded not their places in pressing him with their Counsels to conform to the Laws and in maintaining that trust that was reposed in them in keeping off such sinister Counsels and invasions as might violate the Laws and Liberties or hinder the current of Justice concerning which I shall shortly state the case and leave it to the censure of others The Government of the people of this Nation in their original was Democratical mixt with an Aristocracie if any credit be to be given to that little light of History that is left unto us from those ancient times Afterwards when they swarmed from their hive in Forreign parts and came over hither they came in a warlike manner under one conducter whom they called a King whose power whatever in the War yet in time of peace was not of that height as to rule alone I mean that whereas the Lords formerly had the principal executory power of Laws setled in them they never were absolutely devested of that power by the access of a King nor was the King ever possessed of all that power nor was it ever given to him but the Lords did ever hold that power the King concurring with them and in case the King would not concur the people generally sided with the Lords and so in conclusion the King suffered in the quarrel From this ground did arise from time to time the wandrings of the people in electing and deposing their Kings during the Saxon times Nor did nor could the Norman Williams shake off this co-partnership but were many times as well as other ensuing Princes perswaded against their own minds and plotted desires Nor can it otherways be supposed where Councils are setled for whereto serve they if notwithstanding them the King may go the way of his inordinate desire If the Lords then did appear against these Kings whereof we treat in cases where they appeared against the Laws and Liberties of the people it was neither new nor so heinous as it is noised for them who are equally if not more entrusted with the Common-wealth than the King by how much the Counsellors are trusted more than the Counselled to be true for the maintenance of their trust in case the King shall desert his But the greater question is concerning the manner by Threats and War. It is as probable I grant that the Lords used the one as the other for it was the common vice of the times to be rugged yet if we shall add to what hath been already said first that Knight-service was for the defence of the Kingdom principally Secondly that the greatest power of Knight-service rested with the Lords not only in propriety and ownership but in point of direction for the benefit of the Commonwealth and lastly that the state of the times now was such as the Kingdom was oppressed by strangers Counsels and the Counsels of the Kingdom rejected that instead of Law Garrisons of strangers ruled that no man could own his own that the Subjects were looked upon as enemies and of all this the King made the principal instrument who had ruled and over-ruled in this manner and so was resolved to continue I shall leave it to the better judgement of others what other healing plaister was to be had for such a sore Albeit it cannot be denied that more due respects might have been tendred to Kingly dignity than was in those times practised And yet there was a difference also in the occasions of War for certainly that last War with Edward the second was more fatal and yet less warrantable and in the issue declared that there was more of the Queen therein than of the Lords who knew a way of removing Favourites from the King without removing the King from the Kingdom or driving him out of the World. In all which nevertheless it cannot be concluded that the Lords party was encreased more than in the former Kings times for the loss of the field in Henry the Thirds time against the Prince kept them in awe all the succeeding Reign although they were not then tongue-tyed and their second loss against Edward the Second which was yet more sharp questionless quelled their spirits although they lost no right thereby and encreased the Kings party much
and made all practices contrary to the rule damageable to the party Thus far concerning the matters in Cognizance now touching the power of the Keys English Prelacy having laid aside the pretentions of Rome they put the world to a gaze to see which way they would go In the innocent infancy of Prelacy it was led by the hand by the Presbytery and would do nothing without them afterwards having gained some degree of height and strength they entred themselves to be Chariot-horses to the Roman Sun till they had set all on fire Now unharnest it is expected they should return to their former Wits nevertheless forgetting their ancient Yoak-fellows the rural Presbyters they stable with the King use his name sometimes but more often their own serving him with Supremacie as he them with authority beyond their Sphere They raise him above Parliament he them above Councils so as they do what they list let the Plebeian Presbyter will or nill they are the onely numeral Figures and the other but Cyphers to make them Omnibus numeris absoluti Nevertheless the Canon still remains the same Episcopi se debent scire Presbyteros non Dominos nec debent in clerum dominari Episcopus se sedente non permittat Presbyterum stare Episcopi noverint se magis consuetudine quam dispensatione Presbyteris majores Kings may make them Lords but as Bishops they hold their former rank assigned by the Canon as Lord s the King never gave them the Keys and as Bishops the Canon did not yet as under the joynt Title of Lord-Bishops they hold themselves priviledged to get what power they can Two things they reach at viz. The absolute power of Imprisonment and of Excommunication in all causes Ecclesiastical The Common Law would never yield this some Statutes in some Cases did pretend First As touching Imprisonment the Statute of Henry the Fourth concerning Heresie doth lisp some such power of what force the same Statute is hath been already observed In case of incontinency of Church-men it is more directly given them by a Statute in Henry the Seventh's time before which time the Statute it self doth intimate that an Action did lie against them for such Imprisonment which Law also was made useless by another in Henry the Eighth's time who gave a way to Statutes for the punishing them at the Common Law. First with Death which continued for some Moneths and that being found too heavy it was punished by another Law with Forfeiture and Imprisonment And the same King likewise gave way to a Law for the like punishment in case of Heresie By that Law that revoked the Statute of Henry the Fourth formerly mentioned although till Trial the same was bailable And thus continued till the time of Edward the Sixth But as touching Excommunication it was to no purpose for them to struggle the Common Law would never permit them to hold possession quietly but did examine their Authority granted Prohibition enjoyned the Ordinary to grant Absolution where it saw cause Nevertheless in some cases Henry the Eighth gives way to some Statutes to allow them this power as in the â—evying of Tenths In the next place the Prelacy had not this Ecclesiastical Jurisdiction in themselves so as to grant it to others but the Parliament did dispose thereof not onely to Bishops but to Chancellors Vicars general Commissaries being Doctors of the Law and not within holy Orders and limiting their Jurisdiction in cases concerning the Papal Jurisdiction and their manner of sending their Process and Citations to draw men from their proper Diocess and also their inordinate Fees in Cases Testamentary The Prelates therefore might possibly make great claim hereof for generally they were still of the old stamp loved to have all by Divine Right and lived they cared not by what wrong But the Laity enclining too much to the new Religion as then it was termed refused to yield one foot unto their pretentions And so like two Horses tied together by their Bits they endeavour after several courses ever and anon kicking one at another yet still bestrode by a King that was joynted for the purpose and so good a Horseman that neither of them could unhorse him till Death laid him on the ground And thus was the Roman Eagle deplumed every Bird had its own Feather the great men the Honours and Priviledges the meaner men the Profits and so an end to Annates Legatine levies Peter-pence Mortuaries Monasteries and all that Retinue the vast expences by Bulls and Appeals to Rome to all the cares expences and toil in attendance on the Roman Chair The beginning of all the happiness of England CHAP. XXXI Of Judicature THese two Kings were men of towring Spirits liked not to see others upon the Wing in which regard it was dangerous to be great and more safe not to be worthy of regard Especially in the times of Henry the Eighth whose motion was more eager and there was no coming nigh to him but for such as were of his own train and would follow as fast as he would lead and therefore generally the Commons had more cause to praise the King for his Justice than the Nobility had Both the Kings loved the air of profit passing well but the latter was not so well breathed and therefore had more to do with Courts which had the face of Justice but behind were for the Kings Revenue Such were the Court of Requests of mean Original mean Education yet by continuance attained to a high growth The Court of Tenths and first-Fruits The Court of Surveyors The Court of the Lord Steward of the Houshold The Court of Commission before the Admiral The Court of Wards The Court of the President of the North The Prerogative Court The Court of Delegates The Court of Commission of Review Others of more private regard And that which might have given the name to all the rest the Court of Augmentation Besides these there were some in Wales but that which concerned more the matter of Judicature was the loss of that grand Liberty of that Country formerly a Province belonging to this Nation and now by Henry the Eighth incorporated into the same and made a Member thereof and brought under the same Fundamental Law a work that had now been long a doing and from the time of Edward the Third brought on to perfection by degrees First by annexing the Tenure of the Marches to the Crown Then upon occasion of their Rebellion by loss of many of their wonted Liberberties Afterwards Henry the Eighth defaced the bounds of divers the ancient Counties and setled them anew and the bounds of the Marches also and appointed Pleas in Courts of Judicature to be holden in the English Tongue And last of all re-united them again to the English Nation giving them vote in Parliament as other parcel of the English Dominions had True it is that from their
Advertisement THis Book at its first Publishing which was shortly after the Death of King Charles the First had the ill fortune to be coldly received in the world by reason of the Circumstances of those times but after K. Charles the Second was possest of the Crown and endeavoured to advance the Prerogative beyond its just bounds the Book began to be much enquired after and lookt into by many Learned Men who were not willing to part easily with their Birth-Rights so that in a short time it became very scarce and was sold at a great rate this occasion'd the private Reprinting of it in the year 1672 which as soon as the Government perceived they Prosecuted both the Publisher and the Book so violently that many hundreds of the Books were seized and burnt that and the great want of the Book since occasioned the Reprinting of it without any Alterations or Omissions in the year 1682 when the Press was at liberty by reason of the ceasing of the Act for Printing but Prerogative then getting above the Law it met with a new Persecution and the Publisher was Indicted for the Reprinting of it the passages in it upon which the Indictment was found were these Part II. Page 76. beginning Line the 24th thus I do easily grant that Kings have many occasions and opportunities to beguile their people yet can they do nothing as Kings but what of Right they ought to do They may call Parliaments but neither as often or seldom as they please if the Statute Laws of this Realm might take place And Part II. Page 148. Line 32. And though Kings may be Chief Commanders yet they are not the Chief Rulers The Prosecution went on so rigorously that the Publisher tho' beyond the Seas yet willing to try the Cause appeared according to the constant practice of the Court of King's-Bench by his Attorney but for not being personally present in the Court which was then impossible he was by the Arbitrary Power of the then Lord Chief Justice Jefferys Out-Law'd for a Misdemeanour and so remain'd till this wonderful Revolution by the wise Conduct of his Highness the Prince of Orange The Books have been ever since with care and charge preserved for the benefit of all that are willing to know and maintain their Antient Laws and Birth-Rights It was well known to and owned by the late Lord Chief Justice Vaughan who was one of the Executors of the Great and Learned Mr. Selden that the Ground-work was his upon which Mr. Bacon raised this Superstructure which hath been and is so well esteem'd that it is now again made publick by January the 10th 1688-9 John Starkey AN Historical and Political DISCOURSE OF THE Laws Government OF ENGLAND FROM The FIRST TIMES to the End of the Reign of QUEEN ELIZABETH WITH A VINDICATION of the ANCIENT WAY of Parliaments in England Collected from some Manuscript Notes of John Selden Esq by Nathaniel Bacon of Grays Inn Esquire LONDON Printed for John Starkey And are to be Sold by J. Robinson at the Golden Lyon in St. Pauls Church-Yard R. Bentley in Russel-Street in Covent-Garden Jacob Tonson at the Judges Head in Chancery-Lane T. Goodwin at the Maiden Head in Fleetstreet and T. Fox at the Angel in Westminster-Hall 1689. AN HISTORICAL and POLITICAL DISCOURSE OF THE Laws Government OF ENGLAND The FIRST PART From the FIRST TIMES till the REIGN OF EDWARD III. LONDON Printed for John Starkey at the Miter in Fleet-street neer Temple-Bar M.DC.LXXXII Advertisement A Private Debate concerning the right of an English King to Arbitrary rule over English Subjects as Successor to the Norman Conquerour so called first occasioned this Discourse Herein I have necessarily fall'n upon the Antiquity and Vniformity of the Government of this Nation It being cleared may also serve as an Idea for them to consider who do mind the restitution of this shattered Frame of Policy for as in all other Cures so in that of a distempered Government the Original Constitution of the Body is not lightly to be regarded and the contemplation of the Proportions and manners of the Nation in a small Model brings no less furtherance to the right apprehension of the true nature thereof besides the delight than the perusing of a Map doth to the Traveller after a long and tedious travel I propound not this Discourse as a Patern drawn up to the life of the thing nor the thing it self as a Master-piece for future Ages for well I know that Commonwealths in their minority want not onely perfection of Strength and Beauty but also of Parts and Proportion especially seeing that their full age attaineth no further growth than to a mixture of divers Forms in one Ambition hath done much by Discourse and Action to bring forth Absolute Monarchy out of the Womb of Notion but yet like that of the Philosopher's Stone the issue is but wind and the end misery to the undertakers And therefore more than probable it is that the utmost perfection of this Nether-worlds best Government consists in the upholding of a due proportion of several Interests compounded into one temperature He that knoweth the secrets of all Mens Hearts doth know that my aim in this Discourse is neither at Scepter or Crosier nor after Popular Dotage but that Justice and Truth may moderate in all This is a Vessel I confess ill and weakly built yet doth it adventure into the vast Ocean of your Censures Gentlemen who are Antiquaries Lawyers and Historians any one of whom might have steered in this course much better than my self Had my own credit been the fraight I must have expected nothing less than wrack and loss of all but the main design of this Voyage being for discovery of the true nature of this Government to common view I shall ever account your just Censures and Contradictions especially published with their grounds to be my most happy return and as a Crown to this Work And that my labour hath its full reward if others taking advantage by my imperfections shall beautifie England with a more perfect and lively Character THE CONTENTS Of the FIRST PART CHAP. I. Of the Britons and their Government page 1 II. Concerning the Conversion of the Britons into the Faith. 2 III. Of the entry of the Romans into Britain and the State thereof during their continuance 3 IV. Of the entry of the Saxons and their manner of Government 8 V. Of Austin's coming to the Saxons in England his Entertainment and Work. 11 VI. Of the imbodying of Prelacy into the Government of this Kingdom 13 VII Of Metropolitans in the Saxons time 15 VIII Of the Saxon Bishops 16 IX Of the Saxon Presbyters 17 X. Of inferiour Church-Officers amongst the Saxons 18 XI Of Church-mens maintenance amongst the Saxons ibid. XII Of the several Precincts or Jurisdictions of Church-Governours amongst the Saxons 22 XIII Of the manner of the Prelates Government of the Saxon Church 23 XIV Of Causes Ecclesiastical 24 XV.
may be said of their making of War of defence against Forrain Invasion Matters of publick and general charge also were debated and concluded in that Assembly as the payment of Tithes it is said they were granted Rege Baronibus Populo Such also as concerned the Church for so Edwin the King of Northumberland upon his marriage with a Christian Lady being importuned to renounce his Paganism answered he would so do if that his Queens Religion should be accounted more holy and honourable to God by the wise men and Princes of his Kingdom And all the Church-Laws in the Saxons time were made in the Micklemote Monasteries were by their general consent dedicated and their Possessions confirmed The City of Canterbury made the Metropolitan Matters also of private regard were there proceeded upon as not onely general grievances but perverting of Justice in case of private persons as in that Council called Synodale concilium under Beornulfus the Mercian King quaesitum est quomodo quis cum justitia sit tractatâ—â— seu quis injuste sit spoliatus The name of which Council called Synodal mindeth me to intimate that which I have often endeavoured to find out but yet cannot viz. that there was any difference between the general Synods and the Wittagenmote unless merely in the first occasion of the summons And if there be any credit to be allowed to that book called The Mirrour of Justices it tells us that this Grand Assembly is to confer of the Government of Gods people how they may be kept from sin live in quiet and have right done them according to the Customs and Laws and more especially of wrong done by the King Queen or their Children for that the King may not by himself or Justices determine Causes wherein himself is actor And to sum up all it seemeth a Court made to rise and stoop according to occasion The manner of debate was concluded by Vote and the sum taken in the gross by noise like to the Lacedemonians who determined what was propounded clamore non calculis yet when the noise was doubtful they took the votes severally The meeting of the Saxons at this Assembly in the first times was certain viz. at the new and full Moon But Religion changing other things changed these times to the Feasts of Easter Pentecost and the Nativity at which times they used to present themselves before the King at his Court for the honour of his person and to consult and provide for the affairs of his Kingdom and at such times Kings used to make shew of themselves in their greatest pomp crowned with their Royal Crown This custom continued till the times of Henry the second who at Worcester upon the day of the Nativity offered his Crown upon the Altar and so the Ceremony ceased This grand Assembly thus constituted was holden sacred and all the Members or that had occasion therein were under the Publick faith both in going and coming unless the party were fur probatus If a Member were wronged the Delinquent payed double damages and fine to the King by a Law made by Ethelbert above a Thousand years ago This priviledge of Safe pass being thus ancient and fundamental and not by any Law taken away resteth still in force But how far it belongeth to such as are no Members and have affairs nevertheless depending on that Court I am not able to determine yet it seemeth that Priviledge outreacheth Members unless we should conceit so wide that the State did suppose that a Member might be a notorious and known Thief Lastly this Assembly though it were called the Wittagenmote or the meeting of wise men yet all that would come might be present and interpose their liking or disliking of the Proposition si displicuit sententia fremitu aspernatur si placuit frameas concutiunt And some hints I meet with that this course continued here in England for some Presidents run in magna servorum Dei frequentia and that of Ina commune concilium seniorum populorum totius Regni in another Council by him holden The Council of Winton An 855. is said to be in the presence of the great men aliorumque fidelium infinita multitudine and it will appear that it continued thus after the Norman times What power the vulgar had to controul the Vote of the wise men I find not fremitu aspernabantur it is said and probably it was a touch of the rudeness of those times for it was not from any positive Law of the Nation but a fundamental Law in Nature that wise men should make Laws and that the supream Judicature should rest in the Wittagenmote was never an honour bestowed upon it by the Saxons but an endowment from the light of Reason which can never be taken away from them by that headless conceit provoco ad populum but that Body must be as monstrous as the Anthropophagi whose heads are too nigh their belly to be wise CHAP. XXI Of the Council of Lords THis in the first condition was a meeting onely of the Lords for direction in emergent cases concerning the government and good of the Commonwealth and for the promoting of administration of Justice these the Historian calls Minora because they were to serve onely the present passions of State. Afterwards when they had gotten a King into their number they had so much the more work as might concern due correspondency between him and the people and of themselves towards both This work was not small especially in those times of the growth of Kings but much greater by the access of Prelates into their number with whom came also a glut of Church-affairs that continually increased according as the Prelates ambition swelled so as this Council might seem to rule the Church alone in those days whenas few motions that any way concerned Church-men but were resolved into the Prelatical cognizance as the minora Ecclesiae And thus under the colour of the minora Ecclesiae and the minora Reipublicae this mixt Council of Lords came by degrees to intermeddle too far in the magnalia Regni For by this means the worshipping of Images and the Mass was obtruded upon the Saxons by the Roman Bishop and his Legate and the Archbishop of Canterbury and decreed That no Temporal or Lay-person shall possess any Ecclesiastical possessions That elections of Ecclesiastical persons and Officers shall be by Bishops That the possessions of Church men shall be free from all Lay-service and Taxes And in one sum they did any thing that bound not the whole body of the Freemen In which had these Lords reflected more upon the office and less upon the person and not at all upon their private interest they doubtless had been a blessing to their Generations and a Golden Scepter in the hand of a righteous King But contrarily missing their way they became a Sword in
sentencing one to suffer death upon the Coroners record without allowing the Delinquent liberty of Traverse This Officer also was made by election of the Freeholders in their County-Court as the Sheriff was and from amongst the men of chiefest rank in the County and sworn in their presence but the Kings Writ led the work CHAP. XXIV Of the County-Court and the Sheriffs Torne THE Government of the County in times of peace consisted much in the administration of Justice which was done in the publick meetings of the Freeholders and their meetings were either in one place or in several parts of the County in each of which the Sheriff had the managing of the acts done there The meeting of the Free-men in one place was called the Folkmote by the Saxons saving the judgment of the honourable Reporter Coke Instit. 2. p. 69. and of latter times the County-Court the work wherein was partly for consultation and direction concerning the ordering of the County for the safety and peace thereof such as were redress of Grievances election of Officers prevention of dangers c. and partly it was judicial in hearing and determining the common Pleas of the County the Church-affairs and some trespasses done therein but not matters criminal for the Bishop was Judge therein together with the Sheriff and by the Canon he was not to intermeddle in matters of Blood yet neither was the Bishops nor Sheriffs work in that Court other than directory or declaratory for the Free-men were Judges of the act and the other did but edocere jura populo yet in special cases upon petition a Commission issued forth from the King to certain Judges of Oier to joyn with the others in the hearing and determining of such particular cases But in case of injustice or errour the party grieved had liberty of appeal to the Kings Justice Nor did the Common Pleas originally commence in the County-Court unless the parties dwelt in several Liberties or Hundreds in the same County and in case any mistake were in the commencing of Suits in that Court which ought not to be upon complaint the Kings Writ reduced it to its proper place and in this also the Kings own Court had no preheminence In those ancient times this County-Court was to be holden but twice a year by the constitution of King Edgar but upon urgent emergencies oftner and that either by the Kings special Writ or if the emergent occasions were sudden and important by extraordinary summons of ringing the Moot-bels Unto this Court all the Free-men of the County assembled to learn the Law to administer Justice to provide remedy for publick inconvenience and to do their fealty to the King before the Bishop and Sheriff upon Oath and in the work of administring Justice causes concerning the Church must have the precedency so as yet the Canon-Law had not gotten footing in England The other Court wherein the Sheriff had the direction was in the meeting of the Free-men in several parts of the County and this was anciently and now is called the Sheriffs Torne which simply considered is but a Hundred-Court or the Sheriffs Torne to keep the Hundred-Court It was ordered to be kept twice every year viz. at the Lady-day and Michaelmas or soon after Unto this Court all the Free-holders of the Hundred repaired and there they the Bishop and Sheriff executed the same power and work for kind that they did in the County-Court In this Court all the Suits in the Hundred-Court depending had their determination and others had their commencement and proceedings as well the Pleas of the Crown as others Some have conceived it to be a County-Court or superiour thereto but there being no ground thereof I conceive it to be no other than a Visitation of the County by parcels or in circuit CHAP. XXV Of the Division of the County into Hundreds and the Officers and Court thereto belonging COunties were too great to meet upon every occasion and every occasion too mean to put the whole County to that charge and trouble and this induced sub-divisions the first whereof is that of the Hundred now and also anciently so called but as ancient if not more is the name Pagus for the Historian tells us that the Germans in the executing of their Laws a hundred of the Free-men joyned with the chief Lord per pagos vicosque which first were called Centenarii or Hundreders from their number but used for a title of Honour like the Triarii And as a second hereunto I shall add that testimony of the Council at Berkhamsted which speaking the reduction of Suits from the Kings Court ad pagi vel loci praepositum in other places it is rendred to the Governours of the Hundred or Burrough And at this day in Germany their Country is divided into Circuits called Centen or Canton and Centengriecht and the Hundreders they call Centgraven or Hundred-chiefes whether for Government in time of peace or for command in time of War the latter whereof the word Wapentake doth not a little favour Amongst these one was per eminentiam called the Centgrave or Lord of the Hundred and thereunto elected by the Free men of that Hundred and unto whom they granted a stipend in the nature of a Rent called Hundredsettena together with the government of the same The division of the County in this manner was done by the Free-men of the County who are the sole Judges thereof if Polydores testimony may be admitted and it may seem most likely that they ruled their division at the first according to the multitude of the Inhabitants which did occasion the great inequality of the Hundreds at this day The Government of the Hundred rested at the first upon the Lord and the Hundredars but afterwards by Alfred they were found inconvenient because of the multitude and reduced to the Lord or his Bailiff and twelve of the Hundred and these twelve were to be sworn neither to condemn the Innocent nor acquit the Nocent This was the Hundred Court which by the Law was to be holden once every Month and it was a mixt Court of Common-pleas and Crown-pleas for the Saxon Laws order that in it there should be done justice to Thieves and the trial in divers cases in that Court is by Ordeale Their Common-pleas were cases of a middle nature as well concerning Ecclesiastical persons and things as secular for the greater matters were by Commission or the Kings Writ removed as I formerly observed all Free-holders were bound to present themselves hereat And no sooner did the Defendant appear but he answered the matter charged against him and judgment passed before the Court adjourned except in cases where immediate proof was not to be had albeit it was holden unreasonable in those days to hold so hasty process and therefore the Archbishop of York prefers
