Circumspect agatis for in such cases the Ecclesiasticall Judge hath cognisance notwithstanding the Kings prohibition It s therefore neither grant nor release but as it were a covenant that the Clergy shall hold peaceable possession of what 〈◊〉 had upon this ground that the Kings prohibition hath no place in such things as are meerly spirituall So as hereby the Clergy got a judgement against the Crown by confession and an estopell upon this maxime that spirituall things belong to spirituall men into which ranke the Kings person cannot come thus thought they but what are spirituall causes and why so called are they such as concerne spirituall persons and things this was the old way marke but if we bring into this Category Adultery Fornication Incest c. we shall marre all Linwood tels us that mere spiritualia are such as are sine mixtura temporalium there may be somewhat in this though I cannot finde it nor can I make out the sence of the terme any other way but to limit it to such things which by common custome the Ecclesiasticall Judge had cognisance of for otherwise neither King nor law ever intended it to be expounded by the Canon nor was it the intent of this Writ Law or Licence call it what you will thus to conclude as the particulars following will manifest Fornication Adultery and such like punished sometimes upon the body and sometimes upon the purse These crimes the Saxons punished by the temporall power as I have already shewed The Normans continued this course if we may believe the Conquerours lawes which gave the fine in such cases to the Lord of the delinquent Ll. Gulielm cap. 14 19 371. And it is confessed that Henry the first and the second continued it as the Clergies own complaint just or unjust doth witnesse And what course was holden in the times of King Steven and John is to me unknown M. Paris addit fo 201. art 28. nor is it much to be regarded seeing the latter did he cared not what and the former to gaine the good will of the Clergy regarded not what he did The custome therefore cannot be made good for the Clergy much lesse to punish the bodies of freemen in such cases it being contrary to the grand Charter never asked by the Clergy formerly nor no complaint before now for deniall for my part therefore I shall not apprehend it of a higher nature then the Kings Writ which in those daies went forth at randome if the 44th Article of the Clergies complaints foregoing be true It be 〈◊〉 so contrary to the common sence of Parliament to give the bodies of the free men to the will of the Clergy to whom they would not submit their free holds But the Writ proceeds in enumeration of particulars Reparations and adornings of Churches and Fences of Church-yards Violence done to a Clerke Defamation to reforme not to give dammage Perjury oblations payments of Tythes between Rector and Parishioner Right of Tythes between two Rectors to a fourth part of the valew Mortuaries due by custome A pension from a Rector to a Prelate or Advocate The most of which were under the power of a prohibition in the time of Henry the third who was King but yesterday as the Articles of complaint formerly set down doe manifest Nor had the Clergy ever better title then connivance of some such favourites as King Steven whose acts may peradventure be urged against Kings but not against the people unlesse their owne act can be produced to warrant it The learning in the Princes case wil I suppose admit of a difference Coke lib. 8. for it can never be made out that the Kings Councell in Parliament was the Magnum concilium Regni but onely the house of Lords and therefore whatever passed in Parliament by their onely advice might binde the King but could never reach the Commons nor their liberties And thus the grand Charter in the first conception was conclusive to the King but was not the act of the Parliament because the Parliament cannot grant a Charter to it selfe of that which was originaly custome And therefore this law however countenanced can never be concluded to be other then a permission not onely because it was never the act of the Commons of England but because its contrary to the liberty of the free men and it s beyond all imagination that the Commons should out themselves from the protection of the Common law and yoke themselves their free holds and estates under the bondage of the Canons nor ought such a construction to be admitted without expresse words to warrant it As for the conclusion it is much worfe and not onely dishonourable to the King in binding his armes from protecting his Subjects by the Common lawes and so in some respects making them outlawes but dishonourable to it selfe whiles it makes prohibitions grounded upon Laws to be nullities by a late tricke of non-obstante which was first taken up by the Pope then by Henry the third and by this King granted to the Clergy and thus are all set at liberty from any rule but that of licenciousnesse Neverthelesse this Law did thrive accordingly for we finde scarce any footsteps