Right of Queen Elizabeth And upon this point onely did the whole proceedings against Mary Queen of Scots depend who claimed to be and doubtless was Heir unto Henry the Eighth after the determination of his Right Line and yet she was put to death for pretending Right by the Common Law in opposition to the Act of Parliament True it is that this Doctrine doth not down well with those that do pretend to Prerogative aided as they say by the Act of Recognition made to King James and the Oaths of Supremacy and Allegiance which do make much parly concerning Inheritance and Heirs Nevertheless it is as true that the Act of Recognition made no Law for the future nor doth the same cross the Statute of 13 Eliz. Nor doth it take away the power of the Parliament from over-ruling the course of the Common Law for after-Ages Nor do the Oaths of Supremacy and Allegiance hold forth any such Obligation unto Heirs otherwise than as supposing them to be Successors and in that relation onely And therefore was no such Allegiance due to Edward the Sixth Queen Mary or Queen Elizabeth until they were actually possessed of the Crown as may appear by the Oath formed by the Statute of Henry the Eighth touching their Succession Nor did the Law suppose any Treason could be acted against the Heirs of Edward the Sixth Queen Mary or Queen Elizabeth until those Heirs were actually possessed of the Crown and so were Kings and Queens as by express words in the several Statutes do appear Nor did the Recognition by the Parliament made to Queen Elizabeth declare any engagement of the People to assist and defend her and the Heirs of her Body otherwise than with this Limitation Being Kings and Queens of this Realm as by the Statute in that behalf made doth appear And lastly had those Oaths been otherwise understood the Crown had by the virtue of them been pre-engaged so as it could never have descended to Queen Mary Queen Elizabeth or King James but must have remained to the Heirs of Edward the Sixth for ever Secondly the same power that the Parliament exercised in ordering the course of Succession in the Crown they exercised likewise in determining and distributing the Powers and Priviledges belonging to the same for these times were full of Novelties The Crown had formerly sitted a Childs head more than once but it never tried to fit a Womans head since the Saxons times till now that it must make trial of two France might afford us a trick of the Salique Law if it might find acceptance And the unsetled state of the People especially in matter of Religion might require the wisest man living to sit at the Helm and yet himself not sufficient to steer a right course to the Harbour Nevertheless the Parliament having the Statute of Henry the Eighth to lead the way chose rather to pursue a Rule than to make one and soon determined the point viz. That the Crown of England with all the Priviledges thereof equally belong to a Woman in possession as to a Man or Child A bold Adventure I say it was but that Henry the Eighth was a bold Leader and yet the bolder it was if the consequence be considered For Queen Mary as a Woman brought in one new Precedent but in her Marriage a worse for she aimed not onely at a Foreign Bloud but at a Prince in Power and Majesty exceeding her own and thereby seeking advancement both to her self and her Realm endangered both The matter was long in debate between the Spanish and English and now had busied their Wits about ten years at length a Supremacy is formed suitable to the Lord and Husband of Queen Mary that could not be content to be one inch lower than her self Philip had the name of a King and Precedency and in many cases not without the Allegiance of the English. Their offences against his person equally Treason with those against the Queens own person and Indictments run Contra pacem Coronam D. Regis Reginae That in some cases he participated in the Regal Power may appear in that by the Articles he was to aid the Queen in the Administration of the Kingdom he joyned with the Queen in the Royal Assent and in Commission Letters patents and in Writs of Summons of Parliament as well as others yet in the words the Crown is reserved onely to the Queen and she must Reign as sole Queen Now if the King had broken this Agreement either the Parliament must over-rule the whole or all that is done must be undone and England must bear the burthen A Queen Regent is doubtless a dangerous condition for England above that of an Infant-King unless she be married onely to her people This was observed by Queen Elizabeth who therefore kept her self unmarried nor did the people otherwise desire her Marriage than in relation to Posterity Few of them liking any one of their own Nation so well as to prefer him so highly above themselves and fewer any Foreigner This was soon espied by Foreign Princes and the Queen her self perceiving that she was like to receive prejudice hereby in her interest amongst them signified by her Embassadors that she never meaned to stoop so low as to match with any of her Subjects but intended to make her choice of some Foreign Prince who neither by Power or Riches should be able to prejudice the interest of any of her Neighbouring Princes A pretty Complement this was to gain expectation from those abroad and better correspondency thereunto Upon this ground divers Princes conceived hopes of more interest than by trial they could find And the Arch-Duke of Austria began a Treaty which seemingly was entertained by her but her Proposals were such as silenced all those of the Austrian Interest for ever after viz. 1. That the Romish Religion should never be admitted into England 2. That no man that she married should ever wear the Title of King. 3. That no Foreigner should ever intermeddle in the Rule and Government of the Church or Commonwealth nor in the Ministry of the Church 4. That if he survived the Queen he should never challenge any Title or Interest in the Government or any Possession in England 5. She would never marry any one that she might not first see So as either she aimed at some inferiour Prince that durst not look so high or else she did but make semblance till she was nigh Forty years old and in all declared that she liked not her Sister Maries choice To these two Powers of Determining and Distributing I shall adde a third of Deputing which the Parliament exercised as formerly it had done Henry the Eighth had in Ecclesiastical matters exercised a power beyond the Law and yet by Parliament had provided positive Laws by which the same ought to have been ordered these were also confirmed in Edward the Sixth's time with some Additionals By