of the like nature in Histories may appear The Conveyances formerly mentioned concerned Lands and Goods but if no such disposal of Goods were the ancient German custom carried them after the death of the ancestor promiscuously or rather in common to all the Children but in succeeding times the one half by the Law of Edmond passed to the relict of the party deceased by force of contract rather than course of descent After him Edward the Confessor recollecting the Laws declared that in case any one died intestate the Children should equally divide the Goods which I take to be understood with a salvo of the Wifes Dower or Portion As yet therefore the Ordinaries have nothing to do with the Administration for Goods passed by descent as well as Lands and upon this custom the Writ de rationabili parte bonorum was grounded at the Common-law as well for the Children as the Wifes part according as by the body of the Writ may appear CHAP. XLII Of times of Law and Vacancy SUch like as hath been shewed was the course of Government in those darker times nor did the fundamentals alter either by the diversity and mixture of people of several Nations in the first entrance nor from the Danes or Normans in their survenue not onely because in their original they all breathed one air of the Laws and Government of Greece but also they were no other than common dictates of nature refined by wise men which challenge a kinde of awe in the sense of the most barbarous I had almost forgot one circumstance which tended much to the honour of all the rest that is their speedy execution of Justice for they admitted no delays till upon experience they found that by staying a little longer they had done the sooner and this brought forth particular times of exemption as that of Infancy and Child-bearing in case of answering to criminal Accusations But more especially in case of regard of holiness of the time as that of the Lords day Saints days Fasts Ember days for even those days were had in much honour Nor onely days but seasons as from Advent to the Octaves of Epiphany from Septuagesima till Fifteen days after Easter or as by the Laws of the Confessor till Eight days after Easter and from Ascention to the Eighth day after Pentecost And though as Kings and times did change so these seasons might be diversly cut out as the Laws of Alfred Aethelstan Aetheldred Edgar Canutus and Edward do manifest yet all agreed in the season of the year and that some were more fit for holy observation than others And thus by the devotion of Princes and power of the Clergy the four Terms of the year were cut out for course of Law in the Kings Court the rest of the year being left vacant for the exercise and maintenance of Husbandry and particular callings and imployments saving that even in those times the Courts of the County and Hundred held their ancient and constant course Last of all and as a binding Law unto all it was provided that false Judges should give satisfaction to the party wronged by them and as the case required to forfeit the residue to the King to be disabled for ever for place of judicature and their lives left to the Kings mercy CHAP. XLIII The end of the Saxon Government ANd this far of the joynts of the Saxon Government in their Persons Precincts Courts Causes and Laws wherein as the distance will permit and according to my capacity I have endeavoured to refresh the Image of the Saxon Commonwealth the more curious lineaments being now disfigured by time Afar off it seems a Monarchy but in approach discovers more of a Democracy and if the temper of a body may appear by the prevailing humour towards age that Government did still appear more prevalent in all assaults both of time and change The first great change it felt was from the Danes that stormed them and shewed therein much of the wrath both of God and man. And yet they trenched not upon the fundamental Laws of the peoples Liberty The worst effect was upon the Church in the decay of the power of Religion and the Worship of God. For after much toil and loss both of sweat and bloud the Danes finding that little was to be gotten by blows but blows and that the Clergy at the least was the side-wind in the course of all affairs laid aside their Paganism and joyned with the Clergie and as their Converts and Pupils gained not onely their quiet residence but by the favour of the Clergie to make trial of the Throne and therein served the Clergie so well as they brought the people to a perfect Idolatry with times places and persons and subjection of their Estates to Church-Tributes And as at Tennis the Dane and Bishop served each other with the fond Country-man that whether Lord Dane or Lord-Bishop was the greater burthen is hard to be determined Thus became ambitious Prelacy in its full glory and the poor Church of Christ clouded in darkness and little hold left for recovery but onely by the liberty of the Saxon Freemen which the Danes could never conquer not for want of will or power but of time and occasion For the Crown returned to the Saxon-line again after the half age of one man although it was worn by three so God would have it nor did any monument of the Danish Government remain saving a few customs in some places which shew rather that the Danes were here than that they ruled here To sum up all The Saxon Common-wealth was a building of greatest strength downward even to the foundation arched together both for Peace and War. That by the Law of Decenners wherein Justice was the bond their Armies were gathered not by promiscuous flocking of people but by orderly concurrence of Families Kindreds and Decenners all chusing their own Leaders And so Honour Love and Trust conspired together to leave no mans life in danger nor death unrevenged It was a beautiful composure mutually dependant in every part from the Crown to the Clown the Magistrates being all choice men and the King the choicest of the chosen election being the birth of esteem and that of merit this bred love and mutual trust which made them as corner-stones pointed forward to break the wave of danger Nor was other reward expected by the great men but honour and admiration which commonly brought a return of acts of renown Lastly it was a regular frame in every part squared and made even by Laws which in the people ruled as Lex loquens and in the Magistrate as Lex intelligens all of them being grounded on the wisdom of the Greeks and Judicials of Moses Thus the Saxons became somewhat like the Jews distinct from all other people their Laws honourable for the King easie for the Subject and their Government above all other likest unto that of Christ's Kingdom whose
and being trained up even from the Cradle in the English garb moralized by Learning and now admitted into the Throne found it the wisest course to apply himself to the rule of an English King viz. To win and maintain the good opinion of the people by consorting together with them under one Law and pledging himself thereto by taking unto Wife one of the English Blood-royal by this means he refeised and reassumed the English in partnership with the Norman in their ancient right of Government and reconciled the minds of the people under a lively hope of enjoying a setled Government Nor were they greatly deceived herein for his course was less planetary than that of either of his predecessors and yet we find little said of his parley with his people in a Parliamentary way although more of his Laws than of any of his predecessors The reason will rest in this that the Writers of those times touch more upon matters of ordinary than political observation and regarded rather the thing than the place or manner how The Laws therefore although they are not entituled as made in Parliament yet in the continuation of the History of Bede it is noted that the King renewed or confirmed the ancient Laws in Concilio peritorum proborum virorum regni Angliae which may give sufficient cause to suppose that he declined not the ancient way no more than he did the ancient Law. CHAP. XLVII Of the Franchise of the Church in the Normans time THE Canon-Law that ever since Austin's coming like Thunder rumbled in the Clouds now breaks forth with confusion to all opposers It had formerly made many fair proffers of service to this Island but it was disaccepted as too stately to serve yet by often courtesies received it was allowed as a Friend afar off For the vast body of the Roman Empire like a body wasting with age died upward and left the Britains to their own Laws before the second Beast was grown which being young was nourished under the Imperial Law of the first Beast till it grew as strong as its Dam and began to prey for it self The Empire perceiving its grey hairs and the youthful courage of this Upstart was glad to enter mutual League with it That to maintain the Ecclesiastical Monarchy and This again to support the Imperial and so became the Canon and Imperial Law to be united and the Professours to be utriusque juris But this parity continued not long the young Beast looked like a Lamb but spake like a Lion and contrarily the Eagle had cast its Feathers and could towre no more so as by this time the Pope was too good for the Emperour and the Canon-Law above the Imperial yet allowing it to serve the turn And so the Professours of both Laws became Students in the Civil but Practisers of the Canon This Composition thus made beyond the Seas the great work was how to transport it over into this Isle for the Emperour could entitle the Pope to no power here because none he had Austin the Monk undertakes the work he offers it to the Britains under the goodly Title of Universal Bishop but they kept themselves out of Canon-shot The Saxons allowed the Title but liked not the power the Monk observed the stop and left time to work out that which present cunning could not being content for the present that a League of Cohabitation should be made between the two Swords though the spiritual were for the present underling not despairing that it would work out its own way over the Saxon Law as it had done over the Imperial Nor did his conceit altogether fail for the Saxons by little allowed much and the Danes more although the main was preserved until the Normans came upon the Stage who made their way by the Pope's lieve and gave him a colour of somewhat more than ever any of their Saxon predecessors had done and to gain the more quiet possession of the Crown to themselves allowed the Pope the honour of their Council learned to draw the Conveyance which as some think was made advantageously for the Pope himself in point of tenure but more probably in the Covenants For the Conquerour was scarce setled in his seat but the Canon-Law began to speak in the voice of a Royal Law First complaining of misgovernment as if the Church were extremely wronged by having the same way and Law of Tryal with the Commons of England and then propounds four several Expedients enough to have undone the whole Commonwealth in the very entrance had not the superstition of those times blinded both Parliament and People and rendred them willing to that which their successours in future ages often repented of No offence against the Bishops Laws shall be handled in the Hundred By the Saxon Law Church-matters had the preheminence both in the Hundred and in the County and it was the Bishop's duty to joyn with the Sheriff in those Courts to direct and see to the administration of Justice and yet the Canon had been above three hundred years foregoing in the Negative No Case concerning the Regiment of Souls shall be brought before the Secular Judge The Regiment of Souls was a common place sufficient to contain any thing that was in order thereunto and so every one that hath a Soul must be no more responsible unto the temporal Judge for any matter concerning it but unto the Ecclesiastical power And this not onely in case of scandal as against the moral Law or rule of Faith but for disobedience done to the Canons made afar off concerning any gesture or garb that may come within the savour of an Ecclesiastical conceit That all Delinquents against the Bishops Laws shall answer the Fact in a place appointed by the Bishop to that end So as now the Bishop hath gotten a Court by the Statute-Law that had formerly no other Cards to shew but that of the Canon and a Court of such place as the Bishop shall appoint however inconvenient for distance or uncertainty it be That the tryal of such matters shall be according to the Law of the Canon and not according to that of the Hundred That is not by Jury but by Witnesses in a clandestine way if the Bishop please or without any Accuser or by more scrutiny or any other way that may reserve the Lay-man to the breast of a prepossessed spirit of the spiritual Judge And thus the poor Country-man is exposed to the censure of an unknown Law in an unknown Tongue by an unknown way wherein they had no footing but by an implicit Faith. And herein the providence of God I imagine was more manifest than the wisdom of Man which was too weak to foresee events at so great a distance for questionless it was a point of excellent wisdom for the people now under a King of a rugged nature that would not stick to catch whatsoever he could get to deposit part of their Liberties into
the hands of the Clergie from whom moderation might be expected as from Friends and Neighbours and as Partners in one Ship mutual engagement to withstand the waves of Prerogative of Kings that seldom rest till they break all Banks and sometimes over-reach their own Guard and cannot return when they would And thus it fell out for many times the Pope and Clergie became Protectors of the peoples Liberties and kept them safe from the rage of Kings until the time of restitution should come and became not onely a Wall of defence to the one but a Rock of offence to the other For the Tripple-Crown could never solder with the English nor it with that the strife was for Prerogative wherein if the Clergie gained the Crown lost and no moderation would be allowed For the conquering King was scarce warm in his Throne whenas the Pope demanded Fealty of him for the Crown of England and the King 's own good Archbishop and friend Lanfrank delivered the Message as also Anselm did afterwards to William Rufus which though these Kings had courage enough to deny yet it shewed plainly that the Popes meaned no less Game than Crown-glieke with the King and people the Archbishops and Bishops holding the Cards for the Pope while in the interim he oversaw all The Norman Kings thus braved paid the Popes in their own Coin and refused to acknowledge any Pope but such as are first allowed by their concurrence Thus have we the second bravado of the Canon-Law for as yet it was not so fully entered as it seemed The words of the Act of Parliament it 's true were general yet their sence was left to time to expound and the course of succeeding affairs nevertheless passed with a non obstante For whereas in those days the Clergie claimed both Legislative and Executory power in Church-matters the Normans would allow of neither but claimed both as of right belonging to the Imperial power of this Island originally and onely As touching the Legislative power it is evident that notwithstanding the Canon that had long before this time voted the Laity from having to do with Church-matters yet the Norman Kings would neither allow to the Metropolitans the power of calling Synods nor such meetings but by their lieve although it was earnestly contended for Neither could the Clergie prevail to exclude the Laity out of their Synods being assembled nor from their wonted priviledge of voting therein albeit that for a long time by Canon it had been contradicted The differences between the Clergie and the Kings concerning these and other matters grew so hot that Kings liked not to have any Synods or meetings of publick Council and Archbishop Anselm complained that William Rufus would not allow any to be called for thirteen years together Which by the file of story compared with that Epistle made up the King's whole Reign And this was questionless the cause that we find so little touch upon Parliamentary Assemblies in the Norman times Kings being too high to be controuled and Bishops too proud to obey but necessity of State like unto Fate prevails against all other interests whatsoever and the wisdom of Henry the first in this prevailed above that of his predecessors as far as their Will was beyond his For it was bootless for him to hold out against the Church that stood in need of all sorts to confirm to him that which common Right as then it was taken denied him and therefore though it cost him much trouble with Anselm he re-continued the liberty of publick Consultations and yet maintained his Dignity and Honour seemly well I shall not need to clear this by particulars for besides the publick Consultations at his entrance and twice after that for supply or aid for his Wars and the marriage of his Daughter with the Emperour it is observed that the Archbishop of Canterbury summoned a Council at Westminster but it was Authoritate Regia and that there assembled magnae multitudines Clericorum Laicorum tam divitum quam mediocrium and that upon the third day the Debate was de negotiis saecularibus nonnullis The issue of all was that some things were determinata others dilata and other matters propter nimium aestuantis turbae tumultum ab audientia judicantium profligata Out of which may be probably concluded 1. That the Laity as yet were present in Councils with the Clergie 2. That they were all in one place 3. That they all had votes and that the major number concluded the matter 4. That certain persons used to determine of the major number by the hearing and that the Votes were still clamore non calculis 5. That they held an Order in debating of affairs viz. on some days Ecclesiastical and on other days Secular 6. That all matters concluded were attested by the King who as 't is said did give his consent and by his authority did grant and confirm the same And upon the whole matter it will be probable that as yet Councils and those now called Parliaments differed not in kind although possibly there might be difference of names in regard that some might be immediately and mainly occasioned and urged by Temporal Exigences and others by Ecclesiastical but whether Temporal or Ecclesiastical the first occasion was yet in their meetings they handled both as occasion offered it self Secondly as the Clergie could not attain the sole Legislative power so neither had they the sole Juridical power in Ecclesiastical Causes for not onely in case of errour in the Ecclesiastical Courts was an Appeal reserved to the King's Court as formerly in the Saxons time but even those things which seemed properly of Ecclesiastical cognizance were possessed by the King's Court in the first instance as that of Peter pence which was a Church-tribute and might be claimed to be properly the Church-cognizance much rather than Tythes and yet by the Law of this Kingdom in the Conquerour's time it is especially provided That defaults of payment of that duty shall be amended in the King's Court and a fine for default was given to the King albeit that the Bishop was made the Collector and the Pope the Proprietor And many other particulars which were holden to be of Ecclesiastical cognizance Kings would draw them within the compass of maintaining the peace of the Church which properly belonged to them to defend and so had the cognizance of them in their own Courts and fines for invasion of the Church-rights But because this may seem but colourable and by way of flattery of the Churches right and not in opposition thereof in other things it will appear plainly that Kings were not nice in vindicating their own claim in matters which the Clergie held theirs quarto modo as namely in the case of Excommunication a Weapon first fashioned by the Church-men and in the exercise whereof themselves were in repute the onely Masters and yet in this were mastered by Kings whose Laws
directed and restrained the swelling of that censure and made it keep measure whose Tenants and Officers and Servants must not be meddled with by this censure but by the King 's lieve nor must they be called to answer but in the King's Court. That Right still remained to them after the spoil made by the Hierarchy upon the Rights of all the rest of the Free-men and therefore could not of right be called nova in the Historians sence seeing that it was no other than the ancient custom used amongst the Saxons before that the Clergie had either purpose or power to reach at such a height as afterwards by degrees they attained unto Furthermore the Hierarchy as they neither could possess the Legislative nor Juridical power in Church-matters so neither could they possess themselves for as yet they were the King's men and the more the King's men because they now think a Bishoprick but a naked commodity if not robed with a Barony Nevertheless before that ever they knew that honour whatever the Canon was for their election yet both their Title and Power de facto was derived to them from the Kings who also invested them with Staff and Ring nor had the Pope as yet though he had conquered the Hierarchy possessed himself of their colours but during all the Norman times the Kings maintained that trophy of the right they had from their Predecessours notwithstanding the many assaults from Rome and treacheries of the Cathedrals within the Realm And albeit sometimes Kings were too weak to hold the shadow yet the convention of the States did maintain the substance viz. the right of Election without intermission as the examples of Lanfrank unto the See of Canterbury and Anselm and Ralph his successours and of Thomas into the See of York and Ralph Coadjutor to Thurstan Archbishop of the same See and of Gilbert into the See of London besides others do sufficiently set forth Whether it was because the convention of States was more stout or that the Bishops now wedded to Temporal Baronies were so unquestionably interessed in the publick affairs of the Commonwealth that it was against common sense to deny the States their vote and cognizance of their Election I cannot determine yet it is a certain truth the more Baron the less Bishop and more unmeet for the service of Rome Politickly therefore it was done by Kings to hold these men by a Golden hook that otherwise had prostituted themselves to a forreign power and proved absolute deserters of their Countries Cause which now they must maintain under peril of the loss of their own honour In the next place as they were the King's men so their Bishopricks and Diocesses were under the King's power to order as by the advice of the Bishops and Baronage should be thought most convenient either to endow another Bishop with part thereof and so to make two Diocesses of one as befel in the case of the Diocess of Lincoln out of which the Diocess of Ely budded in the time of Henry the first or to endow a Monastery or other Religious foundation with part and exempt the same from all Episcopal or ordinary jurisdiction as in the example of the foundation of the Abbey of Battel in Sussex in the time of William the Conquerour may appear Lastly whatever the first intention of this recited Statute were it may probably be judged that it was but a noise to still the Clergie and that it never had more than a liveless shape not onely in regard of the before-mentioned particulars but especially in regard of that subservient Law of Henry the first concerning the County-Court which reciteth it as a custom in his time used that the Bishop and Earls with other the chief men of that County were there present as Assistants in directory of judgment And that in order are handled first matters of the Church Secondly Crown-pleas Thirdly and lastly Common-pleas However therefore the Kings spake fair they either acted not at all or so coolly as the current of the custom was too strong but most probable it is that the Kings spake fair till they were setled in their Thrones and afterwards pleased themselves for by the general thred of story it may appear that the Clergie in those times were more feared than loved and therefore ridden with a strait Rein. The Prelacy on the contrary grew unruly yet too weak for the rugged spirits of the Norman Kings they are glad to be quiet and the Pope himself to drive fair and softly as judging it expedient potestatem Regalem mitius tractandam and continued that course and posture till the calmer times of Henry the first wherein they mended their pace and got that without noise which they had long striven for viz. the preheminence and presidency in the Synods though the King himself be present and if the Historian writeth advisedly the whole ordaining or Legislative power for so runs the stile or phrase of the Author Archiepiscopi Episcopi statuerunt in praesentia Regis as if the presence of the King and his Barons and People were but as a great Amen at the Common-prayer after the old stamp to set a good colour upon a doubtful matter to make it go down the better How the Kings brooked this draught I cannot say but it hath made the Kingdom stagger ever since and it may be feared will hardly recover its perfect wits so long as the brains of the Clergie and the Laity thus lie divided in several Cells CHAP. XLVIII Of the several subservient Jurisdictions by Provinces Marches Counties Hundreds Burroughs Lordships and Decennaries HAD the Normans owned no other Title than that of Conquest doubtless their mother-wit must needs have taught them the expediency of preserving the particular subservient Jurisdictions of the Kingdom entire and unquashed if they regarded either the benefit of their Conquest or reward of their Partners and Allies unless it should be allowed unto Conquerours to be more honourable for them to do what they will rather than what is meet But hereof there is no cause of question in this present subject for nothing is more clear than that Wales enjoyed in the Conquerour's time and for ages after him its ancient Liberties Tribute excepted nor did Conquest ever come so nigh to their Borders as to trench upon the Liberties of the Marches For as it had been a piece of State-nonsence to have holden two sort of people under conquest and their Marches in freedom or to preserve them in good Neighbourhood by Marches which by the Law of Conquest were made one so was it no less vain if all had been once subdued by Conquest to have raised up the Liberties of the Marches any more And as they had less cause to have invaded the bounds and ancient limits and partitions of the Counties so questionless had they so done they would have taken the old course of the Micklemote as they did divide
the Diocess of Lincoln into two Diocesses by advice of the Bishops Princes and other wise and holy men and turned the Abbey of Ely into a Bishop's See. But it was their wisdom to preserve the ancient Land-marks and no less both wisdom and care to continue their due Priviledges and Interests to each Every County had its Court and every Court its wonted Jurisdiction No complaint must be to the King's Court if right may be done in the County no distress must be taken but by Warrant from the County and that must be after complaint thrice made The County-court must be called as our Ancestors have appointed Such as will not come as they ought shall be first summoned and in case of default distrained at the fourth default the Complainant shall be satisfied out of the distresses so taken and the King also for his Fine These are the express Laws of the Conquerour's own establishment the last of which also Hen. 1. confirmed by another express Law saving that he would allow but of two Summons and two Distresses before execution And as it was one principal work that he undertook to reduce the Laws into course which had been intermitted during the violent times of his Father and Brother the first of whom never had liberty for reformation and the latter never had will so amongst other Laws he setled those concerning the County-court namely 1. That the Bishops Earls and chief men should be present for direction 2. That it should be holden once each month 3. That the Church-matters should precede and then the Crown-pleas And lastly the Common-Pleas besides some other particulars concerning pleading and proceedings in the handling of Causes Neither were these Causes of a petty regard onely but of greatest concernment One example I shall remind the Reader of and not recite in terminis but refer to Mr. Selden's own Pen. The occasion was this Odo the Conquerour's half Brother was by him made Earl of Kent and therewith had the gift of a large Territory in Kent and taking advantage of the King's displeasure at the Archbishop of Canterbury possessed himself by disseism of divers Lands and Tenements belonging to that See. Lanfrank the succeeding Archbishop being informed hereof petitioned to the King that Justice might be done him secundum legem terrae and the King sends forth his Writ to summon a County-court The Debate lasted three days before the Free men of the County of Kent in the presence of many chief men Bishops and Lords and others skilful in the Laws and the Judgment passed for the Archbishop Lanfrank upon the Votes of the Free men This County-court was holden by special summons and not by adjournment as was allowable by the Saxon Law upon special occasions And this Suit was originally begun and had its final determination in the County-court and not brought by a Tolt out of the Hundred-court as is supposed by an honourable Reporter nor by the ancient Laws could the Suit commence in the Hundred because the Lands and Tenements did lie in several Hundreds and Counties The upshot of all is that the County-courts in those days were of so great esteem that two of the greatest Peers of the Realm one a Norman the other an Italian did cast a Title in fifteen Mannors two Townships with many Liberties upon the Votes of the Free-holders in a County-court and that the Sentence was allowed and commended by the King and submitted to by all In the next place we are to come to the Hundred-courts of which there are by the Normans allowed two sorts the first whereof was holden twice a year This was formerly called the Torn and was the Sheriff's Court hereof little notice is taken saving that by the Laws of Henry the first its work seems to be much designed to the view of free pledges But the more ordinary Court is that which belongs to the Lord of the Hundred unto whom also belong the Fines in cases there concerned This Court is to be holden once in each month and no Suit to be begun in the King's Court that regularly ought to begin in the Hundred No Distringas shall issue forth till three demands made in the Hundred And three Distresses shall then issue forth and if upon the fourth the party appear not Execution shall be by sale of the Distress and the Complainant shall receive satisfaction But by the latter Laws of the same King there are but two Summons allowed and then two Distresses and in case no appearance be Execution shall be for the Complainant and for the King 's Fine Lastly as the case concerned either persons or places sometimes they used to joyn several Hundreds together into one Court but this was by special Commission or Writ As touching inferiour Courts of Towns and Mannors there 's little observation to be had being of too private a regard to come into fame in those rough times yet in Hen. the first 's Laws it is ordered that Town-courts should meet every month and that Lords should hold Pleas either in their own persons or by their Stewards and that the chief man in the Parish with four other of the chiefer sort and the Minister or Parish-Priest should joyn their assistance in that work But in nothing more did the Norman Kings shew their paternal love to the Commonwealth than in the Law of Pledges or Decenners for as of all other Beauties this suffered most blemish from the storm of the Norman Invasion so was it their especial care to renew the life thereof not now amongst the Natives onely but joyning the Normans to the Saxons in the same bond of Brotherhood utterly drowned thereby all memory of Lordly power and so of divers peoples making one conquered even Conquest it self if any were and made all joynt-partners in one common Liberty Every Free-man must be under Pledges to satisfie Justice in case of delinquency Over every nine persons under Pledges there must be one man in Authority View of free Pledges must be to see that the Decennaries be full and if any be departed to enquire the cause and if any be come in whether he be under Pledges or not And thus the Norman Kings had their people under treble guard one of Fealty the other of Association and the third that of Pledges and all little enough to secure that which they in their own Consciences might have some cause to question whether it belonged to them or not CHAP. XLIX Of the Immunities of the Saxon Free-men under the Norman Government THE freedom of an English-man consisteth in three particulars First in ownership of what he hath Secondly in voting any Law whereby that ownership is to be maintained And thirdly in having an influence upon that Judicatory power that must apply that Law. Now that the English under the Normans enjoyed all this freedom unto each Man 's own particular besides what