in Story of any regard had thereof till it became gray headed For it was not long ere the King stood in need of money and was necessitated to try the good wils of the Clergy more then once this occasioned them to be slow in answer and in conclusion to deny that they should ayd the King with any more money Antiq. Brit. vit Winchelsy Papa inconsulto The King hereupon disavowes the Clergy and leaves them to the Romish oppressions which were many and then the Clergy rub up all old sores and exhibite their complaints to their holy Father Baronus Annal An. 1306. to this effect 1. That the Kings Justices intermeddle in testamentary causes accounts of Executors and cognisance of Tythes especially to the fourth part of the Living 2. That the Clergie were charged to the Kings carriages That the Kings Mils were discharged from paying of Tythes That Clerks attending on the Exchequer were necessitated to non-residency And that after their decease their goods were seised till their accounts were made That Ecclesiasticall possessions were wasted during vacancies 3. That Clerks were admitted to free Chappels by Lay men 4. That the Kings Justices tooke cognisance of Vsury Defamation violence done to Clerks Sacriledge Oblations Fences of the Churchyards and Mortuaries 5. That prohibitions are granted without surmise 6. That Clerks are called to answer in the Kings court for crimes and being acquitted the informers escape without penalty 7. That Clerks are not allowed their Clergie 8. That after purgation made Clerks are questioned in the Kings court for the same offence 9. That persons in Sanctuary are therein besieged 10. That the Writ de Cautione admittenda issueth forth although the Church be not satisfied and excommunicate persons being imprisoned are inlarged in
Chaplaine was disturbed enjoyned the Abbat to revoke his presentation upon this ground Cum igitur c. in English thus Antiq. Brit. Eccles fo 209. Whereas therefore that decree bindeth not our Clerks in our service in regard that the Kings and Princes of England from time to time have enjoyed that liberty and prerogative that their Clerks whiles they attend upon their service shall not be constrained to undertake holy things or to be personally resident on their benefices c. And if this present law be considered whereof we now treat which tooke leave to enact a sence upon a former Canon so long since made and which is all one to make a generall Councell will or nill it to tread in the steps of an English Parliament or which is more mean to speak after the sence of an English Declaration that had not yet attained the full growth of a Statute 30 aff pl. 5. as was then conceived it will evidently appeare that the power of a Councell made up of a mixture of a few votes out of severall nations or the major part of them being unacquainted with the Laws and customes of Nations other then their own was too meane to set a law upon any particular Nation contrary to its owne originall and fundamentall Law And as the voters sent to the generall Councels from England were but few so neither were the Proctors as may appeare from this that Pope Innocent out of his moderation if we may believe it and to avoyd much expence as he saith did order that the number of Proctors in such cases should be few but in truth the times then were no times for moderation amongst Popes and their Officers and therefore it was another thing that pinched for multitude of Proctors if their number had not been moderated might perhaps if not prevaile yet so blemish the contrary party that what the Pope should get must cost him losse of spirits if not blood and although the Bishops being fast friends to the Pope by vertue of their oath did prevaile in power and the Pope had the controll of the Councell yet the exceeding number of the Proctors on the contrary might render their conclusions somewhat questionable in point of honesty as being made against the minds of the greater number of persons present though their votes were fewer To avoyd this difficulty therefore for more surety sake the Popes enlarged the number of the voters for whereas it seemeth to be an ancient rule that onely foure Bishops should goe out of England to the generall Councell Hoveden An. 1179. in after ages not one Bishop could be spared unlesse in cases of great and emergent consequence as may appeare by the Popes letter to Henry the third and the case required it for the oppressions of the Pope began to ring so loud M. Paris An. 1245. as the holy chaire began to shake Neither did Kings confine themselves to any certaine number of Proctors notwithstanding the Popes moderation but as the case required sent more or lesse as unto that Councell at Pisa for the composing and quieting that great schisme in the Popedome Henry the fourth sent solemne Embassadours and with them nigh eighty in all But unto the Councell at Basell Henry the sixth sent not above twelve or thirteene as Mr Selden more particularly relateth Spicil 215. And unto the councell