disabled to understand as in Case of Infancy there the Royall Assent can bear litle weight with it but most of all in the Kings absence where either the Assent is put thereto by Commissioners that know not the Kings particular minde or the Act is done onely by the Houses in nature of Ordinances and yet these of force to binde all Parties but the King But nothing more debased the Royall Assent in these times then a trick that Edward the Third plaid in the middest of the fullest strength of his Government It was in time of War which never is time of good Husbandry and laying up nor of sober advise in laying out nor of equity in levying and collecting money for the nerves of War This forward Warrier in the heat of his Atchievements findes his strength benummed for want of money he leaves off comes home rages against his A. Bishop to whom he had committed the care of Provision for his War and the A. Bishop as hotly falls upon some of the Treasury in the Army on the one side and upon others in the Countrey whose oppressions saith he in stead of bringing in money made the people to give a stop thereto A contest hereupon thus had it was concluded by the Power of the Parliament that such men should be questioned and that the Parliament from time to time should call all Officers of State to account and thereupon ensues a calme After the Parliament ended the King repeats the matter it makes his heart sick he disgorgeth himself by a Proclamation made by advise of Nobles and Wise men as he saith and tells all the World he dissembled with his Parliament and what he did was done by duress of minde to please for the time and to gain his ends which being now had he by his Proclamation revokes what he had done in Parliament or indeavoured it And thus is England put to school to learn to dissolve three hard knots First Whether a King can dissemble with his Parliament Secondly Whether Edward 3. his dissembling assent makes a Law Lastly Whether by a Proclamation by advise of Nobles and Wise men he can Declare that he dissembled with his Parliament and therein not dissemble the Royall Assent so as to bring all the Lawes made in any Kings time into question at least during his life However the result may be its evident the Royall Assent gets no honor hereby and the Statute as little that hath suffered this Proclamation all this time to passe among the number of the Statutes in Print as a Law when as many Statutes that are Lawes of note are left out as uselesse Although in the generall the two Houses joyned in every Act Ad extra yet Ad intra and in relation one to another they had their severall operations the House of Commons intermedled more in the matter of fact the House of Lords in matter of right although in either of these there is a mutuall aspect from both In matters of judicature much rested with the Lords and therefore it is ordained that The House of Lords shall remedy all offences contrary to the Law of Magna Charta And in cases where no remedy is left nor judgment by the Law the matter shall be determined in Parliament and the King shall command execution to be done according to the judgment of the Peeres Which Lawes seeme to bee but declarative of the former Lawe and in the nature of reviving that power into Act which was formerly layd asleep and doth strongly implye that the ultimate act in judicature rested with the Lords in relation not onely to the House of Commons but also in relation to the King whose work in such cases is not to judge above or with the Peers but to execute their sentence and that carries with it a list whereby the power of a King may appeare not to be so supreame in making of the Law as some would have it for if his Judgement and Conscience be bound by the Votes of the Peers in giving a Law in Case of a particuler person where the Law was not formerly known Let others judge of the value of this Negative Vote in giving Law to the whole Kingdome It s true that this Parliament was quarrelled by the King and he kept it at a bay by a Proclamation that pretended Revocation as far as a Proclamation could revoke an Act of Parliament but it effected nothing nor did the contest last long Now though this Jurisdiction thus rested in the House of Lords in such Cases as well as in others yet is it not so Originally in them as to be wholly theirs and onely as they shall order it for the Commons of England have a right in the course and order of Jurisdiction which as the known Law is part of their liberty and in the speedy execution of Justice as well as they have right to have Justice done and therefore whereas in Cases of Error and delayes the Appeale was from the inferiour Court to the Parliament which immediately determined the matter and now the trouble grew too great by the increase of Pleas For remedy hereof a kind of Committee is made of 1 Bishop 2 Earls 2 Barrons who by the advice of the Chancellor Treasurer and the Judges shall make good judgement in all Cases of Complaint of delay in Judgement which Committee is not made by Order of the Lords alone which they might have done in case Jurisdiction had bin wholly and onely shut up in their custody but by Act of Parliament and joynt concurrence of the Commons with the Lords For as the Commons challenge speedy Execution of Justice as one of their liberties So also to be under the jurisdiction of such Judges and Courts as the Lawes in the making whereof themselves challenge a Vote do establish appoint I will conclude this Chapter with the Constitution of the Parliament in these times For the difficulties that befell between the Kings and their people or Houses of Parliament wrought two sad effects Viz. A propensity to decline calling of Parliaments so often as was used and exspected and when it assembled as great a propensity in the Members to decline their attendance by means whereof as the Historians tell us the Parliament was somtimes inforced to adjourn it self for want of number sufficient the first of these arose from want of good will in the Kings the other from want of courage and zeale in the people The first of these was fatall and destructive to good Government for though in distempered Parliaments its good to withdraw yet in distempered times its necessary to meete and gain a right understanding of all parties and therefore these times were so happy as to binde themselves by publique Acts of State to recontinue the Assembling of Parliaments For the face of the Times represented unto all that Agitations were like to be quick violent and to continue for some succession of Time It s
by Law The first served as a scare for though it were but by Proclamation men might justly fear that he that was so stout against the Pope would not stick to scourge his owne Subjects out of his way in the time of his heat The King thus entered the Lists both against Pope and Cardinall now under Praemuniri whereof he died meets the English Clergy thus loosing their top-gallant standing up in the reare against him and talking at large Neverthelesse the King stops not his carreere puts them to the rout for maintaining the power Legatine They soon submit crave pardon give a summe of money and perfume their Sacrifice with that sweet Incense of Supreame Head of the Church of England This was done not by way of Donation for the Convocation had no such power but by way of acknowledgement in flat opposition to the Jurisdiction of the Pope It became the common subject of discourse amongst all sorts but of wonderment to the Pope Yet for fear of worse he speaks faire for he was not in Posture to contest but all would do no good the Queen had appealed to Rome the Pope by Woolsies advice makes delayes The Parliament espying the advantage at once tooke all appeales to Rome away and established all sentences made or to be made within this Land notwithstanding any Act from Rome and enjoyned the English Clergy to administer the severall acts of publique worship notwithstanding any inhibition or excommunication from any forrain pretended Power The grounds upon the preamble of the Law will appeare to be two First that the King of England is supream head in rendring Justice within the Nation in all causes therein arising which is more then the recognisance of the Clergy two yeares before this Act did hold forth yet this acknowledgment is not absolute but in opposition to Forraine pretentions Secondly that the Clergy in England having Power may in matters spirituall determine all doubts without forrain help and administer such duties as to their place do belong not hereby determining that the Church-men ever had such Power by Law nor that they ought originally to have such Power They never had it for no sooner were they disjoyned from the Laity in these affaires but immediately they were under the Pope and received their Power from him And De jure they cannot challenge such power but by a positive Law such as this Law of Henry the eighth which also giveth but a restrictive and limited power Viz In matters testamentary of divorce matrimony tithes oblations and obventions So as if they will challenge such power they must thanke the Parliament for it and use the same accordingly as persons deputed therunto and not in their owne right or right of their places In all this the Kings supremacy is but obscurely asserted and rather by implication shewing what in reason may be holden then by declaration of what was making way thereby First into the opinions of men before they were enjoyned to determine their actions but within two yeares ensuing or thereabout the Law is made positive The King shall be taken and accepted the onely supreame head on earth of the Church of England and have power to visite correct represse redresse reforme restraine order and amend all such errours heresies abuses offenses contempts and enormities as by any manner of spirituall authority or jurisdiction ought or may lawfully be reformed Which in the preamble is saide to be made to confirm what the Clergy in their Convocation formerly had recognized The corps of his Act is to secure the Kings Title the Kings Power and the Kings Profit As touching the Kings Title it is sayde that in right it did formerly belong to him which is to be granted by all so far as the Power is rightly understood But as touching the Kings Profit it cannot be saide that the whole lump thereof did belong to the King because much thereof was not so ancient but De novo raised by the Popes extortion and therefore the true and reall Profits are by particular Acts of Parliament ensuing in speciall words devolved upon him The nature of this power is layd downe in this Statute under a three fold expression First it is a visitatory or a reforming Power which is executed by inquiry of offences against Lawes established and by executing such Lawes Secondly it is an ordinary jurisdiction for it is such as by any Spirituall authority maybe acted against irregularities and thus the Title of supreame Ordinary is confirmed Thirdly it is such a Power as must be regulatd by Law and in such manner as by any spirituall Authority may lawfully be reformed It is not therefore any absolute arbitrary Power for that belongs onely to the supreame Head in Heaven Nor is it any legislative Power for so the Law should be the birth of this Power and his Power could not then be regulated by the Law nor could ever Ordinary execute such a Power nor did Henry the eighth ever make claime to any such Power though he loved to be much trusted Lastly this Power was such a Power as was gained formerly from the King by forraine Usurpation which must be intended De rebus licitis and once in possession of the Crown or in right thereto belonging according to the Law for the King hath no Power thereby to confer Church-livings by Provisorship or to carry the Keyes and turn the infallible Chaire into an infallible Throne In breife this Power was such as the King hath in the Common-wealth neither legislative nor absolute in the executive but in order to the Unity and Peace of the Kingdome This was the right of the Crowne which was ever claimed but not enjoyed further then the English Scepter was able to match the Romish Keyes And now the same being restored by Act of Parliament is also confirmed by an Oath enjoyned to be taken by the People binding them to acknowledge the King under God supreame head on earth of the Church of England Ireland and the Kings Dominions in opposition to all Forraine jurisdiction And lastly by a Law which bound all the People to maintaine the Kings Title of Defender of the faith and of the Church of England and Ireland in earth the supream head under the perill of Treason in every one that shall attempt to deprive the Crowne of that title We must descend to particulars for by this it will appeare that these generall Lawes concerning the Kings refined title contained little more then matters of Notion otherwise then a generall barr to the Popes future interests And therefore the Wisdome of the State as if nothing had been already done did by degrees parcell out by severall Acts of Parliament the particular interests of the Popes usurped Authority in such manner as to them seemed best And First concerning the Legislative Power in Church government It cannot be denied but the Pope De facto had the Power of a negative vote in all
the People However unequall it may seem yet both that and other advantages were gained by the House of Lords after the seperation was once made as many of the ancient Statutes by them only made do sufficiently hold forth which although in the generall do concern matters of Judicature wherin the Lords originally had the greatest share yet other things also escaped the Commons Vote which in after ages they recovered into their consideration again And the condition of the People in those times did principally conduce hereunto For untill the Norman times were somwhat settled the former ages had ever been uncertain in the changes between War and Peace which maintained the distance between the Lords and their Tenants and the Authority of the one over the other savouring of the more absolute command in War And after that the Sword was turned into the plough-share the distance is established by compact of Tenure by Service under perill of default although in a different degree for the Service of a Knight as more eminent in War so in Peace it raised the minde to regard of publique Peace but the Service of the plough supporting all is underneath all yet still under the common Condition of free men equally as the Knight Peace now had scarcely exceeded its minority before it brought forth the unhappy birth of Ambition Kings would be more absolute and Lords more Lordly the Commons left far behinde seldom come into mention amongst the publique Acts of State and as uselesse set aside this was the lowest ebb that ever the Commonage of England indured which continued till Ambition brought on contention amongst the great men and thence the Barons Warrs wherein the Commons parting asunder some holding for the King who promised them Liberty from their Lords others siding with the Lords who promisied them Liberty from the King they became so minded of their Liberties that in the conclusion they come off upon better advantage for their Liberties then either King or Lords who all were Loosers before their reckoning was fully made These Wars had by experience made the King sensible of the smart of the Lords great Interest with the People and pointed him to the pin upon which the same did hang to take which away a Designe is contrived to advance the value of the Commoners and to levell the Peerage that they both may draw in one equall yoke the Chariot of Prerogative The power of the Commons in publique Councells was of some efficacy but not much Honour for their meetings were tumultuary time