up higher as for them to stoop lower And however it was dangerous now for the Duke to try masteries unless he meant to hazard all and to change the substance for the shadow Lastly to lay them all aside and to take the Normans as in themselves considered a People under such Laws and Customs as were the same with the Saxon and originally in them and from them derived into Normandy by Rollo or some other or take them as a People willing to lay aside their own Law as some Writers affirm and more willing to take up the Danish customs which were also very nigh akin to theirs and in part setled by the Danes in that part of the Kingdom where themselves most resided It must be concluded that a Government by Law was intended and such a Law that was no way cross to the Fundamental Laws of this Kingdom but concurring therewith in every of which regards the future Generations may justly claim their Immunities as Successours and Heirs unto the Normans albeit no Saxon could have enjoyed or derived the same to Posterity A second sort of men that made the King uncapable to hold by Conquest was the Clergie a considerable part of the Kingdom in those days whenas in every Nation they grew checkmate and in this Kingdom had well-nigh the one half of the Knights fees and thereby a principal part of the strength of the Kingdom besides the Consciences of them all and for a Reserve they had the Pope in the rear whose power in every Kingdom was little inferiour to that of the King 's own and therefore sufficient to stop an absolute Conquest unless the Clergie were first conquered But the King came in upon great disadvantages in both these regards for whereas his pretence upon his entry was to advance Justice principally toward the Clergie who formerly were wronged by Harold or voiced so to be this bound him from Injustice and Oppression And furthermore the Pope had him in a double bond one as Prince of the English Clergie the other as Judge of the Title of the Crown by the King 's own Election and that by Sentence for the King had merited of him if not to hold the Crown it self by Fealty to the Roman See yet by such services as that the Tripple-Crown should be no loser The King therefore must resolve to have no more to do with the Church than will stand with the Pope's liking unless he meaned to adventure himself and all he had into the danger of the great Curse of which the King would seem more sensible than perhaps he was Nor were those times of the Church so moderate as to bring forth Church-men that would catch the good will of the Laity by condescention or Popes of that height of perfection as to part with one tittle of their great Titles much less ought of that pitch of power which they had griped though it would save the World from Ruine In all which regards the Norman Duke was too far inferiour to attain by Conquest any thing in this Kingdom wherein the Pope or Clergie claimed ought to have or do A third sort of People avoided the dint of Conquest either by timely siding with the Norman or by constant resisting of him or by neutrality Of the first sort were many both Lords and others that by affinity and consanguinity were become English-men to the Norman use others were purchased thereunto by the Clergie that were zealous for the Pope's honour that was engaged in the Work. Of those likewise that were resolute in the defence of the Liberty of their Country there were not a few that purchased their Liberty who otherwise might under pretence of Treachery have forfeited the same to the rapacious humour of the Conquerour And this was not done onely by Valour for Normandy stood in a tottering condition with their Duke partly drawn away by the French that feared the Duke would be too strong for them and partly declining their own further aid lest their Duke should be too great for the Dutchy It was therefore wisdom in the Conquerour to settle the English aflairs in the fairest way to gain them for himself who had been so brave against him But the greatest number especially of the Commons looked on while the game was playing as contented with the cast of the Dice whatever it should be These were afterwards by the King looked upon not as Enemies as the president of Edwin of Sharneburn witnesseth sufficiently but such as either were or by fair carriage would be made his friends and therefore he concluded them under a Law of assurance that they that had been so peaceable should have and enjoy their Lands as entirely and peaceably as they had formerly done before his entry To conclude therefore this point if these three parties of the English Normans the English Clergie the stout English and the peaceable English be set aside from the Title of Conquest it will be probable that not one tenth part of the Kingdom were ever under other change than of the Governour 's own person CHAP. LVI A brief Survey of the sence of Writers concernign the point of Conquest THE clamours in story that the Conquerour altered and made Laws at pleasure brought in new Customs molested the Persons and Estates of the People with Depopulations Extortions and Oppressions and others of that nature have made latter times to conclude his Government to be as of a Conquerour meerly arbitrary and that he did what he list How different this conclusion is from the intent of those Writers I know not but if the King's Title and Government was as a Conquerour then was his Will the onely Law and can administer no cause of complaint of wrong and oppression and therefore if these be taken in nature of complaints they declare plainly that there was a Law in Title or else there could have been no transgression or cause to complain But if the Reader shall apprehend these passages in Writers to be no other than sober Relations then were it not amiss to consider from what sort of men these Complaints or Relations do proceed viz. from Writers that have been cloystered men little seen in affairs of State more than by common report and rumour prejudiced by the King's displeasure against their Cloysters and therefore apprehensive of matters in the saddest sence and many times far beyond the truth and might as well be supposed to mis-relate as to mistake For if we shall touch upon particulars I think no man will deny but the King allowed property indifferently as well to Normans as English if the premises be rightly considered and therefore though somewhat be true of the plundering of houses of Religion persecuting of the English Nobility deposing of Bishops and Abbots whereof they speak yet all might be deservedly done in a legal way and in execution of Justice whereof Histories are not altogether silent Nevertheless if in the prosecution the King did
instigation of her Father whose Conscience told him that the Title to the Crown by inheritance was weakned by his own precedent himself coming to the same by Election of the People contrary to the Title of his Brother Robert. Nevertheless this was not the first time that the English Crown refused to be worn by practice for Henry the first being dead Steven the younger Son to a younger Sister of Henry the first put up head who being of the Royal Stem a Man and a brave Souldier by the ancient course of the Saxons had Title enough to be thought upon in a doubtful Succession Besides he was a rich man and had enough to raise up his thoughts to high undertakings had a Brother a Bishop and Legate to the Pope here in England one who was of a high spirit and vast power advantages enough to have quickned a much duller spirit than his was who was a Son of a Daughter to William the Conquerour And to make him yet more bold he had the upper ground of the Heir who was a woman disadvantaged by a whispering of wilfulness and customary Government like an Empress which was too high a sail for an English bottom wherein so precious a Treasure as the Subjects Liberties was to be shipped Thus provided Steven stepped up to the English Throne and with protestations of good Government entred and made up the match both for Crown and Scepter the People waving the Title both of Empress and Heir The pretensions of the E. of Bloys elder Brother to Steven gave way to the common Law and Liberties of the Subject to fasten root and gather strength after the violence of the Norman blasts was out of breath thus making way over Hedge and Ditch of all Oaths till the King was quietly setled in the Throne Quietly said I that I must retract for he never had quiet during his life though generally he was victorious and did as much as a King could do that had the passions of a man and Souldier to give the Subjects content The true cause whereof was an errour in the tying of the Knot wherein he neither became theirs nor they his for the Fealty that was sworn to him was but conditional and eousque and yet the King's promises were absolute and better observed than the Peoples were possibly because his Engagements were more For besides his Protestations the King pledged his Brother the Legate to the people and mortgaged himself to his Brother and to boot gave both to the Clergie and Barons liberty to build and hold Castles for their private security The issue whereof may remind that too much countersecurity from the King to the people is like so many Covenants in Marriage that make room for jealousie and are but seeds of an unquiet life And thus it befel this King's Reign His first troubles are brought in by Historians as if they dropped from Heaven yet probably came immediately from without viz. from beyond Sea where the Empress was for as the King's Engagements were in their first heat on the one side so was also the Empress's Choler on the other side and therefore might make the first assault And the King 's first success therein falling out prosperously for him gave him a conceit that he was strong enough to encounter his own Covenant although in truth he invaded but the skirts thereof I mean that collateral security of Castles for by experience he now feels that they are blocks in his way he must therefore have them into his own power But the Clergie loth to forgo their pawn till they had their full Bargain for now they were working hard for investitures of the Mitred Clergie under the patronage of a Legate that had the King in bonds acted their parts so well as they engaged the Nobility for their liberty of Castles in which Atchievement the King was taken prisoner The Empress betakes her self to the Clergie and by the Legate's means procures a kind of Election to be Queen But she sick of the Womans humour and thinking too much of the Empress and too little of the Queen and forgetting that the English Crown would not fit an Empress unless she could fit her head first to it choaked her own Title by Prerogative and so let the Crown slip through her own hands which fell upon the head of Steven again who maintained it by his Sword after by Composition and then died a King. And thus like a Vapour mounted up by the Clergie tossed by Tempests for a time and at length falling he gave way to the Crown to have its free course to the Empress's Son by Geoffery Plantagenet This was Henry the second the most accomplished for Wisdom Courage and Power of all his Predecessors and one that wanted nothing but purpose to have undone what the foregoing Princes had done in the setling of the Liberties of the People for the Subjects were tired with the unquiet former times and the Clergie in distraction through the Schism in the Popedom between Victor the fourth and Alexander the third and very unfitting all were to dispute the point of Prerogative with so mighty a Prince And it was the wisdom of God to order his affairs so as that he was not very fit to dispute with the people in that case for his Title to the Crown was not very excellent being neither Heir to the last King that Reigned nor to the last of that Title I mean to Henry the first but Son only to the Empress who was now alive and by descent was to be preferred before all other His Title therefore is clearly by compact and agreement made between the Lords King Steven and himself all being then ready to try the right by the Sword to that to which none of them had any right at all at that time but by the favour of the people Nor did the King ever after dispute the strength of this Title although before he died his Mothers death conveyed over to him what right of descent soever was consistent with the Law of the Crown nor did occasion favour him thereto for as it is never seen that any man is honoured by God with many advantages without proportionable employment for the same so it befel with this King His great Territories in France brought jealousie in the rear and thence strife and contention with France enough to turn his thoughts from waxing wanton against his own people and therefore his wisdom taught him to prefer peace at home to the chief of his Prerogative to become somewhat popular and yet to lose nothing of a King thereby His way was to keep the Church-men down that had during his predecessors time grown whether more obstinate against the King or insolent over the people is hard to judge and in this he had the people to friend and might have prevailed much more than he did but that the people feared the threats of Rome more than he and he if not guilty of Becket's death
declared according to the entry in that Case aforesaid Habito Concilio cum Episcopis Comitibus Baronibus adjudicavimus c. The honour of this Court was great so long as the Lords had liberty or care to attend thereon but when Kings began to have private interests they would have these to be more private Councils which weakned the esteem of Conclusions that there passed and reduced the honour thereof scarce to the degree of a Conventicle And by this means the necessity of calling together the whole Body-Representative was made more frequent the power of the Nobility of England decayed and this Court forfeited all its Juridical power to the three Courts at Westminster viz. the Kings-bench Common-pleas and Exchequer saving still the supreme Judicature unto the grand Convention of Estates in Parliament where all the Lords had liberty of meeting and free voting without impeachment CHAP. LIX Of the state of the Clergie and their power in this Kingdom from the Normans time IF the Prerogative of Kings prevailed not to its utmost pitch during the Normans time it did much less in these times succeeding wherein the Clergie took up the Bùcklers and beat both King and Commons to a Retreat themselves in the interim remaining sole Triumphers in the Field In their first Adventure they paced the Stage no man appearing to oppose Steven then was King by their leave and their Bond-servant and they might have any thing sobeit they would suffer him to enjoy his Crown His Brother the Bishop was the Pope's servant the Church-mens patron and the King's surety in whom the Clergies favour to the King and his good behaviour toward them and all men concentred Besides all this the King was but so upon condition and there being no better Title than Election Conscience in those times was well enough satisfied in the breach of Covenant on their part when on the King's part it was first broken All this the King saw full well and therefore what can he deny to such Benefactors Vacancies of Churches he readily parts with and his right of investiture of the Mitred Clergie he dispensed so as he open'd the way to his Successours of an utter dereliction of that Priviledge He sees his Brother the Legate deflower the Crown of England by maintaining Appeals from the Courts in England unto the Court of Rome and he says nothing he is contented with the stump of the Crown and with Saul if he be but honoured above or before all others of the people it is enough But the Clergie like the barren Womb hath not yet enough The King hath allowed them Castles and too late he sees that instead of being Defences against the Imperial power of the Empress they are now made Bulwarks against the lawful power of a King he had therefore endeavoured to get them down and gotten some of them into his power The King himself is now summoned to answer this before a Legatine Council wherein his Brother is President That was a bold adventure in them but it was extreme rashness in him to appear and plead the Cause of the Crown of England before a Conventicle of his own Subjects And thus to secure Rome of Supremacy in Appeals he suffers a recovery thereof against his own person in a Court of Record and so loses himself to save the Crown Thus are Synods mounted up on Eagles wings they have the King under them they will next have the Crown Within a while Steven is taken prisoner The Empress perceiving the power of the Clergie betakes her case to them now assembled in Synod they now proud of the occasion and conceiting that both Law and Gospel were now under their decree publish That the Election of the King belongeth unto them and by them the Empress is elected Queen in open Synod Steven's Brother leading the game and had she been as willing to have admitted of the Laws as Steven was she had so continued and had left a strange President in the English Government for Posterity But the Citizens of London who had made the way to the Throne for Steven reduced the Synod to sober consideration and helped the King's return unto his Throne again wherein he continued a friend to the Clergie during the rest of his time Henry the second succeeded him as brave a man as he but beyond him in Title and Power and one that came to the Crown without pre-engagement by Promise or Covenant saving that which was proper for a King. A man he was that knew full well the Interests in the Government the growing power of the Clergie and the advantages lost from the Crown by his Predecessor And to regain these he smooths his way towards these braving men speaks fair profers fair he would act to increase the bounds of the Church He would have the Pope's leave to do him a kindness and sobeit he might gain an interest in Ireland he would take it from the Pope who pretended as Heir of Jesus Christ to have the Islands and utmost parts of the Earth for his possession and as if he meaned to be as good to the Church as Steven was and much better he desires the Pope's kindness for the confirmation of the Liberties and Customs of his Crown and Kingdom and no sooner desired than obtained This was a second Example of a King of England but the first of an English King that sought to Rome for Right in the Crown and thereby taught the Pope to demand it as a priviledge belonging to the Tripple Crown Nor was Henry the second less benign to the Church-men till he found by his dear-bought experience that he had nourished Scorpions and would have suppressed them but was rather suppressed himself as in that shameful success of the death of Becket may appear wherein he yielded the day up to the Clergie who formerly scorned to stoop to the greatest Potentate on Earth The State of Kings is to be pitied who must maintain a politick affection above and sometimes against Nature it self if they will escape the note of Tyranny in their Undertakings and of a feeble Spirit in their Sufferings For the King having made Becket Chancellor of England and then Archbishop of Canterbury he became so great that his Feathers brushed against the King's Crown who begins to rouse up himself to maintain his Honour and Prerogative Royal. The Bishops side with Becket the King intending the Person and not the Calling singles out the Archbishop and hunts him to soil at Rome yet before he went the King puts the points of his Quarrel in Writing and made both Archbishop and Bishops signe them as the Rights of his Crown and as the Consuetudines Avitae But Becket repenting went to Rome and obtained the Pope's pardon and blessing the rest of the Bishops yielding the Cause The particulars in debate were set down in the nature of Laws or Constitutions commonly called the Constitutions at Clarindon which shew the prevailing humour that then
cases and of the Writ de cautione admittenda Persons cited and making default may be interdicted and the King's Officer shall compel him to obey If the King's Officer make default he shall be amerced and then the party interdicted may be excommunicated So as the Process in the Spiritual Courts was to be regulated according to Law. Nor did it lie in the power of such Courts to order their own way or scatter the censure of Excommunication according to their own liking This together with all those that forego the Arch-bishop upon his repentance absolutely withstood although he had twice consented and once subscribed to them having also received some kind of allowance thereof even from Rome it self Clergy-men holding per Baroniam shall do such services as to their Tenure belong and shall assist in the King's Court till judgement of Life or Member Two things are hereby manifest First that notwithstanding the Conquerour's Law formerly mentioned Bishops still sate as Judges in the King's Courts as they had done in the Saxon times but it was upon causes that merely concerned the Laity so as the Law of the Conquerour extended onely to separate the Laity out of the Spiritual-Courts and not the Clergie out of the Lay-Courts Secondly that the Clergie especially those of the greater sort questioned their services due by Tenure as if they intended neither Lord nor King but the Pope onely Doubtless the use of Tenures in those times was of infinite consequence to the peace of the Kingdom and government of these Kings whenas by these principally not onely all degrees were united and made dependant from the Lord paramount to the Tenant peravale but especially the Clergie with the Laity upon the Crown without which a strange metamorphosis in Government must needs have ensued beyond the shape of any reasonable conceit the one half almost of the people in England being absolutely put under the Dominion of a foreign power Sanctuary shall not protect forfeited Goods nor Clerks convicted or confessed This was Law but violence did both now and afterwards much obliterate it Churches holden of the King shall not be aliened without License It was an ancient Law of the Saxons that no Tenements holden by service could be aliened without License or consent of the Lord because of the Allegiance between Lord and Tenant Now there was no question but that Churches might lie in Tenure as well as other Tenements but the strife was by the Church-men to hold their Tenements free from all humane service which the King withstood Sons of the Laity shall not be admitted into a Monastery without the Lord's consent Upon the same ground with the former for the Lord had not onely right in his Tenant which could not be aliened without his consent but also a right in his Tenant's Children in regard they in time might by descent become his Tenants and so lie under the same ground of Law For although this be no alienation by legal purchase yet it is in nature of the same relation for he that is in a Monastery is dead to all worldly affairs These then are the rights that the King claimed and the Clergy disclaimed at the first although upon more sober consideration they generally consented unto the five last But their Captain-Archbishop Becket withstood the rest which cost him his life in the conclusion with this honourable testimony that his death Sampson-like effected more than his life For the main thing of all the rest the Pope gained to be friends for the loss of so great a stickler in the Church-affairs as Becket was In this Tragedy the Pope observing how the English Bishops had forsaken their Archbishops espied a muse through which all the game of the Popedom might soon escape and the Pope be left to sit upon Thorns in regard of his Authority here in England For let the Metropolitan of all England be a sworn servant to the Metropolitan of the Christian World and the rest of the English Bishops not concur it will make the Tripple Crown at the best but double Alexander the Pope therefore meaned not to trust their fair natures any longer but puts an Oath upon every English Bishop to take before their consecration whereby he became bound 1. To absolute allegiance to the Pope and Romish Church 2. Not to further by deed or consent any prejudice to them 3. To conceal their Counsels 4. To aid the Roman Papacy against all persons 5. To assist the Roman Legat. 6. To come to Synods upon Summons 7. To visit Rome once every three years 8. Not to sell any part of their Bishoprick without consent of the Pope And thus the English Bishops that formerly did but regard Rome now give their Estates Bodies and Souls unto her service that which remains the King of England may keep And well it was that it was not worse considering that the King had vowed perpetual enmity against the Pope But he wisely perceiving that the King's spirit would up again having thus gotten the main battle durst not adventure upon the King's rear lest he might turn head and so he let the King come off with the loss of Appeals and an order to annul the customs that by him were brought in against the Church which in truth were none This was too much for so brave a King as Henry the second to lose the scare-crow-power of Rome yet it befel him as many great spirits that favour prevails more with them than fear or power For being towards his last times worn with grief at his unnatural Sons a shadow of the kindness of the Pope's Legat unto him won that which the Clergy could never formerly wrest from him in these particulars granted by him that No Clerk shall answer in the Lay-courts but onely for the Forest and their Lay-fee This savoured more of courtesie than Justice and therefore we find not that the same did thrive nor did continue long in force as a Law although the claim thereof lasted Vacancies shall not be holden in the King's hand above one year unless upon case of necessity This seemeth to pass somewhat from the Crown but lost it nothing for if the Clergy accepted of this grant they thereby allow the Crown a right to make it and a liberty to determine its own right or continuing the same by being sole Judge of the necessity Killers of Clerks convicted shall be punished in the Bishops presence by the King's Justice In the licentious times of King Steven wherein the Clergy played Rex they grew so unruly that in a short time they had committed above a Hundred murthers To prevent this evil the King loth to enter the List with the Clergy about too many matters let loose the Law of feud for the friends of the party slain to take revenge and this cost the bloud of many Clerks The Laity haply being more industrious therein than otherwise they would have been
right and so the Lord became both Judge and Party which was soon felt and prevented as shall appear hereafter Another priviledge of the Lords power was over the Tenants Heir after the Tenants death in the disposing of the Body during the minority and marriage of the same As touching the disposing of the Body the Lord either retained the same in his own power or committed the same to others and this was done either pleno jure or rendring an account As concerning the marriage of the Females that are Heirs or so apparent the Parents in their life-time cannot marry them without the Lords consent nor may they marry themselves after their Parents death without the same and the Lords are bound to give their consent unless they can shew cause to the contrary The like also of the Tenants Widows that have any Dowry in the Lands of such Tenure And by such-like means as these the power of the Barons grew to that height that in the lump it was too massie both for Prince and Commons Of the power of the last Will. It is a received opinion that at the common-Law no man could devise his Lands by his last Will. If thereby it be conceived to be against common reason I shall not touch that but if against custom of the ancient times I must suspend my concurrence therewith until those ancient times be defined for as yet I find no testimony sufficient to assert that opinion but rather that the times hitherto had a sacred opinion of the last Will as of the most serious sincere and advised declaration of the most inward desires of a man which was the main thing looked unto in all Conveyances Voluntas donatoris de caetero observetur And therefore nothing was more ordinary than for Kings in these times as much as in them did lie to dispose of their Crowns by their last Will. Thus King John appointed Henry the Third his Successour and Richard the first devised the Crown to King John and Henry the first gave all his Lands to his Daughter and William the Conqueror by his last Will gave Normandy to Robert England to William and to Henry his Mothers Lands If then these things of greatest moment under Heaven were ordinarily disposed by the last Will was it then probable that the smaller Free-holds should be of too high esteem to be credited to such Conveyances I would not be mistaken as if I thought that Crowns and Empires were at the disposal of the last Will of the possessor nor do I think that either they were thus in this Kingdom or that there is any reason that can patronize that opinion yet it will be apparent that Kings had no sleight conceit of the last Will and knew no such infirmity in that manner of conveyance as is pretended or else would they never have spent that little breath left them in vain I have observed the words of Glanvil concerning this point and I cannot find that he positively denyeth all conveyance of Land by Will but only in case of disherison the ground whereof is because it is contrary to the conveyance of the Law and yet in that case also alloweth of a disposing power by consent of the Heir which could never make good conveyance if the Will in that case were absolutely void and therefore his Authority lies not in the way Nor doth the particular customs of places discountenance but rather advance this opinion for if devises of Lands were incident to the Tenure in Gavel-kind and that so general in old time as also to the burgage Tenures which were the rules of Corporations and Cities Vbi Leges Angliae deperiri non possunt nec defraudari nec violari how can it be said contrary to the common Law And therefore those Conveyances of Lands by last Will that were in and after these times holden in use seem to me rather remnants of the more general custom wasted by positive Laws than particular customs growing up against the common rule It is true that the Clergy put a power into the Pope to alter the Law as touching themselves in some cases for Roger Arch-bishop of York procured a faculty from the Pope to ordain that no Ecclesiastical persons Will should be good unless made in health and not lying in extremity and that in such cases the Arch-bishop should possess himself of all such parties goods but as it lasted not long so was himself made a president in the case for being overtaken with death e're he was provided he made his Will in his sickness and Henry the Second possessed himself of his Estate And it is as true that Feme coverts in these days could make no Will of their reasonable part because by the Saxon Law it belonged joyntly to the Children Nor could Vsurers continuing in that course at the time of their death make their Will because their personal Estate belonged to the King after their death and their Lands to their Lords by escheat although before death they lie open to no censure of Law but this was by an especial Law made since the Conquerour's time for by the Saxon-Law they were reputed as Out-Laws Nevertheless all these do but strengthen the general rule viz. That regularly the last Will was holden in the general a good conveyance in Law. If the Will were only intended and not perfected or no Will was made then the Lands passed by descent and the goods held course according to the Saxon Law viz. the next Kinsmen and Friends of the intestate did administer and as administrators they might sue by Writ out of the Kings Court although the Clergy had now obtained so much power as for the recovery of a Legacy or for the determining of the validity of the Will in its general nature it was transmitted to the Ecclesiastical Court. CHAP. LXIII Of the Militia of this Kingdom during the Reign of these Kings I Undertake not the debate of right but as touching matter of fact shortly thus much that from the Norman times the power of the Militia rested upon two principles the one the Allegiance for the common defence of the King's person and honour and Kingdom and in this case the King had the power to levy the force of the Kingdom nevertheless the cause was still under the cognizance of the great Council so far as to agree or disavow the War if they saw cause as appeared in the defections of the Barons in the quarrel between King Steven and the Empress and between King John and his Barons The other principle was the service due to the Lord from the Tenant and by vertue hereof especially whenas the liberty of the Commons was in question the Militia was swayed by the Lords and they drew the people in Arms either one way or the other as the case appeared to them the experience whereof the Kings from time to time felt to their extream prejudice and the Kingdoms
