they were in their original and what overplus they had by Laws And first concerning the Metropolitan In his original his Office was to visit the Bishops admonish and exhort them and in full Synod to correct such disorders as the Bishop could not reform and in all things to proceed according to the prescript Canon Thus witnesseth Boniface an Archbishop to an Archbishop of an Archbishop not according to the practice of the times wherein it was written but according to the ancient rule For long before Boniface his time Archbishops were swoln beyond the girt of the Canon and before that England waâ— honoured with that rank of men Metropolitans were become Metronoâ—â—ians and above all rule but that of their own will and through common custom had no regard to any other so as if England will have them it must be content to have them with their faults But the truth is the dignity or title which you will was a plant of that virulent nature that would scarce keep under-ground in the time of the hottest persecution For Steven Bishop of Rome liked the title of Universal Bishop And after a little peace it 's a wonder how it grew to that height that it had and no less wonderful that the Saxons gave entertainment to such Potentates Much of whose spirits they might have observed in the entrance of their first Archbishop Austin if God had not given them over to thraldom under the mystery of iniquity of sinful man aspiring into the place of God taught by that Courtly messenger of Rome because they would not stoop to that mystery of godliness God manifested in the flesh as it was taught in simplicity by the rural Picts and Britons But this was not all for because Archbishops were gotten above Canon which was thought scandalous therefore they gave as large a power by Canon as the former usurpation amounted unto and so stretched the Canon to the mind of the man whenas they should have rather reduced the man to the Canon The words of the Canon in our English tongue run thus It belongs to the Metropolian Bishop to rule Gods Churches to govern chuse appoint confirm and remove Abbots Abbotesses Presbyters and Deacons and herewith the King hath nothing to do And thus though the apparent power of Archbishops was great and unlimited yet what more was wrapped up in that word Churches only time must declare for it is very likely that in those daies it was not understood yet the practice doth not obscurely declare the matter for before this Law was established by Withered in a Council wherein Bertnaldus Archbishop of Canterbury was president and who was first Primate of England Theodore Archbishop of Canterbury used such power over other Bishops in ordaining or removing them as a Writer saith that his rule was no other than perturbatio and impetus animi But the Metropolitan in England as the times then were had yet a further advantage even over Kings themselves for there were divers Kingdoms in this Island and Kings had no further power than their limits afforded them But there was but one Metropolitan for a long time in all the Saxon Territories so as his power was in spirituals over many Kingdoms and so he became indeed Alterius orbis Papa And it was a remarkable testimony of Gods special providence that the spirits of these petty Popes should be so bound up under the notion of the infallibility of the Roman Chair that they had not torn the European Church into as many Popedoms as Provinces But no doubt God ordered it for a Scourge to the World that Antichrist should be but one that he might be the more absolute Tyrant and that Kings should bow down their necks under the double or rather multiple yoke of Pope and Archbishops for their Rebellion against the King of Kings CHAP. VIII Of the Saxon Bishops HAd not Bishops been somewhat sutable the Roman Clergy had not been like it self and it had been contrary to Austin's principles to have advanced to Bishopricks men better qualified than himself They first ruled the Saxon Church joyntly in the nature of a Presbytery till about Sixty years after Austin's time their pride would not endure together any longer and it may be grew somewhat untractable under the Metropolitan that resolved to be prouder than all and thereupon Theodore Archbishop of Canterbury first divided his Province into Five Diocesses and by appointment of the Kings and People placed Bishops over each every one of them being of the right Roman stamp as himself was of the right Roman shaving And it had been a wonder if Episcopacy now for the space of Three hundred years degenerated and that into such a monstrous shape as a Pope should by transplanting become regenerate into their original condition of meekness and humility But it is a much greater wonder that they should become so purely ambitious as not to endure a thought of the ways of sobriety but would be proud by Law to let all the world know that they held it no infirmity but an honour For albeit that in the first time the Bishops work was to instruct teach to see the service of God to be diligently purely administred in publick Congregations to Exhort Reprove by teaching to amend such matters as he should find in life and Doctrine contrary to Religion and accordingly they carried themselves meekly and humbly studying peace truth and medled not with Secular Affairs they are now grown up into State and must now ride on horse-back that were wont to go on foot Preaching the Word and must be respected above the rank of ordinary Presbytery none must doubt of their truth nor question their words but they must be holden Sacred as the word of a King sine juramento sit irrefragabile Their presence must be a Sanctuary against all violence all Clerks and Religious houses must stoop under their power their sentence must be definitive and thus advanced they must keep state viz. not go too far to meet Princes in their approach towards them nor to light off their Horses backs to do Princes Reverence at their meeting because they are equal to Princes and Emperours and if any Bishop shall behave himself otherwise and after the old rustical fashion for such are the words of the Canon for disgrace done to their Dignity they must be suspended So as by their own confession Bishops henceforth are Bishops of a new fashion that must incur a note of infamy for shewing any gesture of humility to Princes which if any man will see more fully let him peruse the Canon if he please But this is not sublime enough they must be not only equal but in many respects superiour to Princes for in matters that concern God Omnibus dignitatibus praesunt and more plainly Princes must obey them Ex corde cum magna humilitate and this was
certain Cases vouched to that purpose the first concerning the Legiance of Children to Parents which cometh not to this case because it is a Legiance of Nature and this Legiance whereof we speak is yet under a litigious Title And I suppose will in the conclusion be found to rest onely upon a Civil constitution therefore I leave that The second is That a man attainted and outlawed is nevertheless within the King's protection for this saith the Reporter is a Law of Nature Indelebilis immutabilis and neither Parliament nor Statue can take this power away fol. 13. b. 14. a. And therefore the Reporter concludes That as well the Legiance of the Subject as the Protection of him by the King are both of them from the Law of Nature An opinion that speaks much mercy yet it seems strange considering the Pen for if it be a Law of Nature and immutable for the King to protect persons attainted then must no such person suffer for if he be under the King's protection that being by a Law of Nature cannot be changed by any positive Law as the Reporter saith nor can the King be so bound by any such Statute but by a non obstante be can set himself at liberty when he pleaseth and then the issue will be this The King hath a natural power to protect the persons of Law-breakers from the power of the Law therefore much more their Estates and then farewel all Law but this of the Kings natural Protection I say that these are of a high strain considering what the Reporter speaketh elsewhere But to pursue his instance he saith That the King hath power to protect an attainted person That if any man kill him without warrant he is a Man-slayer and yet this person attainted hath lost the legal protection It is true yet not to all intents for by the Sentence of the Law his life is bound up under the Law of that Sentence viz. That he must not suffer in other manner than the Sentence determineth nor before Warrant of Execution issue forth to that end And notwithstanding the Sentence yet the Law leaveth him a liberty of Purchase or Inheritance though to the use of the Crown and therefore in some respects the Law protects his person so long as he lives and the King 's natural Protection is in vain in such cases Lastly suppose the King hath a power of Non ohstante if the same be allowed to him in a limited way by the Law it is no Argument to prove the King's natural power which is driven at under natural Legiance much less if it cannot be made forth that the Law doth allow any such power of Non obstante at all but by the iniquity of the times permitteth the same to subsist onely to avoid Contention as it came into this Kingdom by way of Usurpation And thus I have onely discovered the Foundation of this first Qualification which I shall onely leave naked supposing that no man seeing it will build at all thereupon The second Property that cometh to be considered is That English Legiance is absolute fol. 5. b. fol. 7. a. which is a word of a vast extent serving rather to amaze men's apprehensions than to enlighten them And therefore the Reporter did well not to trouble himself or the Reader in the clearing or proof thereof but lest the point rather to be believed than understood nor shall I in the Negative For God himself can have no other Legiance from an Englishman than absolute Legiance and Kings being as other men subject to erre especially in this point of Prerogative are much rather subject thereto being misled by such Doctrines as these are The Scripture determines this point and cuts the knot in sunder The third property of English Legiance which the Reporter insisteth upon is that it is indefinite which he explaineth to be Proprium quarto modo so as it is both Vniversal and Immutable fol. 5. b. fol. 12. and neither defined by Time Place or Person As touching the Time and Person the Reporter enlarged not at all therefore I shall onely leave the Reader to chew upon the point supposing himself in the first times of Edward the Fourth when Henry the Sixth was then alive and let him resolve to which of them his Legiance had been due considering them both in their natural capacity as the Reporter would have it But as touching the place it is reported that English Legiance is not onely due from an English man to an English King in England but in all places of the Kings Dominions though otherwise Forem as to the power of the Law of England Yea saith the Reporter as far as the Kings power of protection doth extend And yet this had not been enough if the Premises be granted For if this Legiance whereof we speak be absolute and omni soli semper then it is due to the King from an English man ubivis Gentium Nevertheless to take the Reporter in a moderate sence it is worth consideration whether English Legiance in the days of Edward the Third extended as far as the Kings power of Protection whenas he had the Crown of France in a Forein right to that of England In this the Reporter is extreamly positive upon many grounds which he insisteth upon First he saith that Verus and Fidelis are qualities of the mind and cannot be circumscribed within the predicament of Vbi and upon this ground he might conclude that this Legiance is due to the King from an English man all the world over as well as in all the King's Dominions But concerning the ground it may be denied for though simply in it self considered as a notion Verity or Fedility are not circumscribed in place yet being qualities of the Soul and that being in the Body in relation thereunto it may be in the predicament of Vbi for where-ever that Body and Soul is there is Faith and Truth according to its model which though not absolute and indefinite yet if according to the Laws of the place wherein the man is he is truly said to be Verus Fidelis Secondly The Reporter argueth that the King's Protection is not local or included within the bounds of England therefore also is not the Legiance for Protectio trahit Legiantiam Legiantia Protectionem Had this reason been formed into a Syllogisim it had appeared less valuable for the Protection of an English King qua talis of an English man is local and included within the bounds of the Kingdom But if the same King be also King of France or Duke of Aquitane and an English man shall travel into those parts he is still under the same King's protection yet not as King of England but as King of France or Duke of Aquitane Otherwise let the party be of France or Aquitane or England all is one he must be whether French or English under an unlimited absolute Protection without regard had
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