brought forth a cure hereof the flowers of the People are by Election sent to the Representative and so the Lords are matched if not over-matched the People lesse admiring the Lords and more regarding themselves This was but a dazle an eclips ensues for Kings having duely eyed the Nature of Tenures between the Lords and Commons look upon it as an out-work or block-house in their way of approach Their next endeavour is therefore to gain the Knighthood of England within the compass of their own Fee and so by priority to have their Service as often as need should require by a trick in Law as well for their own safety in time of War as for their benefit in time of Peace This was a work of a continuing Nature and commended to Successors to accomplish by degrees that the whole Knighthood of England is become no more the Lords till Kings be first served and thus the power of the People is wholly devolved into the Kings Command and the Lords must now stand alone having no other foundation then the affections of the People gained by beneficense of Neighbourhood and ordinary society which commonly ingratiates the inferiour rank of men to those of higher degree especially such of them as affect to be popular Henry the seventh found out this sore and taught his Successors the way to avoid that occasion of jealousy by calling up such considerable men to attend the Court without other wage but fruitlesse hopes or under colour of Honour to be had by Kings from the presence of such great men in their great Traines or of other Service of speciall note to be done onely by men of so high accomplishment And by this meanes Lordship once bringing therewith both Authority and Power unto Kings before Kings grew jealous of their greatness in these later dayes is become a meer jelly and neither able to serve the Interest of Kings if the People should bestir themselves nor their own any longer henceforth the Commons of England are no mean Persons and their representative of such concernment as if Kings will have them to observe him he must serve them with their Liberties and Lawes and every one the publique good of the People No mans work is beneath no mans above it the best Honour of the Kings work is to be Nobilis servitus as Antigonus said to his Son or in plain English supreame Service above all and to the whole I now conclude as I found this Nation a Common-Wealth so I leave it and so may it be for ever and so will it be if we may attain the happinesse of our Fore-Fathers the ancient Saxons Quilibet contentus sorte propria A Table of the Principall Matters conteined in this Book A A Betting of Felony made Felony 299 Administration granted to the next of the Kindred 51 Admirals power from the Parliament 41. formerly under many brought into one 42. once gained jurisdiction to the high water-mark 44. and his Power regulated by Law ibid. over Sea-men Ports and Ships 44 Allegiance according to Law 18. vide Supremacy the nature thereof in general 79. its not natural 79 89. not absolute or indefinite 82. not to the King in his natural capacity 86. it obligeth not the People to serve in forrain War 10â— it is due to the person of the King for the time being 246 279. what it is in time of War and relation thereunto 247. Henry the seventh and Henry the eighth indeavoured to advance it in relation to the Crown but effected it not 204. Appeals in cases Ecclesiastical restrained from Rome and given in the Kings case to the Convocation and in the cases of the People the Archbishop afterwards to the Delegates and were never setled in the Crown 227 233. vide Archbishop Archbishop hath the lawfull power of the Pope in Appeals and Dispensations Licenses and Faculties 233. the Archbishop of York looseth his jurisdiction over the Scottish Bishops 193 Arrays Commission of Array 178 vide War Assent of the King to Acts of Parliament serveth onely to the execution of the Law and not to the making thereof 21 Association of the People for the common safety before the Statute inabling the same 298 B. BAstardy not to be determined by the Ordinary before Summons to the Pretendors of Title to be heard 156 Bench the Kings Bench at Westminster abated in power by the Commissions of Oyer and Terminer and Gaol delivery
there was a constant body framed that were sworn to that service for some in these times were sworne both of the Grand Councell and the Privy Councell and so entered upon Record The second of these Councells was also a great Councell and probably greater then the other but this was called onely upon occasion and consisted of all sorts like a Parliament yet was none An example whereof we have in the Ordinances concerning the Staple which at the first were made by the King Prelates Dukes Earles Lords and great Men of the Kingdome one out of every County Citty and Burrough called together for that end their results were but as in point of triall for sixe moneths space and then were turned into Statute-Law by the Parliament These two are Magna Concilia yet without power further then as for advise because they had no ancient foundation nor constant continuance Another Councell remaineth more private then the other of more continuall use though not so Legally founded and this is called the Kings Privy Councell not taking up a whole House but onely a Chamber or a Table signifying rather communication of Advice then power of Judicature which more properly is in Banco And yet the power of this grew as virile and royall as it would acknowledge no Peere but the Parliament and usurped the representative of it as that had bin of the whole Kingdome The ambition thereof hath ever bin great and in this most notoriously evident that as it had swallowed up the grand Councell of Lords it seldome can endure the mention of a Parliament but when Kings or Affairs are too rugged for their owne touch The platform of their power you may behold in this their Oath 1. That well and lawfully they shall councell the King according to their best care and power and keep well and lawfully his Councels 2. That none of them shall accuse each other of any thing which he had spoken in councell 3. And that their lawfull Power Aid and Councell they shall with their utmost diligence apply to the Kings rights 4. And the Crowne to guard and maintaine save and to keepe off from it where they can without doing wrong 5. And where they shall know of the things belonging to the Crowne or the rights of the King to be concealed intruded upon or substracted they shall reveale the same to the King 6. And they shall enlarge the Crowne so far as lawfully they may and shall not accouncell the King in decreasing the rights of the Crowne so farre as they lawfully may 7. And they shall let for no man neither for love nor hate nor for peace nor strife to doe their utmost as far as they can or doe understand unto every man in every Estate Right and Reason and in Judgement and doing right shall spare none neither for riches nor poverty 8. And shall take of no man without the Kings leave unlesse meat or drinke in their journey 9. And if they be bound by Oath formerly taken so as they cannot performe this without breaking that they shall informe the King and hereafter shall take no such Oathes without the Kings consent first had All which in a shorter summe sounds in effect that they must be faithfull Councellors to the Kings Person and also to his Crowne not to decrease the true Rights but to inlarge them yet all must be done lawfully And secondly that they shall doe right in Judgement to take no Fees nor any other Oath in prejudice of this The first of these concerne the Publique onely at a distance and yet the point of increasing and diminishing of the Crowne in the sixth Section is captious and may sound as if there is a Legall enlarging of the Crowne whereof he that takes the Oath is to judge A matter which onely and properly concerns the Parliament to order and determine or else farewell all liberty of the People of England The second concerneth immediately the King in his politique capacity but trencheth upon all the Laws of the Kingdome in the executive power and all the motions in the whole Kingdome either of Peace or Warre following in the reare either immediately or mediately are under this notion interested into the transaction of the Privy Councell to debate and determine the Kings judgement therein unlesse 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 Neverthelesse these times wherein Parliaments were every moment upon the wing and kept this Noble Band in awe by taking them into their Cognisance 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 plentifull I say these times thus constituted added yet further incouragement to them by giving them powers by Statute-Law over and beyond what by ancient Custome they had obtained The King and Councell of Lords had anciently a power of Jurisdiction that hath bin in the first part of this discourse already observed yet it s very probable that it was not any select company of Lords but the whole Association for it s granted by all that they had originally a Principall hand in the jurisdiction And its hard to conceive how any private number should catch such a power if not by usurpation But the manner of acquiring is lesse materiall the principall consideration resteth upon the quality of this Jurisdiction For it is evident that much difference hath bin both concerning the place and manner of exercising this Authority In generall 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 Consilio whose meeting was in the Councell Chamber in those dayes called the Star-Chamber For other returns of Writs in the Star-Chamber doe not we finde but such as were in Camera nor Prohibitions from thence but under the notion of the Kings Councell and this Camera as I said was the place of the joynt meeting of the Councell 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 Crowne although even these also properly were determinable in the Kings Bench nor can I observe any rule to bound the powers of these two Judicatories but this that the Councell Table
shall be imprisoned untill he shall satisfie the Defendant of his damages And furthermore shall make Fine and Ransome to the King But because that the Defendant many times held his advantage even to extremity this course lasted not long but a new Law was made which put the power of awarding damages in such cases into the Chancellor to doe according to his discretion And thus the Chancery obtained power to award damages which they never had formerly and the Chancellor a Precedency both in the Chancery and of the Councell in the Court of Starre-Chamber and in many cases in the Exchequer by the first he had a power in matters of meum and tuum by the last in matters Mei and Regis and by the other in matters Mei and Regni A considerable man certainly he was in the motions of Government but how much more if he be made Arch Bishop of Canterbury Cardinall and Legate è Latere or Arch Bishop Lord Treasurer and Legate è Latere as these dayes had divers times seen Extraordinary advancements bestowed upon the Nobility brings Honour to the Throne but if they be not men of noted worth and uprightnesse they make the Scepter stoope by stirring up of envy in the Nobility and indignation from the People For seldome is it seene that Advancements are fed from the Crowne though they be bred from thence but either maintained by new supplies from the Peoples purses or the ruine or decay of some Offices more ancient then themselves or both And such was the condition of the Chancellor he sucked fat from beneath and blood and Spirits from the Grand chiefe Justiciar of England and so reduced that Honourable Potentate unto the Degree of chiefe Justice of the Kings Bench leaving scarcely unto him the name or title of Lord. One thing more remaineth touching the election or nomination of this Great man At the first he was no better then a Register or the Kings remembrancer or Secretary having also the Honour to advise the King in such matters as came within the circuite of the Writings in his custody and questionlesse Eo usque its sutable to all the reason in the World that he should be of the Kings sole Nomination and Election But when it befalls that in stead of advising the King his word is taken to be the rule and a Judicatory power put upon that and unto this is superadded that Honourable trust of keeping and governing the great Seale of the Kingdome with the continuall growing power occasionally conferred upon him by the Parliament He is now become no more the Kings Remembrancer but the Lord Chancellor of England and Supreame Officer of State And it seemes but reasonable that he should hold his place by publique Election as well as the Grand Justiciar whose Plumes he borrowed and other Grand Officers of State did before him For he that will have his Servant to worke for another must give the other that Honour of Electing him thereto nor was this laid aside or forgotten by these times but a claim was put in for the Election or allowance of this principall Officer amongst others the Parliament obtaining a judgement in the case by the Kings Confession and so the thing is left to the judgement of future Ages Viz. Whether a King that can do no man wrong can dissemble the Royall Assent in Parliament or declare himselfe Legally in that manner by Proclamation CHAP. V. Of Admiralls Court. THis is a third Court that maintained the Kings judicatory power in a different way from that which is commonly called the Common law and by many is therefore supposed to advance the Kings Prerogative but upon mistaken grounds It is very true that the way is different from the common rode both in its originall and in the course of proceedings nor could it other be considering the condition of the Nations and the People of the same interested in common traffique The people thus interested as much differed from the other sort of dry men if they may be so called as Sea from Land and are in nature but as march men of severall Nations that must consenter in some third way for the maintenance of commerce for peace sake and to the end that no Nation may be under any other Law then its owne The condition of the Nations in the times when civillized government began to settle amongst them was to be under the Roman Emperours who having setled one Law in the generall grounds throughout all Nations made the Sea likewise to serve under one rule which should float up and downe with it that men might know upon what tearmes they held their owne wheresoever they went and upon what tearmes to part with it for their best advantage in its originall therefore this Law may be called Imperial and likewise in the process because it was directed in one way of triall and by one law which had its first birth from the Imperiall power and probably it had not been for the common benefit of Europe to have been otherwise at other time or by other directories formed Neverthelesse this became no Gemm of Prerogative to the English Crowne for if England did comply with forraine Natives for its owne benefit it being an Iland full of the Sea and in the common rode from the most parts of Europe that border upon the Sea and of delight in Merchandise it is but sutable to it selfe and it did so comply as it saved the maine Stake by voluntary entertaining those Laws without being imposed upon by Imperiall power for the Saxons came into this Kingdome a free People and so for ought yet appeareth to me continueth to this day I say that in those first times they did take into the consideration of Parliament the regulating of the fluctuating motions of Sea-laws nor were they then or after properly imposed by the Kings Edict For though it were granted that Richard the first reduced the Sea-laws in the Isle of Oleron yet that the same should be done without advise of Parliament in his returne from the holy Land is to me a riddle considering what Histories doe hold forth concerning of his returne through Germany nor can that be good evidence to intitle Kings of England to a power to make and alter Laws according to their private pleasure and interest Nor doth that Record mentioned in the Institutes warrant any such matter but rather on the contrary groundeth the complaint upon laws statutes Franchises and Customes Estabilished and that this Estabilishment was by the King and the Councell This Law was of a double nature according to the Law of the Land one part concerning the Pleas of the Crowne and the other between party and party for properly the Kings authority in the Admiralty is but an authority of Judicature according to Laws established which both for processe and sentence are different from the Common Law as much as the two Elements do differ yet not different in