continually plagued them A Clerk taken upon Felony being demanded shall be delivered to the Ordinary but being indicted shall not be dismissed by the Ordinary without due purgation With due respects to the judgment of those grave and honourable persons of the Law it seemeth to me that before the making hereof the use was that if a Clerk was defamed or appealed by an Offender for Felony before Conviction he was forthwith imprisoned Nor could he be delivered unto the Ordinary upon demand before Inquest taken unless upon sufficient Security to endure the Tryal before the Judges itinerant which thing was not easie to be had for a Clerk as times then were This Law therefore was made in favour of the Clergie who required that such as were Clerici noti honesti should forthwith upon their apprehending be sent unto their Ordinary and those which were vagi incogniti should upon demand be delivered to be judged by their Ordinary freely and non expectatis Justiciariis quibuscunque Such wandring Clerks therefore the Clergy will have delivered before Inquisition if demand be made Nevertheless because the Indictment passed many times before the Demand came for by the fifteenth Article of the Clergies Complaints foregoing it appears that the Lay-Judge made more than ordinary speed for fear of stop This Law provided that such also should be delivered to their Ordinary and that due purgation should pass before the party were delivered and in case the Ordinary neglected his duty herein he was liable to a Fine or Amercement Thus is Briton to be understood in this point whereas Bracton speaking of such as are convicted affirmeth That if demand be made of such as are not indicted for of such he speaketh they ought to be delivered without Indictment I suppose he meaneth by the Church-Law for till this Statute the Temporal Judges practice was otherwise as appeareth by the fourteenth Article of the Clergies Complaint foregoing and so by this Law the fourteenth and fifteenth Articles of the Clergies Complaint are answered Disturbers of the Freedom of Elections fined With submission to the judgment of others I suppose that this was framed principally for the satisfaction of the Clergies Complaints in the third fourth and fifth Articles foregoing and I am the rather induced hereto because as touching Elections into Temporal places of Government several Laws are especially framed such as are Elections of Sheriffs and Coroners whereof the one is West 1. cap. 10. the other Artic. super Cart. cap. 10. and no Law is especially made as touching the Elections of the Clergie if not this Ordinaries having the Goods of the Intestate shall answer his Debts Originally the Goods of the Intestate passed by a kind of descent to the Children afterward by a Saxon Law the Wife had her part and this continued all the Normans time But now the strength of the Canon-Law growing to its full pitch after a long chase attached the prey In Henry the first 's time they had gotten a taste for although the Wife and Children or next of kin had then the possession yet it was for the good of the Soul of the deceased and the Ordinary had a directing power therein and so was in the nature of an Overseer and somewhat more Afterwards in the time of King John the Clergie had drawn bloud for though the possession was as formerly yet the dividend must be made in the view of the Church and by this means the dividers were but meer instruments and the right was vanished into the Clouds or as the Lawyers term it in Abeyance But in Henry the third's time the Clergy had not onely gotten the game but gorged it Both Right and Possession was now become theirs and wrong done to none but the Clouds This was not well digested before Edward the first recovered part of the morsel and by this Law declared the use to be for the benefit of the deceased And thus the one was satisfied in having what he used not the other in using what he had not But these are but gleanings the Law of Circumspecte agatis brings in a Load at once For the Clergie being vexed with the passing of the Statute of Mortmain whereof hereafter when we come to speak of the Clergies losses they make grievous complaints of wrongs done to their priviledges And after six years the King is at length won and passed a writing somewhat like a grant of Liberties which before-times were in controversie and this Grant if it may be so called hath by continuance usurped the name of a Statute but in its own nature is no other than a Writ directed to the Judges in substance as followeth Take good heed that you do not punish the Bishop of Norwich and his Clergie if they hold plea in Court-Christian of things merely spiritual for in such cases the Ecclesiastical Judge hath cognisance notwithstanding the King's prohibition It is therefore neither Grant nor Release but as it were a Covenant that the Clergy shall hold peaceable possession of what they had upon this ground that the King's prohibition hath no place in such things as are merely spiritual So as hereby the Clergy got a Judgement against the Crown by confession and an Estoppel upon this maxime that spiritual things belong to spiritual men into which rank the King's person cannot come thus thought they but what are spiritual causes and why so called are they such as concern spiritual persons and things this was the old way mark but if we bring into this Category Adultery Fornication Incest c. we shall marâ—all Linwood tells us that mere spiritualia are such as are sine mixtura temporalium there may be somewhat in this though I cannot find it nor can I make out the sence of the term any other way but to limit it to such things which by common custom the Ecclesiastical Judge had cognizance of for otherwise neither King nor Law ever intended it to be expounded by the Canon nor was it the intent of this Writ Law or License call it what you will thus to conclude as the particulars following will manifest Fornication Adultery and such-like punished sometimes upon the body and sometimes upon the purse These crimes the Saxons punished by the Temporal power as I have already shewed The Normans continued this course if we may believe the Conqueror's Laws which gave the fine in such cases to the Lord of the Delinquent And it is confessed that Henry the first and the second continued it as the Clergies own complaint just or unjust doth witness And what course was holden in the time of King Steven and John is to me unknown nor is it much to be regarded seeing the latter did he cared not what and the former to gain the good will of the Clergie regarded not what he did The custom therefore cannot be made good for the Clergie much less to punish the bodies of
Freemen in such cases it being contrary to the Grand Charter never asked by the Clergie formerly nor no complaint before now for denial for my part therefore I shall not apprehend it of a higher nature than the King 's Writ which in those days went forth at random if the 44th Article of the Clergies complaints foregoing be true It being so contrary to the common sence of Parliament to give the bodies of the Freemen to the will of the Clergie to whom they would not submit their Free holds But the Writ proceeds in enumeration of particulars Reparations and adornings of Churches and Fences of Church-yards Violence done to a Clerk Defamation to reform not to give damage Perjury oblations payments of Tythes between Rector and Parishioner Right of Tythes between two Rectors to a fourth part of the value Mortuaries due by custom A Pension from a Rector to a Prelate or Advocate The most of which were under the power of a prohibition in the time of Henry the Third who was King but yesterday as the Articles of complaint formerly set down do manifest Nor had the Clergie ever better Title than connivance of some such favourites as King Steven whose Acts may peradventure be urged against Kings but not against the people unless their own act can be produced to warrant them The learning in the Princes case will I suppose admit of a difference for it can never be made out that the King's Council in Parliament was the Magnum concilium Regni but onely the House of Lords and therefore whatever passed in Parliament by their onely advice might bind the King but could never reach the Commons nor their Liberties And thus the Grand Charter in the first conception was conclusive to the King but was not the act of the Parliament because the Parliament cannot grant a Charter to it self of that which was originally custom And therefore this Law however countenanced can never be concluded to be other than a Permission not onely because it was never the Act of the Commons of England but because it is contrary to the liberty of the Freemen And it is beyond all imagination that the Commons should out themselves from the protection of the Common-Law and yoke themselves their Free-holds and Estates under the bondage of the Canons nor ought such a construction to be admitted without express words to warrant it As for the conclusion it is worse and not onely dishonourable to the King in binding his Arms from protecting his Subjects by the Common Laws and so in some respects making them Outlaws but dishonourable to it self whilst it makes Prohibitions grounded upon Laws to be nullities by a late trick of non obstante which was first taken up by the Pope then by Henry the third and by this King granted to the Clergie and thus are all set at liberty from any rule but that of Licentiousness Nevertheless this Law did thrive accordingly for we find scarce any footsteps in story of any regard had thereof till it became grey-headed For it was not long e're the King stood in need of money and was necessitated to try the good wills of the Clergie more than once this occasioned them to be slow in answer and in conclusion to deny that they should aid the King with any more money Papa inconsulto The King hereupon disavows the Clergy and leaves them to the Romish oppressions which were many and then the Clergie rub up all old sores and exhibit their complaints to their holy Father to this effect 1. That the King's Justices intermeddle in Testamentary causes accounts of Executors and cognizance of Tythes especially to the fourth part of the Living 2. That the Clergie were charged to the King's Carriages That the King's Mills were discharged from paying of Tythes That Clerks attending on the Exchequer were necessitated to non-residency And that after their decease their Goods were seized till their acounts were made That Ecclesiastical possessions were wasted during vacancies 3. That Clerks were admitted to free Chappels by Lay men 4. That the King's Justices took cognizance of Vsury Defamation violence done to Clerks Sacriledge Oblations Fences of the Church-yards and Mortuaries 5. That prohibitions are granted without surmise 6. That Clerks are called to answer in the King's Court for crimes and being acquitted the Informers escape without penalty 7. That Clerks are not allowed their Clergie 8. That after purgation made Clerks are questioned in the King's Court for the same offence 9. That persons in Sanctuary are therein besieged 10. That the Writ de Cautione admittenda issueth forth although the Church be not satisfied and excommunicate persons being imprisoned are enlarged in like manner 11. That Debts between Clerks due are determined in the temporal Courts 12. That Bishops are compelled by Distress to cause Clerks to appear in Lay-courts without cause 13. That the Church loseth it's right by the ceasing of Rent or Pension by the space of two years 14. That Nuns are compelled to sue in the Lay-courts for their right in possessions befalling by decease of their Kinred 15. That Churches are deprived of their Priviledges till they shew Quo warranto they hold them 16. That Ecclesiastical Judges are stopped in their proceedings by Sheriffs and great men 17. That Bishops refusal of Clerks presented are examined in the Lay-courts 18. That Patrons of Religious Houses do oppress them by extream Quarter 19. That Bigamy and Bastardy are tried in Lay-courts 20. That the King suffers his Livings to be vacant for many years 21. That the Clergie are wronged by the Statute of Mortmain Here 's all and more than all that 's true and more than enough to let the Reader see that the Writ Circumspecte agatis was but a face put on for the present after laid aside and the Clergy left to the bare Canon They likewise shew what the Clergy aimed at and in that they did not obtain it was to be attributed to the resolution of the Laity and not any neglect in themselves for the Arch-bishop died in the service and it is thought that grief for these matters was no little cause thereof But the times within a while grew troublesome and the King in pursuit of the French Wars being unadvised in his way angred the people by his arbitrary levie of Men and Money as it brought forth a State-scoul little inferiour to a Quarrel And to pacifie the Clergie he granted them the Writ de consultatione habenda in all matrimonial and testamentary cases which were of their least doubted priviledges and this qualified the first Article of complaint next foregowing if such cause they had of complaint and this was all that the Clergie got at Edward the first 's hands Edward the second was a man that was neither well-affected to Rome nor weak in spirit and yet so unhappy that his way neither promised good success nor ever had it and so he became a Servant unto
and nothing shall hinder it but the special reservation of the donor and yet he saith that such gift or grant taketh not away the right of the Lord Paramount in his Tenure albeit the gift be in free Alms. Nevertheless it seemeth to be such restraint that the Templars and Hospitallers were fain to find out a new way which was to protect mens Tenements from execution of Law by levying crosses thereon albeit the right of the Lords was not barred and therefore Edw. 1. provided a Law to make this also in nature of a Mortmain within the Statute made in the seventh year of his Reign called the Statute de Religiosis by which it was enacted that in case of such alienations in Mortmain the Lord should have liberty to enter if he failed then the Lord Paramount or if he failed the King should enter and dispose of the same and that no license of Mortmain should be sued out but by the mean Lord's assent and where part of the premises remain still in the Donor and the original Writ mentioneth all the particulars And thus at length was this issue for the present stayed which hitherto wasted the strength of the Kingdom and by continual current emptying it into the mare mortuum of the Clergie consumed the maintenance of Knight service by converting the same to Clerk-service No Judge shall compel a Free-man to make Oath without the Kings command So is the sence of the Law rendred by an ancient Authour and I hope I shall not wrong the Text if I affirm that the Ecclesiastical Judge was included within the equity though properly he be not Balivus for the Law intends to shew that it is a liberty that the Subject hath not to be compelled to take Oath without the Kings especial command and by consequence it sheweth also that the King at that time and until then had the directory of Oaths for it was an ancient Liberty given in the Kings Charters unto such as they pleased viz. to impose Oaths and to punish for breach of Oath and this passed under the word Athae or Athas and so Edmund the Saxon King gave to the Abbey of Glastenbury amongst other Athas Ordulas and the Church-men that first procured vacations from Suits of Law during holy times procured a Law also to be setled by Edward the Saxon King and Gunthurne the Dane that Ordeal and Oaths should be forbidden upon the holy Feasts and lawful Fasts And a wonder it is how it escaped the gripe of the Clergie so long who catched at any thing that had but a glance of Gods worship in it And if this were the Subjects Liberty not to be compelled to Swear surely much more not to be compelled to accuse himself unless by the Law he be especially bound for it is Glanvil's rule Ob infamiam non solet juxta legem terrae aliquis per legem apparentem se purgare nisi prius convictus fuerit vel confessus in curia But the power of the Clergie now was grown strong and they begin to remember themselves and that Oaths are of a holy regard and they men for holiness best able to judge when and to whom they shall be ministred and therefore now they begin to enter their claim and to make a sure Title they get a grant from Pope Innocent to Steven Langton Arch-Bishop of Canterbury of a faculty of licensing administration of Oaths during the time of Lent and he accordingly enjoyed it during the mad time of Henry the Third But Edward the first quarrelled it and left it questionable to Edward the Second who being in his condition as a lost man had less care of such smaller matters and therefore allowed that his Judges of Assizes should be licensed by the Arch-bishop to administer Oaths in their Circuits in the sacred times of Advent and Septuagessima and this course continued till Henry the Eighth's time The Clergie having thus gotten the bridle gallop amain they now call whom they will and put them to their Oaths to accuse other men or themselves or else they are Excommunicated Henry the Third withstood this course if the Clergie-mens complaints in the times of that King Artic. 9. be true and notwithstanding the same the Law holds its course and in pursuance thereof we find an attachment upon a prohibition in this form ensuing Put the Bishop of N. to his pledges that he be before our Justices to shew cause why he made to be summoned and by Ecclesiastical censures constrained Lay-persons men or women to appear before him to swear unwillingly at the Bishops pleasure to the great prejudice of our Crown and Dignity and contrary to the custom of the Kingdom of England And thus both King and Clergie were at contest for this power over the peoples Consciences to which neither had the right otherwise than by rules of Law. Bigamists shall not be allowed their Clergie whether they become such before the Council of Lyons or since and that Constitution there made shall be so construed Whatsoever therefore their Synods in those times pretended against the married Clergie it seemeth by this Law that they had Clergie that were married once and again and yet before and after the Council were admitted as Clerks in the judgment of the Law. But the general Council interposes their authority and deprives them that are the second time married of all their priviledges of Clergie It was it seemeth twenty years and more after that Council before the Church-men in England were throughly reformed for either some were still Bigami at the making of this Law or as touching that point it was vain nor is it easie to conceive what occasion should after so long a time move such exposition the words of the Constitution being Bigamos omni privilegio clericali declaramus esse nudatos Now whether this slow Reformation arose from the defect in Law or in obedience thereto may be gathered from some particulars ensuing First it is apparent that the Canons of general Councils eo nomine had formerly of ancient times gotten a kind of preheminence in this Nation but by what means is not so clear In the Saxon times they were of no further force than the great Council of this Kingdom allowed by express act For the Nicene Faith and the first five general Councils were received by Synodical confirmations of this Kingdom made in the joynt meeting both of the Laity and Clergie and during such joynt consulting the summons to the general Councils was sent to the King to send Bishops Abbots c. but after that the Laity were excluded by the Clergie from their meetings and the King himself also served in the same manner the Summons to the general Council issued forth to the Bishops immediately and in particular to each of them and to the Abbots and Priors in general by vertue whereof they went inconsulto Rege and sometimes Rege
renitente and appeared either personally or by proxie Others came as parties to give and receive direction or hear Sentence in matters tending to spiritual regards And for this cause issued Summons even to Kings as at the Council of Lyons aforesaid it is said that the Pope had cited Regis terrae alios mundi principes dictum principem meaning Henry the third the matter was for assistance to the holy War and to determine the matter between Henry the third and his Clergie men And as in that case so in others of that kind Kings would send their Embassadors or Proctors and give them power in their Princes name interessendi tranctandi communicandi concludendi First of such matters quae ad reformationem Ecclesiae universalis in capite membris then of such as concern fidei orthodoxae fulciamentum Regumque ac principum pacificationem or any other particular cause which occasionally might be inserted So long then as Kings had their votes in the general Councils they were engaged in the maintenance of their decrees and by this means entred the Canon-law into Kingdoms Nor was the vote of Kings difficult to be obtained especially in matters that trenched not upon the Crown for the Pope knowing well that Kings were too wise to adventure their own persons into foraign parts where the general Councils were holden and that it was thrift for them to send such Proctors that might not altogether spend upon the King's purse allowed Bishops and Clergy-men to be Proctors for their Princes that in the Negative they might be pii inimici and less active but in the Affirmative zealous and so make the way wider by the Temporal and Spiritual vote joyned in one Neither did Kings onely save their purse but they also made their own further advantage hereby for by the engagement and respect which these their Proctors had in Councils they being for the most part such as were had in best esteem obtained better respect to the cause that they handled and speedier dispatch Nevertheless the case sometimes was such as could not expect favour and then as the King's temper was they would sometimes ride it out with full sail and to that end would either joyn with their Ecclesiastcal Proctors some of the Barons and great men of their Realm to add to the cry and make their affairs ring louder in the ears of fame although the Pope had the greater vote or otherwise would send an inhibition unto their Proctors and their assistants or an injunction to look to the rights of the Crown as Henry the Third did at the Council at Lyons and this sounded in nature of a Protest and within the Realm of England had the force of a Proviso or Saving But if the worst of all come to pass viz. that the Council passed the cause against Kings without any Inhibition or Injunction yet could it not bind the Law of the Land or Kings just Prerogatives no not in these times of Rome's hour and of the power of darkness For at a Synod holden by Arch-bishop Peckham An. 1280. the Acts of the Council of Lyons were ratified and amongst others a Canon against non-residency and pluralities and yet neither Council nor Synod could prevail for in Edward the Second's time an Abbot presenting to a Church vacant as was supposed by the Canon of pluralities the King whose Chaplain was disturbed enjoyned the Abbot to revoke his presentation upon this ground Cum igitur c. in English thus Whereas therefore that Decree bindeth not our Clerks in our service in regard that the Kings and Princes of England from time to time have enjoyed that liberty and prerogative that their Clerks whilst they attend upon their service shall not be constrained to undertake holy things or to be personally resident on their Benefices c. And if this present Law be considered whereof we now treat which took leave to enact a sence upon a former Canon so long since made and which is all one to makâ— a general Council will or nill it to tread in the steps of an English Parliament or which is more mean to speak after the sence of an English Declaration that had not yet attained the full growth of a Statute as was then conceived it will evidently appear that the power of a council made up of a mixture of a few votes out of several Nations or the major part of them being unacquainted with the Laws and Customs of Nations other than their own was too mean to set a Law upon any particuler Nation contrary to its own original and fundamental Law. And as the Voters sent to the grand Councils from England were but few so neither were the Proctors as may appear from this that Pope Innocent out of his moderation if we may believe it and to avoid much expence as he saith did order that the number of Proctors in such cases should be few But in truth the times then were no times for moderation amongst Popes and their Officers and therefore it was another thing that pinched for multitude of Proctors if their number had not been moderated might perhaps if not prevail yet so blemish the contrary party that what the Pope should get must cost him loss of spirits if not bloud And although the Bishops being fast Friends to the Pope by vertue of their Oath did prevail in power and the Pope had the controul of the Council yet the exceeding number of the Proctors on the contrary might render their conclusions somewhat questionable in point of honesty as being made against the mindes of the greater number of persons present though their votes were fewer To avoid this difficulty therefore for more surety-sake the Popes enlarged the number of Voters for whereas it seemeth to be an ancient rule that onely four Bishops should go out of England to the general Council in after-ages not one Bishop could be spared unless in cases of great and emergent consequence as may appear by the Pope's Letter to Henry Third and the case required it for the oppressions of the Pope began to ring so loud as the holy Chair began to shake Neither did Kings confine themselves to any certain number of Proctors notwithstanding the Pope's moderation but as the case required sent more or less as unto the Council at Pisa for the composing and quieting that great Schism in the Popedom Henry the Fourth sent solemn Embassadors and with them nigh eighty in all But unto the Council at Basil Henry the Sixth sent not above twelve or thirteen as Mr. Selden more particularly relateth And unto the Council at Lyons formerly mentioned the Parliament sent but six or seven to remonstrate their complaints of the extortions of the Court at Rome their Legates and Emissaries The sum of all will be that the Acts of general Councils were but Counsels which being offered to the sence of the Parliament of England might grow up
redemption of their Captive King for Knighting of the Kings Son and for his Daughters Marriage because these three might be due by the Common-Law the two latter by custom the former by common right although mentioned from the late disaster of King Richard which King John might with shame enough remember and expect the same measure from the censure of an unquiet conscience I shall not enter into debate concerning the omission hereof in the later Charters possibly it might seem a tautology Nor concerning the restriction as if it did imply that the Burgesses had Vote only in cases of general assesments but shall leave it to the consideration of the Reader No Distress shall be taken for greater service or other matter than is due Distresses are in nature no other than a summons in act or the bringing of a man to answer by seizure of part of his Goods and it was used by the Saxons as hath been shewed and because the rich men under colour of seeking their right many times sought for wrong and though they could not prevail in the issue yet prevailed so far that the Defendant could not escape without charge and hinderance therefore the Law provided a Writ of remedy against unjust vexation which Glanvil remembreth us of and yet because that remedy also carried with it matter of charge and disturbance to the Plaintiff and so the remedy might be worse than the disease therefore the Law defined distresses by circumstances of person matter time and place under penalties of fine and amercement besides the recompence to the party first it must not be taken but by leave from the Kings Court unless in case of matters due by common right and upon complaint made by the Plaintiff The King sent out a Summons in this manner Henricus Rex Ang. Hominibus Abbatis de Ramsey salutem Precipio quod cito juste reddatis Abbati Domino vestro quicquid ei debetis in censu firma debitis placitis quod si nolueritis ipse vos inde constringat per pecuniam vestram And in all cases of matters due by common right the distress never was done in an arbitrary way but by Judicial Act in the Lord's Court. Secondly no distress for suit shall be made out of the Fee nor against any person but such as are of that Fee. Nor shall any distress be made in the King's High-way or open street but by the King's Officer and special Writ because distress is incident to service and that is due as from the Fee and therefore by common right the same must be recovered from the Fee and such as owe service in the same but the High-way or open street are more properly a Franchise belonging to the King although the Soil haply may be the Lords And therefore it was an old Law that they should be under the King's safeguard Sit pax publica per communes vias and no violence must be there tolerated but by the King 's special Writ which presupposeth the especial notice taken by the King of the nature of the occasion A moderation also must be observed in the taking of the distress for it must not be excessive and also in keeping thereof for if the owner will he may replevy the same according to the ancient course and the Sheriff must grant replevy if it be demanded although formerly no replevy was without special Writ and yet that also not always readily obeyed for the times were such as the Lords were bold with the King's Courts and Ministers and refused the order of the Law. Now in such cases wherein the matter concerned contempt of the King's Authority a Fine was set upon the Offender but in case it concerned onely a Tort done to the party he was amerced The one is called Redemption because the penalty otherwise must lie upon the person if it be not redeemed by pecuniary Fine the other is called Amercement which is originally a satisfaction unto the party wronged by recompence out of the personal Estate of the Delinquent Thirdly as touching the matter of the distress it must not be of Plough beasts or Sheep unless in case of damage fesant if other distress may be had for the Law had a care of such Cattel as were most of publick concernment and which was the main stock of subsistence so far as Justice would allow And therefore the unjust taking of any man's Cattel by any person whatsoever is liable to the same penalties that unjust distresses are Fourthly concerning the using of the distress it must not be sold no not in the King's case till fifteen days be past after it is taken nor must it be carried out of the County but it must be so impounded as the owner may come to feed it and it must be discharged if the owner give security of satisfaction before the return of the Writ Fifthly the intent of the distresses must be that which is just and therefore not for other suit than by the Feoffment is due or else by Prescription and in case many are joyntly seized the suit shall be by one and the rest shall contribute Nor must any man be compelled to shew his Title to his Land by distress The Common-pleas shall be holden in one certain place The Office of Judge of the Common-pleas was in my opinion distinct and several from that of the Crown-pleas nor though one and the same man might execute both Authorities doth it therefore follow that it was by one and the same power as if being Judge he had thereby power in all matters of the Common-pleas and also of the Crown For though it be true that Bracton saith The King hath one proper Court wherein are the Chief Judges which both by his own Testimony and Briton's also did hear and determine Causes of all sorts yet is it true also that it was by Appeal or Writ of Errour as in case of false Judgment and that the King had plures curias which doubtless had their proper work And in the time of Henry the second it is clear that six were especially assigned for the Common-pleas throughout the whole Realm and yet by another especial Commission or Letters-Patents the same men might also have power to determine matters of the Crown as at this day in their several Circuits This Law therefore doth not as I conceive work any alteration but onely in this that whereas formerly the Judges of Common-pleas attended on the King's Court continually as all other Judges did and whither the King removed they did the like which was a great uncertainty and grievance unto the Commons henceforth they are fixed to a certain place Assize of Novel Disseisin and Mortdancester shall be determined in the proper County onely and by the Justices itinerant sent by the King or his Chief Justices The Law was so declared in Henry the second 's