A brief censure of the Saxon Prelatical Church-Government 27 XVI Of the Saxons Commonwealth and the Government thereof and first of the King. 29 XVII Of the Saxon Nobility 33 XVIII Of the Freemen amongst the Saxons 34 XIX Of the Villains amongst the Saxons 35 XX. Of the grand Council amongst the Saxons called the Micklemote 36 XXI Of the Council of Lords 38 XXII Of the manner of the Saxon Government in the time of War. 39 XXIII Of the Government of the Saxon Kingdom in the times of peace and first of the division of the Kingdom into Shires and their Officers 40 XXIV Of the County-court and Sheriffs Torn 41 XXV Of the division of the County into Hundreds and the Officers and Court thereunto belonging 42 XXVI Of the division of the Hundreds into Decennaries 43 XXVII Of Franchises and first of the Church-franchise 44 XXVIII Of the second Franchise called the Marches 45 XXIX Of County Palatines ibid. XXX Of Franchises of the person 46 XXXI Of Mannors ibid. XXXII Of Courts incident and united unto Mannors 48 XXXIII Of Townships and their Markets 49 XXXIV Of the Forests 51 XXXV Concerning Judges in Courts of Justice 52 XXXVI Of the proceedings in Judicature by Indictment Appeal Presentment and Action 53 XXXVII Of the several manners of extraordinary trial by Torture Ordeal Compurgators and Battle 55 XXXVIII Of the ordinary manner of Trial amongst the Saxons by Inquest 56 XXXIX Of passing Judgement and Execution 59 XL. Of the penal Laws amongst the Saxons 60 XLI Of the Laws of property of Lands and Goods and the manner of their Conveyance 64 XLII Of the times of Law and vacancy 68 XLIII An Epilogue to the Saxons Government 69 XLIV OF the Norman entrance 70 XLV Of the Title of the Norman Kings to the English Crown that it was by Election 72 XLVI That the Government of the Normans proceeded upon the Saxon principles and first of Parliaments 75 XLVII Of the Franchise of the Church in the Norman times 77 XLVIII Of the several subservient Jurisdictions by Marches Counties Hundreds Burroughs Lordships and Decennaries 82 XLIX Of the Immunities of the Saxon Freemen under the Norman Government 84 L. Recollection of certain Norman Laws concerning the Crown in relation to those of the Saxons formerly mentioned 86 LI. Of the like Laws that concern common Interest of Goods 89 LII Of Laws that concern common Interest of Lands 90 LIII Of divers Laws made concerning the execution of Justice 94 LIV. Of the Militia during the Normans time 65 LV. That the entry of the Normans into this Government could not be by Conquest 97 LVI A brief Survey of the sense of Writers concerning the point of Conquest 99 LVII OF the Government during the Reigns of Stephen Henry the Second Richard the First and John and first of their Titles to the Crown and disposition in Government 103 LVIII Of the state of the Nobility of England from the Conquest and during the Reign of these several Kings 107 LIX Of the state of the Clergie and their power in this Kingdom from the Norman time 109 LX. Of the English Commonalty since the Norman time 117 LXI Of Judicature the Courts and their Judges 118 LXII Of the certain Laws of Judicature in the time of Henry the 2. 120 LXIII Of the Militia of this Kingdom during the Reign of these Kings 125 LXIV OF the Government of Henry the Third Edward the First and Edward the Second Kings of England And first a general view of the disposition of their Government 129 LXV Of the condition of the Nobility of England till the time of Edward the Third 137 LXVI Of the state of the English Clergie until the time of Edward the Third and herein concerning the Statutes of Circumspecte agatis Articuli Cleri and of General Councils and National Synods 140 LXVII Of the condition of the Freemen of England and the Grand Charter and several Statutes concerning the same during the Reign of these Kings 158 LXVIII Of Courts and their Proceedings 177 LXIX Of Coroners Sheriffs and Crown-Pleas 179 LXX Of the Militia during these Kings Reigns 184 LXXI Of the Peace 188. THE PREFACE THe policy of the English Government so far as is praise-worthy is all one with Divine Providence wrapped up in a Vail of Kings and Wise men and thus implicitely hath been delivered to the World by Historians who for the most part read Men and wear their Pens in decyphering their Persons and Conditions Some of whom having met with ingenious Writers survive themselves possibly more famous after death than before Others after a miserable life wasted are yet more miserable in being little better than Tables to set forth the Painters Workmanship and to let the World know that their Historians are more witty than they of whom they wrote were either wise or good And thus History that should be a witness of Truth and Time becomes little better than a Parable or rather than a Nonsence in a fair Character whose best commendation is that it is well written Doubtless Histories of Persons or Lives of Men have their excellency in Fruit for imitation and continuance of Fame as a reward of Vertue yet will not the coacervation of these together declare the nature of a Commonwealth better than the beauty of a Body dismembered is revived by thrusting together the Members which cannot be without deformity Nor will it be denied but many wise and good Kings and Queens of this Realm may justly challenge the honour of passing many excellent Laws albeit it is the proper work of the Representative Body to form them yet to no one nor all of them can we attribute the honour of that Wisdom and Goodness that constituted this blessed Frame of Government For seldom is it seen that one Prince buildeth upon the foundation of his Predecessor or pursueth his ends or aims because as several men they have several Judgements and Desires and are subject to a Royal kind of self-love that inciteth them either to exceed former Precedents or at least to differ from them that they may not seem to rule by Copy as insufficient of themselves which is a kind of disparagement to such as are above Add hereunto that it is not to be conceited that the wisest of our Ancestors saw the Idea of this Government nor was it any where in precedent but in him that determined the same from Eternity For as no Nation can shew more variety and inconstancy in the Government of Princes than this especially for three hundred years next insuing the Normans So reason cannot move imagination that these Wheels by divers if not contrary motions could ever conspire into this temperature of policy were there not some primum mobile that hath ever kept one constant motion in all My aim therefore shall be to lay aside the consideration of Man as much as may be and to extract a summary view of the cardinal passes of the Government of this Kingdom and
more the conceit of Fame than there was cause These concurring with unnatural troubles from most unthankful Sons made that spirit of his to fail that formerly knew no peer as it is often seen that the most generous spirits are sooner quelled with shame and grief than with fear of any danger whatsoever Towards his Lay-Subjects he was more regardant for the setling of Laws and executing of Justice so as some have thought him the first source of our English Laws others more truly the first Mecaenas since the Conquest that brought on the spring-time of a setled Common-wealth and therefore left this fair testimony by his putting forth that Primrose of English Laws under the name of Glanvil letting all men know that thenceforth England would no more veil itself in an unknown Law but explain itself unto the World to be a regular Government Such was the King's Idea yet was he touched with so much of the common infirmity of Kings as shewed him to be a man especially in his old age being loaden with Military Affairs wherein he had been long exercised he had contracted some shifting courses of a Souldier in gathering Money and Souldiers somewhat out of the road-way of an English King and led an ill example to future Ages nor had he other salve for this wound but that it was for the honour of Christian faith and for the sake of Jerusalem Next comes in Richard the first Henry the Second's Son both in birth and courage yet was his behaviour to his Father such that his meritorious Holy War could never wipe it out of the Calendar of story His entrance was upon an Election made in his Fathers life-time and the same confirmed by receiving of Homage from the Peers The sad troubles that this Election amongst other things occasioned to his Father in his old age shew plainly that Richard trusted not to the Title of Inheritance nor the French King that took his part unto the English custom for the possession of the Crown but all must be done in the Life of the Father that must secure the Government to the Son when the Father is dead And thus is he entred upon the Throne not as Heir but as Successor to his Father yea rather as Survivor taking possession of what was by special compact conveyed to him by the means of his Father in his life-time though sore against his will if Writers speak true As his entrance was it promised a better Government than followed for though it was for the most part hidden in the Womb as himself did subsist in another World yet by a secret providence he was given over to the election of ill Deputies and therefore he was not well beloved however dear he was to this Nation A third part of his Government was spent in a calm with Pope Clergy Commons and all Nations that were not Infidels upon conscience it seems that he ought not to be troubled who adventured his person so bravely in the Holy War. But above all he was the Clergies darling not only for his adventure in the Holy Land but now much more in his return by his imprisonment in Germany and therefore they sluck close to him in his absence not only in maintenance of his right to the Câ—own whereto some made claim and his own Brother John did more but emptied themselves to the utmost for his delivery which they effected to the envy of the French and such as longed for his downfal here in England The King comes like the Sun-rising scattering his Brothers designs by his very view then returns his thoughts for France where he spent the rest of a restless life and as his entry upon the Throne was unnatural for he made his way upon his Fathers Herse so was his Reign full of troubles and his end not unlike for it was violent and by the hand of his own subject and so ended his Reign that scarce had any begining Next comes in King John to act his part according to his entry hand over head whether called by a people scared with the noise of Succession by inheritance or such as thought it not convenient nor safe in a stirring time to have a Child to be their King or lastly led by an interest that John the youngest Son of Henry the second had by woful experience obtained amongst the Lords or some or all concurring it is clear they crossed the way of inheritance waved Arthur's Title who was Heir to Richard the first and by him also appointed to succeed being then but a Child and they chose John a man of War trained up in the Government of Ireland which made way for his active spirit and well seen in the Government of England which might have made him wise and under these conceits they were willing to forget his oppression in Ireland his Treachery against his Lord and King in England set the Crown upon his head and in conclusion acted the Tragedy of Abimelech in English wherein the Cedar was rooted up and the Bramble trodden down The general temper of his Government sheweth that though the King must be thought sober yet the man was mad for he hawked at all manner of game France Scotland England Laity Clergy spared not the Pope himself scorned to stoop to occasion all which he did by the strength of the name of a King till at length being well cuft and plumed he was fain to yoke his lawless will under the grand Charter depose his Crown at the Popes foot and instead of a King became little better than a chief Lord in England Thus although Richard the First forgot this mans disloyalty yet God remembred it for the King having gotten the Pope upon the hip and put him to his last shift to stir up the French to set his curse on work was by a hidden providence conquered in the middest of a Royal Army without view of Enemy or other weapon than a meer noise his Nobility either suspecting all would be gone to Rome or expecting that the King would not deny them their own seeing he had been so profuse in giving away that which was not his demand that their Liberties might be confirmed but he being loath to be mated by his Nobles though he was overmatched by the Pope arms himself with the Popes curse and the Lords themselves with the Frenchmens power thus the Tables are turned and the French playing an after-game to gain to themselves the Crown of England after they saw the death of a Warlike King discovered their design before it was ripe and in the conclusion were beaten out of the Kingdom by a Child It is not worth inquiry what the King allowed or disallowed for it was his course to repent of any thing done contrary to his present sense and made it his chief principle in policy to have no principle but desire wherein he triumphed too long by reason of the contentions between the Clergie and the Laity which
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