sore People yet many times Lawes are said to be many when as they are but one branched into many Particulars for the clearing of the Peoples understanding who usually are not excellent in distinguishing and so becomes as new Plaisters made of an old Salve for sores that never brake out before Such sore times were these whereof we now Treate wherein every touch made a wound and every wound went to the heart and made the Category of Treason swell to that bignesse that it became an individuum vagum beyond all rule but the present sence of timerous Judges and a touchy King Thus were many of the ignorant and wel meaning people in an hideous danger of the gulfe of forfeiture before they found themselves nigh the brimme All men do agree that treason is a wound of Majesty but all the doubt is where this Majesty resteth originally and what is that legiance which is due therto the breach whereof amounteth to so high a censure for some men place all Majesty in one man whom they call an absolute Monarch Others in the great men and others in the people and some in the concurrence of the King and body of the people and it is a wild way to determine all in one conclusion when as the same dependeth wholy upon the constitution of the body looke then upon England in the last posture as the rigider sort of monarchiall polititians do and Majesty will never be in glory but in the concurrence of the King and Parliament or convention of Estates so upon the whol account it wil be upon the people whose welfare is the supream Law Rome had Kings Consuls Dictators Decemviri and Tribunes long before the Orators time and he saw the foundation of an Empire or perpetuall Dictatorship in the person of the first of the Caesars any of all which might have challenged the supremacy of Majesty above the people and yet the often change of Government shewed plainly that it rested upon another pinne and the Orator in expresse words no lesse when speaking of the Majesty of that Government he allotteth it not to those in cheife command but defineth it to be magnitudo populi Romani afterwards when the pride of the Emperors was come to its ful pitch in the times of Augustus Tiberius an Historian of those times in the life of Tiberius tels us that he declared the bounds of Treason to be determined in three particular instances of treachery against the Army Sedition amongst the people and violating the Majesty of the People of Rome in al which men were not punishable for words but actions and indeavors I do not herein propound the Government of the Roman Empire as a modell for England but à majori may conclude that if the proper seat of Majesty was in the people of Rome when Emperours were in their fullest glory it s no defacing of Majesty in England to seat it upon the whole body from whom the same is contracted in the representative and so much thereof divided unto the person of the King as any one member is capable of according to the work allotted unto him These severall seats of Majesty making also so many degrees do also imply as many degrees of wounding for it s writen in nature that the offence tending to the immediate destruction of the whol body is greater then that which destroyeth any one member only and when the written Law maketh it treason to compasse the destruction of the Kings Person it leaveth it obvious to common sense that its a higher degree of Treason to compasse the destruction of the representative and above all to destroy the whole body of the People crimes that never entred into the conceit of wickednesse it selfe in those more innocent times much lesse saw they any cause to mention the penalty by any written Law Neverthelesse because many sadd examples had accurred within the memory of this present age of the danger of the person and honor of Kings and yet on the otherside they saw that in such cases of Treason the Kings honor was made of retching leather and might easily be strained within the compasse of a wound of Majesty therefore Edward the third imitating Tiberius reduced the crime of wound of Majesty in the Person of the King into certaine particular instances out of the compasse whereof the Judges of the Law in ordinary course must not determine Treason These concerne either the safety of the Person of the King or of the succession in the Royall Throne or lastly the safegard of the publique right by the board and privy seale the vallue of Mony and by persons in matters of judicature judicially presiding all of them reflecting upon the King considered in his politick capacity for otherwise many crimes might have beene mentioned more fatally reflecting upon the King in his naturall capacity which nevertheless are omitted as not worthy of so high a censure Other Treasons are left to the determination of the Parliament as occasion should offer it selfe whereof divers examples of a new stamp accurred within forty yeares next ensuing which were of a temporary regard and lived and died with the times To these two notions of Majesty and treason I must add a third called Legiance for it is that which maketh Majesty to be such indeed and lifteth it into the Throne and whereof the highest breach makes Treason and because that which hath been already sayd reflecteth upon an opinion or rather a knot of opinions for I find them not punctually adjudged in Calvins case I must a little demur to them because as their sense is commonly taken it alters the fundamental nature of the Government of this nation from a commonweal to a pure Monarchy In handling of this case the ho. Reporter took leave to range into a generall discourse of legiance although not directly within the conclusion of the case and therin first sets down the general nature therof that it is a mutual bond between an English King and his people and then more particularly sets forth the nature of this bond in the severall duties of obedience and fealty fo 5. a. and those also in their severall properties Viz. naturall absolute fo 7. a. due to the King omni soli semper fo 12. a. in his naturall and not politick capacity fo 10. a. whereas he saith this bond is natural he meaneth that its due by birth fo 7. a. By absolute if I mistake him not he meaneth that it is indefinite fo 5. b. Viz. not circumscribed by Law but above Law and before Law fo 13. a. and that Laws were after made to inforce the same by penalties fo 13. b. and therefore he concludeth that this legiance is immutable fo 13. b. and fo 14. a. Thus having stated the point as truely as I can both for the nature of legiance and the object thereof Viz. the King and not the people otherwise then in order to the safety
b. fol. 7. a. which is a word of a vast extent serving rather to amaze mens apprehensions then to inlighten them and therefore the Reporter did well not to trouble himself or the Reader in the clearing or proof thereof but left the Point rather to be beleived then understood nor shall I in the Negative for God himself can have no other Legiance from an English man then 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 Universall and Immutable fol. 5. b. fol. 12. and neither defined by Time Place or Person As touching the Time and Person the Reporter inlarged 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 naturall Capacity as the Reporter would have it But as touching the Place it s 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 Dominion though otherwise Forrain as to the power of the Law of England yea saith the Reporter as farre 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 speake be absolute and omni soli semper then is it due to the King from an English man ubivis Gentium Neverthelesse to take the Reporter in a moderate sense it is worth consideration whether English Legiance in the dayes of Edward the Third extended as far as the Kings power of Protection when as he had the Crown of France in a Forrain 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 minde 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 Kings Dominions but concerning the ground it may be denied for though simply in it selfe considered as a notion Verity or Fidelity 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 modell which though not absolute and indefinite yet if according to the Lawes of the place wherein the man is he is truely said to be Verus Fidelis Secondly the Reporter argueth that the Kings Protection is not Locall 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 Syllogisme it had appeared lesse valuable for the Protection of an English King qua talis of an English man is locall and included within the bounds of the Kingdome But if the same King be also King of France or Duke of Aquitane and an English man shall travell into those parts he is still under the same Kings 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 unlimitted absolute Protection without regard had to the Customes or Lawes of the place yea contrary to them which I beleive the Reporter never intended to affirme Thirdly the Reporter falleth 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 Confines 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 Lawes of the place Nor doe any the Presidents vouched by the Reporter clear that the King of England did grant as King of England Protection to any English man in any parts of the Kings Dominion beyond the Seas which was not qualified according to the Lawes and Customes of that place especially it being apparent that an English King may hold Dominion in Forrain parts in Legiance under a Forrain 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 goe with him in his Warres as well without the Realm of England as within the same therefore the Legiance of an English man to his King is indefinite and not locall or circumscribed by place or within the Kingdome of England Although the first of these be granted yet will not the inference hold for possibly this may arise from the constitution of a Positive Law and not from naturall 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 Personall interest nor doe the authoritie 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 commeth 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 Plaintiffe 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 Plaintiffe is not of the Legiance of England nor of the Faith of the King And upon this Plea thus amended the Plaintiffe 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 comming 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
would have been discontented with the proceedings of the Lords in asserting the Prerogative of a King in that matter of the Scedule if he had perceived any such thing in their purposes Add hereunto that the Lords themselves justified the matter of the Scedule in their own proceedings all which tended to inforce the King to govern according to their Councells and otherwise then suited with his good pleasure By force they removed Gaveston from the Kings presence formerly and afterward the Spencers in the same manner So they removed the King from his Throne and not long after out of the World Last of all I shall make use of one or two Concessions which hath passed the Reporters own Penne in this discourse of his for the maintaining that the Legiance of an English man is neither Naturall nor Absolute nor Indefinite nor due to the Naturall Capacity but qualified according unto Rules The first is this English men doe owe to their Kings Legiance according to the Lawes therefore is it not Naturall or Absolute or Indefinite The inference is necessary for the later is boundlesse and naturall the former is limited and by civill constitution If any branch therefore of English Legiance be bounded by Lawes then the Legiance of an English man is circumscribed and not Absolute or Naturall The major Proposition is granted by the Reporter who saith that the Municipall Lawes of the Kingdome hath prescribed the order and form of Legall Legiance fol. 5. b. And therefore if by the Common Law the Service of the Kings Tenant as of his Mannor be limited how can that consist with the absolute Legiance formerly spoken of which bindeth the Tenant being the Kings Subject to an Absolute and Indefinite Service Or if the Statute-Lawes have settled a Rule according to which each Subject ought to goe to Warre in the Kings Service beyond the Sea as the Reporter granteth fol. 7. 8. Then cannot the Legiance be absolute to binde the Subject to goe to War according to the Kings own pleasure Secondly an English Kings Protection of his Subjects is not Naturall Absolute Indefinite nor Originally extendeth unto them in their Naturall Capacity therefore is not the Legiance of an English Subject to his King Naturall Absolute Indefinite nor Originally extendeth to the King in his Naturall Capacity The dependance of these two resteth upon the Reporters owne words who tells us that Protectio trahit Subjectionem Subjectio Protectionem Protection drawes with it Subjection and Subjection drawes with it Protection so as they are Relata and doe prove mutually one anothers Nature fol. 5. a. And in the same Page a few lines preceding he shewes why this Bond between King and Subject is called Legiance because there is a reciprocall and double Bond for as the Subject is bound in Obedience to the King so is the King bound to the Subject in Protection But the King is not Naturally bound to protect the People because this Bond begins not at his Birth but when the Crown settles upon him Thirdly this Protection is not absolute because the King must maintaine the Lawes fol. 5. a. and the Lawes doe not Protect absolutely any man that is a breaker of the Lawes Fourthly this Protection is not Indefinite because it can extend no further then his Power and his Power no further then his Dominions fol. 9. b. The like also may be instanced in continuance of time Lastly the Kings Protection extendeth not Originally to the Naturall Capacity but to the Politique Capacity therefore till a Forrainer commeth within the Kings Legiance he commeth not within his Protection And the usuall words of a Writ of Protection shewes that the party Protected must be in Obsequio nostro fol. 8. a. The summe then is that as Protection of an English King so neither is Legiance or Subjection of an English man Naturall Absolute Indefinite or terminated in the Naturall Capacity of the King And to make a full Period to the Point and make the same more cleare I shall instance in one President that these times of Edward the Third produced The former English Kings had Title to many Teritories in France but Edward the Third had Title to all the Kingdome And being possibly not so sensible of what he had in possession as of what he had not He enters France in such a way and with that successe that in a little time he gaines the highest Seate therein and so brought much Honour to the English Nation and more then stood with the safety of the Kingdome For in the union of two Kingdoms its dangerous for the smaller least it be swallowed up by the greater This was foreseen by the English who knew England did bear but a small proportion to France and complained of that inconvenience and thereupon a Law was made that the People of England should not be subject to the King or his Heires as Kings of France which manifestly importeth that an English King may put himselfe in such a Posture in which Legiance is not due to him and that this Posture is not onely in Case of Opposition but of diversity when he is King of another Nation and doth not de facto for that Time and Place rule as an English King which if so I suppose this notion of Naturall Absolute and Indefinite Legiance to the King in his Naturall Capacity is out of this Kingdome if not out of the World and then the foot of the whole Account will be that the Legiance of an English man is Originally according to the Lawes The summe of all being comprehended in the joynt safety of the People of England CAHP. IX Of Courts for Causes criminall with their Lawes THe great growth of Courts founded upon Prerogative derogated much in these times from the ancient Courts that formerly had attained the Soveraignty over the People and in the hearts of them all This was a hard Lesson for them to learn but especially of the Kings Bench that was wont to learn of none and yet must be content to part with many of their Plumes to deck the Chancellor much of their work to busie the Prerogative Courts holden Coram Rege and more to those holden Coram Populo I mean The Courts of Oier and Terminer Goale delivery and Juâ—tices of Peace Those of Oier and Terminer were now grown very common but lesse esteemed as being by men of mean regard nominated for the most part by the party that sued out the Commission which for the most part was done in behalfe of those that were in danger and meaned not to be justified by Works but by Grace These escapes though small in the particulars yet in the full summe made the matter so foul as it became a common greivance and a Rule thereupon set by the Parliament for the regulating both of the Judges of such Court and the Causes The Commissions for Goale delivery likewise grew more mean and ordinary The chief sort of men in