set this consideration aside as not co-incident at all with the Norman engagements after they were crowned and to take all the subsequent Wars to be meerly defensive of the right of the Crown as in sober construction they will appear to be as touching the levying of money 't is evident that it lay onely in the power of the grand Council of the Kingdom for otherwise the Laws were setled that no Tax should be made or taken but such as were due in the Confessor's time as formerly hath been shewed Secondly for the preparing of men and munition it was done either by Tenure or by special Law. As touching Tenure it was provided by way of contract that those that held by Knight-service should be ready with their Arms to assist the King for the defence of the Realm So as they were not bound by their Tenure to aid him in any other cases Others were also by especial Law of the Land bound to be ready for their service in that kind For all the Inhabitants of this Kingdom held their Estates under a general service which by common right they are bound to perform viz. in time of danger to joyn in defence of their Country This is the common Fealty or Allegiance which all men owe and which if neglected or refused renders the party guilty of Treason against his Country and his Estate under the penalty of forfeiture according to the old Saxon Law revived and declared by Henry the first Thus the Law made preparation for the War both of Men and Arms. Castles and Forts were likewise either first made by the order of the grand Council or otherwise allowed by them for the defence of the Commons and the Kingdom so was the Law of William the first The levying and managing of the War must not be denied de jure to belong to the representative body so far as may consist with the directory part for that it is a main part of the Government of the Kingdom in times of War And therefore Henry the first amongst his Laws made in the ordinary course of Law-making provideth for the ordering of men in the Army in the field and established a Law that such as forsook their Colours or Associates in the field during the Battle should be punished with death and forfeiture of his whole Estate Nor yet can it be denied but that de facto Kings of their own accord and by secret Council did direct therein either in the vacancy of Parliament which was the general case of the first times of the Norman Conquerour and the whole Reign of William Rufus or by connivance of the grand Council while they saw nothing done but what was well done Nor can it be rationally said that Kings by such advice as they have in the recess of the grand Council levying War in defence of the publick according to rules do otherwise than their duty or if the grand Council look on see nothing misgoverned and say nothing that they do other than is meet For it must be remembred that Kings in their first original were rather Officers for War than Peace and so are holden by all Antiquity and as Generals in War were called Reges or Imperatores by the Grecians Romans and Germans And at such times as War was concluded at the general meeting of the people they chose their Dux or Rex call him which you please and he being chosen all bound themselves to be at his command and to defend his person So as while a King keepeth within his place in time of danger it is his duty first to stir himself and stir up the rest to lead them and order them as may be most for the publick defence and to govern the Army by such Laws as are or shall be established by order of the publick Meeting and in case of sudden exigencies to use his own wits and in all this is the common liberty no whit infringed in regard that all is for the publick defence to which the Knights are bound by their Tenures and all others by the Law. And this was this Kingdoms case in the Normans time that both Leaders and Souldiers whether by election of the people or prescription yet all served for the defence of the Kingdom Nor were they compellable to any other service inconsistent therewith nor to stand to any judgement in such cases differing from or contrary to that of the Parliament it self CHAP. LV. That the entry of the Normans into this Island could not be by Conquest THat in point of fact the entry of the Normans into England was not by Conquest will sufficiently appear from what hath been already noted I shall make one step further and shew that as affairs then stood with the Conquerour it was impossible for him to merit that name against the stream of Providence that had pre-engaged him to three sorts of men viz. the Normans the Clergie and the Commons of England It must be taken for a ground that Duke William must give all fair correspondency to the Normans considering they are Members of his own Body and the Arm of his Strength without which he could do nothing And it is not less certain that however the Sea divided the two Countries yet long before the arrival of the Army the Normans and Saxons were so well acquainted by the latter access of