and Kent are saved out of this Law by the Statute the first whereof saves the Land to the Heir from the Lord and the second saves the same to the Heirs Males or for want of such to the Heirs Females and to the Wife her moity until she be espoused to another man unless she shall forfeit the same by fornication during her Widow-hood And by the same Law also the King had all Escheats of the Tenants of Archbishops and Bishops during the vacancy as a perquisite But Escheats of Land and Tenement in Cities or Burroughs the King had them in jure coronae of whomsoever they were holden All Wears shall be destroyed but such as are by the Sea-coast The Lieutenant of the Tower of London as it seemed claimed a Lordship in the Thames and by vertue thereof had all the Wears to his own use as appeareth by a Charter made to the City of London recited in the second Institutes upon this Law and this was to the detriment of the Free-men especially of the City of London in regard that all Free-men were to have right of free passage through Rivers as well as through Highways and purprestures in either were equally noxious to the common liberty And therefore that which is set down under the example or instance of the Rivers of Thames and Medway contained all the Rivers in England albeit that other parts of the Kingdom had not the like present regard as the City of London had The Writ of precipe in capite shall not be granted of any Freehold whereby a man may be in danger of losing his Court thereby It seemeth that it was one of the oppressions in those times that if a Suit were commenced in the inferiour or Lords Court concerning a Freehold a Writ of precipe in capite might be had upon a Surmise that the Freehold was holden in capite which might prove an absolute destruction to the inferiour Court and was the spoil of the Demandants case and therefore I think the Charter of King John instead of the word Court hath the word Cause There shall be but one known Weight and Measure and one breadth of Cloaths throughout the Realm of England This Law of Weights and Measures was anciently established amongst the Saxons as formerly hath been shewed and continued in the Normans times and confirmed by Richard the first and King John. And as touching the measure of the breadth of Cloaths although it might seem to abridge the liberty of particular persons yet because it was prejudicial to the common Trade of the Kingdom it was setled in this manner to avoid deceit and to establish a known price of Cloaths And it seemeth that Wine was ordinarily made in England as well as Ale otherwise the Measures of Wine could not have been established by a Law in England if they had been altogether made in other Countries Inquisition of Life and Member shall be readily granted without Fees. This was a Law of latter original made to take away a Norman oppression for by the Saxon Law as hath been already noted No man was imprisoned for Crime not bailable beyond the next County-court or Sheriff's Torn but when those rural Courts began to lose their power and the Kings Courts to devour Tryals of that nature especially by the means of the Justices itinerant which were but rare and for divers years many times intermitted during all which time supposed Offenders must lie in Prison which was quite contrary to the liberty of the Free men amongst the Saxons This occasioned a new device to save the common liberty by special Writs sued out by the party imprisoned or under bail supposing himself circumvented by hatred and malice and by the same directed to the Sheriff and others an Inquisition was taken and Tryal made of the Offence whether he deserved loss of Life or Member and if it were found for the supposed Offender he was bailed till the next coming of the Justices and for this the Writ was called the Writ of inquisition of Life or Member and sometimes the Writ de odio atia But these Inquests were soon become degenerate and subject to much corruption and therefore as soon met with a countercheck from the Law Or first rather a regulation for it was ordained that the Inquest should be chosen upon Oath and that two of the Inquest at least should be Knights and those not interessed in the Cause But yet this could not rectifie the matter for it seemed so impossible to do Justice and shew Mercy this way that the Writ is at length taken away and men left to their lot till the coming of Justices itinerant But this could not be endured above seven years for though the King be a brave Souldier and prosperous yet the people overcome him and recover their Writs de odio atia again Lords shall have the Wardships of their Tenants Heirs although they hold also of the King in Petit Serjeanty Socage Burgage or Fee-farm Inferiour Lords had the same right of Wardships with the King for their Tenures in Knight-service although their Tenants did hold also of the King unless they held of him in Knight-service which was a service done by the Tenant's own person or by the person of his Esquire or other deputy in his stead But as touching such service as was wont to be done to him by render or serving him with Arms or other utensils this was no Knight-service though such utensils concerned War but was called Petit Serjeanty as in the Law-books doth appear Nevertheless Henry the Third had usurped Wardships in such cases also and the same amongst others occasioned the Barons Wars No Judge shall compel a Free-man to confess matter against himself upon Oath without complaint first made against him Nor shall receive any complaint without present proof This Law in the Original is set down in another kind of phrase in the first part thereof which is obscure by reason thereof in express words it is thus No Judge shall compel any man ad legem manifestam which implieth that the matter was otherwise obscure if the party that was complained of or suspected did not manifest the same by his own declaring of the truth or matter enquired after and therefore they used in such cases to put him to Oath and if he denied the matter or acquitted himself the Judge would sometimes discharge him or otherwise put him to his Compurgators and this was called lex manifesta or lex apparens And it was a trick first brought in by the Clergie and the Temporal Judges imitated them therein and this became a snare and sore burthen to the Subjects To avoid which they complain of this new kind of Trial and for remedy of this usurpation this Law reviveth and establisheth the onely and old way of Trial for Glanvil saith Ob infamiam non solet juxta legem terrae aliquis per
sad experience of the latter Government of Kings in these times had taught the Knighthood of England to hold for the future Ages No Tenant in ancient Demesnes or in Burgage shall be distrained for the service of a Knight Clerks and Tenants in Socage of other Mannors than of the King shall be used as they have been formerly Tenants in ancient Demesne and Tenants in Burgage are absolutely acquitted from foreign service the one because they are in nature of the King's Husbandmen and served him and his Family with Victual the other because by their Tenure they were bound to the defence of their Burrough which in account is a Limb or Member of the Kingdom and so in nature of a Castle guard Now as touching Clerks and Tenants in Socage holding of a Subject they are left to the order of ancient use appearing upon Record As concerning the Clergy it is evident by what hath been formerly noted that though they were importunate to be discharged of the service Military in regard that their profession was for Peace and not for Bloud yet could they never obtain their desire for though their persons might challenge exemption from that work yet their Lands were bound to find Arms by their Deputies for otherwise it had been unreasonable that so great a part of the Kingdom as the Clergie then had should sit still and look on whilst by the Law of Nature every one is engaged in his own defence Nor yet did the profession of these men to be men for Peace hold always uniform some kind of Wars then were holden sacred and wherein they not onely adventured their Estates but even their own Persons and these not onely in a defensive way but by way of invasion and many times where no need was for them to appear Tenants in Socage also in regard of their service might plead exemption from the Wars for if not the Plough must stand still and the Land thereby become poor and lean Nevertheless a general service or defence of the Kingdom is imposed upon all and Husbandmen must be Souldiers when the debate is who shall have the Land. In such cases therefore they are evocati ad arma to maintain and defend the Kingdom but not compellable to foreign service as the Knights were whose service consisted much in defence of their Lord's person in reference to the defence of the Kingdom and many times policy of War drew the Lords into Arms abroad to keep the Enemy further from their borders and the Knights then under their Lords pay went along with them and therefore the service of Knighthood is commonly called servitium forinsecum Of these Socagers did arise not onely the body of English Foot-men in their Armies but the better and more wealthy sort of them found Arms of a Knight as formerly hath been observed yet always under the pay of the common Purse And if called out of the Kingdom they were meer Voluntiers for they were not called out by distress as Knights were because they held not their Land by such service but they were summoned by Proclamation and probably were mustered by the high Constables in each Hundred the Law nevertheless remaining still entire that all must be done not onely ad fidem Domini Regis but also Regni which was disputed and concluded by the Sword. For though Kings pretended danger to the publick oftentimes to raise the people yet the people would give credit as they pleased Or if the King's Title were in question or the Peoples Liberty yet every man took liberty to side with that party that liked him best nor did the King's Proclamation sway much this or that way It is true that precedents of those times cry up the King's power of arraying all Ships and men without respect unless of age or corporal disability but it will appear that no such array was but in time of no less known danger from abroad to the Kingdom than imminent and therefore might be wrought more from the general fear of the Enemy than from the King's command And yet those times were always armed in neighbouring Nations and Kings might have pretended continual cause of arraying Secondly it will no less clearly appear that Kings used no such course but in case of general danger to the whole Kingdom either from foreign Invasion as in the times of King John or from intestine Broils as in the times of Henry the third and the two Edwards successively And if the danger threatned onely one coast the array was limited onely to the parts adjacent thereunto Thirdly it seemeth that general arrays were not levied by distress till the time of Edward the first and then onely for the rendezvouze at the next Sea-coast and for defence against foreign Invasion in which case all Subjects of the Kingdom are concerned by general service otherwise it can come unto no other account than that Title Prerogative and therein be charactered as a trick above the ordinary strain Fourthly those times brought forth no general array of all persons between the ages of sixteen years and sixty that was made by distress in any case of Civil War but onely by Sheriffs summons and in case of disobedience by summons to appear before the King and his Council which sheweth that by the common Law they were not compellable or punishable Lastly though these arrays of men were sometimes at the charge of the King and sometimes at the Subjects own charge yet that last was out of the road-way of the Subjects liberty as the subsequent times do fully manifest And the like may be said of arrays of Ships which however under command of Kings for publick service were nevertheless rigged and paid out of the publick charge The sum of all will be that in cases of defence from foreign Invasion Kings had power of array according to the order of Law if they exceeded that Rule it may be more rightly said they did what they would than what they ought CHAP. LXXI Of the Peace WAR and Peace are two births by several venters and may like the day and night succeed but can never inherit each to other and for that cause they may claim to belong to one Father and that one and the same power should act in both and yet it is no good Maxime That he that is the chief Commander in War ought to be the chief in the order of Peace For it naturally befalls that War especially that which we call Civil War like some diseases in the body does rather breed ill humours than consume them and these must be purged by dieting the State and constant course of Justice unto which the rugged Waves of War have little or no affinity if they have not enmity Nevertheless the wisdom of our Ancestors thought it most meet to keep their Kings in work as well in time of Peace as of War and therefore as they anciently referred the principal care thereof to the Lords who together
wade through so many difficulties of mighty Wars on every side abroad and devouring Pestilence at home and yet lay a platform of an opulent wise and peaceable Government for future Generations Yet he had his failings and misfortunes a great part whereof may be attributed to infirmity of age which in the first part of his Reign was too little and in the latter part too much True it is that Governours of the persons of Kings may in some measure supply defects of Non-age but seldom where the Governours are many and never if they be ambitious And it was this King's fate to miscarry in both for he had in his Youth Twelve Governours by constitution and they two supream by usurpation viz. the Queen and Mortimer till they were both consumed in the flame which themselves had kindled And this disparity wrought somewhat unsuccessfully in the King 's first War For the generosity of his spirit himself being young and active minded his Council to advise him employment in a forrein War rather than they would adventure its motion at home lest it might prove circular which is most dangerous for Government if the Prince be not under command of himself This first War was with Scotland whose power was inferiour to that of France the King young and the danger nearer and therefore though the last affront was from France that more fresh in memory and more poinant yet the King was advised to give place and speak fair till he had tried masteries with Scotland and thereby secured his Rear This he wisely hearkned unto and met with such a successful turn of Providence that like an O Yes before a Proclamation gives warning to Scotland that the Wheel is turned upon them and that there is somewhat more than 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 foiled his Father and also put himself already once to the Retreat And yet there did concur a kind of necessity of second Causes for the King found the Crown engaged and the minds of the Scots so elate as the English-man's case was not to live to fight but to fight to live and so imbittered against one another by the fierce Wars under the Barons that nothing could quench the fire but the withdrawing of the Brands into Forreign action like some angry spirits that spoil their own bodies unless 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 renews the War prevails and after ten years stir wherein he became a trained Souldier against the Scots he wan the Cross and then goes to play his Prize in France to compleat his Crown with the Flower-de-luce Which was the great work of the rest of his Reign in which four parts of five were victorious the fifth and last was declining like some Gamesters that win at the first and for want of observation of the turning of the Dice come off losers at the end For the King being rather satiated than satisfied with Victory and Honour returned home to enjoy what he had leaving his Son the Black Prince to pursue the War and to act the Souldiers alone who now began to honour his Valour above his Father's But the Tide is spent the Prince of Chivalry dies the brave Commanders wasted and the French too sickle to continue subject to the English longer than needs must tack about for another adventure and make it plain That France is too big to be Garrison'd by England and that it will cost England more to hold it than to have it His Religion was more to the purpose than of any of his Predecessors since the Norman times He reâ—lected upon God in common events more ordinarily than the general stream of the Clergie did in those days He loved if not adored devout men and their prayers and yet intentively disclaimed opinion of merits in the Creature He saw the Pope through and through loved him but little feared him less and yet lost neither honour nor power thereby His chief policy at home was to be much at home great with his People and they great with him what the Parliament did he accounted well done he never questioned their power though he was over-reached in questioning their Wisdom For he that shall prefer his own wisdom above that of the Parliament must needs think himself extreamly wise and so much the more to know himself to be such But the worst of his fate was to live to his Winter-age and after fifty years Reign or more to die in his minority under the rule of a woman of none of the best fame after he had enjoyed the honour of greatest note in the Christian world in his days Such was not Richard the Second though the onely Son of that famous Chieftain the Black Prince of Wales a renowned Son of a renowned Father but as a Plant transplanted into a Savage soyl in degree and disposition wholly degenerate retaining a tincture of the light inconstancy of his Mother and the luxuriousness of his great Grandfather Edward the Second and running his course he came to his end His entrance however by colour of Inheritance yet was a greater adventure than his Predecessors that came in by Election upon the designation of his Father by his last Will say some For this man came in upon many disadvantages both of time and person The times were very troublesome the Kingdom new wrapped up in a double War abroad and which is worse flouded with distraction at home contracted partly by his Predecessor's weaknesses in his decrepit estate partly by a new interest of Religion sprung up against the Papal Tyranny from the Doctrine of Wickliff all which required a very wise Man and a brave Commander in both which the King failed Religion now began to dawn through the foggs of Romish Usurpations and Superstitions aided thereto by a Schism in the Triple Crown that continued forty years with much virulancy abroad and with as bad influence upon our Myters at home Some of whom were called Clementines others Vrbanists and yet none of them all worthy of either of the names in their proper signification The Laity though lookers on yet were not quiet For though Liberty be a hopeful thing yet it is dangerous to them that are not a Law to themselves especially in matter of Opinion for that arraigns the Rule and lays the way open to licentiousness And now that the Liberty from the Keys began to be taught as a duty of Religion the inferiour sort meet with Doctrines of licentiousness upon mistake of the notion and will acknowledge no rule now they must be all at liberty And thus sprang up the insurrection of the Servants and Bond-men against their Lords
respect he may be said to be less his own man and more the Kingdoms than any of the inferiour sort This befel in both these Kings in a special manner each entring upon the grand Government of a Kingdom before they were able to understand the work or govern themselves and therefore were under power of Protectors for the guard of their Persons and their Education and of the Parliament for Counsel and Direction in Cases relating to the Kingdom The child of a mean man when its Parents are dead is Filius Amici but a King is Filius Populi to be by them trained up in such manner that he may be Pater Populi when he is come to age In the mean time though he be a King yet his Person like a precious Jem must not out of the Ring but must be directed by Council though under some kind of restraint and the Counsellors all the while no Offenders in such cases against the Prerogative Royal. And therefore though it be true that Kings grow faster than other men and sooner come to full age than they yet Edward the Third now in his sixteenth year might not pass over Sea into France though it were for restoring of Peace but by direction of the Parliament nor is it meet in such cases that Kings should stand upon the Prerogative of a Negative Secondly it may likewise be said That his Family is less his own as he is a man than other mens For private Families are no further under the publick Law than in relation to the publick Peace to punish after breach made but the Families of Kings are looked upon by all in relation to the honour and profit of the Publick not onely because the King's servants have by their nigh attendance upon his person a more powerful influence into his actions which may reflect a malevolent Aspect upon the whole course of affairs if they be not better ordered that are so nigh him but more especially in regard that the government and order of the Royal Family trencheth deep upon the Honour of the Kingdom and Purses of the People who are concerned to see the same accommodated suitable to the State and Port which the Nation would bear forth to the World. And therefore for the Parliament to intermeddle in the King's Family is not foreign nor new Alice Piers was a Familiar if not of the Family of Edward the Third yet both her self and others of that Family were complained of as a grievance Richard the Second was once a young man and ever a young King and what Edward the Third wanted onely in his Youth and in his infirm old Age this man ever wanted for he that knew not how to govern himself how much less could he govern his Family And if in this condition the Parliament become his Stewards to set a yearly Survey and Check upon his Servants and Family in order to the good order of the same and Kingdom other wise men must conclude it did that which was just though Richard the Second and those of his mind think not so But this is not all Kings have not onely such as serve the outward man but some that serve their Consciences of old time called Confessors in these days without name for fear of Superstition yet the thing remaineth still in some well-favoured Chaplain and their work is to lead the King's Conscience in dark ways or rather into them Commonly he hath a devout outside and that is the King's Idol but if while his eye be towards Jerusalem his mind be towards the dead Sea the King is his and then the blind leads the blind Like some Ignis fatuus to such as know it not No man is so well known by his company as Kings are by these men and these men by their actions Although some have been so witty as to cheat the whole Generation of Mankind by entertaining holy men to be their Chaplains themselves the mean time without any spark of that holy Fire Yet this King was not so cunning he had a Confessor of his own choice and according to his own heart who was complained of as a grievance and the Parliament removed him So nigh they ventured even to invade the King 's own Conscience if it may be called Conscience that will acknowledge no Law but that of its own mind Thirdly the King's Revenue was under the check and controul of the Parliament for it befals some Princes as other men to be sometimes poor in abundance by riotous flooding treasure out in the lesser currents and leaving the greater channels dry This is an insupportable evil because it is destructive to the very being of affairs whether for War or Peace For the King's Treasure is of a mixt nature much of it being intended for publick service as himself is a publick person And for this cause he hath Officers of several natures attending upon his Treasury Some for Land some for Sea some for the general Treasure of the Kingdom some for that of the Houshold and some for the Privy Purse The common end of all being to maintain State in time of Peace and Strength against time of War. Because it is no easie matter to maintain the just proportions for each of the said ends it is the less wonder that such a brave Prince as Edward the Third should labour under want for maintenance of the Wars and so lavish a Spendthrift as Richard the Second should labour under more want to maintain his port and countenance in peace And therefore though it be true that the publick Treasure is committed to the King as the chief Steward of the Realm yet it is as true that he is but a Steward and that the Supreme survey of the Treasure resteth in the Parliament who are to see that the Treasure be not irregularly wasted to reduce the same into order and for that end to call the Treasurers and Receivers to account to see to the punishing of such as are unfaithful and encouraging of others that are faithful For when by extravagant courses the Treasure is wasted by extraordinary courses it must be supplied which ever is out of the Subjects Purses And in such cases it is great reason that they should observe which way the course lies of such Expences If then in such cases sometimes the Parliament hath stayed the issuing out of the King's Revenue for some time or otherwise viewed and examined the same charged it with conditions 22. E. 3. n. 29. 14 R. 2. n. 15. limited it to certain uses and in case of misuser refused to levy or make payments the case will be without dispute that the Parliament ordered the publick Treasure as they saw most need But much more if we consider how the greatest part of this Treasure was raised viz. not from the old Revenues of the Crown but by new Impositions Levies and Assessments laid upon the People even what they pleased and in