high value is not to be exposed to every occasion that may provoke Warre without due advice first had with the publique Councell because in his person the people adventureth as well as himself And in this manner were the Warres in France by Edward the Third and in Scotland concluded upon debate In the next place as touching the arraies of Men for Warre I finde 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 Warr. But in case of publique defence against forrainers 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 dishonorable to the King In forraine service the course was no lesse regular if the Warr was by especiall 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 expresse words of the Statute said to be granted by the Knights and Burgesses But if it was only upon the Kings particular instigation and not by order or consent of the Parliament the King in such cases being Volunteir all the Souldiers were in like manner unlesse some particular Law or Tenure otherwise obleiged them As touching the arming of Souldiers the Law was yet more certaine 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 vertue of their Tenures the first of these is confirmed by Edward the third in Parliament wherein he willeth that no man shal be urged to arme himselfe otherwise then hee was wont in the times of his Ancestors Kings of England The two later were likewise confirmed by another Law made in the same Kings time whereby it was ordained that no manshall be constrained to find men of armes Hoblers nor Archers other then those which hold by such services if it be not by common consent and grant made in Parliament By men of Armes meaning those which we now call Curiasseires or compleat armed by Hoblers meaning those now called light horse-men The Archers served on foot and were Principally armed with Bowes although they had also Swords or other such offensive portable Weapons The first of these concerneth only the arming of a mans owne person the other the finding of Souldiers and arming of them and both together sufficient for the safegard of the rights and liberties of the people invaded in those times by Commissions of array and such other expressions of Prerogative Royall for as touching the arming of a mans owne Person the Statute of 1. Ed. 3. formerly mentioned is cleare in the point And though the Statute of 25. Edw. 3. doth not in the letter direct as touching the finding armes for others as is urged in his Majesties answer to the Declaration of the Parliament concerning the Commission of Array July 4. 1642. yet is it therein granted that a compleate 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 cleare to me that the Statute must intend the arming of him with compleat armes and not the armed person of the man The souldery thus arrayed they are in the next place to be called by their Rendezvouz the Knights by summons sent to the Sheriff but the rest by Proclamation If the Knights appeare not a fine is let upon them if others runne a way from their conduct a Writt issued to the Serjeant at armes to apprehend them if they were not arrayed then the recognisances of such as undertooke the worke are estreated All plunder or spoile committed by the Soudiers in their conduct was to be satisfied by the Conductor or Commander that received their Pay or Charges for their conduct And although the charges for conduct had formerly De facto been defraied somtimes by the County by vertue of Commissions that issued forth both for the raising and conducting of them yet was this no rule nor did Edward the third claime any such duty but disclaimed it and ordained by Act of Parliament that both the pay and conduct Money should be disbursed by the King from the time of their departure from their severall Counties For to this end and for the safegard of the Realme And for the maintenance of the Warrs of Scotland France and Gascoigne The King had supply from Aids Releifs Wardships Marriages Customes and Escheats nor did the Parliament grant any particular Aide by assessment or publique Taxe but when they evidently saw the burden of Warr to be extraordinary as it befell in the Conquest of so great and potent a Realme as France was Wherein although the Taxes were many yet so well ordered were they and with that compliance from the King that the people indured them with much patience so long as the King lived Lastly in all these Cases of forraine Warrs for of such Cases onely these Laws are to be understood it was especially provided that no man should be distrained or urged against his will to goe out of his County But in Case of defensive Warr the course was otherwise for all men in such Cases are bound by the Law of Nature to defend their owne Countrey from Invasion in order to the safety of their owne Estates and habitations They were arrayed or gathered together by Commission of Array from the King armed according to the Laws formerly mentioned and not by arbitrary order of the Commissioners And by vertue of such Commissions they were drawne forth and led to places where need required Sometimes to one Coast sometimes to another yet not altogether at the Kings pleasure for the Parliament upon occasion set rules of restriction and generally exempted the North parts beyond Humber from being drawn Southward and left them as a reserve for the defence of the Marches bordering upon Scotland and sometimes ordered the Array should be executed onely in some particular Counties and other times wholy exempted the Countrey adjacent within six miles of the Sea Coast And because the King might under colour of a defence Array the People where no such occasion led the way and command them out of their Countyes a Statute is made that states the Case wherein such Array shall be the words whereof are variously set forth in the Bookes in Print whether determinatively or carelesly I cannot tell but all of them doe differ in sence one from another and
feminine Spirit which they sent over into England to be their Queen and in one Civill Warre shedding more English blood by the English Sword then they could formerly doe 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 Kingdome is never more befooled then in the Marriage of their King if the Lady be great she is good enough though as Jezabell she will not either reverence her Husband obey her Lord and King nor regard his People And thus was this Kingdome scourged by a marriage for the sinne of the Wise men that building upon a false Foundation advised the King in the breach of Contract with the Earle of Arminiacks Daughter And thus the King also for that hearkning to such Councell he murthered the Duke of Glocester that had been to him a Father yeilded up his Power to his Queen A Masterlesse 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 owne Issue to the Line of Yorke then renewing the Warre at his Queens beck lost what he had left of his Kingdome Countrey and Liberty and like the King that forgot the kindnesse of Jehojada lost his life by the hand of his Servant CHAP. XIV Of the Parliament during the Reignes of these Kings THe interest of the Parliament of England is never more Predominant then 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 claimes by devising their Crowne in their last Will but the successe 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 himselfe Not much unlike hereunto is the Case of Henry the Fourth who like a Bud putting up in the place of a fading Leafe dismounts his Predecessor First from the Peoples regard and after from his Throne which being empty some times he pretending 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 worke But when he comes to plead his Title to Forrain 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 speciall Cases as a sufficient barr 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 unlesse his next Successors follow the dance upon the same foote to this end an Act of Parliament leades the tune whereby the Crowne is granted or confirmed to Henry the Fourth for life and intailed upon his Sonnes Thomas John and Humphrey by a Petition presented 5. Hen. 4. Thus Henry the Fourth to save his owne stake brought his Posterity into the like capacity with himselfe that they must be Kings or not subsist in the World if the House of Yorke prevailes and so he becomes secured against the House of Yorke treading on his heeles unlesse the Parliament of England shall eat their owne word However for the present the House of Lancaster hath the Crown intailed and the Inheritance is left in the Clouds to be revealed in due time For though this was the first president of this kinde 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 lesse strange For the Parliament according to occasion as the Supreame power of this Kingdome exercised Supreame Jurisdiction in order to the safety of the Kingdome as if no King had beene to be found in issuing forth Writs under the great Seale concluding of matters without the Royall assent treating of Peace with Forrain Nations and of other matters and determining their Resolves before discovery made to the King of their Councells 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 Ambassadours with power to ingage for the Kingdome making Generals of the Army Admiralls at Sea Chancellors Barons and Privy Councellors and giving them instructions 8 H. 4. n. 73. 76. 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 overwayed by Factions but by the course of a Series of Parliaments that mightily laboured against Faction and unworthy ends and aimes that man shal determin the same to be unjust or indiscreet should himself first be determined to be very just and exceeding wise Nor was the Parliament partiall in all this but being in a way of Reformation it set upon the work of reforming it selfe Some that are very zealous in the point of Arbitrary and absolute Government of Kings in this Nation and all in 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 shal 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 doe They may call Parliaments but neither as often or seldome as they please if the Statute-Laws of this Realme 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 publique Affaires and therefore can discern when the generall Conventions are most necessary As touching the dissolving of Parliaments against the wills of
any countenance in any way of gain upon themselves but rather made bold with what the Church-men in former times challenged as their own and upon this Account whereas formerly it had inhibited Fairs and Markets upon the Lords Day Now it inhibited the sale of Boots Shooes c. upon that day though done never so privately which they did at the first onely within the City of London and three miles thereof I suppose it was made onely by way of Triall it being dangerous in such times to give a stop to all England at once otherwise it might be wondered why Gods Honour should be better regarded in London then all the Realm besides Of this Inchroachment we finde no complaint made by the Church-men another touched them to the quick although it befell onely the Archbishopricke of Yorke Hitherto that so held ordinary Jurisdiction over all the Bishops of Scotland as being their Provinciall Now it is disclaimed by them all and they are backed therein by their King under pretence of great inconvenience to his Bishops in their so far travells but in truth not unlike to Jeroboam though he pretended it was too much for them yet he thought it unsafe for himself that his Bishops should owe Canonicall obedience to the Subject of another Prince and upon this ground prevailed with Pope Sixtus the Fourth to make the Divorse and left it to future Ages to try the validity thereof if they would This is all that I shall observe of the Government of these three Kings whose Reigns in the whole exceeded not twenty six yeares and their compleat power therein not much above half so many CHAP. XXVI A short summ of the Reignes of Henry the Seventh and Henry the Eighth THe course of English policy hitherto wandering in the different Currents springing from the double head of Monarchy and Democracy and in them likewise often tossed up and down partly by the blasts of windy Titles and Pretentions and partly by the raging Tides from the Roman Sea now begin to come to Anchor within veiw of Shore Happy England if the same prove good Harbarage for a fainting Nation Two Kings now undertake the Stearage the worke of the first was to still the Winds the other the Seas and so to bring the Adventure safe home Henry the Seventh hapned upon a good preparative for this work in that he delivered the Kingdom from a Tyrant whose irregular and bloody way was so odious to the People that it set a foil upon his Successors Government and made his Wisdom Vallour and Justice appear greater then possibly it was His Vallour made way for the other two he had enough thereof to serve a wise Man in case of Extremitie at other times he made more use of his Majesty then Manhood being confident that the People knew not where to mend themselves but would be at his Devotion so long as he was better then his Predecessor though he cared not how little His Wisdome was his greatest part of which upon all occasions he made the greatest improvement he could without reflecting upon Conscience or Religion whereof he had tasted no more then would render him a civill man whereunto his Education did lead the way thus though his Vallour brought him to the Crown yet it was his wisdome that settled him in the Throne For