the Danes that partly by marriage and other interests the Normans made so great a party in England as that party merited no less from the Duke in his entrance than those he brought with him And therefore both they and their Allies in all reason must expect such reward of their faithfulness to him as the other had nor could the Duke deny the same unless he had disclaimed his own interests whereof he had none to spare Secondly their merit from the Duke was accompanied with no less mutual relation to his Army being of the same blood with themselves and of ancient acquaintance and as impossible it was for the Duke to keep them from consociation with the mixed people as to abstract the mixed people each from other one or both of which must be done and the Conquerours must be kept from incorporating with the conquered or else the Law of Conquest cannot hold Thirdly if these two had failed yet had the Duke by his manner of rewarding his Army disabled himself from holding however he might seem to have by conquest Thus was his gift of Mannors Lands and Franchises unto his Souldiers compleated with their ancient Rights and Priviledges in free service otherwise it had been little better than a Trap to bring his own men into bondage who lately were free Souldiers under no better than a Duke of their own election And their Government in their own Country however big yet had not brought forth a Soveraignty into the World their Duke no compleat King nor themselves so mean as Vassals and it was equally difficult for him to get
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
his game in that Country another plays King by your leave in this and steps into the Throne teaching the King thereby this Lesson though too late That Non-residency is dangerous for a Priest but unto a Prince fatal unless his Subjects be fast to him when he is loose to them CHAP. XIII A View of the Summary Courses of Henry the Fourth Henry the Fifth and Henry the Sixth in their several Reigns HE that played this prank was the banished Duke of Hertford Son of John of Gaunt and by his death now become Duke of Lancaster by Title and as the Times then were it proved not hard to get more For in uncertain Commonwealths it is an easie thing for a man of opinion that hath less than his due to get more than he ought As Son of John of Gaunt this Duke had the peoples good wishes he a wise and a brave man and under oppression gained the more upon the people by how much they love brave men and compassionate such as suffer wrong especially from such persons from whom they all found the like measure All these concurring with the King's absence invited the Duke to adventure himself upon the influence of the peoples favour to gain his own right and what more the people would allow him and if no more yet his Honour is saved he came for his own and attained his end Thus then he comes over without Army or Foreign Power or other help saving the advice and interest of Archbishop Arundel who was his Companion in suffering Partner in the Cause and no less welcome to the Clergie than the Duke himself was to the people and so gained power to the Duke though he brought none Upon their arrival the Aspects of all are benign the Dukedom waits for him and in that as in a Mirrour he beholds the way fair and easie yet further it pities him to see the Kingdom so torn in pieces and spoiled The people knew him able and hoped him willing to amend all they offered him their Service which he accepts and therewith the Crown So hard a thing it is for to put a stop to a Conquerour in his career By this time was the Duke of Hertford thus become Duke of Lancaster and King of England under the name of Henry the Fourth by a design that in the proof was more easie than commendable and which being effected cost more skill to make that seem fair which was so foul than to accomplish the thing He therefore first heaps together Titles enough to have buried the clamour of Usurpation if it would have succeeded Conquest was a Title freest from Dispute whilst Power holds but it looks better from a Foreign Enemy than one sworn to the English Crown and therefore after that had served his turn he disclaimed it as that which was though meet enough to have yet unmeet to hold His right by Designation from his Predecessor he glanced upon but durst not adventure it too deep into the peoples consideration whose Ancestors had formerly over-ruled the Case against King John. He then stayed upon a concealed Title from a concealed Son of Henry the Third of whom they who listed might be perswaded but few believed the thing nor did himself but thence takes his slight up to a Jus Divinum or some hidden Fate that called him to the work but even there his Wings failed him and so he falls flat upon the Peoples Election De bene esse Some of these or all together might make Title enough for a great Man that resolved to hold by hook what he had got by crook and therefore trussing them up all together he enters his claim to the Crown As coming from the Bloud Royal from King Henry and through the Right that God his Grace hath sent me with the help of my Kin and Friends to recover the same which was in point to be undone for want of good Governance and due Justice The extract of all is that he was chosen by the People and Parliament then sitting And albeit that by the Resignation of Richard the Second the Parliament might seem in strict construction of Law to be expired together with the Kings power who called them together yet did not that Parliament so apprehend the matter but proceeded not onely to definitive Sentence of deposing him but declared themselves by their Commissaries to be the Three States and Representative of the People of England maintaining thereby their subsistency by the consistence of the Members together although their Chief was