the point of encreasing and diminishing of the Crown in the sixth Section is captious and may sound as if there is a legal enlarging of the Crown whereof he that takes the Oath is to judge A matter which onely and properly concerns the Parliament to order and determine or else farewel all liberty of the people of England The second concerneth immediately the King in his politick capacity but trencheth upon all Laws of the Kingdom in the executive power and all the motions in the whole Kingdom either of Peace or War following in the Rear either immediately or mediately are under this notion interested into the transaction of the Privy-Council to debate and determine the King's Judgement therein unless it will determine alone And how easie a thing it is for such as have power of determining the Action by the Law to slip into the determining of a Law upon the Action and so to rule by Proclamation experience taught succeeding times sufficiently Nevertheless in these times Parliaments were every moment upon the wing and kept this Noble Band in awe by taking them into their Cognizance placing and displacing some or all of them directing and binding them by Oath as they saw occasion of which the Records are full and plentiful I say these times thus constituted added yet further encouragement to them by giving them powers by Statute-Law over and beyond what by ancient Custom they had obtained The King and Council of Lords had anciently a power of Jurisdiction that hath been in the first Part of this Discourse already observed yet it is very probable that it was not any select company of Lords but the whole Association For it is granted by all that they had originally a principal hand in the Jurisdiction and it is hard to conceive how any private number should catch such a power if not by usurpation But the manner of acquiring is less materal the principal consideration resteth upon the quality of this Jurisdiction For it is evident that much difference hath been both concerning the place and manner of exercising this Authority In general it must be granted that all Pleas Coram Rege were grounded upon Writs first purchased and returnable either in Banco or in Camera or in Cancellaria And no difference at all will be concerning the Jurisdiction in Banco for that was by the course of the Common-Law and the people held it one of their Liberties to have one known course of Law for determining matters of right and wrong As touching these Pleas which were holden by Writs returnable in Camera they were properly said to be Coram Rege Concilio whose meeting was in the Council-chamber in those days called the Star-chamber For other returns of Writs in the Star-chamber do not we find but such as were in Camera nor Prohibitions from thence but under the notion of the King's Council and this Camera as I said was the place of the joynt meeting of the Council as well of those of the Chancery and Benches as of those that attended upon matters of State. Now the influence of Society in point of Judicature principally aspected upon some Pleas belonging to the Crown although even these also properly were determinable in the King Bench. Nor can I observe any rule to bound the powers of these two Judicatories but this that the Council-Table would pick and chuse and prohibit the Kings Bench as they pleased and to that end would order Originals out of the Chancery as they thought most meet For it is observed by Fleta that the Kings-Bench hath no jurisdiction of it self but by special Warrant that is to say by Original Writs returned thither Nevertheless it may seem that such Crimes as are contrary to common honesty or the publick profit or peace in a more exemplary way than ordinary and therefore may be called Crimina laesi Regni or against the State these I say might more properly belong to the sublime Judicature of the Council-Table as knowing better how far the publick State was interested or endamaged in such Cases than the other Judges that were experienced onely in ordinary matters of a more private concernment To recite the particular Cases upon record concerning racing of Records Forgeries and other crimes of Falshood Conspiracies Combinations to abate and level the prices of Commodities Riots and such-like will be supersluous In all which and others of that Cognizance the Sentence exceeded not Fine and Imprisonment or Ransom Neither yet were the Common pleas so rural but the Council Table could relish them also and digest them well enough and therefore did not stick to prohibit the Courts of Common-Law under colour of a strange maxime That it is neither just nor honest for a man to be sued at the Common-Law for a matter depending before the King and his Council No though the Court of Common-law had the precedency And therefore although the right of Tythes being depending at the Common-Law the Archbishop in opposition to the Jurisdiction sueth before the Kings Council and the proceedings at the Law are thereby stayed And no wonder for the Council-Table challenged to hold the ballance of all Courts of Law within their own Order and so if any doubt concerning the Jurisdiction depended the Council-Table gave the word and all stooped thereto But enough of the Subject-matter the manner follows a new form of Process is taken up that the Common-Law and ancient Custom never knew and which grew so noisom to the people that complaints are made thereof as of common grievance and remedies are thereto applied by the Laws of these times For whereas by the Grand Charter nothing could be done in Judgement but according to the Laws of the Land and in affirmance thereof a Law was made in these times that no Accusation nor Attachment nor forejudging of Life or Member nor seisure of Lands Tenements Goods or Chattels should be against the form of the Grand Charter and Law of the Land This course of affairs grew so stale that amongst other innovations a trick of a new kind of Trial is brought forth by suggestions upon Articles exhibited against any man before the Council-Table and thereupon issued forth Attachments against the party complained of by means whereof and other courses for they could also sequester much vexation arose unto the people Hereunto upon complaints multiplied a remedial Law is made whereby it is Enacted That all such suggestions made shall be carried to the Chancellor Treasurer and the King 's Grand Council and the Informer shall find Surety to prosecute with effect and to incur the like penalty intended for the Defendant if the Plaintiff's proofs be not compleat and then the Process of Law shall issue forth and the Defendant shall not be taken against the form of the Great Charter that is he shall not be taken until first the fault appear upon Record by Presentment or by due Process or by original Writ
Indefinite or terminated in the Natural Capacity of the King. And to make a full periodâ— to the point and make the same more clear I shall instance in one Precedent that these times of Edward the Third produced The former English Kings had Title to many Territories in France but Edward the Third had Title to all the Kingdom And being possibly not so sensible of what he had in possession as of what he had not He enters France in such a way and with that success that in a little time he â—â—ns the highest seat therein and so brought much honour to the English Nation and more than stood with the safety of the Kingdom For in the union of two Kingdoms it is dangerous for the smaller lest it be swallowed by the greater This was foreseen by the English who knew England did bear but a small proportion to France and complained of that inconvenience and thereupon a Law was made that the people of England should not be subject to the King or his Heirs as Kings of France Which manifestly importeth that an English King may put himself in such a posture in which Legiance is not due to him and that this posture is not onely in Case of Opposition but of diversity when he is King of another Nation and doth not de facto for that Time and Place rule an English King. Which if so I suppose this notion of Natural Absolute and Indefinite Legiance to the King in his Natural Capacity is out of this Kingdom if not out of the World and then the foot of the whole Account will be that the Legiance of an Englishman is Originally according to the Laws the sum of all being comprehended in the joynt safety of the people of England CHAP. IX Of Courts for Causes criminal with their Laws THe great growth of Courts founded upon Prerogative derogated much in these times from the Ancient Courts that formerly had attained the Soveraignty over the people and in the hearts of them all This was a hard lesson for them to learn but especially of the King's-Bench that was wont to learn of none and yet must be content to part with many of their Plumes to deck the Chancellor much of their work to busie the Prerogative Courts holden Coram Rege and more to those holden Coram Populo I mean The Courts of Oyer and Terminer Goal-delivery and Justices of Peace Those of Oyer and Terminer were now grown very common but less esteemed as being by men of mean regard nominated for the most part by the party that sued out the Commission which for the most part was done in behalf of those that were in danger and meaned not to be justified by Works but by Grace These escapes though small in the particulars yet in the full sum made the matter so foul as it became a common grievance and a Rule thereupon set by the Parliament for the regulating both of the Judges of such Court and the Causes The Commissions for Goal-delivery likewise grew more mean and ordinary The chief sort of Men in the several Counties had formerly the power but were found to savour too much of Neighbourhood and Alliance The leading of the work therefore is now committed to the Judges at Westminster and the other made onely Associates to them But above all the Courts of Sheriffs Coroners Leets were now grown sowr with Age having attained courses by common practice differing from Oppression onely in Name and yet were the times so unhappy as by these courses they had obtained favour and respect amongst the great men and so gained more power from above to abuse them below These men loved to be Commissioners of Oyer and Terminer and having learned how to make capital offences pecuniary found-such sweetness as they used not to be weary of their places though the Country grew weary of them and therefore disliking uncertaintes in such matters of benefit they cannot rest till they obtain more certain settlement in their places some for Years others for Life and some for ever The Disease thus contracted by degrees the Cure must be accordingly First the Sheriffwicks much dismembred to please the Court-favourites and fill the Kings privy Purse and all raised to the utmost peny of the full and beyond the just value A Law is made to restore the several Hundreds and Wapentakes to the Sheriffs and their Counties and all of them are reduced to the old Rent And it is likewise provided that none shall execute that place in County or Hundred who shall not then have sufficient Lands in that County to answer damages for injustice by them done And that no Sheriff shall serve in that place above one year and then not to be chosen again for that service till three years be past which latter clause was onely a medium taken up for the present occasion in regard that men of ability became very rare in these times especially in some of the Counties The election of the Sheriff is likewise not to be forgotten for though the Counties had the election of Coroners in regard they looked that no man should come nigh their bloud but whom they trusted yet the Sheriff came not so night their skin nor yet so nigh their Free-holds as anciently they had done for that their power in Judicature was much abated and so not worthy of so high regard yet in respect he was still to be a Minister of Justice and his place valuable more than formerly it was holden convenient that such as had the chief power of Judicature at Westminster viz. the Chancellour Treasurer Chief â—aron and the two Chief Justices should nominate the man that should be their Servant and in the Parliament nevertheless they interposed in that Election as often as they saw cause Secondly As touching Causes criminal which more ordinarily come within the cognizance of these Courts They generally held the same regard in the eye of the Law in these times that they had done formerly nevertheless in two crimes these times wrought diversly urging the edge of the Law against the one and abating it as to the other The latter of these is commonly called Petit Treason which is a murther destructive to the Commonwealth in an inferiour degree and at a further distance because it is destructive to that Legiance by which Families do consist and of whom Kingdomes are derived In former times it extended unto the Legiance between Lord and Tenant and Parents and Children But by this Law of 25 E. 3. it is reduced to the Legiance onely of Man and Wife Master and Servant Clerk and his Ordinary the last of which was now lately taken up and might have been as well laid aside as divers others were but that in these times much is to be yielded to the power of the Prelacy who loved to raise the power of the Ordinary to an extraordinary pitch that themselves might be the more considerable