at Lions formerly mentioned the Parliament sent but six or seven to remonstrate their complaints of the extorsions of the Court at Rome their Legates and Emissaries The summe of all will be that the Acts of generall Councels were but councels which being offered to the sence of the Parliament of England might grow up to the degree of Lawes if the Parliament liked them Neverthelesse Nation all Synods Synods in England undertooke the quarrell of Generall councels for Archbishop Peckham in a Synod 1280. enjoyned the constitutions made in the Councell at Lions to be observed under a curse without consultation first had with the Parliament or before he knew whether they would be right or wrong and before him Boniface made constitutions in opposition to the customes of the Kingdome so as the matter was now come to a kinde of contest whither Synods or Parliaments should hold supremacy in doubtfull cases concerning the limits of the Ecclesiasticall and temporall power for henceforth Kings must bid adieu to the Synods and sit no more amongst them and Synods now thinke themselves free to consult and determine what they please without speaking under correction nor was there other remedy left to Kings but threats by Writs directed to the Bishops firmiter inbibendo quod sicut Baronias quas de Rege tenent deligunt nullo modo praesumunt concilium tenere de aliquibus quae ad coronam Regis attinent vel quae ad personam Regis vel statum suum vel statum concilii sui contingunt Rot Parliam 18 H 3. num 17. quod si fecerint Rex inde se capiet ad Baronias suas And this prevailed so farre as the Bishops durst not adventure too farre least they should goe beyond their guard and therefore they come and aske leave of the Parliament in cases that trenched upon the Law of the Kingdom as they did in the case of bastardy wherein they would have had their consent that children borne before marriage to be made legittimate by the marriage subsequent Stat. Merton cap. 9. and yet they could not prevaile for they were answered Nolumus leges Angliae mutari notwithstanding that the Canon law and the laws of the Normans sided with them and so they obtained not their desire although they still retained the triall of generall bastardy unto themselves Neverthelesse the times were such as Kings being too weakly assisted by the people and the Clergy strongly seconded by the Pope they tooke advantage of those times of distraction so as to hold themselves no further obliged to the King then the Pope and their own covetousnesse would allow them and to make all sure they had setled it so farre as they were able by a constitution that the Clergy were not bound to ayd the King Papa inconsulto Antiq. Brit. and they put it in practise in a Synod under Archbishop Winchelsie Anno 1295. in the time of Edward the first and although the King prevailed in the conclusion at that time yet from the times of Henry the third the Clergy for future times granted their aides to the King by themselves and a part from the rest of the body of the Kingdome and held themselves not bound by any ayd granted by the Parliament albeit that their own ayds granted in their Synods were not obligatory unto the body of the Clergy in this Kingdome unlesse first allowed and confirmed by the Parliament And thus is England become like a two bodied monster supported with one paire of legs CHAP. LXVII Of the condition of the free men of England of the grand
voting without impeachment CHAP. LIX Of the state of the Clergy and their power in this Kingdome from the Normans time IF the prerogative of Kings prevailed not to its utmost pitch during the Normans time it did much lesse in these times succeeding wherein the Clergy tooke up the Bucklers and beate both King and Commons to a retreat themselves in the interim remaining sole triumphers in the field In their first adventure they paced the stage no man appearing to oppose Steven then was King by their leave and their Bondservant and they might have any thing sobeit they would suffer him to enjoy his Crown His brother the Bishop was the Popes servant the Churchmens patron and the Kings surety in whom the Clergies favour to the King and his good behaviour toward them and all men concentred Besides all this the King was but so upon condition and there being no better title then election conscience in those times was well enough satisfied in the breach of covenant on their part where on the Kings part it was first broken All this the King saw full well and therefore what can he deny to such benefactors Vacances of Churches he readily parts with and his right of investure of the Mitred Clergy he dispensed so as he opened the way to his successors of an utter dereliction of that priviledge He sees his brother the Legate deflower the Crown of England by maintaining appeales from the Courts in England unto the Court of Rome and he says nothing he is contented with the stumpe of the Crown and with Saul if he be but honoured above or before all others of the people