for the present like a head in a Trance till they had chosen Henry the Fourth to succeed in the Throne by this means preventing the conceit of discontinuance in the very Bud of the Notion Much like his entry was his continuance a continual tide of Foreign and Domestick War and Conspiracy enough to exercise his great Courage although he was more wise than warlike being loth to take up Arms for well he knew that a sick Title never sleeps but in a Bed of Peace and more loth to lay them down For besides Victory whereby he gained upon his Enemies in time of War he knew how to make advantage of them in time of Peace to secure his Friends to keep others in awe to enforce such Laws as stood with reason of State and the present posture of Affairs and where Laws failed to fill up the period with Dictates of his own Will. And upon this account the Product was a Government full of Ulcers of Bloudshed without regard of persons whether of the Lay or Religious Order without Legal Trial or priviledge of Clerk. So was Archbishop Walden dethroned Archbishop Scroop put to death and Dukes were dismounted without Conviction or Imputation saving of the Kings displeasure Taxes multiplied although begotten they were upon the Parliament like some monstrous Births shewn to the World to let it know what could be done but concealed by Historians to let it know what may not be done Yea the Priviledges of Parliament invaded in point of Election A thing that none of his Predecessors ever exemplified to him nor none of his Successors ever imitated him in Nor had he purposed it but that he was loth the People should know more of the Government than needs must To keep off Foreign Troubles he made Peace with France for longer time than he lived yet was ever infested with the Sword of St. Paul in behalf of Richard the Second's Queen and with the Factions between the Houses of Orleans and Burgundy in which he had interested himself to preserve the Foreign Neighbourhood in Parties one against another that himself might attend his own security at home He would have moved the Scots but they were already under English Banners nor could he reach so far having so many Enemies even in his own bosom The Welsh were big with Antiquity and Mountains of Defence they begin to bethink themselves of their Antient Principality hold the Kings Arms at hard duty
the antiquity hereof that I have met with than the name it self which importeth that it sprang up whiles as yet the names of Angles and Saxons held in common cognizance and might arise first from the grant of the Lords to their Tenants and so by continuance become usual And by this means also might arise the custom of Copy-holds of this nature so frequent especially in those Eastern parts of this Island where the Angles setled and from whom that part had the name of the East Angles Another custom of descent remaineth and that is to the Children indifferently and it is called Gavel-kind or Gave-all kind and by the very name seemeth at the first to arise rather from the donation of the Parent or other Ancestor contrary to common custom than by common Law otherwise no need had been of an especial name In the Original it seems it equally concerned all both Sons and Daughters as partners and for want of such the Brothers and Sisters It seemeth to be first the Law of the Goths or Jutes for it remaineth in use in these parts of the Eastern Countries But in latter times this estate was also tailed or cut out sometimes to the Sons and Daughters severally that is the Sons or Brothers to have two parts and the Daughters or Sisters one part othertimes to all the Sons and for want of such to all the Daughters And thus these courses of estates passed over Seas to the Southern part of this Island where that people most setled in a double stream the first from the Athenians that loved the stateliness of their Families the other from the Lacedemonians who desired rather the continuance of their Families than their greatness The manner of conveying of Estates between party and party was either by act of the party executed in his life-time or after his death Such as were executed in the life-time of the owner and were such as for the most part were in matters of great moment were Estates passing by deed of Conveyance in writing And for this way the Saxons were beholding to the Latines who taught them that course both for form and language And Alfred enforced by a particular Law viz. That all such as hold Lands by Deed in Writing should hold them according to the intent thereof and not alien the same contrary thereunto the intent thereof being proved by the Witnesses The nature of the Conveyances in these ancient times may appear by a Deed of one of the Kings of this Island about 400 years before the Conquest whereby he granted Four Plough-lands in the Isle of Thanet unto an Abbess wherein instead of that which we now call the habendum the words are contulimus possidendum c. and after that followeth the uses of the Deed tuo usui c. and then concludes with a Warranty in these words tu vero successoresque tui defendant in perpetuum nunquam me haeredesque meos contra hanc chartulam aliquando esse venturos the effect of which last clause may appear by the Law of the sale of Goods which in those times was that if the sale of Goods warranted did not hold the loss should light upon the sellers The Deeds were usually subscribed with the name of him that made the Conveyance or passed the Estate and if he could not write his name as it befel often then the Deed was under-signed with his mark For Withered King of Kent used the sign of the Cross in subscribing his Grants pro ignorantia literarum They used also in those days to seal their Deeds for so much the conclusion of King Ina's Charter to the Abbey of Glastenbury importeth in words to this effect in