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
faithfully carried on by him that Justice it self could not touch his person unjustice did and he received this reward from his Nephew Henry the Sixth that he died in the dark because the Cause durst not endure the light Now is Henry the Sixth perswaded that he is of full Age he had laid aside his Guardian the Duke of Gloucester but forgetting to sue out his Livery he betakes himself from the Grace of God into the warm Sun as the Proverb is changing the Advice of a faithful experienced wise Counsellour for the Government of an Imperious Woman his Queen who allowed him no more of a King than the very Name and that also she abused to out-face the World. And after she had removed the Duke of Gloucester out of the way undertook the sway of the Kingdom in her own person being a Foreigner neither knowing nor caring for other Law than the Will of a Woman Thus the Glory of the House of Lancaster goes down and now a Star of the House of York appears in the rising and the people look to it The Queen hereat becomes a Souldier and begins the Civil Wars between the two Houses wherein her English party growing wise and weary she prays Aid of Ireland a Nation that like unto Crows ever wants to prey upon the Infirmities of England The Wars continue about sixteen years by â—its wherein the first loss fell to the English party the pretensions being yet onely for good Government Then the Field is quiet for about four years after which the clamour of ill Government revives and together therewith a claim to the Crown by the House of York is avouched Thereupon the Wars grew hot for about four years more and then an ebb of as long Quiet ensues The Tide at last returns and in two years War ends the Quarrel with the death of Fourscore Princes of the Bloud-Royal and of this good man but unhappy King. Unhappy King I say that to purchase his Kingdoms Freedom from a Foreign War sold himself to a Woman and yet lost his Bargain and left it to Observation That a Conscientious man that marries for by-regards never thrives For France espied their advantage they had maintained War with England from the death of Henry the Fifth with various success The Duke of Bedford being Regent for the English for the space of fourteen years mightily sustained the fainting condition of the English Affairs in those parts and having crowned his Master Henry the Sixth in Paris in the ninth year died leaving behind him an honourable Witness even from his Enemies That he was a brave Commander a true Patriot and a faithful Servant to his Lord and Brother Henry the Fifth and to his Son Henry the Sixth But now the Duke of Bedford is dead and though France had concluded a Peace with the English yet they could not forget the smart of their Rod but concluded their Peace upon a Marriage to be had with a Woman of their own bloud and interest And what they could not effect by Arms in thâ—â—r own Field they did upon English ground by a Feminine Spirit which they sent over into England to be their Queen and in one Civil War shedding more English bloud by the English Sword than they could formerly do by all the men of France were revenged upon England to the full at the English-mens own charge For what the English gain by the Sword is commonly lost by Discourse A Kingdom is never more befooled than in the Marriage of their King if the Lady be great she is good enough though as Jezabel she will neither reverence her Husband obey her Lord and King nor regard his people And thus was this Kingdom scourged by a Marriage for the sin of the wise men that building upon a false Foundation advised the King in the breach of Contract with the Earl of Arminiack's Daughter And thus the King also for that hearkning to such Counsel murthered the Duke of Gloucester that had been to him a Father yielded up his Power to his Queen a masterless and proud woman that made him like a broken Idol without use suffered a Recovery of his Crown and Scepter in the Parliament from his own Issue to the Line of York then renewing the War at his Queens beck lost what he had left of his Kingdom Country and Liberty and like the King that forgot the kindness of Jehojada lost his Life by the hand of his Servant CHAP. XIV Of the Parliament during the Reigns of these Kings THe Interest of the Parliament of England is never more predominant than when Kings want Title or Age. The first of these was the Case of Henry the Fourth immediately but of them all in relation to the pretended Law of the Crown but Henry the Sixth had the disadvantage of both whereof in its due place The pretended Law of the Crown of England is to hold by Inheritance with power to dispose of the same in such manner by such means and unto such persons as the King shall please To this it cannot be denied divers Kings had put in their claims by devising their Crown in their last Will but the success must be attributed to some power under God that must be the Executor when all is done and which must in cases of Debate concerning Succession determine the matter by a Law best known to the Judge himself Not much unlike hereunto is the Case of Henry the Fourth who like a Bud putting up in the place of a fading Leaf dismounts his Predecessor First from the peoples regard and after from his Throne which being empty sometimes he pretended the resignation of his Predecessor to him other whiles an obscure Title by descent his Conscience telling him all the while that it was the Sword that wrought the work But when he comes to plead his Title to Foreign Princes by protestation laying aside the mention of them all he justifies upon the unanimous consent of the Parliament and the people in his own onely person And so before all the World confessed the Authority and Power of the Parliament of England in disposing of the Crown in special Cases as a sufficient Bar unto any pretended Right that might arise from the House of Mortimar And yet because he never walks safely that hath an Enemy pursuing him still within reach he bethinks himself not sure enough unless his next Successours follow the dance upon the same foot To this end an Act of Parliament leads the Tune whereby the Crown is granted or confirmed to Henry the Fourth for life and entailed upon his Sons Thomas John and Humphrey by a Petition presented 5 Hen. 4. Thus Henry the Fourth to save his own stake brought his Posterity into the like capacity with himself that they must be Kings or not subsist in the World if the House of York prevails And so he becomes secured against the House of York treading on his heels unless the Parliament of England shall
eat their own word However for the present the House of Lancaster hath the Crown entailed and the Inheritance is left in the Clouds to be revealed in due time For though this was the first precedent of this kind yet was it not the last wherein the Parliament exercised a Power by Grant or Confirmation to direct the Law and Course of the Crown as they pleased The due consideration hereof will make the things that follow less strange For the Parliament according to occasion as the Supream Power of this Kingdom exercised Supream Jurisdiction in order to the safety of the Kingdom as if no King had been to be found in issuing forth Writs under the Great Seal concluding of matters without the Royal Assent treating of Peace with Foreign Nations and of other matters and determining their Resolves before discovery made to the King of their Counsels making Ordinances and ruling by them 3 H. 6. n. 29. 2 H. 6. n. 27. 8 H. 6. n. 12. referring matters determinable in Parliament to be determined according to their directions Authoritate Parliamenti confirming Peace made by the King protesting against Peace made without or against their consent making Embassadours with power to engage for the Kingdom making Generals of the Army Admirals at Sea Chancellors Barons and Privy Counsellors and giving them instructions 8 H. 4. n. 73. and 76. and 31. 5 H. 4. n. 57. 31 H. 6. n. 21. and binding them to observance upon Oath 11 H. 4. n. 19 39. ordering the person of the King denying his power of Judicature in Parliament and ordering his Houshold and Revenue besides many other particulars Now if such as these things were thus done not by one Parliament which possibly might be overswayed by Factions but by the course of a Series of Parliaments that mightily laboured against Faction and unworthy ends and aims that man who shall determine the same to be unjust or indiscreet should himself first be determined to be very just and exceeding wise Nor was the Parliament partial in all this but being in a way of Reformation it set upon the work of reforming it self Some that are very zealous in the point of Arbitrary and Absolute Government of Kings in this Nation and in all other amongst other grounds rest upon this one That an English King hath power to call Parliaments and dissolve them to make and unmake Members as he shall please 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 Statue-Laws of this Realm might take place Nor if they could is that power necessarily and absolutely arising from Supremacy seeing it is well known that such power is betrusted by the Superiour States in other Nations to the Inferiour who dayly attend on publick Affairs and therefore can discern when the general Conventions are most necessary As touching the dissolving of Parliaments against the wills of the Houses it is true that sad precedents have been of later times in that kind and so for want of due attendance Parliaments have been enforced to adjourn to prevent a worse inconvenience but these are infirmities better buried in silence than produced as Arguments of power seeing it is evident that Kings themselves were no greater gainers thereby than an angry man is by his passions It is true alâ—o that Kings may make Lords and Corporations that may send their Burgesses to the Parliament and thus the King may make as many as he will as the Pope did with the Bishops in the Council of Trent yet cannot he unmake them when he pleases nor take the Members from the Parliament without attainder and forfeiture according to the known Law. Neither can all these Instances prove that the Kings of England have the sole and supreme power over the Parliament Nor did the Parliament in these times allow of any such Authority and therefore proceeded for the reforming of themselves by themselves in many particulars as the Statutes do hold forth And first in the point of Elections for an errour in that is like an errour in the first Concoction that spoils the whole Nutriment they ordained that the Election of Knights shall be at the next County-Court after the Writ delivered to the Sheriff That in full Court between the hours of eight and nine in the morning Proclamation shall be made of the day and place of the Parliament That the Suters duly summoned and others there present shall then proceed to the Elections notwithstanding any Prayer or Commandment to the contrary That the names of the persons elected whether present or absent they be shall be returned by Indenture between the Sheriff and the Elizors and that a Clause to that end shall be added to the Writ of Summons This was enough to make the Sheriff understand but not to obey till a penalty of one hundred pound is by other Laws imposed upon him and a years imprisonment without Baibor Mainprise besides damages for false return in such cases and the party so unduly returned fined and deprived of all the Wages for his service Thus the manner of Election is reduced but the persons are more considerable for hitherto any man of English bloud promiscuously had right to give or receive a Vote although his Residency were over the wide World. But the Parliament in the time of Henry the Fifth reduced these also whether they were such as did chuse or were chosen unto their proper Counties or else rendred them uncapable to vote or serve for any County And the like Order was made for the Burroughs That no person must serve for any City or Burrough nor give vote in Electing such as shall serve for that Town unless they be both free and resiants within that City or Burrough A Law no less wholsom than seasonable For the times of Henry the Fourth had taught men to know by experience That a King that hath Souldiers scattered over the Kingdom can easily sway the County-courts and make Parliaments for their own Tooth Yet this was not enough for all Elizors though of the meanest sort yet are still able to do as much hurt with their Vote as those of the best sort both for wisdom and publick mind can do good by theirs This made Elections much subject to parties and confusions and rendred the Parliament much less considerable A remedy hereunto is provided in the minority of Henry the Sixth viz. That no man should give his Vote in Elections in the County unless he hath forty shillings yearly in free Lands or Tenements and this is to be testified upon Oath of the party And more plainly it is orderded within two years after that each Elizor shall have Frank-Tenement of that value within the same County