it s his enough But the Clergy like the barren wombe hath not yet enough The King hath allowed them Castles and too late he sees that instead of being defencas against the Imperiall power of the Empresse they are now made bulwarkes against the lawfull power of a King he had therefore endeavoured to get them down and gotten some of them into his power The King himselfe is now summoned to answer this before a Legatine councell wherein his brother is President that was a bold adventure in them but it was extreame rashnesse in him to appeare and plead the cause of the Crown of England before a Conventicle of his own subjects And thus to secure Rome of supremacy in appeales he suffers a recovery thereof against his own person in a court of Record and so loses himselfe to save the Crown Thus are Synods mounted up on Eagles wings they have the King under them they will next have the Crown Within a while Steven is taken prisoner the Empresse perceiving the power of the Clergy betakes her case to them now assembled in Synod they now proud of the occasion and conceiting that both Law and Gospell were now under their decree publish that the election of the King belongeth unto them and by them the Empresse is elected Queen in open Synod Stevens brother leading the game and had she been as willing to have admitted of the Laws as Steven was she had so continued and had left a strange president in the English government for posterity But the Citizens of London who had made the way to the Throne for Steven reduced the Synod to sober consideration and helped the kings return unto his Throne again wherein he continued a friend to the Clergy during the rest of his time Henry the second succeeded him as brave a man as he but beyond him in title and power and one that came to the Crown without preingagement by promise or Covenant saving that which was proper for a King A man he was that knew full well the interests in the government the growing power of the Clergy and the advantages lost from the Crown by his predecessor and to regaine these he smoothes his way towards these braving men speaks faire proffers faire M. Paris An. 1155. he would act to increase the bounds of the Church he would have the Popes leave to doe him a kindnesse and sobeit he might gaine an interest in Ireland he would take it from the Pope who pretended as heire of Jesus Christ to have the Islands and utmost parts of the earth for his possession and as if he meaned to be as good to the Church as Steven was and much better he desires the Popes kindnes for the confirmation of the liberties and customs of his Crown and kingdom and no sooner desired then obtained This was the 2d example of a King of England but the first of an English king that sought to Rome for right in the Crown and thereby taught the Pope to demand it as a priviledge belonging to the Tripple crown Nor was Henry the second lesse benigne to the Church-men till he found by his deere bought experience that he had nourished Scorpions and would have suppressed them but was rather suppressed himselfe as in that shamefull successe of the death of Becket may appeare wherein he yeelded the day up to the Clergy who formerly scorned to stoop to the greatest Potentate on Earth The state of Kings is to be pitied who must maintaine a politique affection above and sometimes against nature it selfe Constit at Clarindon if they will escape the note of tyranny in their undertakings and of a feeble spirit in their sufferings For the King having made Becket Chancellor of England then Archbishop of Canterbury he became so great that his fethers brushed against the Kings Crown who begins to rouse up himselfe to maintaine his honour and prerogative Royall The Bishops side with Becket the King intending the person and not the Calling singles out the Archbishop and hunts him to soile at Rome yet before he went the King puts the points of his quarrell in writing and made both Archbishop and Bishops signe them as the rights of his Crown and as the Consuetudines Avitae but Becket repenting went to Rome and obtained the Popes pardon and blessing the rest of the Bishops yeelding the cause The particulars in debate were set down in the nature of Laws or Constitutions commonly called the Constitutions at Clarindon which shew the prevailing humour that then overspread the body of the Clergy in those daies and therefore I shall summe them up as follows cap. 1. Rights of Advousons shall be determined in the Kings Court. This had been quarrelled from the first Normans time but could never be recovered by the Clergy Before the Normans time the County courts had them and there they were determined before the Bishop and Sheriffe but the Ecclesiasticall causes being reduced to Ecclesiasticall Courts and the Sheriffe the Laity sequestred from intermedling the Normans according to the custome in their own Country reduced also the triall of rights of Advousons unto the Supreame courts partly because the Kings title was much concerned therein and the Norman Lords no lesse but principally in regard that Rights require the consideration of such as are the most learned