English I Ina the King do confirm this Grant and Liberty by subscription of my own hand and under the seal of the holy Cross. True it is Ingulphus tells us that Seals to Deeds were of Norman original I believe his intent is concerning Seals of Wax annexed or affixed unto Deeds Lastly in those days also they used to attest their Deeds by subscribing the names of such as were present who being of greater or meaner rank rendred the credit of the Deed accordingly more or less valuable and upon this ground did the acknowledging or proving of Deeds before the King Bishop County or Hundred first arise That was the Roman fashion but the more ancient German way of Conveyance was by Livery and Seisin as most suitable to their ignorance who had Learning in as slight account as the Lacedemonians had and cared for no more than would serve the turn of natural necessity A property they had both in Lands and Goods and where that resteth no man can deny them the natural way of giving and receiving by delivery And therefore though matters of ordinary use seldom come into the observation of story and this petty ceremony might very well pass sub silentio yet we are not altogether left destitute of the footsteeps thereof in antiquity For Aethbald the Mercian King above Eight hundred years ago gave the Monastery of Cutham with all the Lands thereunto appertaining to Christ-Church in Canterbury and for the confirmation thereof commanded a clod of earth with all the Writings to be laid upon the Altar Another monument hereof more ancient by the space of above an hundred years we find in that Grant of Withered King of Kent of four Plough-lands in the Isle of Thanet the latter part whereof this Clause concludes thus Ad cujus cumulum affirmationis cespitem hujus supradictae terrae super sanctum altare posui Every man had liberty to execute the Law of his Inheritance in his life-time but some were surprized with sudden occasions and unexpected issues and ends and in such cases they did what they could to declare their intents by last Will which by common intendment being in writing hath occasioned some to think that the Saxons in their original had no use thereof being as they conceived so illiterate as not to have the use of writing But the Character remaining to this day evinceth the contrary nor can those words of Tacitus Et nullum est testamentum in any rational way be expounded in this sence if we consider the Context which runneth thus Haeredes successores cuique liberi nullum est testamentum Which in my opinion founds in this sence The Heirs and Successours to every one are his Children and there is no testamentary power to disherit or alter the course of Descent which by Custom or Law is setled Otherwise to deny them the use of all testamentary power was a matter quite abhorring the custom of all the Grecians from whom they learned all that they had Nevertheless the Saxons had not been long acquainted with the Romanists but they had gotten that trick of theirs also of disheriting by last Will as by the testament of Aethelwolf and others
which followed and made way for the King without shame to ask what no King before him suffered ever to enter into conceit I mean a Legislative power to this effect That Proclamations made by the greater part of the King for the time being and his Council whose names hereafter follow with such penalties as by them shall be thought meet shall be of equal force by an Act of Parliament provided it shall not extend to the forfeiture of Estates or Priviledges nor to loss of Life but in cases particularly mentioned in the Law Provided no Proclamation shall cross any Statute or lawful or laudable Custom of this Realm All which at length comes to be demanded by a formal Bill with as ill-favoured a Preface as the matter it self which was much worse e're it was well liked in the House of Commons and when all was done proved a Bare still Whatever it was it passed in manner abovesaid neither much to the desire of the Commons that so much was given nor to the good liking of the King that there was no more For instead of a Legislative power which he grasped at for himself he received it in common with his Council and so becomes engaged neither to alter nor destroy that Brotherhood if he intended to reap any fruit of this Law leaving the point in doubt whether his Gain or Loss was the greater For this Law thus made for this King these Counsellors and these times and occasions can be no Precedent to the future unless to inform Kings that the Parliament hath a power to give more Authority and Prerogative to Kings than they or the Crown have by common Right and to give it with such limitations and qualifications as seemeth good to them And secondly That even Henry the Eighth acknowledged that the Legislative power was not in the Crown nor was the Crown capable thereof otherwise than it was conferred by the Parliament Onely Steven Gardiner might glory in this Atchievement having for the present obtained much of his ends by perswading the King that Forein Princes estranged from him not so much for his departure from the Pope as for some apprehensions they had of his departure from that way of Religion and Worship which they apprehend every Christian ought to maintain And therefore if he meaned to gain better correspondency amongst these Princes he must engage more resolvedly to the Fundamentals of the Worship though he shook off some slighter Ceremonies with the Romish Supremacy for he knew that they were willing enough with the latter though the other could not go down with them Thus did Forein Correspondency float above whenas the Church as then it stood was underneath and gave the tincture to every Wave And it was holden more safe by the Romish party to trust the King thus attempered with the Legislative power in the Church-matters