And thus the Free-men yielded up their liberty of Election to the Free-holders possibly not knowing what they did nevertheless the Parliament well knew what they did this change was no less good than great For first These times were no times for any great measure of Civility The Preface of the Statute shews That the meanest held himself as good a man as the greatest in the Country and this tended to Parties Tumults and Bloudshed Secondly Where the Multitude prevail the meaner sort are upon the upper hand and these generally ignorant cannot judge of persons nor times but being for the most part led by Faction or Affection rather than by right Understanding make their Elections and thereby the general Council of this Nation less generous and noble Thirdly There is no less equity in the change than policy For what can be more reasonable than that those men onely should have their Votes in Election of the Common-Council of the Kindom whose Estates are chargeable with the publick Taxes and Assessments and with the Wages of those persons that are chosen for the publick Service But above all the rest this advancing of the Free-holders in this manner of Election was beneficial to the Free-men of England although perchance they considered not thereof and this will more clearly appear in the consideration of these three particulars First It abated the power of the Lords and great Men who held the inferiour sort at their Devotion and much of what they had by their Vote Secondly It rendred the Body of the People more brave for the advancing of the Free-holder above the Free-man raiseth the spirit of the meaner sort to publick regards and under a kind of Ambition to aspire unto the degree of a Free-holder that they may be somewhat in the Commonwealth And thus leaving the meanest rank sifted to the very bran they become less considerable and more subject to the Coercive power whilst in the mean time the Free-holder now advanced unto the degree of a Yeoman becomes no less careful to maintain correspondency with the Laws than he was industrious in the attaining of his degree Thirdly But this means now the Law makes a separation of the inferiour Clergie and Cloistered people from this service wherein they might serve particular ends much but Rome much more For nothing appeareth but that these dead persons in Law were nevertheless Free-men in Fact and lost not the liberty of their Birth-right by entring into Religion to become thereby either Bond or no Free Members of the people of England Lastly As a binding Plaister above the rest First a Negative Law is made that the persons elected in the County must not be of the degree of a Yeoman but of the most noted Knights Esquires or Gentlemen of the County which tacitly implies that it was too common to advance those of the meaner sort Whether by reason of the former wasting times Knights and Esquires were grown scant in number or by reason of their rudeness in account or it may be the Yeomanry grew now to feel their strength and meant not to be further Underlings to the great Men than they are to their Feathers to wear them no longer than they will make them brave Secondly the person thus agreed upon his Entertainment must be accordingly and therefore the manner of taxing in full County and levying the rate of Wages for their maintenance is reformed and settled And Lastly their persons are put under the protection of the Law in an especial manner for as their work is full of reflection so formerly they had met with many sad influences for their labour And therefore a penal Law is made against force to be made upon the persons of those Workmen of State either in their going to that Service or attending thereupon making such Delinquents liable to Fine and Imprisonment and double damages And thus however the times were full of Confusions yet a foundation was laid of a more uniform Government in future times than England hitherto had seen CHAP. XV. Of the Custos or Protector Regni KIngs though they have vast Dimensions yet are not infinite nor greater than the bounds of one Kingdom wherein if present they are in all places present if otherwise they are like the Sun gone down and must rule by reflexion as the Moon in the night In a mixt Commonwealth they are integral Members and therefore regularly must act Per deputatum when their persons are absent in another Legialty and cannot act Per se Partly because their Lustre is somewhat eclipsed by another Horizon and partly by common intendment they cannot take notice of things done in their absence It hath therefore been the ancient course of Kings of this Nation to constitute Vice-gerents in their absence giving them several Titles and several Powers according as the necessity of Affairs required Sometimes they are called Lord Warden or Lord Keeper of the Kingdom and have therewith the gegeral power of a King as it was with John Warren Earl of Surrey appointed thereunto by Edward the First who had not onely power to command but to grant and this power extended both to England and Scotland And Peter Gaveston though a Foreigner had the like power given him by Edward the Second over England to the reproach of the English Nobility which also they revenged afterward Sometimes these Vice-gerents are called Lieutenants which seemeth to confer onely the King's power in the Militia as a Lieutenant general in an Army And thus Richard the Second made Edmund Duke of York his Lieutenant of the Kingdom of England to oppose the entry of the Duke of Hertford afterwards called Henry the Fourth into England during the King's absence in Ireland And in the mean while the other part of the Royalty which concerned the Revenues of the Crown was betrusted to the Earl of Wiltshire Sir John Bush Sir James Baggot and Sir Henry Green unto whom men say The King put his Kingdom to farm But more ordinarily the Kings power was delegated unto one under both the Titles of Lord Guardian of the Kingdom and Lieutenant within the same such was the Title of Henry Lacy Earl of Lincoln and of Gilbert de Clare Earl of Gloucester and of Audomar de Valentia Earl of Pembrooke all of them at several times so constituted by Edward the Second as by the Patent-Rolls appeareth So likewise did Edward the Third make his Brother John of Eltham twice and the Black Prince thrice and Lionel Duke of Clarence and his Brother Thomas each of them once in the several passages of Edward the Third beyond the Sea in the third fifth twelfth fourteenth sixteenth nineteenth and thirty third years of his Reign concerning which see the Patent-Rolls of those years And Henry the Fifth gave likewise the same Title and Authority to the Duke of Bedford upon the King's Voyage into France and afterward that Duke being sent over to second the King
be said that the whole lump thereof did belong to the King because much thereof was not so ancient but De novo raised by the Pope's extortion and therefore the true and real profits are by particular Acts of Parliaments ensuing in special words devolved upon him The nature of this power is laid down in this Statute under a threefold expression First It is a visitatory or a reforming power which is executed by enquiry of Offences against Laws established and by executing such Laws Secondly It is an ordinary Jurisdiction for it is such as by any Spiritual Authority may be acted against Irregularities And thus the Title of Supream Ordinary is confirmed Thirdly It is such a power as must be regulated by Law and in such manner as by any Spiritual Authority may lawfully be reformed It is not therefore any absolute Arbitrary Power for that belongs onely to the Supream Head in Heaven Nor is it any Legislative Power for so the Law should be the birth of this power and his power could not then be regulated by the Law nor could every Ordinary execute such a power nor did Henry the Eighth ever make claim to any such power though he loved to be much trusted Lastly This Power was such a Power as was gained formerly from the King by Forein Usurpation which must be intended De rebus licitis and once in possession of the Crown or in right thereto belonging according to the Law. For the King hath no power thereby to confer Church-livings by Provisorship or to carry the Keys and turn the infallible Chair into an infallible Throne In brief this power was such as the King hath in the Commonwealth Neither Legislative nor Absolute in the executive but in order to the Unity and Peace of the Kingdom This was the Right of the Crown which was ever claimed but not enjoyed further than the English Scepter was able to match the Romish Keys And now the same being restored by Act of Parliament is also confirmed by an Oath enjoyned to be taken by the people binding them to acknowledge the King under God supream head on earth of the Church of England Ireland and the Kings Dominions in opposition to all forein Jurisdiction And lastly by a Law which bound all the people to maintain the Kings Title of Defender of the Faith and of the Church of England and Ireland in Earth the supream Head under the peril of Treason in every one that shall attempt to deprive the Crown of that Title We must descend to particulars for by this it will appear that these general Laws concerning the Kings refined Title contained little more than matters of Notion otherwise than a general bar to the Popes future interests And therefore the Wisdom of the State as if nothing had been already done did by degrees parcel out by several Acts of Parliament the particular interests of the Popes usurped Authority in such manner as to them seemed best And first concerning the Legislative Power in Church-Government It cannot be denied but the Pope De facto had the power of a Negative vote in all Councils and unto that had also a binding power in making Laws Decrees and Decretals out of his own breast but this was gotten by plunder he never had any right to headship of the Church nor to any such Power in right of such preferment nor was this given to the King as Head of the Church but with such limitation and qualifications that it is evident it never was in the Crown or rightly belonging thereto First Nigh three years after this Recognition by the Clergy in their Convocation it is urged upon them and they pass their promise In verbo Sacerdotii And lastly It is confirmed by Act of Parliament That they shall never make publish or execute any new Canon or Constitution Provincial or other unless the Kings Assent and License be first had thereto and the offences against this Law made punishable by Fine and Imprisonment So as the Clergy are now holden under a double Bond one the honour of their Priesthood which binds their Wills and Consciences the other the Act of Parliament which binds their powers so as they now neither will nor can start Nevertheless there is nothing in this Law nor in the future practice of this King that doth either give or assert any power to the King and Convocation to bind or conclude the Clergy or the People without an Act of Parliament concurring and inforcing the same And yet what is already done is more than any of the Kings Predecessors ever had in their possession A second Prerogative was a definite power in point of Doctrine and Worship For it is enacted that all Determinations Declarations Decrees Definitions Resolutions and Ordinations according to Gods Word and Christs Gospel by the Kings Advice and Confirmation by Letters-patent under the Great Seal at any time hereafter made and published by the Archbishops Bishops and Doctors now appointed by the King or the whole Clergie of England in matters of the Christian Faith and lawful Rites and Ceremonies of the Same shall be by the People fully believed and obeyed under penalties therein comprised Provided that nothing be done contrary to the Laws and Statutes of this Realm A Law of a new birth and not an old Law newly revived or restored This the present occasion and the natural constitution of the Law do fully manifest The occasion was the present perplexity of the people for instead of the Statute Ex officio which was now taken away the Six Articles commonly called the Six-Stringed Whip were gotten into power by a more legal and effectual Original The Parliament had heard the cries of the People concerning this and having two things to eye at once one to provide for the Peoples Liberty and further security against Foreign pretensions the other which was more difficult for the liberties of the Consciences of multitudes of men of several Opinions which could not agree in one judgement and by discord might make way for the Romish party to recover its first ground And finding it impossible for them to hunt both games at once partly because themselves were divided in opinion and the bone once cast amongst them might put their own co-existence to the question and partly because the work would be long require much debate and retard all other affairs of the Commonwealth which were now both many and weighty In this troubled wave they therefore wisely determine to hold on their course in that work which was most properly theirs and lay before them And as touching this matter concerning Doctrine they agreed in that wherein they could agree viz. To refer the matter to the King and persons of skill in that mystery of Religion to settle the same for the present till the Parliament had better leisure the people more light and the minds of the people more perswaded of the way Thus the Estates and Consciences of
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.