though he loved himself so well that he was loath to pretend allowance of any access of Forrain help to his own atcheivement in his Title or that he was guilty in the least manner in his Entry upon the Throne yet to keep danger far off he provided one guard for his Person and many for his Title That of his Person he pretended onely as a Ceremony of State brought from the French Court and yet its strange that it went so well down with a Free People For that Prince that will keep guards about his Person in the midst of his own People may as well double them into the pitch of an Army whensoever he pleases to be fearfull and so turn the Royall power of Law into force of Armes but it was the French Fashion and the Kings good hope to have all taken in the best sense His Title setting aside the saying of Phillip the hardy That Kingdomes onely belong to them that can get them would hardly endure the touch till Pope Inocent by his Bull confirmed the Crown to him to hold by a sixfold right Viz. Of Inheritance of Warre of Espousals of Election of gift by Parliament and lastly of Pontificiall Benediction which the King liked marvellous well and the rather because his Title by marriage was buried up in the middle and so made the lesse noyse For though it was his best guard yet he liked not that it should be so reputed least his Title should seem rather conferred upon him then gained by him and so should hold by a Woman or at the best by the Courtesie of England if the Peoples favour should so far extend the Law in that Point by both which he holds the Honour of a compleat English King diminished His Title by Inheritance is much disputable if the right Heires of John of Gaunt be inquired after and much more that of Warre for although that brought the Possession yet no right or Title but by wrong which may indeed be plaistred over by Election or Act of Parliament but then he must be Tenant to the People As touching the Pontificiall Benediction himselfe tooke that but as a redundancy that might sway with the Clergy and do his Title no hurt Neverthelesse what severally they cannot do by joynt concurrence he accounts so fully done as if he were a King against all the world and more yet is he not sure enough but as one jealous is more tender so is his eye ever upon his Title there is his guard and regard as if it were the outworks of his Crown which once lost the Crown cannot hold out long In this work he minded so much his greatnesse that he lost the repute of his goodnesse then casting his eye upon the government and finding it of a mixt temper wherein if Royalty prevails not popularity will like a good Souldier whiles his strength is full he sallies upon the peoples liberties in regard of their persons with such cunning conveyance as he taught the people to dance more often and better to the tune of Prerogative and Allegiance then all his Predecessors had done nor did the People perceive it til they were over their shoos and then they clearly saw their condition and that it was in vaine for them to wrangle with their own acts of which more particularly in the next Chapter The Legiance of persons of the People once gained their Estates more easily follow and therefore though in the former he wrought by Ambuscado in this he may be more brave and charge them in the Van yet this also he did by degrees first by light Skermishes of borrowing smaller sums of
them Church-motes For the first of them which is sayd to be holden in the yeare 816. is called a Synod and both Preists and Deacons were there present which are no Members of Parliament consisting onely of the House of Lords and they all of them did Pariter tractare de necessarijs utilitatibus Ecclesiarum The second of them is called a Synodall Councill holden Anno 822. and yet there were then present Omnium dignitatum optimates which cannot be understood onely of those of the House of Lords because they ought all to be personally present and therefore there is no Optimacy amongst them The last of these three is called Synodale Conciliabulum a petty Synod in great letters and besides there were with the Bishops and Abbots many Wise men and in all these respects it cannot be a Parliament onely of the great Lords The next Councill said to be holden in the yeare 823. cannot also be called properly a Parliament but onely a consultation between two Kings and their Councill to prevent the invasion of the Danes and the attests of the Kings Chapplain and his Scribe doe shew also that they were not all Members of the House of Lords The Councill cited by the Opponent in the next place was holden An 838. being onely in nature of a Councill for Law or Judicature to determine the validity of the Kings Grant made to the Church of Canterbury which is no proper worke for a Parliament unlesse it befall during the fitting of the same The next is but a bare title of a Councill supposed to be holden An. 850. And not worth its room for it neither sheweth whether any thing was concluded nor what the conclusions were The worke of the next Councill alleadged to be holden An. 851. was to confirme the Charter of the Monastry of Croyland and to determine concerning affaires belonging to the Mercinies and if it had beene a Parliament for that people it might be worthy of inquiry how regularly the Arch-Bishop of Canterbury and the Bishop of London and the Ambassadors from the West Saxons could sit amongst them and attest the conclusions therein made as wel as the proper members of that Nation He commeth in the next place to a Councill holden in the yeare 855. which is more likely to be a Parliament then most of them formerly mentioned if the Tithes of all England were therein given to the Church but hereof I have set downe my opinion in the former part of the discourse And though it be true that no Knights and Burgesses are therein mentioned as the Opponent observeth out of the Title yet if the body of the Lawes be duly considered towards the conclusion thereof it will appeare that there was present Fidelium infinita multitudo qui omnes regium Chirographum Laudaverunt Dignitates vero sua nomina subscripserunt And yet the Witagen-motes in these times began to be rare being continually inrerrupted by the invasions of the Danes The three next Councills alleaged to be in the yeares 930. 944. 948. Were doubtlesse of inferiour value as the matters therin concluded were of inferiour regard being such as concerne the passing of the Kings Grants Infeodations and confirmations The Councill mentioned to be in the yeare 965. is supposed to be one and the same with the next foregoing by Sir Henry Spelman which calls it selfe a generall Councill not by reason of the generall confluence of the Lords and Laity but because all the Bishops of England did then meet The Primi and Primates were there who these were is not mentioned but its evident that the King of Scots was there and that both he and diverse that are called Ministri Regis attested the conclusions It will be difficult to make out how these should be Members of the House of Lords and more difficult to shew a reason why in the attesting of the acts of these Councills which the Opponent calls Parliaments we finde so few of the Laity that scarce twelve are mentioned in any one of them and those to descend so low as the Ministri Regis to make up the number Five more of these instances remaine before the comming in of the Normans The first of which was in the yeare 975. and in a time when no Parliament according to the Opponents principles could sit for it was an Inter regnum The two next were onely Synods to determine the difference between the Regulers and the Seculers in the Kings absence by reason that he was under age and they are sayd to be in the yeares 977 and 1009. But it s not within the compasse of my matter to debate their dates The last two were Meetings or Courts for Judicature to determine the crime of Treason which every one knowes is determinable by inferiour Courts before the high Steward or Judges and therefore not so peculiar to a Parliament as to be made an argument of its existence And thus are we at an end of all the instances brought by the Opponent to prove that Parliaments before the Norman times consisted of those whom we now call the House of Lords All which I shall shut up with two other notes taken out of the Book of Councils published by Sir Henry Spelman The first of which concerneth a Grant made by Canutus of an exemption to the Abby of Bury Saint Edmonds in a Councill wherein were present Arch-Bishops Bishops Abbots Dukes Earles Cum quamplurimis gregariis militibus cum populi multitudine copiosa votis regiis unanimiter consentientes The other taken out of the confessors Lawes which tells us that Tithes were granted to the Church A Rege Baronibus populo And thus shall leave these testimonies to debate with one another whiles the Reader may judge as seemeth most equall to himselfe Being thus come to the Norman times and those ensuing I shall more summarily proceed with the particulars concerning them because they were times of force and can give little or no evidence against the customes rightly setled in the Saxon times which I have more particularly insisted upon that the originall constitution of this government may the better appeare Now for the more speedy manifesting of the truth in the particulars following I shall pre-advise the Reader in three particulars First that the Church-motes grew more in power and honor by the aide of the Normans Law refusing the concurrence and personall presence of Kings whom at length they excluded from their Councils with all his Nobles and therefore it is the lesse wonder if we heare but little of the Commons joyning with them Secondly that the Norman way of government grew more Aristocraticall then the Saxon making the Lords the cheif Instruments of keeping Kings above and people underneath thus we meet with much noise of meetings betweene the King and Lords and little concerning the grand meetings of the Kings and the representative of the people although some footsteps wee finde even of them
and honor of the Kings Person considered in his naturall capacity as he is a man I shall in the next place examine the grounds as they are severally set down and therein shall lead the Reader no further then the Reporters owne concessions Not troubling the Reader with any doubt whether this bond consists in obedience only or in that fealty and in all shall ever be mindfull of the honour of that Pen with which I have to deale First whereas it is said that English legiance is naturall and grounded upon the birth of each party within the Kings dominions and protection it needeth no debate so as the same be taken sano sensu Viz. for a qualified legiance beared of those sublimities of absolute indefinite immutable c. for otherwise if such a high strain of legiance be due from every English man by birth then all the Magna carta or laws concerning the liberties of the People come too late to qualifie the same because they cannot take away the Law of nature f. 14. a. and thus the party once born English must for ever remain absolutely obleiged to the King of England although haply he lives not two Months under his protection all his ensuing life time Secondly the legiance of an English man to his King ariseth from that civil relation between the two callings of King and subject and therefore it is not a naturall bond which cannot be taken away The first is true by the Reporters owne concessions Protectio trahit subjectionem subjecti oprotectionem so he saith fo 5. a. fo 9. b. and therefore though it be granted that Magistracy in general is from nature as he saith fo 13. a. yet of weak birth is that inference which he maketh Viz. That English allegiance is a principle in nature Unlesse it be also admitted that all men on earth that submit not to English legiance do sinne against nature The difference then will stand thus Magistracy is founded in nature therefore legiance also But English Magistracy is from civil constitution therefore is English legiance of the like nature In the next place the Reporter saith that before any municiple Law was made Kings did dare jura and he mounts as high for an example as the Trojans age by the testimony of Virgil but I beleeve he intended not much strength in this seeing its wel known by any that knows the scriptures that there were municipal laws given and that concerning the office of a King by Moses which was more ancient then those of Troy and long before the time of Virgil who neither tels us in what manner those Trojan Laws were made though the Kings gave them nor if al were according to the Reporters sense is the testimony of a Poet who somtimes useth his poetica licentia to be taken in terminis in the next place the Reporter vouches the testimony of Fortescue c. 12 13. which is as absolutely opposite to the maine point in hand as any Penn can declare for he tels us of divers sorts of Kingdomes some gotten by conquest as those of Nimrod and Belus c. But saith he there is a Kingdome politick which is by the association oâ— men by consent of Law making one cheife who is made for defence of Law and of his subjects bodies and Estates and he cannot govern by any other power and of this nature saith he the Kingdome of England is fo 30.31.32 A second peice of the foundation of this opinion of the Reporter is taken ab inane it is a vaine thing saith he to prescribe Laws but where by legiance foregoing people are bound to obey but this compared with the words of Fortescue formerly mentioned falls of it selfe to dust and therefore I shall not further inlarge concerning it Thirdly The Reporter brings in to helpe the matter the consent of the Law in elder times by certaine cases vouched to that purpose the first concerning the Legiance of Children to Parents which commeth not to this case because it is a legiance of nature and this legiance whereof we speake is yet under a litigious title And I suppose will in the conclusion be found to rest only upon a civil constitution therefore I leave that The second is that a man attainted and outlawed is neverthelesse within the Kings protection for this saith the Reporter is a Law of nature Indelibilis immutabilis and the Parliament nor Statute 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 speakes much mercy yet it seemes strange considering the penne 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 Kings 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 nonobstante he can set himselfe at liberty when he pleaseth then the issue will be this the King hath a naturall power to protect the Persons of Law-breakers from the power of the Law therefore much more their Estates and then farewell all Law but this of the Kings naturall protection I say that these are of a high straine considering what the Reporter speaketh elsewhere But to persue 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 manslayer and yet this Person attainted hath lost the legall Protection It s 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 then 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 Crowne and therefore in some respects the Law protects his Person so long as he lives and the Kings Naturall Protection is in vaine in such Cases Lastly suppose the King hath a power of Nonobstante if the same be allowed to him in a limited way by the Law it is no argument to prove the Kings naturall Power which is driven at under naturall Legiance much lesse if it cannot be made forth that the Law doth allow any such power of Nonobstante at all but by the iniquity of the times permitteth the same to subsist onely to avoyd Contention as it came into this Kingdome 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 commeth to be considered is That English Legiance is absolute fol. 5.