than the rough Parliament whose course steered quite wide from the Roman shore as if they never meant to look that way any more though Cranmer and the chief Officers of State and of the Houshold were by the Law Judges of the matter in fact as well as the King yet in the conclusion the King onely was of the Quorum All this yet further appears in the penalty for by a Proviso it is moderated as to all forfeitures of Life Limb or Estate and in the conclusion extended onely to Fine and Imprisonment unless in some cases mentioned and excepting offences against Proclamations made by the King or his Successors concerning Crimes of Heresie For it is the first Clause of any positive Law that ever intimated any power in the King of such Cognizance and punishment of Heresie Too weak a principle it is to settle a Prerogative in the King and his Successors as Supream Head of the Church thus by a side-wind to carry the Keys of Life and Death at their Girdle and yet a better ground cannot I find for the Martyrdom of divers brave Christians in those times than this touch of a Law glancing by All which passing Sub silentio and the Parliament taking no notice thereof made way for the Statute 38 H. 8. c. 26. formerly mentioned to come more boldly upon the Stage This was one wound to the Legislative power of the Parliament thus to divide the same Another ensues that in its consequences was no less fatal to that power which remained and it was wrought by some Engine that well saw that the Disease then so called grew to be epidemical amongst the more considerable party in the Kingdom that the Lady Jane Seymor now Queen was no friend to the Romanists that she was now with Child which if a Son as it proved to be was like to be Successor in the Throne and be of his Mothers Religion and so undo all as in the issue all came so to pass To prevent this nevertheless they fancy a new conceit that Laws made by English Kings in their minority are less considerately done than being made in riper years And so by that one opinion countenanced a worse which was that the Legislative Power depended more upon the judgement of the King than the debates and results of the Parliament a notion that would down exceeding well with Kings especially with such an all-sufficient Prince as Henry the Eighth conceived himself to be Upon this ground a Law is made to enable such of the Kings Successors by him appointed as shall be under the age of Twenty and four years when Laws by him are made to adnul the same by Letters-patents after such Prince shall attain the said age of Twenty four years Thus the Arms of the Parliament are bound from setling any Reformation let them intend it never so much a Muse is left open for the Romish Religion still to get in when the Season proves more fair The Parliament was now in its minority and gives occasion to the Reader to bewail the infirmities of the excellencie of England A fourth advance of Prerogative concerned the Executive Power in Government of the Church This had formerly much rested in the Prelacy and that upon the chief Praelatissimo at Rome now there is found in England a greater Prelate than he the Pope was already beheaded and his head set upon the Kings shoulders To him it is given to nominate all Bishops and Archbishops within his Dominions by Conge d'eslire and that the party once elected shall swear Fealty and then shall be consecrated by Commission and invested but if upon the Conge d'eslire no Election be certified within Twelve days the King shall by Commission cause his own Clerk to be consecrated and Invested The occasion that first brought in this President was the access of Cranmer to the See at Canterbury for though the Headship had been already by the space of Two years translated from Rome to England yet the course of Episcopizing continued the same as formerly it had been I mean as touching the point of Election For though
shipped over the Popes power to the Chair of Canterbury and had made a Pope instead of an Archbishop but that the man was not made for that purpose What the Ordinary Jurisdiction got or lost we come in the next place to observe First they had still their Courts and Judicatory power but upon what right may be doubted Their first foundation was laid by the Civil power of a Law in the time of William the first Norman King yet the power of the Pope and Bishop growing up together they came to hold the power of the Keys by a Divine Right and so continued until these times of Henry the Eighth wherein they have a Retrospect to the Rock from whence they were first hewn and many seem to change their Tenure and therewith therefore are in right to change the Style of their Courts and Title of Summons but the times not being very curious and the work of reformation but in fieri the more exact lineaments must be left to time to finish and beautifie A greater blow did light upon the Law of these Courts which was left as doubtful as the Canons all which are now put to the question and to this day never received full resolution but were left to the Parliament to determine them at leisure and in the mean time to the Judges of the Common Law to determine the same Lawful or Unlawful as occasion should require Nevertheless the Courts still hold on their course according to their old Laws and Customs for their form of Proceedings some say by Prescription yet more rightly by Permission it being a difficult matter to make Prescription hold against a Statute-Law As touching the matters within their Cognizance the Law setled some and unsetled others First As touching Heresie the Church-men formerly thought scorn the Lay-Magistrate should intermeddle but not being able to stop the growth thereof by their Church-Censures prayed aid of the Civil Magistracy so by degrees arose the penalties of Imprisonment and Burning which brought