what manner they thought meet and not otherwise Aids are lawful if they be legally given by common consent of Parliament Taxes if legally given by Parliament are no less lawful yet they must be collected in such manner and by such means as the Parliaments Order doth direct Loans of moneys 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 money he got and it was repayed by the Order of the Parliament But of all the rest nothing shewed more absolute Authority in the publick Revenue than the care that was had of the Demesnes of the Crown for whereas the Expxences of Kings grew so vast that neither the yearly Revenue could suffice nor Aids Assessments and Taxes could satisfie however ordinary they in these times were become rather than Kings would contain themselves they would invade their own Demesnes by pawning selling and giving them away either for love or money and thus was poverty treasured up against the future both for King and Crown The Parliament espying this leak that was like to undo all applyed a speedy remedy undoing what was done and undoing some by an Act of Resumption and thereby taught Kings to look to their Honour better for the future and People also to take heed of medling with such ticklish matters and to know that he that hath such in his possession hath them by a crack'd Title that cannot be 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 judgment 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 divers Rules One of a man which many times reacheth no higher than the Affections and if the man be weak they deserve little better name than Lusts. The rule of a King is Law or Councils of these in place and unto these in all prudentials he must submit his Judgment and Will as he is a King. Nor can he do otherwise unless he will presume to be wiser than his Council Suitable hereunto doth that clause in one of the Statutes of these times conclude viz. That the King is bound by his Oath to pass all Laws that are for the good of the Kingdom 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 King's dissent to judge of the convenience or inconvenience of Proposals made for the good of the whole body according to that power which is exercised in these times Nor is it rational to infer here from that if Law and Council be the Rule of a King then the Obedience of the People unto this King must be in order to Law and Council otherwise the Disobedience cannot be determined to be against the King but against the Man and though against the private Will of the Commander yet not against the Law nor therefore can it be said illegal or unjust The Parliament in these times held forth this Doctrine plainly to the World That it is their proper work in Cases needful to do right to such as are wronged by the King his Command is no Warrant in such Cases If a man be wrongfully imprisoned by him he shall be released and set at liberty by them Let his Act be never so authentical under the Broad Seal it can take no man's Right away Richard the Second did his utmost to satisfie and quiet the tumultuous Rabble under Cade and Straw and granted store of Manumissions to the Bond-men by Declaration and by his Letters-Patents but not one of them good enough to deprive any one of the meanest of the Free-men of their Rights in those Bond-men The priviledge of shewing mercy and granting pardon hath been anciently betrusted to the King as an Overseer of the execution of Law yet he hath not that Prerogative To have mercy on whom he will have mercy Ever since this Nation had learned to read the Bible Murther hath been excepted from mercy nor did the Law ever allow any King that Prerogative to pardon that Edward the Third did not challenge any such not onely bound thereto by his Coronation-Oath but by publick Acts of State declaring the same yet because the Parliament was not always sitting and Kings were ever subject to this Temptation to favour Servants by granting mercy to Malefactors a general Rule of Inhibition is made against all pardon to be granted by the King in case of Felony but onely in cases allowed by advice of the Council It is true that in the first times of Richard the Second he liked not to be thus girt in his power which he pretended was more at liberty in his Predecessors possibly he meaned King John and Edward the Second who many times did what they listed yet under his favour no Law was so shameless as to hold forth such a power till Richard the Second's Law countenanced it But why do I call it a Law which is onely a Declaration by consent of the Lords such as then were the Commons would never own such an Opinion And therefore it soon proved abortive for within three or four years by publick Act of Parliament it is peremptorily declared That the King's Pardon shall not extend to Murther So as upon the whole matter it is plain That it is not the King's Will though supported by the Council of Lords and backed by the Opinion of the Judges that must be a Rule for the Government of this Kingdom nor doth any Allegiance bind Obedience thereunto in case where Justice or the Liberty of the People is concerned Three things yet remain which Kings have claimed to be their own viz. Conferring Titles of Honour and Places of Trust and the Legislative Power The first is but a Feather and not worthy of regard yet it is plain that these times produce many precedents of Dukes Marquesses and Earls made in Parliament and possibly it may be apparent that the first motion of any such Title of Honour did first fetch its original thence if not in the Field but it is not worthy of the labour The second is more considerable viz. The power of conferring Places of Publick Trust This Kings have pretended unto although in course of congruity it will be thought more meet that it belongeth rather to that chief
Issue or Demurrer and then to the Common-Law where upon Trial if the Defendant make default the Plaintiff shall have Judgement and Execution And if the Heir 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 prohibit Spiritual Courts and Courts of Common-Law yea to over-rule or reverse Judgements and yet the Common-Law held it's ground when it was concerned for neither were all suits 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 Council of the King which were also learned Judges of the Law. For the Report informeth that Edward the Second had granted a Rent in Tail to the Earl of Kent who dying his Son 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 Council 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 repeal the King's Charter And whereas it was objected that the reference was to the Archbishop 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 appears clearly that the King's Council there were learned in the Law. And the same is yet more evident by the Title of Bills in those days exhibited in the Chancery which was directed to the Chancellor and the King's Council and the Rule given Per tout les Justices Which I rather note for the shortness of the form of Bills in those days far different from these times wherein the substance of the complaint however small in it self is oftentimes blown out into so great a bubble that it breaks to nothing And the Statutes formerly mentioned do assert the same thing as touching the King's Council For though they speak of the Council or Chancery in the English Tongue yet in the original the words are Conceil 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 find Sureties to pursue the Suggestions and that the Process 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 he had been 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 shall be imprisoned until he shall satisfie the Defendant of his Damages and furthermore shall make Fine and Ransom to the King. But because that the Defendant many times held his advantage even to extremity this course lasted not long but a new Law was made which put the power of awarding Damages in such cases into the Chancellour to do according to his discretion And thus the Chancery obtained power to award Damages which they never had formely and the Chancellour a Precedency both in the Chancery and of the Council in the Court of Star-chamber and in many cases in the Exchequer By the first he had a power in matters of Meum and Tuum by the last in matters Mei and Regis and by the other in matters Mei and Regni A considerable man certainly he was in the motions of Government but how much more if he be made Arch-bishop of Canterbury Cardinal and Legate à Latere or Arch-bishop Lord Treasurer and Legate à Latere as these days had divers times seen Extraordinary advancements bestowed upon the Nobility brings Honour to the Throne but if they be not men of noted Worth and Uprightness they make the Scepter stoop by stirring up envy in the Nobility and indignation from the people For seldom is it seen that Advancements are fed from the Crown though they be bred from thence but either maintained by new supplies from the peoples Purses or the ruine or decay of some Officers more ancient than themselves or both And such was the condition of the Chancellour he sucked fat from beneath and Bloud and Spirits from the Grand Chief Justiciar of England and so reduced that Honourable Potentate unto the degree of Chief Justice of the King's Bench leaving scarcely unto him the Name or Title of Lord. One thing more remaineth touching the election or nomination of this Great man. At the first he was no better than a Register or the King's Remembrancer or Secretary having also the Honour to advise the King in such matters as came within the circuit of the Writings in his custody and questionless Eo usque it is suitable to all the reason in the World that he should be of the King 's sole Nomination and Election But when it befals that instead of advising the King his word is taken to be the Rule and a Judicatory power put upon that and unto this is superadded that honourable trust of keeping and governing the Great Seal of the Kingdom with the continual growing power occasionally conferred upon him by the Parliament He is now become no more the King's Remembrancer but the Lord Chancellor of England and Supream Officer of State. And it seems but reasonable that he should hold his place by publick Election as well as the Grand Justiciar whose Plumes he borrowed and other Grand Officers of State did before him For he that will have his Servant to work for another must give the other that Honour of Electing him thereto nor was this laid aside nor forgotten by these times but a claim was put in for the Election or allowance of this principal Officer amongst others the Parliament obtaining a Judgement in the case by the King's Confession and so the thing is left to the judgement of future ages Viz. Whether a King that can do no man wrong can dissemble the Royal Assent in Parliament or declare himself legally in that manner by Proclamation CHAP. V. Of Admirals Courts THis is a third Court that maintained the King's Judicatory power in a different way from that which is commonly called the Common-Law and by many is therefore supposed to advance the King's Prerogative but upon mistaken grounds It is very true that the
this power within its own bounds than the watry Element upon which it sloated but it made continual waves upon the Franchise of the Land and for this cause no sooner had these great men savoured of the Honour and Authority of that Dignity but comes a Statute to restrain their Authority in the Cognizance of Cases only unto such matters as are done upon the main Sea as formerly was wont to be And within two years after that Act of Parliament is backed by another Act to the same purpose in more full expressions saving that for Man-slaughter the Admirals power extended even to the high water-mark and into the main streams And this leadeth on the next consideration viz. What is the subject matter of this Jurisdiction and Authority I shall not enter into the depth of particulars but shall reduce all to the two heads of Peace and Justice The Lord Admiral is as I formerly said a Justice of Peace at Sea maintaining the Peace by power and restoring the Peace by setting an Order unto matters of Difference as well between Foraigners as between the English and Foraigners as may appear by that Plea in the fourth Institutes formerly mentioned Secondly That point of Justice principally concerneth matters of Contract and Complaints for breach of Contract of these the Admiral is the Judge to determine according to Law and Custom Now as subservient unto both these he hath Authority of command over Sea-men and Ships that belong to the State and over all Sea-men and Ships in order to the service of the State to arrest and order them for the great voyages of the King and Realm and during the said voyage but this he cannot do without express Order because the determining of a voyage Royal is not wholly in his power Lastly the Lord Admiral hath power not only over the Sea-men serving in the Ships of State but over all other Sea-men to arrest them for the service of the State and if any of them run away without leave from the Admiral or power deputed from him he hath power by enquiry to make a Record thereof and certifie the same to the Sheriffs Mayors Bailiffs c. who shall cause them to be apprehended and imprisoned By all which and divers other Laws not only the power of the Admiral is declared but the original from whence it is derived namely from the Legislative power of the Parliament and not from the single person of the King or any other Council whatsoever But enough hath been already said of these Courts of State in their particular precincts One general interest befalls them all That as they are led by a Law much different from the Courts of Common-Law so are they thereby the more endeared to Kings as being subservient to their Prerogative no less than the Common-Law is to the peoples liberty In which condition being looked upon as Corrivals this principal Maxime of Government will thence arise That the bounds of these several Laws are so to be regarded that not the least gap of intrenchment be laid open each to other lest the Fence once broken Prerogative or Liberty should become boundless and bring in Confusion instead of Law. CHAP. VI. Of the Church-mens Interest BUt the Church-mens interest was yet more Tart standing in need of no less allay than that of the King's Authority for that the King is no less concerned therein than the people and the rather because it was now grown to that pitch that it is become the Darling of Kings and continually henceforth courted by them either to gain them from the Papal Jurisdiction to be more engaged to the Crown or by their means to gain the Papal Jurisdiction to be more favourable and complying with the Prerogative Royal. The former times were tumultuous and the Pope is gained to joyn with the Crown to keep the people under though by that means what the Crown saved to it self from the people it lost to Rome Henceforth the course of Affairs grew more civil or if you will graced with a blush of Religion and it was the policy of these times whereof we now treat to carry a benign Aspect to the Pope so far only as to slave him off from being an enemy whilst Kings drove on a new design to ingratiate and engage the Church men of their own Nation unto it's own Crown This they did by distinguishing the Office or Dignity of Episcopacy into the Ministerial and Honourable Parts the later they called Prelacy and was superadded for encouragement of the former and to make their work more acceptaple to men for their Hospitalities sake for the maintenance whereof they had large Endowments and Advancements And then they reduced them to a right understanding of their Original which they say is neither Jus Divinum nor Romanum but that their Lordships power and great possessions were given them by the Kings and others of this Realm And that by vertue thereof the Patronage and custody of the Possessions in the vacancy ought to belong to the Kings and other the Founders and that unto them the right of Election into such advancements doth belong not unto the Pope nor could he gain other Title unto such power but by usurpation and encroachment upon the right of others But these great men were not to be won by Syllogisms Ordinarily they are begotten between Ambition and Covetousness nourished by Riches and Honour and like the Needle in the Compass turn ever after that way Edward the Third therefore labours to win these men heaped Honour and Priviledges upon them that they might see the gleanings of the Crown of England to be better than the vintage of the Tripple Crown Doubtless he was a Prince that knew how to set a full value upon Church men especially such as were devout and it may be did somewhat outreach in that course For though he saw God in outward events more than any of his Predecessors and disclaiming all humane merits reflected much upon God's mercy even in smaller blessings yet we find his Letters reflect very much upon the Prayers of his Clergy he loved to have their Persons nigh unto him put them into places of greatest Trust for Honour and Power in Judicature and not altogether without cause he had thereby purchased unto his Kingdom the name and repute of being a Kingdom of Priests But all this is but Personal and may give some liking to the present Incumbents but not to the expectants and therefore the Royal Favour extended so far in these times as to bring on the Parliament to give countenance to the Courts and Judiciary power of the Ordinaries by the positive Law of the Kingdom although formerly the Canons had already long since made way thereto by practice I shall hereof note these few particulars ensuing Ordinaries shall not be questioned in the King's Court for Commutation Testamentary Matters or Matrimonial Causes nor other things touching Jurisdiction of Holy-Church Things
conclusion he now sees it bootless to stand always upon his defence and receives affronâ—s he resolves therefore to enter the lists and maketh seizure of the Deanery of York which formerly by usurpation the Pope had conferred upon a Cardinal and of all Church-livings given by the Pope to aliens Then a Law is made more sharp than those in the eighteenth year wherein Provisors of Abbies and Priories are made liable to a Proemuniri and Provisors of other Ecclesiastical Livings and Dignities whereby the presentation of the rightful Patron is disturbed to be fined and imprisoned until the fine and damages to the party wronged be paid And all such as draw men to plead out of England in cases that belong to the cognizance of the Kings Court and all obtainers of provisions in the Court at Rome these were also subject to a Proemuniri For whilst these things were thus in action the Pope bestirred himself notably with Citations Excommunications Interdictions and such other birds of prey not only against mean men but Judges Bishops and the King's Council as amongst others the case of the Bishop of Ely at the solicitation of some of some of inferiour regard as I remember a Clerk or some such thing Yet as these Bull-drivers or Summoners to the Romish Court were no late upstarts so were not these times the first that took them to task for before the Statutes of Proemuniri we find provision was made against Provisors and that some Statute did precede those in Print which punished a disturber of the King 's Incumbent by a Bull from Rome with perpetual Imprisonment or at the King's will. Besides the party wronged was allowed an Action for his Damages Qui tam pro Domino Rege quam pro seipso sequitur And before that time also bringers of Bulls from Rome were imprisoned although in all these cases aforesaid the liberty of the Persons both of Lords and Prelates was saved And thus all the while King Edward the Third kept the Field he gave the Pope cuff for cuff but retiring himself to take his ease he waxing wanton waxed weak and more slowly pursued the vindication of his own Right and his Subjects Liberty The Laws are laid aside and Rome had further day given to plead and in the mean time Execution is staid the double mind is double dyed and advantage is soon espyed above sixty Church-livings more are suddenly catched and given to the Favourites at Rome The Parliament rings herewith yet the King delays the remedy and in this Eddy of affairs Edward the Third dies and Richard the Second takes up the place who had wit enough to observe what concerned his own interest and courage enough to pursue it but neither wit nor courage to over-rule his Lusts which in the conclusion over-ruled all rule and brought himself to destruction He found the people at his entrance into the Throne irritated with the Pope's oppressions and vexed at his Grandfather's desidiousness his spirit is also stirred within him and himself thereby pressed to tread in his Grandfather's former ways and to out-run him in his latter He made the penalty of Proemuniri to extend to all Farmers 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 Roman Horse-leech 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 Clergie their own Country-men if not Friends and Abettors yet are buâ— faint and feigned Enemies to the Pope's 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 shew of forming blows at the Pope but then always at a distance or when without the Pope's Guard and thus the Laws begin to stammer and cannot speak so plain English as they were wont The people hereat offended resolve to put the Clergie into the Van and to try their mettle to the full At the last parliament that Richard the Second did hold both the Lords Temporal and Spiritual are opposed one by one The Lords Temporal like themselves resolve and enter their Resolutions to defend the Right of the Crown in the Cases of Provisors although even amongst these great men all were not equally resolute for Sir William Brian had purchased the Pope's 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 principal reason why the Pope's power held so long in England in an usurping way yet Kings also much conduced thereto by seeking too much their personal ease above the honour of their place and the Pope's blessings and opinion of his favour more than their own good or the peoples Liberty for there was no other balm for a distracted mind than that which dropped from the Pope's Lips. In like manner Richard the Second being already at least in purpose estranged from his people sought to get friends at Rome to hold by the Spiritual Sword what he was in danger to lose by laying aside the Sword of Justice which is the surest Tenure for Kings to hold by And though the Popedom was now under a Schism between two Popes Clement and Vrban yet he was so far won for Vrban that he not onely engaged himself 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 fair but soon vanished away Nevertheless these two Comrades whilst they were togather resolved to make the most of each other that they could and therefore though the Popedom liked not the King yet the Pope had his love so far as he could deny himself for he had already denied his Kingdom 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 Archbishop Arundel he trusted the Pope with that Complement of making Walden Archbishop of Canterbury in Arundel's stead which the Pope took so kindly as he made it a Precedent for Provisors for the future Nor did the King stick in this one Singular but made it his custom in passing of Laws
going out and nothing coming in he had a rule upon his private expences a good gloss upon the publick and a platform for the augmenting of the Treasure of the Kingdom as well for the benefit of the people as of the Crown 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 Queen who were of a gallant and accomplisht deportment they had a Son a Prince of as great renown as ever Prince had and he also a Family suitable to his generosity that they had other Children every one like their Father both for War and Peace and that for the maintenance of all these the expences must be in reason larger than formerly they were wont to be Nevertheless 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 himself his Wife and Children then to the Families of himself 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 setling of the manner less considerable It must be levyed by Authority in writing under the Seal 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 immediately 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 carriage than is necessary And thus was this wild Ivy of Purveyance that like some kinds of Plants spreads over all by rooting up and cutting down brought into some kind of fashion that if it did no good it might do the less 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 own private interests nor so weak and irresolved as not to employ himself and his Souldiers to the utmost to bring to pass his pretentions nor so unhappy as to fail of the desirable issue of what he took in hand So as though the people parted with much money yet the Kingdom gained much honour and renown and becoming a terrour to their Neighbours enjoyed what they had in fuller security and so were no loosers by the bargain 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 the Taxes were frequent yet but light for frequent light Taxes steal insensibly without regret and as they grow into matters of course so they meet with acceptance of course Two things made them of light account First they were not Taxes altogether of Money in kind but of Goods such as the Sheaf and Fleece and such-like things whereof the ownership is visible whereas many are supposed to have Money which have it not but must borrow it or sell their goods at an under-rate many times to accomplish it for the payment of their Taxes Secondly these Taxes are assessed by the Neighbourhood and not upon extremity of Survey by Commissioners who many times are subject to miscarry upon grounds of private Interest or for want of due information or by making more haste than good speed These Taxes likewise were reduced to the ancient rule according to the Statute of Westminster the first And thus did this King shew himself truly Royal in demanding his Taxes upon evident grounds of State levying them with a tender hand and employing them to their right end Thirdly that which digested all and bred good bloud was in that the people had quid pro quo by the advance of Trade wherein the King shewed himself the Cape-Merchant of the world Certainly mens parts in these times were of vast reach that could manage such Wars settle such a Government and lay such a foundation of a Treasury by Trade a thing necessary to this Island next unto its own being as may appear not only in regard of the Riches of this Nation but in regard of the Strength thereof and in regard of the maintenance of the Crown the two latter of which being no other than a natural effluence of the former it will be sufficient to touch the same in order to the thing in hand Now as touching that it is evident that the riches of any Nation are supported by the Conjuncture of three regards First That the natural Commodities of the Nation may be improved Secondly That the poorer sort of people be set a work Thirdly That the value of money be rightly balanced For as on the one part though the people be never so laborious if the natural Commodities of the Island be not improved by their labour the people can never grow much richer than barely for subsistence during their labour so neither can the improvement of the natural Commodity inrich the Kingdom so long as many mouths are fed upon the main stock and waste the same by idleness and prodigality Nor though both these should concur yet cannot the Kingdom be said truely to be rich unless by intercourse and Traffick there be an emptying out of the superfluity of such Commodities by way of Barter or otherwise for such Forein Commodities whereof this Nation slandeth in most need for supply of all occasions For God hath so attempered the whole Regiment of the earth in such manner that no one Nation under Heaven can well and comfortably subsist in and by it self but all must give and receive mutual Commodity from each other otherwise superfluity would make any Commodity though in it self never so precious vile and little conducible to the inriching of the Nation Now for the compassing of all these the Wise men of these times first took into their consideration the principal Commodities of this Kingdom and because they found them impounded in the Staple they set all at liberty to buy and sell the same as they pleased And thus began a Free Trade of Wool throughout the Realm and matter for employment by every man that would but this continued not long The people soon had Commodity enough for work and Kings liked too well of the restraining of that liberty in order to their own benefit and soon found out occasions to reconcile the reason of State with their own Interests and
to the Customs or Laws of the place yea contrary to them which I believe the Reporter never intended to affirm Thirdly The Reporter salleth upon the matter in fact and tells us that the King of England did many times De facto grant Protections to persons in places out of the English Consines and it will not be denied But never was any absolute and indefinite Protection so granted for the Protection extends to defence from injury and all injury is to be expounded and judged according to the Laws of the place Nor do any of the Precedents vouched by the Reporter clear that the King of England did grant as King of England Protection to any Englishman in any parts of the King's Dominion beyond the Seas which was not qualified according to the Laws and Customs of that place Especially it being apparent that an English King may hold Dominion in Foreign parts in Legiance under a Foreign King as Edward the Third held the Dutchy of Guien and therefore cannot grant absolute Protection in such place nor receive absolute Legiance from any person there being Fourthly The Reporter saith That the King of England hath power to command his Subjects of England to go with him in his Wars as well without the Realm of England as within the same therefore the Legiance of an Englishman to his King is indefinite and not local or circumscribed by place or within the Kingdom of England Although the first of thâ—se be granted yet will not the inference hold for possibly this may arise from the constitution of a positive Law and not from natural or absolute Legiance nor doth any Authority by him cited justifie any such Legiance But I cannot agree the first for it is not true that the King hath any such power from his own personal interest nor doth the authority of former Ages warrant any such matter For a fuller disquisition whereof I shall refer the Reader to the Eleventh Chapter ensuing because the whole matter concerning the Militia cometh there to be handled in course Fifthly To close up all the rest the Reporter brings The Testimony of the Judges of the Common Law out of the Testimony of Hengham wherein an Action was brought by a French woman against an English man who refused to answer because the Plaintiff was a French woman and not of the Legiance or Faith of England This was disallowed by the Judges because Legiance and Faith was referred to England and not to the King. Thereupon the Defendant averred that the Plaintiff is not of the Legiance of England nor of the Faith of the King And upon this Plea thus amended the Plaintiff gave over her Action The Reporter from hence observeth that Faith and Legiance is referred to the King indefinitely and generally and therefore it is so due to him The reason might have had more force had the Object of Allegiance or the nature thereof been the point in question but neither of them coming to debate and Allegiance being subjected to England and Faith to the King I see not what more can be concluded from hence but that Allegiance 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 in the Case Nevertheless I rather think 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 King 's Natural Capacity and not to his Politick 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 Natural Capacity therefore the Subjects swear to him in his Natural Capacity This reason was intended to be taken from Relatives and then it should have been thus A King doth swear to his Subjects in their Natural Capacity therefore Subjects swear to a King in his Natural 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 Natural Capacity yet not Terminativè more than the Oath of the Tenant to his Lord which this Author pleaseth to couple with the mutual dependence between King and Subject fol. 4. b. 5. a. Nor doth the Oath of an Englishman bind him to the Obedience of all or any Commands which the King shall give in relation onely to his Natural Capacity or in opposition to his Politick Capacity Nor will the Reporter himself allow that the Politick Capacity of the King can be separate from his Natural Capacity fol. 10. And yet it is evident that a King may in his Natural Capacity command that of which his Politick 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 Natural 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 Natural 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 Natural Person of a King as he is King neither is there any other difference between the murther of a King and a private Man but only in regard to the Place and Office of a King which makes the murther of him Treason For which cause all Indictments that do conclude Contra Legiantiae debitum do as well also conclude Contra Coronam Dignitatem c. The third reason is this A body politick can neither make nor take Homage 33. H. 8. Bro. tit Fealty Therefore cannot the King in his Politick Capacity take Legiance The first must be granted only sub modo for though it cannot take Homage immediately yet by the means of the Natural Capacity it may take such service And therefore that Rule holds only where the Body Politick is not aggregate and not one Person in several Capacities for the Tenant that performs his service to his Lord performs the same to his Lord in his Natural Capacity but it is in relation to his Politick 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 King 's Natural Person hath right in the Crown by Inheritance therefore also in the