over Learned men to Preach and Baptize both King and People and this Rome might probably gain some Honour although possibly the King intended it not or much less to acknowledg any Authority or Power in that Church over that of Britain This act of Lucius so advanced him in the opinion of Writers that they know not when they have said enough Some will have him to be the instrument of the first entry of Religion into this Isle others that he setled a form of Church-government under the three Archbishops of London York and Caerlion upon Vske and 28 Bishopricks the first of which is cried down by many demonstrative instances nor can it consist with the second nor that with it or with the truth of other stories For it neither can be made out that Lucius had that large circuit within his Dominion nor that the title of Archbishop was in his daies known and 't is very improbable that the British Church was so numerous or that Religion in his time was overspread the whole Island nor is there any mention in any Author of any Monuments of these Archbishops or Bishops of Britain for the space of 200. years after this King's reign and yet no continual raging persecution that we read of that should enforce them to obscure their profession or hide their heads or if such times had been it would have been expected that Bishops in those daies should be in Britain as well as in other places most famous for gifts and graces and pass in the forefront of persecution But we find no such thing no not in the rages of Dioclesian which made the British Church famous for Martyrs Writers speak of Alban Amphibalus Aron Julius and a multitude of Lay-people but do not mention one Bishop nor Presbyter nor other Clergy-man but quendam Clericum a man it seems of no note and of unknown name In Charity therefore the English Church in those daies must be of mean repute for outward pomp and to liftedup to that height of Archbishops when as Rome it self was content with a Bishop Somewhat more probable it is that is noted by Writers concerning Lucius his endeavour to settle the Commonwealth and good Laws for Government and to that end did write a Letter to Eleutherius Bishop of Rome for a Model of the Roman Laws probably being induced thereunto by the splendor of the state of the Roman-Church and Commonwealth the onely Favorite of fame in those times through the Northern parts of the World. Things afar off I confess are dim and it is meet that Antiquaries should have the honour due to great after-sight And therefore I might think as some of them have done that the Epistle of Eleutherius to King Lucius is spurious if I could imagine to what end any man should hazard his wits upon such a Fiction or if the incongruities charged against it were incurable but being allowed to be first written in Latine and then translated into British for the peoples satisfaction and in that Language the Original being lost traduced to posterity and then by some Latine Writer in after-ages returned into Latine and so derived to these times all which very probably hath been such occasions of exceptions well arise by mistake of Translators and Transcribers in ignorant times and the substance nevertheless remain entire and true Considering therefore that the matter of that Epistle savoureth of the purer times of the Church and so contrary to the dregs of Romulus I mean the policy practice and language of the Roman Clergy in these latter ages wherein this forgery if so it be was made I must allow it to pass for currant for the substance not justifying the syllabical writing thereof To others it seemeth needless and vain that Lucius should send for a model to Eleutherius when as the Roman Deputies and Legions at home might have satisfied the Kings desire in that particular or their own experience might have taught them grounds sufficient after two hundred years converse with the Romans that they should have little needed a model for that which they saw continually before their view or might have understood by inquiry of their own acquaintance But what could be expected of rough Souldiers concerning form of government of a Common-wealth or if some exceeded the ordinary strain in policy yet they were too wise to communicate such Pearls to conquered Nations that ought to look no higher than the will of the Conquerour and subsist in no better condition than may be controlled by the Supream Imperial Law of the Lord Paramount or if in this they had corresponded to the desires of the Britains yet being for the most part ignorant of the main they could never have satisfied the expectations of a Christian King who desires such a Law as may befriend Religion and wherein no man was more like to give direction than Eleutherius who seeing a kind of enmity between the Roman-Laws and Christ's Kingdom sends to the King a fair refusal of his request upon this ground that Leges Romanas Caesaris semper reprobare possumus He saw that they were not well grounded he therefore refers the King to the sacred Scripture that is truth itself Laws that come nighest to it are most constant and make the Government more easie for the Magistrate quiet for the People and delightful to all because mens mindes are setled in expectation of future events in Government according to the present rule and changes in course of Government are looked at as uncoth motions of the Celestial Bodies portending Judgements or Dissolution This was the way of humane wisdom but God hath an eye on all this beyond all reach of pre-conceit of man which was to make England happy in the enjoying of a better Law and Government than Rome how glorious soever then it was and to deliver that Island from the common danger of the World for had we once come under the Law of the first Beast as we were under his Power we had been in danger of being born Slaves under the Law of the second Beast as other Nations were who cannot shake it off to this day But Lucius lived not to effect this work it was much delayed by the evil of the times nothing was more changeable Then the Emperours grew many of them so vitious as they were a burthen to Mankind nor could they endure any Deputy or Lieutenant that were of better fame than themselves had Some of them minded the affairs of the East others of the North none of them were ad omnia And the Lieutenants in Britain either too good for their Emperour and so were soon removed or too bad for the people of the Land and never suffered to rest free from Tumults and Insurrections So that neither Lucius could prevail nor any of his Successors but passing through continual cross flouds of Persecutions under Maximinus Dioclesian and Maximinianus and many Civil Broiles till the times of Constantine
totius Angliae Ecclesiarum vice nostra cum concilio Episcoporum Abbatum constituatis ubique quae justa sunt How the King took the conclusion I find not but he could never make better use than by way of estoppel unless he meaned to sacrifice his own right as a thank-offering to a shadow which I find not that he or his next Successors ever did But as touching the Laity Histories do not touch upon any conceit of withdrawing Monarchical power It 's true Kings had their excesses yet all was amended either by the body of the people when they pleased to examine the matter or by the Princes fair compliance when complaint was made and so the Law was saved And thus upon all the premises I shall conclude a Saxon King was no other than a primum mobile set in a regular motion by Laws established by the whole body of the Kingdom CHAP XVII Of the Saxon Nobility THe ancient Saxon Nobility in Germany were the chiefest in action both in War and in Peace That rank of men was continued by three means viz. by Birth or Blood by Valour and by Wisdom The first was rather at the first a stem arising out of the first two than a different degree or kind for Noble blood was at the first enobled by brave actions afterward continued in their honour to their Posterity till by as base courses it was lost as it was gained by worthy Atchievements these were called Adelingi The Nobility of Action consisted either in matters of War or of Peace Those of Peace arose principally from Wisdom which being gained for the most part by much experience were therefore called Aldermanni or elder men The Nobility of War arose somewhat from valour or courage with wisdom but more from good success for many brave and fortunate Commanders have not been very daring and the bravest spirits though wise have not been ever honoured with good success these were called Heretochii Nevertheless all these names or titles were used promiscuously in following times and all called Nobiles But both that and Duces Satrape and Comites were all of the Roman Dialect as the former were of the Saxon. Time also brought others into this honourable Band viz. The great Officers of the Kings Houshold and their attests are found amongst the Kings Charters amongst the Nobles and that much advanced the price of Kings for he that is worthy to be not onely Lord above Nobles but Master of some may by a little courtesie prevail over all This starry Heaven had several Orbs some so high as in common esteem they were next the Imperial Heaven having a tincture of Royal Blood and at the next door to the Throne Others though not of so clear light had nevertheless no less powerful influence upon the people but rather more by how much more nigher to them Their power in matters of Peace or Government of the Commonwealth was exercised either collectively or apart and severally In their meetings they ordered the smaller emergencies of the publick in convocating and directing the people De minoribus rebus consultant principes These minora are such as are subservient to the majora and pro hic nunc require suddain order touching any particular part or member of the Common-wealth At other times they visited their several Territories or Circuits hearing and determining matters of Controversie and executing Judgment according to the known Laws Principes jura per pagos vicosque reddunt Yet they had Comites of the Country joyned with them whereof afterward This was their course in German Saxony but in England the new stem of Kingly power arising higher than all the rest sucked much from them and kept them under for the judiciary power was in time drawn up into the Regal order and the Lords executed the same as Deputies from and under him designed thereto by Writs and Commissions as it is more particularly noted of King Alfred The Lords thus lessened in their judiciary power carried the less authority in their Votes and Consultations The King was a perpetual Moderator in that work and it was no small advantage he had thereby to sway the Votes Men that are advanced if they have any excellency soon gain admiration and it 's a hard thing for one that hath yielded his heart to admiration to keep it from adoration This hath mounted up Kings to the top more than their own ambition and made them undertake what they ought not because we esteem more highly of them than we ought I speak not against due but undue Obedience for had the Saxon Lords remembred themselves and the true nature of the authority of their King they needed not to be amazed at their check nor to give way to their passion as they did many times and advised others to do the like Nor had Kings by degrees become beyond controul and uncapable to be advised This errour the Lords espied too late and sometimes would remember their ancient right and power and did take boldness to set a Law upon the exorbitancy of their King as in that case of Aethelwolf and his Queen amongst others may appear but that was like some enterprizes that owe more to extremity of occasion than to the courage of the undertaker CHAP. XVIII Of the Freemen amongst the Saxons THe next and most considerable degree of all the people is that of the Freemen called anciently Frilingi or Free-born or such as are born free from all yoke of Arbitrary power and from all Law of compulsion other than what is made by his voluntary consent for all Freemen have votes in the making and executing of the general Laws of the Kingdom In the first they differed from the Gauls of whom it is noted that the Commons are never called to Council nor are much better than servants In the second they differ from many free people and are a degree more excellent being adjoyned to the Lords in judicature both by advice and power consilium authoritas adsunt And therefore those that were elected to that work were called Comites ex plebe and made one rank of Freemen for wisdom superiour to the rest Another degree of these were beholding to their Riches and were called Custodes Pagani an honourable title belonging to Military service and these were such as had obtained an estate of such value as that their ordinary Arms were a Helmet a Coat of Mail and a gilt Sword. The rest of the Freemen were contented with the name of Ceorles or Pagani viz. Rural Clowns who nevertheless were the most considerable party both in War and Peace and had as sure a title to their own liberties as the Custodes pagani or the Country Gentleman had CHAP. XIX Of the Villains amongst the Saxons THe most inferiour rank amongst the Saxons were those that of latter times were called Villains but those also antiently divided into two degrees the