the whole matter into Cognizance before the Civil Magistrate because no Free man might be proceeded against for loss of Life or Liberty but by the Laws of the Nation and for this cause the Civil Magistrate granted the Writ of Habeas Corpus and relieved many times the party imprisoned wrongfully or granted Prohibition as they saw cause And therefore it cannot be said rightly that the sole or supream Cognizance of this crime of Heresie belonged to the Clergie before these times Nor did their proceeding upon the Writ of Burning warrant any such thing partly because till these times the Canon-Law was the best ground that these proceedings had and the course therein was not so uniform as to permit the Title of a Custom to warrant the same Conviction being sometimes by Jury sometimes according to the Canon sometimes before the Ordinary sometimes before the Convocation sometimes before the King sometimes before special Delegates as the Histories of the Martyrs more particularly set forth and no Act of Parliament positive in the point But the time is now come when nighest Reformation that the thing is setled more to the prejudice of Reformation than all the endeavours foregoing like to the darkness of the Night that is at the Superlative degree when nighest break of Day A Statute is now made that indeed quite blotted out the very name of the Statute of Henry the Fourth De Haeretico comburendo but made compleat that Statute of 5 Rich. 2. and the other of 2 Hen. 5 both which were formerly neither good in Law nor effectual otherways than by Power and gave more settlement to the Ordinaries proceedings in such Cases For the Delinquent might be convict before the Ordinary by Witnesses or might be indicted at the Common Law and the Indictment certified to the Ordinary as Evidence Yet did the Parliament carve them out their work and in express words declared That Opinions against the Authority and Laws of the Bishop of Rome were not Heresie and by the same reason might have done more of that kind but that was enough to tell all the world that the Parliament could define what was not Heresie although they did not then determine what was Heresie And thus the judgement of the Romish Church is called into question in one of their Fundamentals and the Clergie left in a Muse concerning the rule upon which they were to proceed against this crime The Parliament within six years after undertakes though somewhat unhappily to determine and define certain points of Controversie which had some relation to the Worship of God and the publick Peace and declared the contrary to these determinations to be Heresie and the punishment to be Death and Forfeiture and the Trial to be before Commissioners by Jury or Testimony of two Witnesses or by examination in the Ecclesiastical Court or inquisition in the Leet or Sessions of the Peace Upon the whole matter therefore the Ordinary had a particular Power to determine Heresie but the Parliament determined such Heresies as were punishable with Death and Forfeiture by enumeration in the six Articles This was the Clergies Primer wherein they imployed their study as making most for their design and laid aside thoughts of all other Heresies as dry notions or old fashions laid aside and not worthy the setting forth to the common sale Secondly The Lesson concerning Marriage was no less difficult for the Clergie to take out They were put by their former Authority derived from abroad and their ancient rule of the Canon-Law With the Kings leave they do what they do and where they doubt they take his Commission So did the Archbishop of Durham in the Case between John and Jane Fisher In the Kings Case the determining part is put to the Parliaments conclusion and for a rule in other cases some persons are enabled to marry which formerly were not viz. Masters of the Chancery and Doctors of the Civil Law and some forbidden Marriage as all Priests by the Statute of the six Articles And unto the rest concerning degrees of Consanguinity or Affinity a particular enumeration is appointed to be observed within which Marriage is declared unlawful all other further off are made lawful In all which regards the Cognizance of Matrimonial Causes is theirs onely by leave Thirdly Residency and Non-residency was a Theme formerly learned from the Canon-Law in which as also in the thing it self the Clergie were the onely skilful men The rule of the Canon-law was strict enough considering the times but it was not â—â—eel to the back The Parliament now undertakes the Cause and though it gave in some respects more liberty than the Canon yet stood it better to its tackling and kept a stricter hand upon the reins than was formerly used and by giving a general rule for Dispensation took away all arbitrary Dispensations and Licenses which were formerly granted beyond all rule but that of Silver or Gold
Womanhood 138. Coverture 139 Custos Regni a formality of State under the Parliaments Order 79. many times conferred upon Children 80. and upon a Woman 148. D. DElegates though named by the King yet by Authority of the Parliament 133 Defender of the Faith 122 Dispensations Licenses and Faculties never in the Crown but by the Parliament givent to the Archbishop under limitations 137 139 Duels ordered by the Marshal as subservient to the Common Law 63. E. EDward the Third his Reign 2. his Title upon Entry by Election ibid. Edward the Fourth his Reign though had Title of Inheritance yet entred by Election 106 Edward the Fifth approached the Crown by Inheritance but never put it on 108 Edward the Sixth his Reign his Title and Possession did meet though he was a Child and his Sister Mary grown in age 152 Ecclesiastical power vide Prelacy and Prelates Elizabeth Queen her Reign 155. her Title by Election 163 Englishire taken away 56 Episcopacy vide Prelates and