This reducing of Treason into a narrower ground made the Regiment of Felonies to swell A hard thing it was in a Warring time for men to conceit themselves well drest until they were compleatly armed Some used it for a Complement and amongst others honest men had as good cause to use it as some that were ill-affected had a bad and of the last sort some did aim at private revenge though many aimed against the publick quiet But however the intentions of men thus harnassed might be different the looks of them all are so sour that it is hard to know a man for Peace from a man for War. And therefore the people were now so greedy after Peace as they are ready to magnifie or multiply all postures of arm'd men into the worst fashion being well assur'd that the readiest way to keep themselves from the hurt of such men is to have none of them at all But Edward the Third had more need of them than so and will therefore allow men to ride armed but not to Troop together to rob kill or imprison any man and if any person did otherwise it should be Felony or Trespass but not High Treason All this was in favour to the people and yet it was not all for when Mercy groweth profuse it becomes Cruelty Murther is very incident to times of War yet is an Enemy to the Peace of so high a nature that though the King's Pardon may do much yet both King and People declare it an impardonable crime by the Common Law and that the King's Prerogative shall not extend so far as to pardon the same This Justice done to the party dead was a mercy to them that were alive a means to save bloud by bloudshed and not so much by the King's Grant as by his Release One thing more in these cases of bloud the people obtained of the King which they had not so much by Release as by Grant and that was the taking away of Englishire an ancient Badge of the Imperial power of the Danes over the Saxons and which had either continued through the desidiousness of the Saxons in the times of Edward the Confessor unto the Normans time or by them taken up again and continued until these times that Edward the Third was so far desirous to declare his readiness to maintain the Liberties of the people as to be willing to restore them where they failed and in particular took away the manner of presentment of Englishire blotting out the Title and Clause concerning it out of the Articles of Inquiry for the Judges Itinerant And thus whether Native or Foreiner all men are now made in death equal and one Law serves all alike Next unto bloud these times grew more sensible of Ravishments than former times had done For though they had determined a severe penalty against so foul a crime and made it in the nature of a Felony capital which was enough to have scared any man from such attempts yet for the proof of the matter in Fact much rested upon the will of the Woman which for the most part grounded upon self-respects and private prudence laboured to conceal that which could not be made whole by revealing and by after-consent skin'd over the sore as to themselves which corrupted inwardly and endangered the whole Body To cure which a Law is made to restrain such late connivance in the Woman by depriving her both of her Joynture and Inheritance which otherwise had been saved to her by such compliance as after-consent unto such violations CHAP. X. Of the Course of Civil 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 Calm and full Channel as the Reports in Print do sufficiently witness nor was there 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 publick Policy the one touching the course of Inheritance in some particular cases the other touching pleading in the Courts of Civil Justice The first of these was occasioned from Conjuncture of Affairs the case being such that Edward the Third had now gotten himself a new Kingdom unto that of England and must look to maintain that by power which he obtained by force and conducing thereunto must have continual employment of the English in that Service as being most trusty to his Cause And that it is unreasonable 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 foreign parts should thereby lose the benefit of Lieges in the Birth-right of their Children born in those foreign parts Upon consideration had thereof and of a former leading Opinion of the Lawyers Parliament a Declarative Law was made That all Children born 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 do 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 reveal it and the substance thereof resteth onely in this To enable the Children of English Natives born beyond the Seas not the Children of those that are of foreign birth though within the Kings Territories in those parts as the Opinion hath been Nor doth any ancient Precedent 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 whenas the Commons would have had a general Naturalizing of all Infants born beyond the Sea within the Kings Segniories the same would not be granted otherwise than according to the former Statute and the Common Law. That which in the next place concerneth the manner of Expression is this That a Child is said to be born 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 born within the Kings Territories beyond the Seas because the words ensuing 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 Territories 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 Territory The other matter to be observed concerning pleading in the Courts of Civil 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 believe rather supposed than felt For though some kind of knowledge of Law-terms may be encreased thereby yet unless that shall be professedly studied it will breed nothing but Notions and they an over-weening conceit which many times sets men to Suits in Law to their own loss like some weak influence of the Celestial Bodies that are strong enough to stir up humours but not to expel 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 Gilgal CHAP. XI Of the Militia in these times WAR is ever terrible but if just and well governed Majestical the one may excite resistance and defence but the other conquers before blow given because it convinceth the Judgment and so prevails upon the Conscience For that heart can never be resolute in its own defence that is at War with its own understanding nor can such a heart consider such a War otherwise than as Divine and bearing the face of an Ordinance of God and then how can the Issue be unsuccessful It is no strange thing for Kings to miscarry in their Wars because it is rarely seen that they are under good Counsel but if a Christian Counsel miscarry we may conclude it extraordinary in the efficient cause and no less 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 fundamental Laws of War against time of War as of Peace in time of Peace Neither was England deficient herein saving that antient times were more obscure in the particulars and these days 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 nevertheless received the same submitting both it and himself to the Directory of the Parliament in making a War with France which was three to one against him in very respect but in the Title besides the disadvantage from Scotland that lay continually beating upon his Rear The like may be observed of his War with Scotland in both which he evidently telleth the World that he held it unreasonable to enter upon the managing of an offensive Foreign War without the concurrence of the common consent of the People and that not onely for the thing it self but also for his own Personal Engagement in the Service For a King though he be the Generalissimo yet is he so from the People and his Person being of that high value is not to be exposed to every occasion that may provoke War without due advice first had with the publick Council because in his Person the People adventureth as well as himself And in this manner were the Wars in France by Edward the Third and in Scotland concluded upon debate In the next place as touching the Arrays of Men for War I find no foot-steps of any power which was claimed as peculiar to the King therein and acknowledged by the Parliament but many instances do I meet with in the opposite all which do plainly tell us that the old shifts of Jurati and Obligati ad arma could do little either in the calling of men forth or arming them for the War. But in case of publick defence against Foreigners men were summoned upon their Legiance as anciently was used And this was by both King and Parliament fully declared and all such Obligations by writing called in and damned as dishonourable to the King. In foreign service the course was no less regular if the War was by special direction of the Parliament they likewise ordered the manner of the raising of Souldiers viz. so many out of a County and so many out of a Burrough all which are by the express words of the Statute said to be granted by the Knights and Burgesses But if it was onely upon the King 's particular instigation and not by order or consent of the Parliament the King in such case being Voluntier all the Souldiers were in like manner unless some particular Law or Tenure otherwise obliged them As touching the arming of Souldiers the Law was yet more certain and particular If the Souldiers were men of Estate they were armed according to the ancient rule asserted by the Statute at Winton or otherwise were especially assessed by the Parliament or by virtue of their Tenures The first of these is confirmed by Edward the Third in Parliament wherein he willeth that no man shall be urged to arm himself otherwise than he was wont in the times of his Ancestors Kings of England The two latter were likewise confirmed by another Law made in the same Kings time whereby it was ordained That no Man shall be constrained to find Men of Arms Hoblers nor Archers other than those which hold by such services if it be not by common consent and grant made in Parliament By Men of Arms meaning those which we now call Curiassieres or compleat armed by Hoblers meaning those now called light Horse-men The Archers served on Foot and were principally armed with Bows although they had also Swords or other such offensive portable Weapons The first of these concerneth onely the arming of a man 's own person the other the finding of Souldiers and arming of them and both together sufficient for the safeguard of the Rights and Liberties of the People invaded in those times by Commissions of Array and such other expressions of Prerogative Royal for as touching the arming of a man 's own person the Statute of 1 Edward 3. formerly mentioned is clear in the point And though the Statute of 25 Edward 3. doth not in the latter direct as touching the finding Arms for others as is urged in his Majesty's Answer to the Declaration of the Parliament concerning the Commission of Array July 4. 1642. yet is it therein granted that a compleat Souldier is within the Letter of the Statute and seeing the person of the Souldier is not in the power of any private person in such cases to command him to the service it seemeth clear to me that the Statute must intend the arming of him with compleat Arms and not the armed person of the man. The Souldiery thus arrayed they are in the next place to be called to their Rendezvouz the Knights by Summons sent to the Sheriff but the rest by Proclamation If the Knights appear
him a Pension to maintain that honour he asked the Lords consent thereto To the Clergie he was more than just if not indulgent led thereto by his Father's example as being wrapped up in the same Interest as I conceive rather than out of any liking of their ways now growing more bold upon Usurpation than in former times Or it may be that having prevailed in that work in France which to any rational man must needs appear above the power of the King and all the Realm of England he looked upon it as more than humane and himself as an instrument of Miracles And was stirred up in his Zeal to God according to his understanding in those dark times to give the Clergie scope and to pleasure them with their liberty of the Canon-Law that began now to thunder with Fire and Terrour in such manner that neither greatness nor multitude could withstand the dint as was evidenced in that Penance inflicted upon the Lord Strange and his Lady in case of Bloud-shed in Holy Ground and their hot pursuit of the Lord Cobham unto a death of a new nature for somewhat done which was sometimes called Treason and sometimes Heresie And thus became Henry the Fifth baptized in the Flames of the Lollards as his Father had sadly rendred up his spirit in the same I say in this he is to be looked upon as one misled for want of light rather than in opposition against the light For in his last Will wherein men are wont to be more serious and sincere amongst his private regards he forgets not to reflect upon Religion to this purpose We further bequeath saith he to the redundant Mercy of the Most Excellent Saviour the Faith Hope and Charity the Vertue Prosperity and Peace of the Kings our Successours and of our Kingdom of England that God for his goodness sake would protect visit and defend them from Divisiâ—â—s Dissentions and from all manner of decitfulness of Hereticks And thus the Piety Justice and Moderation of Henry the Fifth adorned and crowned the honour of his Courage and Greatness with that honourable Title of Prince of Priests And had he been blessed with a clearer light he might as well under God have obtained the Title of Prince of Princâ—s wanting nothing that might have rendred him a precedent of Fame But the time is now come that the Tide of England's Glory must turn and the sudden Conquest in France by Henry the Fifth not unlike the Macedonian Monarchy must disgorge it self of what it had hastily devoured but never could digest Three things concurred hereunto one dangerous the other two fatal to the flourishing condition of any Nation First The King is a Minor in the least degree that ever any Prince sate on English Throne He entred thereinto neither knowing what he did nor where he was and some say he sate therein in his Mothers Lap for his Life had been more in the Womb than abroad A sad presage of what followed for many men think that he was in a Lap all his days Nor are the chief men to be blamed herein for it is a certain Truth That it is much better that the Election of a King should be grounded upon a rule that is known though it be by descent of Inheritance than upon none at all For if a Child should succeed or a Lunatick yet where the Principle of Government resteth upon the Representative of the people there is the less cause of Complaint the Government being still the same both for Strength Wisdom and Uniformity though it may be the Nation not so active and brave For a Commonwealth 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 Protector of the King's person the other Protector of the Kingdom too many by one For let their persons be never so eminent for Abilities if they be not as eminent for Humility and Self-command their hearts will soon over-rule their heads into a Faction And therefore though the Earl of Warwick was a wise man and the Duke of Gloucester a wise man yet the Earl of Warwick with the Duke of Gloucester were not wise On the other side the Protectorship of the King's person being in the Duke of Exeter and that of the Realm in the Duke of Gloucester things succeeded passing well for they both had one publick aim and the Duke of Exeter could comply with the Spirit of the Duke of Gloucester who otherwise was not so pliant But after five years the Duke of Exeter dying and the Government of the King's person devolving to the Earl of Warwick who sided with the proud Cardinal of Winchester against the Duke of Gloucester and so not onely consumed the rest of the Kings Non-age in a restless disturbance of Affairs but also despoiled Henry the Sixth of the spirit of a King for the future and so the Kingdom of a King. For it was not the condition of Henry the Sixth to be endowed with a spirit of such height but might well have been led by Advice and needed not the Earl of Warwick's rugged Brow to over-look 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 King 's own Hand and Seal dated in the Eleventh year of the King's Reign and so under colour of curbing he killed that spirit in the King which otherwise doubtless had both spirit and pride enough to act himself above his due height and could not have been so long a Child 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 Gloucester was of such noble parts that they could hardly dilate in any work inferiour to the Government of a Kingdom Nevertheless to yield much to the Will of a diseased King in such cases is as ill a precedenâ— as the making of a King by Adoption And it had been better for the people to have adhered to the Duke of Gloucester alone than by joyning him with another bring into a precedent such a luxuriant Complement of State as a Protectorship of a Kingdom which is of such little use to a Commonwealth 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 Realm 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 Gloucester meet with better measure how wise soever he was and truly devoted to the good of the Realm For after four and twenty years Government so wisely and
so things were done according to his mind though he did them not And thus his Excellency seemed more eminent in finding and making instruments fitting to do his work than in doing his own work Nevertheless all this was but from hand to mouth no Fundamental Law is altered all this while If the Laws were made by Parliament the King made them not If the Judges turned the Law to the King's ear the Law was still the Crown though the King wore it But Henry the Eighth was no such man he had not this skill of undermining nor desired it he was tender of the least diminution of his Honour industrious in finding out the occasion and a most resolved man to remove it out of the way though it reached as high as the Triple Crown A man underneath many passions but above fear What need he care for pretences his Father loved Riches he Power When he came to traverse his ground he found quickly where the Church-men trespassed upon him and began with them resting upon the wisdom of his Father and the infallibility of the Pope Henry the Eighth had taken to Wife Katherine his Brothers Dowager and continued in that condition Eighteen years without wrinkle of Fame till the great Success of Charles the Fifth the Queens Brother against the Pope and French scared the King into a jealousie of his greatness and the Emperour 's failing in courtesie to Cardinal Wolsey the King 's Achates stirred the Cardinals spirit to revenge for the loss of his hopes in the Popedom For the Cardinal finding the King's mind to linger after another Bedfellow by whom he might have a Son he made the French Embassadour his Instrument to mind the King of his unlawful Marriage with the Queen and to mention unto him Margaret D' Alanson a Princess of France both in Bloud and Beauty The King liked the notion of Divorce but disliked the motion concerning the French Lady himself being prepossessed with a fair Object at home the Lady Anne Bullen then attending upon the Queen And thus being moved he entred into a scrutiny concerning the condition of his Marriage wherein he had been formerly touched both by the French and Spaniards themselves upon several motions made First Between Charles the Fifth and afterwards between the Dauphine and the Lady Mary afterwards Queen Hereat the Cardinal winked all the while till the infallibility of the Chair of Rome came upon the Stage then bestirring his Wits he lodged the Case upon Appeal thither as he hoped beyond all further Appeal and so held the King there fast till himself might accomplish his own ends But the Wheel once set a running would not stay The King espies the Cardinal in his way and bears him down Then finding the fallacy of the infallible Chair he hearkens after other Doctors follows their light and being loth to hear what he expected from Rome he stopped the way to all Importation of such Merchandize as might be any ways prejudicial to the Prerogative Royal with the penalty of the loss of Land or Liberty and Fine the two latter being formerly warranted by Law. The first served as a scare for though it were but by Proclamation men might justly fear that he who was so stout against the Pope would not stick to scourge his own Subjects out of his way in the time of his heat The King thus entred the Lists both against Pope and Cardinal now under Praemuniri whereof he died meets the English Clergie thus losing their Top-gallant standing up in the Reer against him and talking at large Nevertheless the King stops not his career puts them to the rout for maintaining the power Legatine They soon submit crave pardon give a sum of Money and perfume their Sacrifice with that sweet Incense of Supream 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 fair for he was not in a posture to contest but all would do no good The Queen had appealed to Rome the Pope by Wolsey's advice makes delays The Parliament espying the advantage at once took all Appeals to Rome away and established all Sentences made or to be made within this Land notwithstanding any Act from Rome and enjoyned the English Clergie to administer the several Acts of publick Worship notwithstanding any Inhibition or Excommunication from any Forein pretended Power The grounds upon the Preamble of the Law will appear 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 than the Recognizance of the Clergie two years before this Act did hold forth Yet this acknowledgement is not absolute but in opposition to Forein pretensions Secondly That the Clergie in England having power may in matters Spiritual determine all doubts without Forein 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 dis-joyned from the Laity in these affairs 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 Tythes Oblations and Obventions So as if they will challenge such power they must thank the Parliament for it and use the same accordingly as persons deputed thereunto and not in their own right or right of their places In all this the King's Supremacy is but obscurely asserted and rather by implication shewing what in reason may be holden than 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 years ensuing or thereabout the Law is made positive The King shall be taken and accepted the onely Supream Head on Earth of the Church of England and have power to visit correct repress redress reform restrain order and amend all such errours heresies abuses offences contempts and enormities as by any manner of Spiritual Authority or Jurisdiction ought or may lawfully be reformed Which in the Preamble is said to be made to confirm what the Clergie in their Convocation formerly had recognized The corpse of this Act is to secure the King's Title the King's Power and the King's Profit As touching the King's Title it is said 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 King's Profit it cannot
the people for the present must endure In deposito of the King and other persons that a kind of Interim might be composed and the Church for the present might enjoy a kind of twilight rather than lie under continual darkness and by waiting for the Sun-rising be in a better preparation thereunto For the words of the Statute are That all must be done without any partial respect or affection to the Papistical sort or any other Sect or Sects whatsoever Unto this Agreement both parties were inclined by divers regards For the Romanists though having the possession yet being doubtful of their strength to hold the same if it came to the push of the Pike in regard that the House of Commons wanted Faith as the Bishop of Rochester was pleased to say in the House of Lords and that liberty of Conscience was then a pleasing Theme as well as liberty of Estates to all the People These men might therefore trust the King with their interests having had long experience of his Principles and therefore as Supream Head they held him most meet to have the care of this matter for still this Title brings on the Van of all these Acts of Parliament On the other side that party that stood for Reformation though they began to put up head yet not assured of their own power and being so exceedingly oppressed with the six Articles as they could not expect a worse condition but in probability might find a better they therefore also cast themselves upon the King who had already been baited by the German Princes and Divines and the outcries of his own People and possibly might entertain some prejudice at length at that manner of Worship that had its original from that Arch-enemy of his Head-ship of the Church of England Nor did the issue fall out altogether unsuitable to these expectations For the King did somewhat to unsettle what was already done and abated in some measure the flame and heat of the Statute although nothing was established in the opposite thereto but the whole rested much upon the disposition of a King subject to change As touching the constitution of this Law that also shews that this was not derived from the ancient Right of the Crown now restored but by the positive concession of the People in their representative in regard it is not absolute but qualified and limited diversly First This power is given to this King not to his Successors for they are left out of the Act so as they trusted not the King but Henry the Eighth and what they did was for his own sake Secondly They trusted the King but he must be advised by Counsel of men of skill Thirdly They must not respect any Sect or those of the Papistical sort Fourthly All must be according to Gods Word and Christs Gospel And Lastly Nothing must be done contrary to the Laws and Statutes of this Realm And thus though they trusted much yet not all nor over-long For it was but a temporary Law and during the present condition of affairs Nor did the King or People rest upon this Law for within three years following another Law is made to confirm what was then already done by the King and a larger power granted to the King to change and alter as to his Wisdom shall seem convenient Thus the Kings Injunctions already set forth were established all opposal to them inhibited and the King hath a power of Lawing and Unlawing in Christ's Kingdom and to stab an Act of Parliament in matters of highest concernment And the reason is the King will have it so and who dares gainsay it as Cranmer said The King loves his Queen well but his own opinion better For new things meeting with new love if it be once interrupted in the first heat turns into a displeasure as hot as the first love Nor had either party great cause to boast in their gainings for none of them all had any security but such as kept close to a good Conscience All this though much more than any of his Predecessors ever attained was nevertheless not enough till his Title was as compleat The Pope had fashioned him one now above twenty years old for his service done against Luther and others of that way and sent it to him as a Trophee of the Victory this was Defender of the Faith which the King then took kindly but laid it up till he thought he had deserved it better and therefore now he presents it to the Parliament who by a Statute annexed it to the Crown of England for ever now made triple by the Royalizing of that of Ireland amongst the rest A third Prerogative concerned the Kings power in temporal matters And now must England look to it self for never had English King the like advantage over his People as this man had His Title out-faced all question left rich by his Father trained up in the highest way of Prerogative absolute Lord of the English Clergy and of their Interest in the People of a vast spirit able to match both the Emperour and French abroad and yet more busie at home than all his Predecessors A King that feared nothing but the falling of the Heavens the People contrarily weary of Civil Wars enamoured with the first tastes of Peace and Pleasures whiles as yet it was but in the blushing child-hood over-awed by a strange Giant a King with a Pope in his belly having the Temporal Sword in his hand the Spiritual Sword at his command Of a merciless savage nature but a word and a blow without regard even of his bosome-Companions What can then the naked relation of a Subject do with such an one if Providence steps not in and stops not the Lions mouth all will be soon swallowed up into the hungry maw of Prerogative To set all on work comes Steven Gardiner from his Embassage to the Emperour sad apprehensions are scattered that the motions abroad are exceeding violent and sudden that the Emperour and French King are fast in nothing but in change according to occasion that like the Eagle they make many points before they stoop to the Prey that if the motions at home do wait upon debates of Parliament things must needs come short in execution and the affairs of this Nation extreamly suffer A dangerous thing it is that the King should be at disadvantage either with the Emperour or French King for want of power in these cases of sudden exigencies and for some small time during the juncture of these important affairs that seeing likewise at home the point concerning Religion is coming to the Test the minds of men are at a gaze their Affections and Passions are on their Tiptoes It is reason the King should steer with a shorter Rudder that this care might meet with every turn of Providence which otherwise might suddenly blow up the Peace and good Government of this Nation These and the like represented a fair face to that