of all Glanvil lib. 14. cap. 1. although the most heynous of all was in the same condition As touching breakers of prison in these times it was felony for what cause soever they were committed and therefore their imprisonment was without baile for who so makes no conscience of breaking the prison his credit will little availe yet it must be acknowledged that the Law imprisoned few without baile in those foregoing times but in case of felony or execution but afterwards the cases of commitment being ordinary even in matters of mean processe and because mens credits waxing weake by the weaknesse of their estates now wasted by the civilwars there fore in Edward the seconds time a law was made to restrain the felony in such cases onely to the breach of prison by such as were committed for felony And as touching imprisonment upon excommunication its manifest that within five yeeres before the making of this law it was complained that such were set at liberty by the Kings Writ de homine replegnando without the Bishops consent Addit M. Paris But now the Clergy had gotten the day of the Law which did much decline from that guard of imprisonment but hated perpetual imprisonment Nor was this complaint grounded upon any other law then that of the Canon for the common law ever held the supreame cognisance of Excommunication within its own power as upon the Writ de quare excomunicato may appeare Other crimes are yet also by this law allowed baile such as are persons indicted of larceny before Sheriffs c. persons imprisoned upon slight grounds Receivers and Accessories before felony Trespassers persons appealed by provers after the death of the approvers If baile be granted otherwise then the law alloweth the party that alloweth the same shal be fined imprisoned render dammages or forfeit his place as the case shall require And thus the iniquity of the times was so great as it even forced the subjects to forgoe that which was in account a great liberty to stop the course of a growing mischiefe Spreaders of false news West 1. cap. 34. Publishers of false news whereby discord or slander may arise between the King and his people shall be imprisoned till he produce the relator It is therefore an offence against the Crown to procure or maintaine an ill conceipt in the King of the people or an ill conceipt in the people of the King and it s as well an offence against the Crown for the King to conceive ill of his people as for them of him But all must be grounded upon falshood for truth respects no mans parson all men are equally bound by that woe if they call good evill or evill good although difference must be made in the manner of representation And upon this ground of maintaining strife was a law made also against conspiracy to make or maintaine indictment 33 Edw. 1. suit or quarrell and it was likewise finable Merton cap. 3. Redisseisors and post disseisors found upon verdict before the Sheriff Coroners and Knights shall be imprisoned Formerly redisseisin was under no other Law then that of disseisin but by this law made a matter belonging to the Crown and tried before the same Judges that had the power of inquiry of all offences against the Crown The penalty of imprisonment in this case was to be without baile Marlbr cap. 8. but onely by the Kings Writ de homine replegiando and yet even thus the penalty was not sufficient to restraine the offence and therefote a law was made to abridge the power of that Writ West 2. cap. 26. as touching such offender and they became irremediable as touching their liberty by that Writ besides that upon recovery had against them they lost double dammages Trespassers upon Parks West 1. cap. 20. Trespassers in Parks and Fishponds convicted within a yeere and a day shall render dammages suffer imprisonment for three yeeres and give security of good behaviour for time to come If any beasts be taken in a felonious manner he shall be proceeded against as a robber From the times of King Steven the Lords and great men endeavoured to advance their power and greatnesse so high above the meaner sort of free men as they made Kings continually jealous of their power Castles had been a bone of long contention between them but they being for the most part taken away the strife was about prisons and power to imprison offenders and that also after much opposition they layd aside yet the violence of these times being such as though felonies were somewhat dreaded trespasses of the highest nature were little regarded such as were riotous hunting in their Parks and fishing in their waters The Lords and great men made it their last request that at least in such cases they might have power to imprison such as they found so trespassing but this was also denied them Merton cap. 11. though by Henry the third in his first time when as yet the government was not worsted by projects of arbitray power or