the most part grounded upon self respects and private prudence laboured to conceale that which could not be made whole by revealing and by after consent skind over the sore as to themselves which corrupted inwardly and indangered the whole body to cure which a Law is made to restrain such late connivance in the Woman by depriving her both of her Joyncture and Inheritance which otherwise had been saved to her by such compliance as after consent unto such violations CHAP. X. Of the Course of Civill Justice during these Times HOwever the course of the Law concerning matters of the Crown passed in a troubled wave yet in matters of Common Pleas it passed in a calme and full Channell as the Reports in Print doe sufficiently witnesse nor was their any change of Principles but onely some alteration tending to a clearer manifestation of the same I will not touch upon every particular but onely upon two which reflect somewhat upon the Publique pollicy the one touching the course of Inheritance in some particular Cases the other touching pleading in the Courts of Civill Justice The first of these was occasioned from Conjuncture of Affaires the Case being such that Edward the Third had now gotten himselfe a new Kingdome unto that of England and must looke to maintaine that by Power which he obtained by force and conducing thereunto must have continuall imployment of the English in that Service as being most trusty to his Cause And that it is un reasonable that such English as had devoted themselves to his Service in this Cause and in order thereunto had transported themselves and their Families into those Forrain parts should thereby loose the benefit of Leiges in the Birth-right of their Children borne in those Forraine parts Upon consideration had hereof and of a former leading Opinion of the Lawyers and Parliament a Declarative Law was made That all Children borne without the Kings Legiance whose Father and Mother at the time of their Birth shall be under the Faith and Legiance of the King of England shall have the benefit of Inheritance within the same Legiance as other Inheritors have These are the words of the Statute and doe occasion a double observation one from the matter the other from the manner of the Expression The Subject matter is so delivered not as an Introduction of a new Law but as a Declarative of the old that lay more obscurely hidden for want of occasion to reveale it and the substance thereof resteth onely in this to enable the Children of English Natives borne beyond the Seas not the Children of those that are of Forraine birth though within the Kings Teritories in those parts as the opinion hath beene nor doth any ancient President or Case warrant the same as might be at large manifested if it might conduce to the end of this discourse and for the same cause after this Statute when as the Commons would have had a generall Naturalizing of all Infants borne beyond the Sea within the Kings Segniories the same would not be granted otherwise then according to the former Statute and the Common Law That which in the next place concerneth the manner of expression is this That a Childe is said to be borne out of the Kings Legiance and yet the Father and Mother at the same time to be of the Faith and Legiance of the King of England It seemeth to me that it intendeth onely those Children of English Parents borne within the Kings Teritories beyond the Seas because the words insuing concerning Certification of Bastardy of such Children are that the same shall be made by the Bishop of such place upon the Kings Writ directed to him which could never have passed into those places that are not of the Kings Teritories and so the Issue will be that the Legiance of those born in those parts though they are Leiges to the King yet they are not of the Legiance of the King of England but as Lord of that Teritory The other matter to be observed concerning pleading in the Courts of Civill Justice is this That whereas anciently from the Normans time till these times the pleadings were in the Norman tongue they shall be henceforth in English out of an inconvenience I beleive rather supposed then felt for though some kinde of knowledge of Law-termes may be increased thereby yet unlesse that shall be professedly studied it will breed nothing but Notions and they an overweening conceit which many times sets men to suites in Law to their owne losse like some weake influence of the Celestiall bodies that are strong enough to stirre up humours but not to expell them or draw them out However even thus in part is the reproach of Normandy rolled away like that of Egypt from the Israelites at Mount Gilgall CHAP. XI Of the Militia in these Times WArre is ever terrible but if just and well governed majesticall the one may excite resistance and defence but the other Conquers before blow given because it convinceth the judgement and so prevails upon the Conscience For that heart can never be resolute in its own defence that is at Warre with its own understanding nor can such a heart consider such a Warre otherwise then as Divine and bearing the face of an Ordinance of God and then how can the Issue be unsuccessfull It is no strange thing for Kings to miscarry in their Warres because it s rarely seen that they are under good Councell but if a Christian Councell miscarry we may conclude it extraordinary in the efficient Cause and no lesse wonderful in the issue and end Upon this ground it concerneth a Christian Nation not onely in point of Honour but of safety and continuance to settle fundamentall Lawes for War against time of War as of Peace in time of Peace Neither was England deficient herein saving that ancient times were more obscure in the particulars and these dayes revealed them at such a time wherein we may say that Edward the Third approved himself not onely King of England but of himself above the ordinary strain of expectation for being now become a famous Commander and Conquerour having also an Army inured to fight and overcome and so might have given a Law he neverthelesse received the same submitting both it and himself to the Directory of the Parliament in making a Warre with France which was three to one against him in every respect but in the Title besides the disadvantage from Scotland that lay continually beating upon his reare The like may be observed of his Warre with Scotland in both which he evidently telleth the World that he held it unreasonable to enter upon the managing of an offensive Forraine Warre without the concurrence of the common consent of the people and that not onely for the thing it selfe but also for his owne personall ingagement in the Service For a King though he be the Generalissimo yet is he so from the people and his person being of that
had beene formerly and bold enough to outface small doubts in point of succession for he could for a need outface common civility it selfe This might have lien in his way for he that cannot govern himselfe can much lesse govern a Kingdome Yet a hidden Providence concluded quite contrary and rendred him a cleare testimony of a strange change by the annointing oyle like that of Saul that forthwith had the Spirit of another man So though not hammered thereto by affliction as was Edward the first yet was he his parallell in Government and superiour in successe Being seated in the Throne all men thought it dangerous to abide the adventure of the turne of this Kings Spirit The Clergy had but yesterday tryed the Mastery with the Laity and gained it but by one Vote there was no dealing with the Clergy while Arch Bishop Arundell lived nor with him whiles Henry the fourth lived or his merits were in memory but now they both are dead the Clergy and the Laity are upon even ground this might make the Clergy now not over confident The Lords looked on the King as a man like enough to strike him that stands next The wise men saw he would be doing all men were tired with intestine quarrells and jumped in one that he that would be in action should act abroad where he might get renowne and a purchase big enough for his Spirit Scotland was a Kingdome yet incompetent to the Kings appetite France was the fairer marke and better game and though too big for the English gripe yet the Eagle stooped and sped himselfe so well as within six yeares he fastned upon the Sword and Scepter and a daughter of France and might have seised the Crowne but chose to suffer a blurr to lye upon his title derived from Edward the third rather then to incurr the Censure of Arrogancy over a stooping enemy or to Pluck the fruit from the tree before it was fully ripe which in time would fall into his lap by a better Law then that of the Sword otherwise it might be well conceited that he that hath both right and Power and will not seise disclaimes Besides the King was as well Inheritor to his Fathers Fate as Crowne still he had successe but the end was so farr distant that he died in the way thereto The brave Dauphine of France maintaining Warr after his Father the French King had yeilded up the Bucklers to Henry the fifth till Henry the fifth died and the English did foregoe what they had formerly gotten in France by the Sword of that great Commander Nor did the English gaine any thing in the conclusion of this Warr but an honorable windy repute of being one of the five cheif Nations of Christendome if honor it be to be reputed amongst the Nations a Conquerer of France the cheif Leader unto the dethroning of three Popes at once the election of Pope Martin and of giving a cure to that deadly wound of the Popedome which had spent the bloud of two hundred thousand mens lives lost in that quarrell These forraine ingagements made the King lesse solicitous of point of Prerogative at home and the rather because he knew the way to conquer his private enemies armes and his Subjects hearts without losse of honor in the one or reverence in the other He loved justice above the ranke of his Predecessors and in some respects above himselfe for he advanced Gascoigne for doing justice though to the Kings owne shame He liked not to intrude himselfe into elections and therefore though requested by the Monks of Canterbury he would not nominate a Successor to Arch Bishop Arundell but left the whole worke to them In the authority of his place he was moderate and where his Predecessors did matters without the Lords consent when he made his Uncle the Marquis of Dorcet Duke of Exceter and had given him a pention to maintaine that honor he asked the Lords consent thereto To the Clergy he was more then just if not indulgent led thereto by his Fathers example as being wrapped up in the same Interest as I conceive rather then out of any liking of their wayes now growing more bold upon usurpation then in former times Or it may be that having prevailed in that work in France which to any rationall man must needs appear above the power of the King and all the Realm of England he looked upon it as more then humane and himself as an instrument of Miracles and was stirred up in his zeal to God according to his understanding in those darke times to give the Clergy scope and to pleasure them with their liberty of the Canon Law that began now to thunder with fire and terror in such manner that neither greatnesse nor multitude could withstand the dint as was evidenced in that Penance inflicted upon the Lord Strange and his Lady in Case of bloodshed in Holy Ground and their hot pursuit of the Lord Cobham unto a death of a new Nature for somewhat done which was sometimes called Treason and sometimes Heresie And thus became Henry the Fifth baptized in the flames of the Lollards as his Father had sadly rendered up his Spirit in the same I say in this he is to be looked upon as one misled for want of light rather then in opposition against the light For in his last Will wherein men are wont to be more serious and sincere amongst his private regards he forgets not to reflect upon Religion to this purpose We further bequeath saith he to the redundant Mercy of the most excellent Saviour the Faith Hope and Charity the Vertue Prosperity and Peace of the Kings our Successours and of our Kingdome of England that God for his Goodnesse sake would Protect Visite and Defend them from Divisions Dissensions and from all manner of deceitfulnesse of Heretiques And thus Piety Justice and Moderation of Henry the Fifth Adorned and Crowned the honour of his Courage and Greatnesse with that honourable Title of Prince of Preists and had he been blessed with a clearer light he might as well under God have obtained the Title of Prince of Princes wanting nothing that might have rendered him a president of Fame BUt the time is now come that the Tide of Englands Glory must turn and the sudden Conquest in France by Henry the Fifth not unlike the Macedonian Monarchy must disgorge it selfe of what it had hastily devoured but never could digest Three things concurred hereunto one dangerous the other two fatall to the flourishing condition of any Nation First the King is a Minor in the least degree that ever any Prince sate on English Throne He entered thereinto neither knowing what he did nor where he was and some say he sate therein in his Mothers lap for his life had been more in the wombe then abroade A sad presage of what followed for many men thinke that he was in a lap all his dayes Nor are the cheife men to be
the Houses its true that sad Presidents have beene of later times in that kinde and so for want of due attendance Parliaments have been inforced to adjourn to prevent a worse inconvenience but these are infirmities better buried in silence then produced as Arguments of power seeing its evident that Kings themselves were no greater gainers thereby then an Angry man is by his passions It is true also 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 Councill of Trent yet cannot he unmake them when he pleases nor take the Members from the Parliament without attainder and forfeiture according to the knowne Law Neither can all these Instances prove that the Kings of England have the sole and supreame 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 error in that is like an error in the first Concoction that spoiles the whole Nutriment they ordained that the Election of Knights shall be at the next County Court after the Writ delivered to the Sheriffe That in full Court betweene the houres of eight and nine in the morning Proclamation shall be made of the day and place of the Parliament That the Suters duely summoned and others there Present shall then proceed to the Election notwithstanding any Prayer or Commandement to the contrary That the names of the Persons elected whether present or absent they be shall be returned by Indenture betweene the Sheriffe and the Elizors and that a Clause to that end shall be added to the Writ of Summons This was enough to make the Sheriffe understand but not to obey till a penalty of one hundred pound is by other Lawes imposed upon him and a yeares imprisonment without Baile or Mainprise besides damages for false return in such Cases and the party so unduely 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 blood 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 rendered them uncapable to Vote or serve for any County And the like Order was made for the Burroughs Viz. That no Person must serve for any City or Burrough nor give Vote in Electing such as shall serve for that Towne unlesse they be both Free and Resiants within that City or Burrough A Law no lesse wholsome then seasonable For the times of Henry the Fourth had taught men to know by experience That a King that hath Souldiers scattered over the Kingdome can easily sway the County-Courts and make Parliaments for their owne tooth Yet this was not enough For all Elizors though of the meanest sort yet are still able to doe as much hurt with their Vote as those of the best sort both for wisedome and publique minde can doe good by theirs This made Elections much subject to parties and confusions and rendered the Parliament much lesse 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 unlesse he hath forty shillings yearely in Free Lands or Tenements and this is to be testified upon Oath of the Party And more plainly it is ordered within two yeares after that each Elizor shall have Frank Tenement of that vallue within the same County And thus the Freemen yeilded up their liberty of Election to the Free-holders possibly not knowing what they did Neverthelesse the Parliament well knew what they did this change was no lesse good then great For first these times were no times for any great measure of Civility The Preface of the Statute shewes that the meanest held himself as good a man as the greatest in the Countrey and this tended to parties tumults and bloodshed Secondly where the multitude prevaile 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 then by right Understanding make their Elections and thereby the Generall Councell of this Nation lesse generous and noble Thirdly there is no lesse equity in the change then policy for what can be more reasonable then that those men onely should have their Votes in Election of the Common Councell of the Kingdome whose Estates are chargeable with the publique Taxes and Assessements and with the wages of those persons that are chosen for the publique Service But above all the rest this advancing of the Free-holders in this manner of Election was beneficiall to the Free-men of England although perchance they considered not thereof and this will more clearly appeare 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 rendered 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 publique regards and under a kinde of Ambition to aspire unto the degree of a Free-holder that they may be some what in the Common-wealth and thus leaving the meanest rank sifted to the very branne they become lesse considerable and more subject to Coercive power whiles in the mean time the Free-holder now advanced unto the degree of a Yeoman becomes no lesse carefull to maintain correspondency with the Lawes then he was industrious in the attaining of his degree Thirdly by this means now the Law makes a separation of the inferiour Clergy and Cloystered 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 neverthelesse Fsee-men in Fact and lost not the liberty of their Birth-right by entering 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 Countrey which tacitely 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 rudenesse in account Or it may be the Yeomanry grew now to feel their strength and meant not to be further