the Legislative power in point of Doctrine which doubtless issueth from the same principle of Power with the former For if the Church which as a pillar and ground holdeth for the Truth be the company of professing Believers then ought it not to seem strange if these in their representative do intermiddle with this Power or rather duty And for the matter in fact neither did the King challenge this Power nor did the Parliament make any difficulty of Conscience in executing the same and yet there were many Learned and Conscientious men of that number They therefore as touching the Doctrine proceed in the same way with that formerly mentioned concerning the Discipline And a Committee also is by them made of the King and Learned men to set down rules for Faith and Obedience and for the order of the publick Worship of God according to the Word of God. And these rules are confirmed by a Statute so as the King hath a power in the point of Doctrine but it is a derivative power it is a limited power to himself and not to his Successors and to himself and others joyned with him And lastly nothing must be done contrary to the Laws of the Kingdom Secondly The Parliament hath not onely a right to grant and limit this power unto others but also to execute the same immediately by its self And therefore before they granted this power to this Committee whereas formerly the Pope usurped the power to be the Omega to the resolves of all Councils the Parliament intercepted that to their own Jurisdiction in flat opposition to the infallibility of the Roman Chair so far as to disherize some Opinions which by the sentence of that infallible mouth had been marked with that black brand of Heresie And what they did before this Act of Delegation to the King and other Committees for this work they did afterwards as not concluding their own power by any thing that they had so done as may appear by their Censure of the Translation of the Bible made by Tindall By their establishing another Translation By their ordering and appointing what persons might read the same By their qualifying the fix Articles and the like The Parliament then hath a power which they may grant and yet grant nothing away they may limit this power in others as they will and yet not conclude themselves And the King by accepting this limited power must disclaim both the Original and absolute Right and cannot claim the same by right of Headship or Supremacie This was one great Windfal which the Parliament had from the ruines of Rome not by way of Usurpation but re-seizure For their possession was ancient and though they had been dispossest yet that possession was ever under a continual claim and so the right was saved A second that was no less fatal unto that See was the loss of all power over Ecclesiastical persons in this Kingdom For whereas the Popedom had doubly rooted it self in this Nation one way by the Regulars the other by the Seculars the Parliament by the dissolutions of Monasteries c. consumed one to ashes and by breaking the fealty between the other and the Pope parted the other root and the stock asunder and thence ensued the down fall of this tall Cedar in this Nation and Prelacie now left alone must fawn elsewhere or lie along a posture wherein that rank of men can never thrive Up again they peep and espying a King that loved to towre aloft they suddenly catch hold promising their help to maintain his flight and so are carried up and like a Cloud born between Heaven and Earth making the Commons beholding to them for the Kings Sunshine and the King for their interests in the people and for his superlative advancement above them all Now though the English Prelates may think their Orb 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 Conge d'eslire 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 judgement when they are thereto called Thirdly The Parliament had the disposing and ordering of all the Church-Revenues as the Laws concerning Monasteries Sanctuaries Mortuaries First fruits Tenths Annates and suchlike sufficiently manifesteth Fourthly The Parliament had the power of granting Licenses Dispensations and Faculties setting a Rule thereunto as in case of Non-residency and delegating the power to Committees whereof see more in the Chapter following concerning ordinary Jurisdiction Fifthly The Parliament reserved the Cognizance of all Appeals for final 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 Archbishop 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 Crown therein but made the Archbishop 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 Katherine and some other matters the same hand that gave that power took it away and gave it not to the King or Crown but to Delegates from the Parliament from time to time to be nominated by the King and may as well alter the same and settle the power elsewhere when they please And therefore after the Appeal of the Dowager thus determined and the Sentence definitive thus setled upon Delegates the Parliament nevertheless 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 Supreme Head of causes Ecclesiastical yet had he not the definitive sentence in Appeal 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 designs of some great men that sought their own ends and partly from the endeavours of these Kings that sought their own height and greatness above their peoples good hath been already related and the utmost issue had been truly stated viz. That the gains have come to the Kings persons and not to their Crown and that therein they have put their Seal 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 main interests that most nighly concerned him yet the chief gain came to the Parliament The
formerly hath been already manifested Thirdly As touching Matrimonial Causes their former power of making Laws concerning them and Testamentary Causes is now absolutely taken away onely concerning Matrimonial matters they had so much of the Judicatory power concerning the same put upon them as might well serve the Kings own turn and that was for determining the matter between himself and the Lady Katherine Dowager depending before the Archbishop Cranmer For the King supposed the Pope a Party and therefore meaned not that he should be his Judge And thus though the Clergie had acknowledged the King to be their Supream Head yet in this he was content to acknowledge their Supremacy above him to judge between himself and his Queen and in other matters concerning himself So as upon the whole matter the Convocation were gainers in some things in other things they were onely losers of that which was none of their own CHAP. XXX Of the power of the Clergie in their Ordinary Jurisdiction THose Spirits are truly degenerate that being sensible of miserie cannot stir up desires of Change although the way thereto lies open before them And this shews the nature of the Romish Yoke that it lay upon the Spirits of men did intoxicate and make them drunk with their condition Otherwise the Usurpations Oppressions Extortions and Incroachments of the Popedom upon the Bishops Sphere and the people under their charge could never have provoked such complainings amongst all sorts in several ages from time to time And now that Henry the Eighth undertakes to set them free so as they would acknowledge his Supremacy they all are struck dumb till a Praemuniri taught them to speak and so were scared into a better condition than they would have had and into a more absolute Estate of Jurisdiction than they received from their Predecessors The Pope had now usurped a power supra-ordinary over all Appeals gained the definitive Sentence to the Roman See and had holden this power by the space of four hundred years and the King finding the root of all the mischief to his Crown from abroad springing from that Principle meaned not to dispute the point with the Casuists but by one Statute took away all Appeals to Rome and determined Appeals from the Bishops Court in the Archbishops Court and the Appeals from the Archbishop's Commissarie in the Court of Audience So as though in the Kings own Case the Convocation had the last blow yet in matters concerning the Subjects the Archbishop was either more worthie or more willing with that trust For though the Convocation might have determined all as well as the Pope yet for dispatch sake of a multitude of Appeals now depending at Rome and to prevent long attendance on the Convocation that now had much to do in matters of more publick nature the utmost Appeal in such cases is made Provincial This whether priviledge or prejudice the Ecclesiastical Causes gained above the Civil whose definitive Sentences was reserved to the Parliament And thus is the Archbishop made Heir to the Pope in the greatest priviledge of a Pope to be chief Judge on Earth in matters Ecclesiastical within his own Province A trick that in my opinion much darkned the Glory of the Kings Title of Supream Head which the Church-men had formerly offered up to the honour of the Crown of this Realm For be it so that the Title is in the Crown by Remitter yet cannot the same carry along with it any more than a lawful power and whether all the Pope's former power allowed him by the Canon or gained by Usurpation and Custom shall be said a lawful power or whether the power of Review by Appeal shall be derived to the Crown under the general Notion of Supreamacy upon the Clergies submission is to me a doubt albeit I must give honour to the Judgement in Print in regard that after the submission of the Clergie the matter concerning the Divorce of the Lady Katherine Dowager came before the Pope by Appeal and there depended the King himself also waiting upon that See for Justice and a definitive Sentence in that matter and thereby acknowledged the Pope's power De facto Notwithstanding the Clergies foregoing submission and being occasioned by the delay at Rome he procured this Statute concerning Appeals to be made whereby at one breath he took the Appeals to Rome away and setled them as formerly hath been mentioned all which was done two years before the Title of Supremacy was annexed or declared for to be to the Crown by Act of Parliament And therefore as to me it appears the power of Supream Cognizance of Appeals was not in actual possession of the Crown by the Clergies submission so was it actually vested in the Archbishop before the Title of Supremacy was confirmed by Act of Parliament and so it never was in the Crown actually possessed much less had the Crown the same by Remitter For the King's turn once served by the Convocation and the matter of the Divorce of Queen Katherine setled the King perceiving the slow progress of the Convocation the Members of the same not being yet sufficiently tuned to the present Affairs And moderate Archbishop Cranmer likewise foreseeing that the Odium of these Definitive Sentences would be too great for him to bear another Appeal is provided more for the honour of the Crown to be from the Archbishop to Delegates to be appointed by the King his Heirs and Successors so as though their Nomination be the Kings yet their power is deduced immediately from the Parliament which took the same from the Archbishop and conferred it upon them A second advantage not inferiour hereto which the Archbishop gained out of the ruines of the Popedom was the power of Licenses and Dispensations or Faculties In the Pope it was a transcendent power without any rule but what was tuned to him by the Bird in his own breast and was the ground of much license or rather licentiousness in the world But in the Archbishop they seem to be regulated To be First in Causes not repugnant to the Law of God. Secondly such as are necessary for the Honour and Security of the King. Thirdly such as were formerly wont to be remedied at the See of Rome yet in truth left as much scope for the Conscience of the Archbishop to walk in as the Pope had in former times A large Teather and greater priviledge than ever the Crown had by which although the King himself be like Saul higher by the Head than all the people yet in many things Samuel is higher than he The moving cause hereof is not difficult to find out the King had but lately married the Lady Anne Bullen a thing that many startled at and the King himself not extreamly resolved in he would therefore have his way like that of the Zodiack broad enough for Planetary motion of any one that could not contain himself within the Ecliptick line of the Law and so
and instruct them that knew too little and so in time he should pass for currant amongst them all It was no hard matter for the King to accomplish this the greater part of the Kindom being pre-ingaged unto his Title and of them many depending upon him for livelihood if he failed they must look to lose all But the present occasion urged more importantly the Title to the Crown was already put to the question by the pretentions of one that named himself Duke of York And it is now high time for the Law to declare it self to direct the people in such a Case What shall the people do where Might overcomes Right or if days come like those of Henry the Sixth wherein the Subjects should be between Two Mill-stones of one King in Title and another King in possession for whom must they take up Arms If for Edward the Fourth then are they Traitors to Henry the Sixth If for Henry the Sixth then are they Traitors to Edward the Fourth And so now if for Henry the Seventh then they may be Traitors to the Duke of York If for the Duke of York then are they Traitors to Henry the Seventh For though the Duke of York was said to be but a contrivance of the House of Burgundy yet a great part both of the great men and others were of another opinion and the King himself was not very certain of his condition for the space of six years thereby This puts the Title of Allegiance and that power of the Militia to the touch at length both King and Parliament come to one conclusion consisting of three particulars First That the King for the time being whether by right or wrong ought to have the Subjects Allegiance like to that of the wise Counsellor of that brave King of Israel Whom the Lord and his People and all the men of Israel chuse his will I be And this is not onely declared by the express words in the Preface of the Law but also by the Kings own practice For he discharged such as aided him against Richard the Third then King by pardon by Parliament but such as aided him being King by declaration of the Law. Secondly That this Allegiance draweth therewith ingagement for the defence of that King and Kingdom Thirdly That the discharge of this Service whereto the Subjects are bound by Allegiance ought not to be imputed unto them as Treason Nor shall any person be impeached or attained therefore The first and the last of these need no dispute The Second is more worthy of consideration in the particular words set down in the Statute viz. That the Subjects are to serve their Prince in his Wars for the defence of him and the Land against every Rebellion Power and Might reared against him and with him to enter and abide in Service in Battle Wherein two things are to be considered the Service and the time or occasion The Service is to serve the Prince in his Wars and with him to enter and abide in service in Battel which is the less 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 therein set down is onely 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 Wars and willing to admit this Conclusion for the better security of them both in these doubtful 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 King's Person and Kingdom is endangered by Rebellion Power or Might reared against him So as the King's Person must be present in the War for the defence of the Kingdom or no man is bound by his Allegiance to hazard 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 King's 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 infer from hence that the King hath an universal power of Array when he pleases because the King when he pleases may not levy War nor make other War than a defensive War when the Land is endangered 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 tenderness 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 sence 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 expressions of this first Law concerning the occasion or time of this service nor did he see sufficient ground under the notion of bare Allegiance to desire more New ways 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 paid beforehand for his Patents either by Money or that which was as beneficial to him yet he was resolved that their holding should be no less advantageous to him than their having And therefore in plain 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 chuse they which and if they find 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 Soveraign Lord at all seasons when need shall require General words that affirm nothing in certainty yet do glance shrewdly upon an absolute and universal assistance Then coming to drive the Nail home it is said that the Patentees are bound to give their attendance upon his Royal Person to defend the same when he shall fortune to go in his person to Wars for the defence of the Realm or against his Rebels and Enemies And as another Statute addeth Within the same Realm or without and according to their Allegiance and not to depart without especial License or
until general Proclamation of dismission In short therefore here is a new Militia as touching the King's Patentees they must attend the King's Person whither ever the King will lead them either within the Realm 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 doubtful expressions as if it were not meet that Henry the Seventh that loved not to yoke himself to the Law should yoke his Laws under the Laws of plain Language Or rather that he held it a point of Policy to publish his Laws in a doubtful stile that such as durst question his Laws 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 breadth 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 whenas the first Statute cometh to the point it startles from the ground of Allegiance and flies to the ground of a kind of Equity or Reason And the second resorteth to the first as its proper ground as being a supplement thereunto in Cases forgotten and so omitted though it may be rather thought that the King creeping up into his height 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 Laws being limited both in regard of time and person In regard of time for both these Laws 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 into such Advancement by purchase for Money Neither are Judges and other Officers excepted persons in the said Statutes If therefore Allegiance had been the ground of these Laws it had equally bound all who are under the Bond and no Equity could have given a general Rule of discharge unto such condition of men It had likewise bound as well formerly and afterwards as during this King's Reign and therefore whatever semblance is made therein concerning Allegiance there had been 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 Laws do hold forth-nothing that is new but a mind that Henry the Seventh had to fill his Coffers though his mind would not so fill He would have Souldiers but they must be his Patentees not for any skill or valour in them above others but he hoped they would compound with him for Licenses to absent rather than to adventure themselves and so he might get the more Money that could find pay for Souldiers more and better than they were or would be For otherwise the Patentees might by the Statute have been allowed to serve the King by their Deputies which would have done the King better service in the Wars than themselves could have done And for this very purpose much use was made of these Statutes as well by Henry the Seventh as Henry the Eighth both for Licenses and Pardons for composition in such Cases as their Records do plentifully shew Secondly Let the Claim of Kings be what they will yet the matter in fact shews plainly that they never had possession of what they claimed Both these Kings pretended a Foreign War each of them once against one and the same Nation and to that end advanced to one place with their Armies although the one went in good earnest the other in jest Their Armies were not gathered by Prerogative but of Voluntiers This not onely the Records but also the Statutes do clearly set forth Some Souldiers served under Captains of their own choice and therefore the Law inflicteth a Penalty upon such Captains as bring not their number compleat according to their undertaking other Souldiers are levied by Commission by way of Imprest which in those days were Voluntiers also and expecting favour from the Publick the rather because they devoted themselves thereto without relation to any private Captain they willingly therefore received Imprest-money And of this course the State saw a necessity both for the better choice of men and for the more publick owning of the Work. For such as had been usually levied by the Captains were fit onely to fill up room and make up the number and yet many times there was a failing in that also and this manner of raising the Infantry was continued by Henry the Eighth as by the like Law in his time may appear As touching the levying of the Horse although divers Statutes were made for the maintenance of the breed of Horses and Persons of all degrees of ability were assessed at the finding and maintaining of a certain number of Horses yet do none of them tell us that they shall find and maintain them armed compleatly for the Wars nor shall send them forth upon their own charge and therefore I suppose they were raised as formerly These two Kings had the happiness to be admired the one for his shrewd cunning Head the other for a resolute and couragious Heart And it was no hard matter to find men that loved to ingratiate themselves and endeavour to catch their favour though with the adventure of their Lives especially if they looked after Honour and Glory which as a Crown they say pitched at the Goal of their Actions Thirdly Concerning the Pay of the Souldier the Law was the same as formerly the same was ascertained by the Statute-Law the payment was to be made by the Captain under peril of Imprisonment and forfeiture of Goods and Chattels and the true number of the Souldiers to be maintained and listed under the like peril Fourthly As touching the Souldiers service the same course also was taken as before if they desert their Colours they should be punished as Felons and the manner of trial to be at the Common-Law Fifthly For Fortifications the power properly belongeth to the Supreme Authority to give order therein For the People may not fortifie themselves otherwise than in their particular Houses which are reputed every man's Castle because publick Forts are Enemies to the publick Peace unless in case of publick danger concerning which private persons can make no determination And furthermore no Fortifications can be made and maintained without abridgement of the Common Liberty of the People either by impairing their Free-hold or exacting their
sense of that grand Title of Supremacy of Jurisdiction Power Superiority Pre-eminence and Authority than by the common Vogue hath been made The Title of Supremacy was first formed in the behalf of Henry the Eighth's Claim in matters Ecclesiastical which by the Statute is explained under these words of power To visit correct repress redress Offences and Enormities This Power and no other did Queen Elizabeth claim witness the words of the Statute in her own time But in the framing of the Oath of Supremacy in her time not onely in Causes Ecclesiastical but Temporal which never came within the Statutes and publick Acts in Henry the Seventh's time are inserted and if any thing more was intended it must come under the word Things which also was inserted in the said Oath and yet if the words of the Statute of Queen Elizabeth formerly mentioned be credited the word Things ought to comprehend no more than the word Causes and then the power of Queen Elizabeth in the Commonwealth will be comprehended in these words of Supremacy to visit correct repress redress Offences and Enormities for the Supremacy in the Church and Commonwealth is the same in Measure and what more than this I cannot understand out of any publick Act of this Nation Now in regard Offences and Enormities are properly against Laws the power to visit and correct must also be regulated according to Laws either of War or Peace Nor do these five words Jurisdiction Power Superiority Pre-eminence and Authority contain any more Supremacy or other sence for two of them speak onely the Rank or Degree of the Queen in Government viz. Superiority and Pre-eminence belongeth onely to her and not to any other Foreign Power And two other words do note her Right and Title thereto by Power and Authority committed to her And the other word denotes the thing wherein she hath Superiority and Power viz. in Jurisdiction the nature of which word Vlpian speaking of the nature of a mixt Government explaineth thus Quando servata dictione juris judiciorum fit animadversio So as this Supreme Authority in Jurisdiction is no other than Supreme Power to visit correct redress Offences or determine matters in doubt by deputing fit persons to that end and purpose according to the Law and this is all the Supremacy that appeareth to me belonging to the Crown in these times CHAP. XXXVI Of the Power of the Parliament during these times WHen the Throne is full of a King and he is as full of opinion of his own sufficiency and power a Parliament is looked upon as an old fashion out of fashion and serves for little other than for present shift when Kings have run themselves over Head and Ears A Condition that those of that high degree are extremely subject unto but where the Crown is too heavy for the wearer by reason of infirmity the Parliament is looked upon as the chief Supporters in the maintaining both the Honour and Power of that Authority that otherwise would fall under contempt A Work that must be done with a curious touch and a clear hand or they must look for the like Censure to that of a King to a great Lord that crowned him My Lord I like your work very well but you have left the print of your fingers upon my Crown Such was the condition of these times wherein a Child and two Women are the chief but ever under the correction and direction of the Common Council in matters of common concernment Two things declare the point the course of the Title of the Crown and the Order of the powers thereof The Title ever had a Law which was at the Helm although diversly expounded Kings ever loved the Rule of Inheritance and therefore usually strained their Pedegree hard to make both ends meet though in truth they were guilty oftentimes to themselves that they were not within the degrees The People ever loved the Title of Election and though ever they joyned it to the Royal bloud and many times to the right Heir to make the same pass more currant without interruption of the first love between them and their Princes yet more often had they Kings that could not boast much of their Birthright in their first entry into their Throne Of three and twenty Kings from the Saxons time four of the former had no Title by Inheritance the two Williams Henry the First and King Steven Two others viz. Henry the Second and Richard the first had right of Birth yet came in by Compact The Seventh which was King John had no Title but Election The Eighth viz. Henry the Third came in a Child and contrary to Compact between the Nobility and the French Lewis The Ninth and Tenth succeeded as by unquestionable Title of Descent yet the Nobles were pre-engaged The Eleventh which was Edward the Third in his entry eldest Son but not Heir for his Father was alive but his Successour was his Heir It is true there were other Children of Edward the Third alive that were more worthy of the Crown but they were too many to agree in any but a Child that might be ruled by themselves Three next of the ensuing Kings were of a collateral line Their two Successours viz. Edward the Fourth and Edward the Fifth were of the Line yet Edward the Fourth came in by disseisin and Edward the Fifth by permission Richard the Third and Henry the Sevâ—nth were collateral to one another and to the right Bloud Henry the Eighth though when he was King might claim from his Mother yet came in as Heir to his Father And if Edward the Sixth was right Heir to the House of York by his Grandmother yet cannot the Crown be said to descend upon the two Sisters neither as Heirs to him nor Henry the Eighth nor to one another so long as the Statute of their Illegitimation remained which as touching Queen Mary was till three months after her entry upon the Throne and as touching Queen Elizabeth for ever for that Virago provided for her self not by way of Repeal as her Sister had done but more tenderly regarding the Honour of her Father and the Parliament than to mention their blemishes in Government by doing and undoing She over-looked that Act of Henry the Eighth and the Notion of Inheritance and contented her self with her Title by the Statute made by her Father in his Thirty fifth year which to her was a meer purchase and was not ashamed to declare to all the world that she did have and hold thereby and that it was High Treason for any Subject to deny that the course of the Crown of England is to be ordered by Act of Parliament And this power did the Parliament exercise not onely in ordering the course of the Crown to Queen Mary and Queen Elizabeth but during the Reign of Queen Elizabeth so far as to disinherit and disable any person who should pretend Right to the Crown in opposition to the
But Queen Mary having gotten a safe reserve from Spain upon all adventures and a strong interest amongst the people by upholding the Catholick party made no bones to innovate in the point of arming of the Militia although it cost the people much more than was imposed upon their Ancestors The pattern hereof was taken from the Spanish Cabinet the Queen being loth to be inferiour to her own Husband in bringing as much strength to him as he to her and both of them willing enough to appear potent in the eyes of France that then stood in competition with them both A yoke it was yet neither the King nor Queens Will but the Parliament put it on and ere an Age expired it was cast off again For the better understanding see it in this Scheme Per Annum Lances Light-horse Corslets Bows Hacquebuts Bills 1000 l. 6 10 40 30 20 20 1000 marks 4 6 30 20 10 10 400 l. 2 4 20 15 6  200 l. 1 2 10 8 3  100 l.  2 3 3 2  100 marks  1 2 2 1  40 l.   2 1 2  20 l.   1 1 1  10 l.   A Coat of Plate 1 1  5 l.   A Coat of Plate 1   Goods 1000 marks 1 1 2 4 3  400 l.  1 1 2 1  200 l.   1 2 1  100 l.   1 2   40 l.   2 Coats of Plate 1  1 20 l.   1 Coat of Plate 2  1 10 l.    1 1 The Lances were to be compleatly harnessed or the one half of them The Corcelets furnished with Coats of Mail and Pikes the Bows with and Iron Cap and a Sheaf of Arrows the Hacquebuts with Sallets All which was to be over and besides such Arms as men were bound unto by Tenure or Covenant with the Landlord or by vertue of the Statute 33. H. 8. c. 5. besides Townships which were charged with joynt-arms Annuities and Copy-holds were charged as Goods If the Arms were lost in the Service the owner must make them good again The defaults were punishable with Fine by the Justices of the Peace who had the view and might present them at the Sessions to be proceeded upon as in other cases Here is provision enough yet not as the Arms of the Militia of the Kingdom but as a Magazine in the hands of every particular man and as his proper Goods to be imployed for the publick Service either upon suddain Invasion in a defensive War or when the Parliament shall send them abroad And yet it is also a rule unto the Crown against arbitrary Assessments upon discretion from which it cannot recede if it mean to do right It might now very well stand with the Justice of Queen Elizabeth to grant Commissions of Array Secundum formam Statutorum and do hurt to no man. It is true her Commissions of Lord Lieutenancy wanted that limitation in words yet they carried the sense For if the Crown were bound by the Law the Lord Lieutenants 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 And thus came the Scotish blood to have pretensions to a greater Prerogative than all their Predecessors had upon this supposal that the Statute of Queen Mary took away all former Laws of that kind and then the taking away of the Statute of Queen 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 general rule for Arms in all places of this Nation for the Marches of Scotland were a peculiar Jurisdiction as to this point They stood in more constant need of Arms than any other part of this Nation in regard of their uncertain condition in relation to their neighbouring Jurisdiction and therefore were the Farms of these parts generally contracted for upon a special reservation of Arms for each particular which being now decayed 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 general 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 means of Peace and present Safety yet they are Symptoms of War 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 fear the Neighbourhood This was more especially regarded in the days of Philip 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 Realm onely by the natural born of the same And afterwards when occasion was offered for the building of more of that nature a new power is given to King Philip and Queen Mary to re-edifie or make Forts and Castles which must be executed by Commission to the Lieges for ten years and onely within the Counties bordering upon Scotland and these particularly named in the Statute So as the Crown had not power to build in all cases 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 engaged in Foreign 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 not faithful to the Publick Interest although they gave no cause of seizure 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