corrupt counsels of forrainers nor himselfe a man able to sway with the Lords in matters that were of doubtfull prerogative And to speake indifferently its better for the liberty of the subject that the power of imprisonment should be regulated onely by the Kings Writ ordered by law then by the warrants of great men especially in their own cases and therefore in this matter the Kings prerogative was a patron to the freemens liberty Neverthelesse these great men give not thus over their game for though in times of publique calamities little place is left for pleasure to any man yet when times are grown to more quiet pleasure revives and the great men renew their motion and though they could not obtaine prisons to their own use as they endeavoured at the meeting at Merton yet now they obtaine the Kings prisons to the use of a Law that was as good as their own and thereby satisfied their own displeasure for the losse of their pleasure And yet this law sufficed them not but they obtaine a further priviledge An. 21. Edw. 1. that such persons as are found so trespassing and refusing to submit may be killed without perill of felony CHAP. LXX Of the Militia during these Kings reignes THe Souldiery of England may be considered first in regard of the persons Secondly their armes Thirdly their service The persons were as formerly not onely such as were milites or tenants in Knight service but also such as served at the plow and concerning them both it is to be considered what the law made by Edward the second holdeth forth All such as ought to be Knights and are not shall be distrained to undertake the weapons of Knighthood Stat. de Milit. 1 E. 2. if they shew not cause to the contrary Regularly all tenants by Knightservice ought to be Knights but de facto were not so as in these times there was a
further worke to make a man a Knight then his bare tenure for such onely were milites facti who had both Lands sufficient to maintaine the Armes and state of a Knight and also a body fit to undertake the service in his own person and whereof he had given sufficient proofe in the field Others that had Land either had not sufficient maintenance or not habiliments of person and as not expected were laid aside of this sort were many by reason of the late civill warres in which they had much impaired both their bodies and estates This rendred the strength of the Kingdome and Militia so much decayed and the minds of men so weared that they began to love ease before the times would brooke it and a cessation from Arme before they had any mind to peace The Parliament espied the danger how necessary it was for the people to be well armed in these times of generall broile and upon that ground allowed this law to passe that all such as had Lands worth 20 li. yeerly besides reprisals should be ready not to be Knights nor under the favour of others is there any ancient president to warrant it but to finde or to enter the field with the Armes of a Knight or provide some able person to serve in their stead unlesse they were under 21 yeeres of age and so not grown up to full strength of body nor their lands in their own possession but in custody of their Lords or guardians Neverthelesse of such as were grown to full age yet were maimed impotent or of meane estate and tenants by service of a Knight it was had into a way of moderation and ordered that such should pay a reasonable fine for respit of such service nor further as concerning their persons were they bound But as touthing such that were under present onely and not perpetuall disabilities of body upon them incumbent as often as occasion called they served by their deputies or servants all which was grounded not onely upon the law of Henry the second but also upon common right of tenure The armes that these men were to finde are said to be those belonging to a Knight which were partly for defence and partly for offence of the first sort were the Shield the Helmet the Hauberk or Brestplate or coate of maile Of the second sort were the Sword and Lance And unto all a horse must be provided These Armes especially the defensive haue been formerly under alteration for the Brestplate could not be worne with the coate of maile and therefore must be used as occasion was provided of either and for this cause the service of a Knight is called by severall names sometimes from the horse sometimes from the Lance sometimes from the Helmet and not seldome from the coat of maile The power of immediate command or calling forth the Knights to their service in its own nature was but ministeriall and subservient to that power that ordered warre to be leavied and therefore as in the first-Saxon government under their Princes in Germany so after under their Kings Tacitur warre was never resolved upon but if it were defensive it was by the counsell of Lords if offensive by the generall vote of the grand Councell of the Kingdome so by vertue of such order either from the Councell of Lords or grand Councell the Knights were