Prelacy Errors vide Heresie Exchange ordered by the Statute 38 Excommunication 159. the Writ de excommunicato capiendo ordered 169. vide Parliament exportation 38. F. FAlse News punished 66 Felony by riding in armed Troops 56 66 101 150 174 First-fruits regulated 90. taken away from Rome 130 Forcible entries 101 Forts Fortifications and Castles ordered by Parliament 147 171. G. GOal-delivery by the Judges of the Benches 54 97. vide Judges Goals regulated 67 149 Guard for the Kings Person brought in by Henry the Seventh 113 Gypsies made Felons 174 H. HEnry the Fourth his Reign doubtful in his Title but rested upon Election chosen by Parliament sitting when there was no King 68 c. Henry the Fifth his Reign his Title by an Intail by the Parliament 70 c. Henry the Sixth his Reign his Title by the Intail last mentioned though a Child he is admitted to the Crown 72 c. Henry the Seventh first setled a constant Guard his sixfold Right to the Crown and his gaining Prerogative in the persons and Estates of the people ibid. 113 c. Henry the Eighth his natural endowments 116 c. his power in the matters Ecclesiastical 120 c. in Temporals 125 c. Heresie and Errour in Doctrine under the cognizance of the Civil Magistrate 36 92. not punishable by death by Law till Henry the eighths time 126 138. the Writ De Heretico comburendo hath no legal ground in any of those former Times 67 93 95 126 138 Honours vide Parliament Hospitals visited by the Pelacy 90. I. IMportation 42 Judges of Assizes 97 142 Jurisdiction Ecclesiastical not originally in the Prelacy nor absolutely 137 Justices of the Peace their residency and quality their number various their work also 62 99. one Justice 63. and the setling of their Session ibid. their power to take Bail 149. K. KIngs vide Parliament Allegiance Supremacy Militia L. LAbourers their Work and Wages 42. ordered by the Justices of the Peace 63 Lancaster the Princes of that House friends to the Clergie in policy 86 Laws made by the Successors of Henry the Eighth during their minority annulled 69. Ecclesiastical Laws vide Parliament Lieges by Birth though not born within the Allegiance of England 57 Liveries and Tokens inhibited to the Lords 64 103. and limited in the Kings person ibid. means of jealousie between the King and his people 143 Libels in the Spiritual Court to be delivered in Copies upon demand 90 Licenses vide Dispensations Lords their power and jurisdiction in the Parliament 14. in Council 17 142 Lunacy no impediment in Trial of Treason 151. M. MAry Queen her Reign 153. her Title by Election 164. she prejudiced her Supremacy by Marriage 163 Marque and Reprisal 122 Martials Court 62 Matrimonial Causes after the Reformation by Henry the Eight in the Cognizance of the Clerge by leave 139 Militia 58 102 143 122. vide War. Mint 44 84. vide Parliament Monasteries dissolved 117. maintained by Henry the Fourth 86 Money out of England to Rome stopped 32. N. NAvy Royal as Forts for the publick safety maintained at the publick charge 148 Nisi prius 98 Non-residency 139 Noble Ladies Trial 101. O. OYer Terminer 54 98 Ordinary not to be questioned in the Civil Courts for things under Ecclesiastical jurisdiction 28 29. hath cognizance of Vsury 28. of Avoidances Bigamy and Bastardy 29. grant Administration 30. visit Hospitals and call Executors to account 90. hath power to fine and imprison 91 141. to keep Courts but the Authority doubtful 137. have Cognizance of the Heresie 91 138. Matrimony Non-residence ibid. In Queen Elizabeth's time their jurisdiction left in doubt 168 c. Oath ex Officio first brought in by the Church-men in matters Ecclesiastical 92. afterwards by the Parliament into the Star-chamber in cases criminal 142. P. PArdon of Crimes not absolutely in the King 11 Parliament without the King consisting of three States 69. without the Clergie 34 Parliaments power in ordering of the Crown 75 133 162. In ordering the King's person by Protectors 9. vide Protector In ordering their Children In ordering their Family 10 75. In ordering their Revenues 10 75 68. In ordering their Council 83 In the Militia vide Militia and War. In conferring places of Honour and Trust 11 23 In ordering the Mint vide Mint In making Ecclesiastical Laws Concerning Church-Government 131 c. 121 165. Concerning Doctrine 123 131 138 c. Concerning Worship 131 Concerning Church-censures 140 In granting Licenses and Dispensations 137 In final Appeals 133 In ordering it self 14 76 In Judicature 15 111 Parliament not inconstant though mutable 110 Peace Justices and their Sessions 62 c. 99 c. 148 c. 173 c. penal Laws executed to get money 108 114 Pleadings in English 57 Pope's power in England abated 33 c. vide Ordinary Supremacy Archbishop Prelacy not favoured by the Canon 140. their power since the time of Queen Mary 166. their dignity and power distinguished 28 34 Priests Wages 41 91 Praemunire and Provisors 32 34 c. 89 Proclamations made equal to Laws 125. altered 158 Protectors variety of them makes a doubtful Government 3 5 72 Purveyance regulated 31 39 R. RAvishment consented to forfeits Joynture 56 Request Court established by Cardinal Wolsey 140 Richard the Second his Reign 6. endeavours to over-rule the Parliament but failed in the conclusion 7 Richard the Third's Reign 108. his Title by Vsurpation and Murther ibid. Riots 101. S. SAnctuaries changed into fewer priviledged places 151 Servants imbezelling Felony ibid. 174 Sheriffs Courts regulated 149. Election of Sheriffs 55. Farm of the County 98. continuance in service ibid. Extortion ibid. Souldiers vide War. Staple 42 c. 111 Star-chamber 19 c. 141 Stealers of Men and Women Felony 174 Supremacy Supream Head 120. certainly not Absolute or Arbitrary power nor a Legislative power 166 c. Supream Governour 159. in causes Ecclesiastical ibid. c. in Temporal ibid. T. TEnths and First-fruits