be a loser by so well-deserving service as in those days that was accounted Nevertheless the English look upon Henry as the fitter man for their turn being now at hand and Robert at Jerusalem and being a native born in England civilized into the English garb by education and of a wiser and fairer demeanour and more inclining to peaceable Government which both Normans and English much inclined to as being weary of thirty years service in the Wars And therefore it is not marvellous if they applied themselves to him in a way of capitulation and less wonderful if he hearkned thereunto and yet neither unadvisedly yielded unto by him nor traiterously propounded by them as some in zeal to Monarchy conclude the point The worst of the whole matter resting in this that the King bound himself to be just that he might be great and the people to submit unto Justice that they might be free like as their Ancestors were and themselves by the Law established ought to be For the capitulation was in substance setled by the ancient Laws of the Saxons mixed with some additions of Laws made by the Kings Father with the joynt advice of the grand Council of the Kingdom all which both the Norman Williams had often confirmed by solemn protestations and promises however their actions upon sudden surprisal were malae consuetudines and exactiones injustae by this Kings own acknowledgment Thus these three Norman Kings made their way to the Throne the first by Arms under colour of Title the second by a kind of Title under colour of Arms and the last by favour but all entred the same by capitulation election and stipulation and for the general had some regard to suit their course in order of retaining the good will of their people although in a different measure according to the differency of occasions CHAP. XLVI That the Government of the Normans proceeded upon the Saxon principles and first of Parliaments THE principles which I mean are these First the Legislative power and influence thereof upon the whole Secondly the Members of that Government with their several motions Thirdly the Laws and Customs or Rules of those Motions And first concerning the Legislative power Although it be true that the first Williams great and most constant labour was to have and to hold and had but little time or liberty to enjoy yet that time of rest which he had did apply it and himself in the setling of the Laws by the advice of Common-council I say not by advice of his own heart or two or three Norman Lords or of the Norman Nobility only as some men take the confidence to aver as if they had been eye-witnesses to the actions of those days but by the joynt advice of the grand-Council of the Lords and wise men of the Kingdom of England I will not insist upon force of argument to shew that common reason must of necessity sway the King into this course but shall reserve that to another place the testimonies of Writers must now serve the turn and herein the testimony of the Chronicle of Lichfield must have the first place which speaks both of a Council of Lords and saith that by their advice he caused to be Summoned a meeting of all the Nobles and wise men through all the Counties of England to set down their Laws and Customs This was in the fourth year of his Reign or rather after his entry and as soon as the Kingdom was brought into any reasonable posture of quiet and which besides the intention of governing the Kingdom according unto Law doth strongly pretend that the Parliament had the Legislative power and right of cognizance and judicature in those Laws that concerned the Kingdom in general and for the particular Laws or Customs of several places or Precincts it was referred to a Committee or Jury in every County to set them forth upon Oath Secondly that this Council had power to change Laws may likewise appear in that Act made concerning the introduction of the Canon-Law which shews not only the power of that Council in Church-matters but also that the Canon was no further in force than the same would allow and this was also done by Common council and the Council of the Archbishops Bishops Abbots and all the Princes of the Kingdom which connexion shews plainly that there was a Council besides that of the Prelates and Princes Thirdly in matters of general charge upon the whole body of the people the King used also the help of this Grand-council as may especially appear in the charge of Arms imposed upon the Subjects which was said to be done by the Common council of the whole Kingdom as is witnessed even by the Kings own Law. It may seem also that the grand Officers of the State were elected by such grand assembly of the wise men for we find that Lanfrank was elected to the See of Canterbury by the assent of the Lords and Prelates and of the whole people that is by the Parliament of England and as probable it is that Bishops were therein also elected for that the Bishop of Lichfield resigned his Bishoprick in such like Assembly if the meaning of Lanfrank be rightly understood who saith in his Letter that it was in conventu Episcoporum atque Laicorum Lastly that one Law of the Kings which may be called the first Magna Charta in the Norman times by which the King reserved to himself from the free-men of this Kingdom nothing but their free service in the conclusion saith that their Lands were thus granted to them in inheritance of the King by the Common-council of the whole Kingdom and so asserts in one the liberty of the free-men and of the representative body of the Kingdom These footsteps of the Parliament find we in the Conquerors time besides other more general intimations scattered amongst the Historians which may induce opinion to its full strength that this King however Conqueror he was yet made use of this additional power of Parliament to perfect his designs and it may be more often than either of his Sons that yet had less pretence of superlative power to countenance their proceedings William Rufus was a man of resolution no whit inferiour if not surpassing his Father and had wit enough for any thing but to govern his desires which led him many times wild and might occasion conceit that he was almost a mad King though he were a witty man and therefore it is the less marvail if he used not the help of the Common-council more than needs must where Kings many times are told of that which they are loth to know Nevertheless William the second could not pass over thirteen years without a parley with his Commons and Clergy unless he meant to adventure a parley between them and his Brother Robert who like an Eagle eyed his posture though he hovered afar off But Henry the first was more wise
coming nigh unto the push of pike and the King ready for the spoil of both the Barons and Clergy suddenly close their files and like a stone-wall stood firm to each other till the King wearied with succesless labour was glad to give and take breath confirmed the Liberties of the people by his Charter which is now called the Magna Charta for substance and gave such collateral security for performance on his part as did let the World know the thing was as just as himself had been unjust The worst point in the case was that the people got their own by a kind of re disseisin a desperate remedy for a desperate condition wherein the Common-wealth then lay between life and death upon the rack of the will of a King that would be controuled by nothing but his own appetite and was in the end devoured by it CHAP. LVIII Of the state of the Nobility of England from the Conquest and during the Reign of these several Kings UNder the Title of the Nobility of England I shall comprehend all such as are of the greatest eminency for birth or wisdom and learning and advancement into place of Government and Honour These were in the Saxons times the flower of the people flourishing only from the honour that ascended from beneath their deportment then was full of chear and safety to the people after that Royalty sprung up the influence thereof upon them exhaled such a reciprocal interest back again as made them less regardful of their own root whereas we see the more mature flowers are the more propense to turn head and look downward to their own original This distemper was yet much worse by the coming in of the Normans whose Nobility besides their Titles of honour in their own Countrey obtained by custom such command and power amongst the meaner sort being Souldiers under them in time of the service in the field that when the Wars had breathed out their last neither of them could forget or were very careful to lay aside This was observed by Kings and advantage espyed to climb to the top of Monarchy by the help of these great men whom if they could make their own all would be theirs and therein they had prevailed much more than they did if they had been wise enough to have maintained them in unity but in that failing the Kings were necessitated to take parties and serve the Nobility to save the main and thus continued they a considerable party in the Government of this Kingdom from the Normans for the space of two hundred years well-nigh to the prejudice both of the growth of the Prerogative of Kings and Liberties of the Commons and benefit of none but the Lords who in those unquiet times were the chief Commanders in the field This errour of the Kings was soon espied but could not be avoided it is natural to man to be proud and to such to fall into contention another course therefore is taken viz. to raise up some so high as may over-top all and keep them under nor is it altogether without reason for Kings are no ubiquitaries and some must bear their power where they cannot be personally present yet it is dangerous to bestow too much upon one man for there is no man fitting to be a King but himself that is a King and where Kings are immoderate in bestowing power it many times works much woe to the people and not seldom sorrow to the Kings themselves The place of the chief Justice was in shew but one Office yet in these times was in nature of the Kings Lieutenant-general throughout the Kingdom A power and work too great for any one man in the World that can make no Deputies to manage it and yet in those times you shall meet with one man made up of an Arch-bishop a Legat and chief Justice of England or a Bishop a Lord Chancellour a Legat and chief Justice of England and a strange kind of Government must that needs be wherein the Servants Throne is above his Masters and a Subject shall have a plenitudinary power beyond that which his Lord and King had or as the times then were was capable of By these and such like pluralities the great men of England kept the Commons below and themselves above and probably rendred the temper of the Government of this Kingdom more Aristocratical than in after-Ages And if their personal authority was of such value how much rather in their joynt assembly or court of Council concerning which I must agree that as in their original in Germany they did consult and determine of the meaner matters that is to say of matters concerning Property and therefore were in their most ordinary work Meetings of Judges or Courts of Judicature and also matters of defensive War because themselves were the Commanders and lastly in matters of sudden concerment to the State not only to serve as eyes to foresee but to provide also if they can or otherwise to call in the ayd of the peoples advice so also they continued this course and it may be now and then as all Councils have done strained their endeavours beyond their reach especially since the Normans entrance and therefore I shall not deny but that they alone with the King and without the Commons have made many Laws and Constitutions some of which now are called Statutes although many of them in truth are no other than Rules for Judicature which ordinary Courts may frame or Judgments in particular cases such as are the constitutions at Clarindon in Henry the Second's time and many other Laws which are reported to be made between the King and his Lords Nor can I look upon such Laws otherwise than as upon Judgments in Courts of Justice in new points of controversie grounded upon ancient grounds which properly are not new Laws but the ancient Rule applied to new particulars and being so published to the World may bear the name of Laws Ordinances Constitutions or Judgments the word Statute being of latter times taken up and used in a more restrictive sence of which more in their due place Now that this Court was a setled Court of Judicature and so used may appear in that Fines were levied therein and Writs of Right determined as in the great Case between the two Kings of Navar and Castilè referred to the Judgment of Henry the second and tried in this Court it is said that the Tryal was by Plea and if need were by Battel The Judges in this Court were the Baronage of England for the entry of Judgment in that great Case is thus Comites Barones Regalis Curiae Angliae adjudicaverunt c. So as though doubtless many were absent some being enemies others discontented others upon other occasions yet all might claim their Votes as Barons The President over all the rest was the Chief Justice as if the King were present then himself and by him was the Sentence or Judgment
in Baronius and the Tenth Article in the Clergies complaint first recited although that complaint both in the 10 11 12 and 33 Articles seem to be but clamour upon Officers and not the Kings Court of Justice Clerks Officers to the Exchequer are to be corrected by their Ordinaries and yet not tyed to residence during their attendance on the Exchequer This is in part an answer to the second Article of the Clergies last complaint and a justification thereof as a thing that is pro bono publico Clergie-mens Goods shall not be Distrained either in the High-way or Sanctuary-grounds unless such as have been of late purchase The complaint exhibited in Henry the third's time and the 8th Article was only in ordinary personal Actions but in the complaint made in Edward the second 's time Article 12. is that it is without cause that they are so distrained This Law yieldeth them somewhat viz. immunity from distress within their ancient possessions which had been by ancient custom priviledged but yields nothing as touching their latter purchased Lands because they had no such custom High-ways and Sanctuaries shall be free for such as abjure so as they shall neither be restrained from liberty nor necessaries kept from them Felons may make free confession to the Priest without danger The grievance in the 22th Article of the Clergies complaint in Henry the Thirds time and the ninth in that of the times of Edw. 2. are hereby relieved provided that the Delinquent keeps himself in due order Houses of Religion shall not be oppressed with Corodies Pensions or entertainments of great men This answered the grievance in the 42. and 43. of the first complaint and the 18th of the latter and in effect little other than what was formerly setled by West 1. cap. 1. The Kings Tenant may be cited before the Ordinary out of their own Town and if Excommunicated for want of appearance the Writ de Excommunicato Capiendo shall be awarded A remedy this was against the grievances in the 12 and 33 Articles of the first complaint and in the 10th Article of the last schedule of complaints And thus the Clergie have gotten the day of the Kings Tenants which they had been striving for ever since the Conquest as may appear by what hath been formerly said and now the Kings Tenants are in no better condition than other men viz. they may now be Excommunicated without the Kings license nor is the answer Nunquum fuit negatum to be referred to the point of Excommunication for that power was denyed them but unto the citing them out of their own Parish which cannot be found to be denyed to the Clergie by any thing that yet appeareth A Clerk presented and found unable by the Ordinary shall be tryed again by the Ecclesiastical and not the Lay-Judge Although the fitness or sufficency of the party presented is to be examined by the Ordinary yet the Civil Magistrate hath power in action brought to enquire and determine whether the Ordinaries work was rightly done and so the 17th Article of the last complaint answered Elections shall be free The Laws was of the same with this in the Stat. W. 1. cap. 5. which see before and it may be that the iniquity of the times continued notwithstanding and so occasioned the renewing of this Law. A Clerk having taken Sanctuary shall not be compelled to adjure Nor after confession of the Crime or appealing others before the secular Judge shall be denyed his Clergie Although the Temporal Courts proceeded not so far as to pass sentence against a Clerk that had taken Sanctuary yet they proceeded to enquiry as may appear by what was said formerly concerning the Stat. West 1. cap. 2. and therefore though this Law in the 15th Chap. alloweth that a Clerk in Sanctuary shall enjoy his Ecclesiastical liberty yet the words legi Regni se reddens are interposed and the reason is because the King upon Indictment found had right to the Delinquents goods and profits of his Lands until due purgation and then his Lands were by a Writ out of the Chancery to be restored to him again nor could any purgation regularly pass before the party was Indicted No Religious House shall be charged with Tax to any Superiour without the Realm of England nor shall send to any visitation out of England This was neither at the request of the Clergie nor act of kindness intended unto them but for the good of the Kingdom to prevent the bleeding of the Treasure of the Kingdom into Foraign parts Patrons of Abbies shall have their custody during their vacancies This was the ancient Law now revived by the Clergies consent and intended for the safeguard of the Revenues of the Houses and their maintenance and therefore it is with a sicut superius dictum est cap. 5. The Goods of the Clergie freed from purveyance unless they will. It was a favour given by Edw. 2. to the Clergie to gain their good will after the death of Gaveston the shameful defeat received in Scotland and some particular testimonies of God's displeasure whereof he began to be somewhat sensible Franchises holden by prescription or Charter confirmed and Tryals by Quo Warranto allowed to be in Eyer It was the common share of the great men but especially of the Clergie to have their Franchises exposed to the prey of the Eagles or to such as hawked for them and it is likely the King had not so easily for gone his prize if all the fat had fall'n to his own share but perceiving that more benefit came to his instruments than was meet and himself little the better thereby he sacrificed his Judges to the people but it was to his own behoof and so gained both credit and favour from the people and profit to himself and in some measure satisfied the 48 49 50. Articles of the Clergies complaint in the time of Henry the Third and the 15th Article of their last complaint Lands or Tenements aliened to a Religious house shall escheat to the Lord if the alienor take the same back to hold of that House The ground hereof principally was the prejudice done to the Lord by destruction of the Tenure albeit that it had been an ancient grievance complained of in the Saxon times That the Clergie were covetous and swallowed down estates and thereby weakned the Kingdom But now they are become even cheaters serving the turns of treacherous Tenants that would give their Lands by compact with the Church-men to receive them again from them to hold of the Church which was a liberty that men thirsted after in those times wherein the Church-men were more adored than their Images It seems this Law was made after Bracton's time if that be true in the second Institutes for he saith that a man may give his Lands to any one whether Christian or Jew or religious person