called forth to warre and others as the case required summoned to a rendezvouz and this instumentall power regularly rested in the Lords to whom such service was due and the Lords were summoned by the Lord Paramont as chiefe of the fee of which their tenants were holden and not as King or chiefe Captaine in the field for they were not raised by Proclamation but by summons issued forth to the Sheriffe with distresse and this onely against such as were within his own fee and held of the Crown The King therefore might have many Knights at his command but the Lords more and if those Lords failed in their due correspondency with the King all those of the inferiour orbe were carried away after them so the King is left to shift for himselfe as well as he can and this might be occasioned not onely from their tenures by which they stood obliged to the inferiour Lords but probably much more by their popularity which was more prevalent by how much Kings looked upon the Commons at a further distance in those daies then in after times when the Commons interposed intentively in the publique government And thus the Horsemen of England becomming lesse constant in adhearing to their Soveraigne in the field occasioned Kings to betake themselves to their foot and to forme the strength of their battels wholly in them and themselves on foot to engage with them One point of liberty these Souldiers by tenure had which made their service not altogether servile and that was that their service in the field was neither indefinite nor infinite but circumscribed by place time and end The time of their service for the continuance of it was for a set time if it were at their own charges and although some had a shorter time yet the generall sort were restrained to forty daies For the courage of those times consisted not in wearying and wasting the Souldier in the field by delayes and long worke in wheeling about and retiring but in playing their prizes like two combitants of resolution to get victory by valour or to die If upon extraordinary occasions the warre continued longer then the tenant served upon the pay of the common purse The end of the service of the Tenant viz. their Lords defence in the defence of the Kingdom stinted their work within certain bounds of place beyond which they were not to be drawn unlesse of their own accord and these were the borders of the Dominion of the Crown of England which in those daies extended into Scotland on the North and into a great part of France on the South And therefore the Earle Marshall of England being by Edw. 1. commanded by vertue of his tenure to attend in person upon the Standart under his Lieutenant that then was to be sent into Flanders which was no part of the Dominion of England refused and notwithstanding the Kings threats to hang him yet he persisted saying he would neither goe nor hang. Not onely because the tenants by Knight service are bound to the defence of their Lords persons and not of their Lieutenants but principally because they are to serve for the safety and defence of the Kingdom and therefore ought not to be drawn into forraine Countries Nor did the Earle marshall onely this Walsing fo 69. 71. but many others also both Knights and Knights fellows having twenty pounds per annum for all these with their armes were summoned to serve under the Kings pay in Flanders I say multitudes of them refused to serve and afterwards joyned with the rest of the Commons in a Petition to the
unlesse as their ancesters with weapons in their hands nor worthy of the presence of a King under other notion then as a Generall in the field and themselves as Commanders that are never a la mode but when all in Iron and Steele I say to make a Law that must suddenly binde men from riding or being armed when no man thought himselfe safe otherwise was in effect to expose their bare necks to the next turne of the Sword of a King that they did not overmuch trust and the lesse in regard he trusted not them I doe not wonder therefore if the Parliament liked not the worke but left it to the King to provide for the keeping off breaches of the peace and promised there assistance therein Lastly supposing all that is or can be supposed viz. that the Parliament had given up the power of the Militia unto Edward the first yet it was not to all intents nor did it continue for besides the Statute of Torniments which sheweth plainly that the ordering of Armour was in the power of the Parliament and which in all probabilty was made after that law last before-mentioned the Statute at VVinton made after this Law nigh six yeeres space ordereth the use of the Trained bands in maintaining the peace and reserveth the penalties to themselves for any default committed against the said act And therefore notwithstanding any thing that yet appeareth to me out of any Law or History the chiefe moderatorship of warre and peace within the Realm of England resteth hitherto upon the Parliament next under God and in the King no otherwise