Councels and unto that had also a binding Power in making Lawes Decrees and Decretalls 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 limitations and qualifications that its evident it never was in the Crowne or rightly belonging thereto First nigh three yeares after this recognition by the Clergy in their Convocation it is urged upon them and they passe 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 provinciall or other unlesse 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 honor of their Preisthood which binds their Wills and Consciences the other the Act of Parliament which bindes their Powers so as they now neither will nor can start Neverthelesse there is nothing in this Law nor in the future practise of this King that doth either give or assert any power to the King and Convocation to binde 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 then any of the Kings Predecessors ever had in their possession A second Prerogative was a definitive power in point of doctrine and worship For it is enacted that all Determinations Declarations Decrees Definitions Resolutions and Ordinances according to Gods word and Christs Gospell by the Kings advise and confirmation by Letters Patents under the great Seale at any time hereafter made and published by the Arch-Bishops Bishops and Doctors now appointed by the King or the whole Clergy of England in matters of the Christian faith and lawfull rights and ceremonies of the same shall be by the People fully beleeved and obeyed under penalties therein comprized Provided that nothing be done contrary to the Lawes and Statutes of this Realme A Law of a new birth and not an old Law newly revived or restored This the present occasion and the naturall constitution of the Law do fully manifest The occasion was the present Perplexity of the People for in stead of the Statute Ex officio which was now taken away the six articles commonly called the six stringed whip was gotten into power by a more legall and effectuall originall 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 forrain pretentions the other which was more difficult for the liberties of the consciences of multitudes of men of severall 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 worke would be long require much debate and retard all other affaires of the Common-wealth which were now both many and weighty In this troubled wave they therefore wisely determine to hold on their course in that worke 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 mistery of Religion to settle the same for the present till the Parliament had better leisure the People more light and the mindes of the People more perswaded of the way Thus the Estates and Consciences of the People for the present must indure In deposito of the King and other Persons that a kind of Interim might be composed and the Church for the present might enjoy a kind of twilight rather then lye under continuall darknesse and by waiting for the Sun rising be in a better preparation thereunto For the words of the Statute are that all must be done without any partiall respect or affection to the Papisticall sort or any other sect or sects whatsoever Unto this agreement both parties were inclined by diverse regards For the Romanists though having the possession yet being doubtfull of their strength to hold the same if it came to the push of the Pike in regard that the House of Commons wanted faith as the Bishop of Rochester was pleased to say in the House of Lords and that liberty of conscience was then a pleasing Theame as wel as libertie of Estates to all the People These men might therefore trust the King with their interests having had long experience of his Principles And therefore as supream Head they held him most meete to have the care of this matter for still this title brings on the Vann of all these Acts of Parliament On the other side that party that stood for reformation though they began to put up head yet not assured of their owne Power and being so exceedingly oppressed with the six Articles as they could not expect a worse condition but in probabililty might finde a better they therefore also cast themselves upon the King who had already been well baited by the German Princes and Divines and the outcries of his owne People and possibly might entertain some prejudice at length at that manner of woship that had its originall from that Arch enemy of his Head-ship of the Church of England Nor did the issue fall out altogether unsutable to these expectations For the King did somewhat to unsettle what was already done and abated in some measure the flame and heat of the Statute although nothing was established in the opposite thereto but the whole rested much upon the disposition of a King subject to change As touching the constitution of this Law that also shewes that this was not derived from the ancient right of the Crowne now restored but by the positive concession of the People in their representative in regard it is not absolute but qualified and limited diversly First this power is given to this King not to his successors for they are left out of the act so as they trusted not the King but Henry the eighth and what they did was for his owne sake Secondly they trusted the King but he must be advised by Councell of men of Skill Thirdly they must not respect any sect or those of the Papisticall sort Fourthly all must be according to Gods Word and Christs Gospel And Lastly nothing must be done contrary to the Laws and Statutes of this Realm And thus though they trusted much yet not all nor over long For it was but a temporary Law and during the present condition of affaires Nor did the King or People
Power or Authority formerly had been or might be lawfully exercised for Visitation of the Ecclesiastical State and Persons and for Reformation Order and Correction of the same and of all manner of Errours Heresies Schismes Abuses Offences Contempts and Enormities she had therefore neither absolute Empire nor absolute Jurisdiction over the Churches neither Power to make declare alter or repeal any Law neither did she ever exercise any such Power but onely by Act of Parliament she had a Power over Ceremonies in the Worship of God which was given her by the Parliament to execute by advice and therefore was limited as also was all the remainder of her Power in Jurisdiction Ecclesiastical for she could do nothing in her own Person but by Commission and these Commissioners must be Natives and Denizons not Forrainers and the same to be but in certain Cases and with certain Process Some Cases of Ecclesiastical Cognisance were referred to Triall at the Common Law viz. Such as concerned the publique Worship of God in Cases of Forfeiture and Imprisonment Lastly neither had the Queen nor her Commissioners nor Bishops absolute Power over the Church-Censures no Censure was regarded but Excommunication and that no further then in order to the Writ De Excommunicato capiendo and in all Cases the same was to be regulated according to the Statute in that Case provided or by the Common Law in Case of Action in all which we finde no Jurisdiction in Cases Ecclesiastical that is absolutely settled in the Crown In matters Temporal the thing is yet more clear she never altered continued repealed nor explained any Law otherwise then by Act of Parliament whereof there are multitudes of Examples in the Statutes of her Reign and what she did by her Judges was ever under Correction A Woman she was and therefore could be no Judge much less in the Cases of Difference concerning her self and her Crown A Queen she was and might make Judges but she must go according to the Law new Judicatories she could make none nor judicially make declare alter or determine the Power of any Court or Judge in Case of Difficulty but by her Parliament as in the Cases concerning the Power of the Lord Keeper the Powers of the Commissioners of Sewers and charitable uses the Courts at Westminster and the County Courts in the severall Statutes concerning the same may more fully appear And which is yet of a meaner size her Power extended not to redress any inconvenience in process of Errour or Delay in Courts of Law nor to remedy Errours in Judgements Fines Recoveries Attainders or other matters of Record or Triall whereof the Statutes of her time are full and also the opinions and judgements of the Judges of the Common Law concurring therewith I mention not the power of life and member which without all contradiction hath ever been under the protection of the known Law so as upon the whole Account it will be evident that this Queen had no absolute Pre-eminence in all Cases but either in contra-distinction to forrain Power or the power of any particular person and not in opposition to the joint interest of the Representative of England Queen Mary comes next although a Woman as well as she yea her elder sister and predecessor yet came short of her in the point of Supremacy by a double submission both unto the Law of a Husband and of a forrain power in cases Ecclesiastical although the same was with such qualifications as it was much more in Title and pretence then in reality and so in the conclusion neither approved her self to be good Wife good Catholique nor good Queen She could be no good Wife because she was too great for her Husband within the Realm and resolved not to be without A Catholique she was but the worst that ever held her place her Father appeared what he was spake plain English and was easily discerned But she told the Pope a fair Tale of disclaiming Supremacy and reconciling her Kingdom yet none of her Predecessors did go beyond her in irregularity of her proceedings Before ever she called Parliament she settled the great Work of Reformation or rather Deformation in the Worship of God by single Proclamation and not onely took away the partition-wall of Doctrine by the like power but gave way and power to Persecution thereupon to arise before any power or Order from the holy Sea then so called inabled her thereunto And after that she declared her self convinced that she ought not to exercise Ecclesiastical Jurisdiction and by her Instructions forbade the Bishops to use in their Process that Clause of Regia Autoritate fulcitus yet even these Instructions had no other Authority then her own and nevertheless she still inforced the Execution of all matters concerning the publique Worship of God and Government of the Church when as yet the Pope had no admittance unto his ancient claim It is very true that the Pope long ere now had made a fair offer and the Queen had lent her ear but her Train was too great to move as fast as was pretended so as no meeting could be had till the Queens Marriage with Spain was past and such as were dis-affected found it was bootless to stop the Current of two such mighty streams of Power now joyned into one and so that unclean spirit returned seven times worse then when he went out and took Seisin meerly upon Repeal of the Laws made by Henry the eighth in the Negative without further Grant or Livery for though an express Embassage was sent to Rome to perform the solemnity of the submission yet the Pope died before the arivall of the Embassie and the solemnity failing left the Title of the Crown much blemished yet was it not wholly defaced for if the Statutes in Henry the eighth and Edward the sixths time did but confirm the possession its evident that the repealing of those Statutes took away no right from the Crown nor gave legal possession to the Pope that had formerly neither possession nor right but left him to his Remitter as in his ancient right or rather in his ancient wrong Yet right or wrong de facto he both did win and wear the Keys so long as the Queen lived and so far as she pleased for her devotion would not allow of absolute obedience in that kinde nor all for Gospel that the Pope said or did but by her self and Councel executed the powers of Supremacy of Jurisdiction in Church matters not onely in pursuance of the Papall Authority but in crossing the same where the Popes way crossed her opinion as in the cases of the War between her Husband and France and the Power Legatine of Cardinal Pool her condemning of Doctrines and Books to be Heretical by Proclamation establishing both Prayers and Dirges and other Orders of publique Worship whereof more fully in the publique Histories of those Times and in the Queens Injunction upon