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
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
in the French Wars the Duke of Gloucester obtained the same power and place But Henry the Sixth added a further Title of Protector and Defender of the Kingdom and Church of England this was first given to the Duke of Bedford and afterwards he being made Regent of France it was conferred upon the Duke of Gloucester And towards the latter time of Henry the Sixth it was granted by him to Richard Duke of York This Title carried along with it a power different from that of a King onely in honour and the person so adorned may be said to sway the Scepter but not to wear the Crown And therefore in the minority of Henry the Sixth whenas the Government was ordered by the Parliament and to that end a Protector was made and he well guarded with a Privy Council and they provided with Instructions one of them was That in all matters not to be transacted ordinarily but by the King 's express consent the Privy Council should advise with the Protector But this is not so needful in regard that it concerneth the power of executing of Laws which by right of the liberty of the Subject is the known duty of the Scepter in whose hands soever it is holden And therefore I shall pass to the Legislative Power wherein it is evident that the Protector 's power was no whit inferiour to the King's power For First the Protector Ex Officio by advice of the Council did summon Parliaments by Writs even as the Kings themselves under their own Test and if they did not bear the Royal Assent yet did they direct the same and received Petitions in Parliament to them directed as to Kings and every way supplied the room of a King in order to the perfecting publishing and enforcing of Law to Execution Secondly the Parliaments holden by Protectors and Laws therein made are no whit inferiour to those by the King whether for Honour or Power And therefore if a Parliament be holden by the Lord Warden and sitting the Parliament the King in person shall arrive and be there present neither is the Parliament interrupted thereby nor the power thereof changed at all though the power and place of the Wardenship of the Kingdom doth utterly vanish by the personal access of the King because in all places where the King is subservient to the Kingdom or the Commonwealth the Lord Warden in his absence is conservient unto him being in his stead and not under him for the very place supposeth him as not because not present And this was by a Law declaratively published at such time as Henry the Fifth was Regent of France and therefore by common presumption was likely to have much occasion of residence in that Kingdom aâ—â— it holdeth in equal force with all other Laws of the highest size which is the rather to be noted because it is though under a Protector obligatory to the King and makes his personal presence no more considerable than the presence of his shadow For the King spent three whole years in the French Wars and during that time never saw England where nevertheless in that interim three Parliaments had been holden one by the Duke of Bedford and two by the Duke of Gloucester in the last of which this Law was made And in truth if we look upon this Title of the Kingdoms Guardianship in its bare Lineaments without lights and shadows it will appear little better than a Crown of Feathers worn onely for bravery and in nothing adding to the real ability of the governing part of this Nation Neither were the persons of these Magnificoes so well deserving nor did the Nation expect any such matter from them Edward the First was a wise King and yet in his absence chose Edward the Second to hold that place he being then not above fourteen years of age Afterwards Edward the Second's Queen and the Lords of her party were wise enough in their way and yet they chose Edward the Third to be their Custos Regni then not fourteen years old his Father in the mean time being neither absent from the Kingdom nor deposed but onely dismissed from acting in the administration of the Government Edward the Third follows the same example he first makes his Brother John of Eltham Custos Regni and this he did at two several times once when he was but Eleven years old afterwards when he was about Fourteen Then he made his Son the Black Prince upon several occasions three times Lord-Warden of the Kingdom once he being about Nine years old and again when he was Eleven years old and once when about Fourteen years old Lastly Edward the Third appointed his Son Lionel Duke of Clarence unto this place of Custos Regni when as he was scarce Eight years old all which will appear upon the comparing their Ages with the several Rolls of 25 E. 1. 3 5 12 14 26. 19 E. 3. If therefore the work of a Custos Regni be such as may be as well done by the Infants of Kings as by the wisest Counsellor or most valiant man it is in my opinion manifest that the place is of little other use to this Commonwealth than to serve as an attire to a comely person to make it seem more fair because it is in fashion nor doth it advance the value of a King one grain above what his Personal endowments do deserve Hitherto of the Title and Power the next consideration will be of the original Fountain from whence it is derived wherein the Precedents are clear and plain that ordinarily they are the next and immediate Off-spring of Kings if they be present within the four Seas to be by them enabled by Letters-Patents or Commission But whether present or absent the Parliament when it sate did ever peruse their Authority and if it saw need changed enlarged or abridged both it and them Thus was the Duke of Gloucester made Lord Warden in the time of Henry the Fifth he being then in France in the room of the Duke of Bedford The like also in Henry the Sixth's time when as the King was young for then the Parliament made the Duke of Bedford Lord Warden and added unto that Title the Title of Protector Afterward at the Duke's going over into France they committed that service to the Duke of Gloucester if I forget not the nature of the Roll during the Duke of Bedford's absence and with a Salvo of his right Not unlike hereunto was the course that was taken by the Parliament in these sullen later times of Henry the Sixth whereof more hereafter in the next Paragraph Lastly The limitation of this high power and Title is different according to the occasion for the Guardianship of the Kingdom by common intendment is to endure no longer than the King is absent from the Helm either by voluntary deserting the work or employment in Foreign parts though united they be under the Government of the same King together
rest looked to the Provisors more strictly than his Predecessors had and not onely confirmed all the Statutes concerning the same already made but had also provided against Provisors of any annual Office or Profit or of Bulls of Exemption from payment of Tythes or from Obedience Regular or Ordinary and made them all punishable within the Statute And further made all Licenses and Pardons contrary thereto granted by the King void against the Incumbent and gave damages to the Incumbent in such vexations for the former Laws had saved the right to the true patron both against Pope and King. And thus the English Kings were Servants to the Church of England at the charges of Rome whilst the Popedome being now under a wasting and devouring Schism was unable to help it self and so continued until the time of Henry the Sixth at which time the Clergie of England got it self under the power and shadow of a Protector a kind of Creature made up by a Pope and a King. This was the Bishop of Winchester so great a man both for Birth parts of Nature Riches Spirit and Place as none before him ever had the like For he was both Cardinal Legate and Chancellor of England and had gotten to his aid the Bishop of Bath to be Lord Treasurer of England Now comes the matter concerning Provisors once more to be revived First More craftily by colloguing with the Nobility who now had the sway in the Kings Minority but they would none An answer is given by the King that he was too young to make alterations in matters of so high concernment yet he promised moderation The Clergie are put to silence herewith and so continue till the King was six years elder and then with Money in one hand and a Petition in the other they renew their suit but in a more subtile way For they would not pretend Rome but the English Churches Liberties they would not move against the Statutes of Praemuniri but to have them explained it was not much they complained of for it was but that one word Otherwhere which say they the Judges of the Common Law expound too largely not onely against the Jurisdiction of the Holy See but against the Jurisdiction of the English Prelacy which they never intended in the passing of those Laws Their Clonclusion therefore is a Prayer That the King will please to allow the Jurisdiction of their Ecclesiastical Courts and that Prohibitions in such Cases may be stopped But the King either perceiving that the Authority of English Prelacy was wholly dependant on the See of Rome and acted either under the shadow Legatine or at the best sought an Independent power of their own Or else the King doubting that the calling of one word of that Statute into question that had continued so long might endanger the whole Law into uncertainty declined the matter saving in the moderation of Prohibitions Thus the English Clergie are put to a retreat from their Reserve at Rome all which they now well saw yet it was hard to wean them The Cardinal of Winchester was a great man and loth to lay down his power but his own Tribe grew weary of him and his power For the greater some Church-men are unless they be better than men the inferiour and better Church-men are worse than men At length therefore the Cardinal is Vnlegated and that power conferred upon the Archbishop of Canterbury a man formerly well approved but by this very influence from Rome rendred suspected Which he perceiving protested against the exercise of the Jurisdiction Legatine without the Kings allowance and so mannerly crept into the Chair The English Kings and Clergie having thus attained the right discerning of each other begin to take up a new way of policy which was to hold nothing of the Popedom but the Form of Worship and Discipline but as touching Jurisdiction they held it a high point of wisdom either to fetch it nigh at home or to be silent in the matter having now found a main difference between the Popes Will and the Church-Law and therefore as formerly the Convocation and Parliament joyned in excluding of Foreigners from Church-livings under the notion of Intelligencers to Enemies abroad So neither now will they allow any provisions for English men and upon this ground the Dean and Chapter of York refused to admit the Bishop of Lincoln to the See of York although assigned he was thereto by Pope Martin and he the darling of Nations being by joynt consent advanced to the Triple Crown that had been formerly tripled amongst three Popes and troubled all Europe And whereas during the Tripapalty much money had been levyed here in England to serve for the recovery of the Popedom to one of English interest now by joynt consent the same is seized upon and stopped as fewel from the fire and spent by Henry the Fifth in the recovery of a Kingdom in France that should have been employed in recovery of a Popedom at Rome These things concurred to give a wound to the Popedom that was never cured to this day Nevertheless the English Clergie was no loser by all this but gained in the whole sum For as it made them more depending on the Crown so it made the Crown more fast to them from which they had received more real immunities and power than the Pope ever did or was able to give them and might expect to receive many more What personal respects these three Kings shewed them hath been already touched Henry the Sixth added one favour which made all the rest more considerable Hitherto they had used to meet in Convocation as upon the interest of Rome and little notice was taken of them now the Nation owns them and in some respects their work and it is granted That the Clerks of Convocation called by the Kings Writ and their Menial Servants shall have such priviledge in coming carrying and going as the Members of the Parliament have So as though they be not Members yet they are as Members if they assemble by the Kings Writ and not onely by the power of the Legate or Metropolitan The antiquity of this Court is great yet not so great as hath been supposed nor is it that Court of the Ordinary called the Church Gemot mentioned in the Laws of Henry the First as not onely the works thereof therein set down do sufficiently declare but also it is evident that in Henry the Second's days the Grand Councils of this Kingdom were joyntly mixed both of Clergie and Laity Nor could the Clergie shut the Laity from their Councils till about the times of Richard the First or King John. From which time forward the Laity were so far from protecting of them that till these times now in hand all their care was to keep them from violating the Liberty of the people That they were many times notwithstanding called together by the Kings Writ before these times hath