then in order to the publique the rule whereof can be determined by no other Judge then that which can be intended to have no other respect then the publique good and which is the abridgement of the large volume of the Kingdom A summary conclusion ANd thus have I brought the shape of English government rude as it is from the first off-spring of the Saxons through the rough waves of the Danish tempests the rocks of Norman invasion and the Quicksands of Arbitrary government under Popes and Kings to the Haven much defaced it is I confesse by the rage of time and yet retained the originall likenesse in proportion Kings first about the Norman times joyning with the Lords for their joynt interest above the ordinary pitch had mounted each other too high to be Lords over free men Then by flattering of the free men into their designes hovered above them all but not being able to maintaine their pitch so long as the Lords held together stooped for a party amongst them and soon obtained their desire For some Lords more ambitious then others and they againe more populer then them seeke severall interests And thus Kings aided by their party to a Supremacy which they were never borne to and it by them into a preheminence above their Peeres which neither law nor custome ever gave them are of Moderators in the Councell of Lords become moderators of those Councels and so they obtained all that the Lords had but no more For though both they and the Lords abused their power over the free men by extorsion and opression as Lords over tenants yet could they never prevaile over them as free born subjects to gaine their consent to give their right or the law up to the Kings beck but still that remained arbiter both of King and people and the Parliament Supreame expounder and Judge both of it and them Other argument hereof there will be little need Bract. lib. 2. c. p. 16. besides what hath formerly appeared then what we finde in Bracton who wrote in the time of Henry the third to this effect God is superiour to the King and the Law by which he is made King and his Court viz. the Earles and Barons Earles according to their name Comites are the Kings associates and he that hath an associate hath a master and therefore if the King be unbridled or which is all one without Law they ought to bridle him unlesse they will be unbridled as the King and then the Commons may cry Lo Jesus c. This was the judgement of that famous Lawyer of the State of an English King in Henry the thirds time I shall adde hereto a concurrent testimony of a Lawyer also in Edward the first time Although saith he the King ought to have no equall in the Land Miror Just p 9. yet because the King nor his Commissioners in case where the King intrencheth upon the right of any of his Subjects can be both Judge and party the King by right ought to have companions to heare and determine in Parliament all VVrits and plaints of wrongs done by the King the Queen or their childrsn and of those wrongs especially whereof otherwise common right cannot be had Nor is this the opinion onely of Lawyers but it is the Law it selfe unto which the Royall assent was added Edw. 2. and the same sealed with an Oath in the solemne stipulation made by Kings at their Coronation with the people then present in the name of the whole body the summe whereof is wont to be propounded to the King in this manner Remonstr Parliament novem l. 2. An. 1642. though in a different Language 1. Will you grant and keep and by your Oath confirm to the people of England the Laws and Customes to them granted by the ancient Kings of England your righteous and godly predecessours and especially to the Clergie and people by the glorious King St. Edward your predecessour The Kings answer I doe them grant and promise 2. Will you keep to God and the Church and the Clergie and the people peace and concord sincerely according to your power The Kings answer I will doe it 3. Doe you grant to hold and keep the Laws and rightfull Customes which the Comonalty of your Realm shall have chosen and to maintaine and inforce them to the honour of God after your power The Kings Answer I this doe grant and promise In few words the King promised to keep the lawes already made the peace of his Kingdome and the Laws to be agreed upon by the commonalty the same in subsistance with that of Henry the first VVilliam the Conquerour the Danish and Saxon Kings formerly had and in the foregoing discourse observed And thus is he led to the Throne in a Chaine of Gold a serious memoriall of the Kings duty as he is a man and a glorious ornament to him as a King If then the King be under the law in case of direction as by stipulation he is bound if he be likewise under the Law in case of transgression to be judged by his Comites or Peeres Hitherto certainly an English King is but Primus inter omnes and not supra totum and if at any time he skipped higher he afterwards fell lower for it was the lot of these times to have Lords that were bent to worke the people to