that the foundation of their jurisdiction had been altered twice and so it will be difficult for it to hold by prescription or custome or any other way then by a kinde of Divine right which began to be pretended yet to this day could never be made evident to the World Whatever the ground was the thing is plain that Prelacy in Queen Elizabeths time had this Honour allowed thereunto that it was upholden by Election from Ecclesiasticall men and held its jurisdiction as from it self and in the name of the Bishop as Ordinary and the power of Excommunication by a saving in the Statute-Law and not by express donation notwithstanding the late President in the time of Edward the sixth to the contrary Secondly The rule of this jurisdiction was no lesse at large for the Canon Law was determined by Henry the eighth and Edward the sixth and was not revived by any Act of Parliament by Queen Mary or Queen Elizabeth who neither pursued the Medium of the thirty two Commissioners nor setled other rule but a few Canons which after some time by Queen Elizabeth and her Clergy were agreed upon but never confirmed by Act of Parliament And so could never bind the Subject and which in generall set forth a kind of forme of Church policy yet no fashion of jurisdiction or rule of proceedings in the Ecclesiastical Courts but in such Cases left them to the Canon Law which was hidden in their own breasts and could be made strait or wide as they pleased Thirdly their Censures now grew more sharp for whereas at the utmost formerly they could do no more but imprison or deliver over to the Secular power and that onely in case of Heresie and yet had scarce ground of Law for what they did now they have an additional power to fine and imprison in cases of inferior nature and so can reach all that a man hath even to his skin nevertheless this was not annexed unto the ordinary Jurisdiction but given by extraordinary Commission called the High Commission wherein though many others were named yet the Clergy and Canonists did the work the rest being but in nature of a reserve to them in case they were put to the Rout. The power of these Commissioners was to execute the Queens Jurisdiction in Causes Ecclesiastical so as the Bishops are doubly interested in this work one way by supposed Commission from God as Ordinaries within their own Diocess onely and so may proceed to Excommunication or Deprivation the other way by Commission from the Queen as Members of the High Commission for so many of them were such as the Crown would please and so they might fine and imprison They might and did I say by their Commission but not by the Statute that gives Authority thereto and therefore cannot be said to be done legally Fourthly besides the contracted power of making Canons in the Convocation by the power of the Royall Assent the Queen had a power of making Laws by their consent in matters of the criminal part of the Worship of God This might be tolerable for the Life of one Queen who might be presumed would if she lived a few years settle all things but to subject the consciences of all the people to the opinion of one Metropolitan that might opinionate strange things and that the Successors of the Queen should usurp this as a flower of the Crown to determine what is for Gods glory in such cases and to be always altering and patching up a Form as he and his Metropolitan or one of them alone shall think meet is neither commendable upon any grounds of Divinity or humane Policy Now amidst the flourishing Estate of Prelacy it s no wonder if the Churches be no Gainers but like Plants spending their Natures in luxurient branches either are over-turned by the next blast of winde or do wither upon the least change of Sky That the whole ordering of the Church Affairs rested originally in the Parliament no man can question considering what ever the Queen did or had therein was from the power of Acts of Parliament And that the power of Excommunication it self notwithstanding that the Church held it by way of reservation or saving and not by donation from the Parliament by any express Act yet was that saving with such Limitations as that it releived but a lame power in comparison of what it claimed and exercised in former Times for whereas formerly the Church-men had the Writ De Excommunicato Capiendo at their own beck now it will not come but upon Articles and certain Conditions 1. In cases of Heresie 2. Of deserting of the Sacrament 3. Deserting of publique Worship 4. Maintenance of Error 5. Incontinency 6. Usury 7. Simony 8. Perjury 9. Idolatry In other matters the Spirtual Sword must finde or make their own way or else be quiet Secondly the Church was now no less under the Chair and Throne then under power of the Parliament nor is it a wonder if it could not thrive when it was so over-dropped for Prelacy by the Kings arms is lifted up so high above the other Clergy that the rest of the Clergy are as much underlings to the Prelacy as the Prelates are to the King they dare not offend the Crown least they should loose their honors nor the inferiour Clergy them least they should loose their Livings and Liberties and so the Prelates speak the sense of the Clergy and make the Crown their Oracle Thus in the Church matters the Crown is all in all CHAP. XXXVIII Of the Militia in these later Times IT cannot be denied but as in the sober Government of this Nation there is a Supremacy of Command so also in the rudest Times of War and wheresoever the same is settled there must the Militia also be The word Militia is a general notion sufficient enough for a name or title but not to define the thing I take it for nothing else but the Government of the Common-wealth when it is in anger or War or in order thereunto It consisteth in the raising arming ordering and paying of the Souldiery The Title of the Supreme Power in all this work hath been of late put to the question and brought us to this sad condition of triall by Battail and by fighting to finde out who hath the chief power to fight a Lesson that might have been learned from former Generations foregoing at a far cheaper rate when England is well in its wits Where the Law of Peace is settled there also is the Law of War and in what condition the Crown standeth in relation to the Legislative power in time of Peace may be seen in the foregoing Discourse In war he is the Peoples General by his place yet if any impediment do befall either by natural Disabilities or civil to render the person incapable of the managing of the Service there is no question but the People may order the matter as they please Examples hereof these Times are
underlings to the great men then they are to their Fethers to were them no longer then they will make them brave Secondly the Person thus agreed upon his intertainment 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 especiall manner for as their work is full of reflexion so formerly they had met with many sad influences for their labour And therefore a penall 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 uniforme Government in future times then England hitherto had seen CAHP. XV. Of the Custos or Protector Regni KIngs though they have vast dimensions yet are not infinite nor greater then the bounds of one Kingdome wherein if present they are in all places present if otherwise they are like the Sunn gone down and must rule by reflexion as the Moone in the night In a mixt common wealth they are integrall members and therefore regularly must act Per deputatum when their Persons are absent in another Ligialty and cannot act Per se Partly because their Lustre is somewhat eclipsed by another Horizon and partly because 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 Vicegerents in their absence ' giving them severall titles and severall powers according as the necessity of affaires required Sometimes they are called Lord Warden or Lord Keeper of the Kingdome and have therewith the generall power of a King as it was with John Warren Earle of Surry appointed therunto by Edw. 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 Forrainer had the like power given him by Edward the second over England to the reproach of the English Nobility which also they revenged afterward Somtimes these Vicegerents are called Lievtenants which seemeth to conferr onely the Kings power in the Militia as a Lievtenant Generall in an army And thus Richard the second made Edmund Duke of Yorke his Lievtenant of the Kingdome of England to oppose the entry of the Duke of Hertford Afterwards called Henry the fourth into England during the Kings absence in Ireland And in the mean while the other part of the Royalty which concerned the revenues of the Crowne was betrusted to the Earle of Wiltshire Sir John Bush Sir James Baggot and Sir Henry Green unto whom men say the King put his Kingdome to farme But more ordinarily the Kings power was delegated unto one under both the titles of Lord Gaurdian of the Kingdome and Lievtenant within the same such was the title of Henry Lacy Earle of Lincolne and of Gilbert De clare Earle of Glocester and of Audomar De valentia Earle of Pembroke all of them at severall times so constituted by Edward the second as by the Patent Roles appeareth So likewise did Edward the third make his Brother John of Eâ—tham twice and the black Prince thrice and Lionell Duke Clarence and his Brother Thomas each of them once in the severall passages of Edward the third beyond the Sea in the third fifth twelfth fourteenth sixteenth nineteenth and thirty third years of his reigne concerning which see the Patent Rolls of those yeares And Henry the fifth gave likewise the same title and authority to the Duke of Bedford upon the Kings voyage into France and afterward that Duke being sent over to second the King in the French Wars the Duke of Glocester obtained the same power and place But Henry the sixth added a further title of Protector and Defendor of the Kingdome 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 Glocester And towards the later time of Henry the sixth it was granted by him to Richard Duke of Yorke This title carried along with it a power different from that of a King onely in honor and the Person so adorned may be said to sway the Scepter but not to weare the Crowne And therefore in the minority of Henry the sixth when as the Government was ordered by the Parliament and to that end a Protector was made and he wel guarded with a Privy Councill and they provided with instructions one of them was that in all matters not to be transacted ordinarily but by the Kings expresse consent the Privy Councell should advise with the Prorector but this is not so needfull in regard that it concerneth the power of executing of Lawes 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 passe to the Legislative power wherein its evident that the Protectors power was no whit inferiour to the Kings power For first the Protector Ex officio by advice of the Councell did summon Parliaments by Writs even as the Kings themselves under their owne Teste and if not bear the Royall Assent yet did they direct the same and received Petitions in Parliament to them directed as to Kings and every way supplied the roome of a King in order to the perfecting publishing and inforcing of Law to Execution Secondly the Parliaments holden by Protectors and Lawes 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 Kingdome doth utterly vanish by the personall accesse of the King because in all Cases where the King is subservient to the Kingdome or the Common-wealth 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 Kingdome and it holdeth in equall force with all other Lawes 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 personall presence no more considerable then the presence of his shadow For the King spent three whole yeares in the French Warres and during that time never saw England where
neverthelesse in that interim three Parliaments had been holden one by the Duke of Bedford and two by the Duke of Glocester in the last of which this Law was made And in truth if wee looke upon this title of the Kingdomes Guardianship in its bare lineaments without lights and shadows it will appeare little better then a Crown of feathers worne 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 wel 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 yeares of age afterwards Edward the seconds Queen and the Lords of her party were wise enough in their way and yet they chose Edward the third to be the Custos regni then not fourteen yeares old his Father in the meane time being neither absent from the Kingdome nor deposed but onely dismissed from acting in the adminstration 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 yeares old afterwards when hee was about fourteene Then he made his Sonne the Black Prince upon severall occasions three times Lord Warden of the Kingdome once he being about nine yeares old and againe when he was eleven yeares old and once when about fourteen yeares old Lastly Edward the third appointed his son Lionell Duke Clarence unto this place of Custos regni when as he was scarce eight years old all which will appeare upon the comparing their ages with the severall Rolls of 25 E 1. and 3 5 12 14 16 19 E 3. If therefore the worke of a Custos regni be such as may be as wel done by the infants of Kings as by the wisest Councellor or most valiant man it is in my opinion manifest that the place is of little other use to this Common-wealth then to serve as attire to a comely Person to make it seeme more faire because it is in fashion nor doth it advance the vallue of a King one graine above what his personall endowments doe deserve Hitherto of the title and power the next consideration will be of the original Fountain from whence it is derived wherein the presidents are cleare and plaine that ordinarily they are the next and immediate ofspring of Kings if they be present whithin the foure 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 inlarged or abridged both it and them Thus was the Duke of Glocester made Lord Warden in the time of Henry the fifth he being then in France in the roome of the Duke of Bedford the like also in Henry the sixths 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 Dukes going over into France they committed that Service to the Duke of Glocester if I forget not the nature of the Roll during the Duke of Bedfords absence and with a Salvo of his right Nor 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 Kingdome by common intendment is to endure no longer then the King is absent from the helme either by voluntary deserting the worke or imployment in forrain parts though united they be under the Government of the same King together with this Nation such as are these parts of France and Ireland and Scotland then under the English fee This is apparent from the nature of that statute of Henry the fifth formerly mentioned for if there was need to provide by that Statute that the Kings Arrivall and Personall Presence should not dissolve the Parliament assembled by the authority of the Custos regni then doth it imply that the personall presence of the King by and upon his Arrivall had otherwise determined the Parliament and that authority whereby it sate But the presidents are more cleare all of them generally running in these or the like words In absentia Regis or Quamdiu Rex fuerit in partibus transmarinis It is also to be granted that the Kings will is many times subjoyned thereunto as if it were in him to displace them and place others in his absence yet doe I finde no president of any such nature without the concurrence of the Lords or Parliament and yet that the Parliament hath ordered such things without his consent For when Richard the First passing to the Holy Land had left the Bishop of Ely to execute that place during his absence in remote parts the Lords finding the Bishop unfaithfull in his Charge excluded him both from that place and Kingdome and made the Kings Brother John Lord Warden in his stead But in the Case of the Protectorship which supposeth disability in the Person of the King the same by common intendment is to continue during the Kings disability and therefore in the Case of Henry the Sixth it was determined that the Protectorship doth Ipso Facto cease at the Kings Coronation because thereby the King is supposed able to govern although in later times it hath not so beene holden For Kings have been capable of that Ceremony as soon as of the Title and yet commonly are supposed to be under the rule of necessity of Protectorship till they be fourteen years of age or as the Case may be longer For although Henry the Sixth was once thought ripe when he was eight yeares old yet in the issue he proved scarce ripe for the Crowne at his two and twentieth yeare Neverthelesse the default of Age is not the onely incapacity of Kings they have infirmities as other men yea more dangerous then any other man which though an unpleasant tune it be to harp upon yet it is a Theame that Nations sometimes are inforced to ruminate upon when God will give them Kings in his wrath and those also over to their own lusts in his anger In such Cases therefore this Nation sometimes have fled to the refuge of a Protector and seldome it is that they can determine for how long When Henry the Sixth was above thirty yeares old Richard Duke of Yorke was made Protector and Defendor of the Realme and of the Church It was done if the Record saith true by the King himselfe Autoritate Parliamenti It was further provided by the Parliament that though this was to continue Quamdiu Regi placuerit yet the Duke should hold that place till the Kings Sonne Edward should come