to glance at the various Aspects of the ancient upon the modern that so these divers Princes and wise Councils in their different course may appear to be no other than the instruments of him that is but one and of one mind whose goings forth have been in a continual course of Wisdom and Goodness for our selves in these latter days And herein I am encouraged because I am not in danger of temptation to Flattery or Spleen nor pinched with Penury of grounds of observation having to do with a Nation than which a clearer mirour of Gods gracious Government is not to be found amongst all the Nations and People under Heaven A TABLE Of the PRINCIPAL MATTERS contained IN THE FIRST PART of this BOOK ABbots page 142 Abbey quarter 151. not taxed or visited from forrein parts 152 Vacancies ibid. Purveyance ibid. Abere murder amongst the Saxons 62 Accolites amongst the Saxons 18 Accusation witnesses amongst the Saxons 94 Action amongst the Saxons 53 Acquittal vide Knight-service Administration vide Intestate Adultery amongst the Saxons 26 Amongst the Normans 88 After 145 Advowsons cognizance 111 Aedeling 33 Age vide Infancy Aids after the Norman times 125 173 178 Alderman 33 Alienations license 114 171 Allegiance according to the Saxons 53 The Normans 94 Amercements 163 Apostacy punished by the Saxons 25 After 121 Appeals amongst the Saxons 53 The Normans 94 After 171 Appeals to Rome 110 Setled 111 To Ecclesiastical Courts ibid. Archbishops vide Metropolitans Arrays 191 c. Arms assessment 128 Vide Arrays Austin the Monk his coming and his Actions 11 c. B. BAil 122 21 158 c. 182 Barks vide Bridges Baron vide Court. Bargain and sale of Goods amongst the Saxons 67 The Normans 82 Barons Wars 221 c. Bastardy amongst the Saxons 26 Battle trial amongst the Saxons 56 Batteries punished by the Saxons 62 120 Bigamists 91 Bishops amongst the Saxons 16 Vide Prelacy amongst the Normans their power encreased 77 c. Vide Elections their Oath to the Pope 115 Blasphemy punished by the Saxons 25 61 Amongst the Normans 86 Bloudshed vide Manslaughter Bridges 164 Britons their Religion and Government 1 c. Conversion 2 Instructed in Learning 4 A Province ibid. The last that submitted to the Papalty and the first that shook it off 13 Burgage amongst the Saxons 51 Burghbote ibid. Burglary punished by the Saxons 63 Burning of Woods punished by the Saxons ibid. Vide 121 Burroughs Mag. Chart. Burroughs English 66 C. CAnon-Law 75 Vide Prelacy Carriages 165 166 Castles their use 73 165 c. Abuse 104 Occasion of the first Civil Wars 130 Castles-guard vide Mag. Chart. 166 De Cautione admittenda 113 Chancery 178 Chancemedley 179 Church maintenance by the Saxons 18 c. Franchise 44 Alienation 115 Reparation 146 Church-men Action 183 184 Discharged from Torns 183 Purveyance 17 143 Their complaints 141 147 Priviledged from distress 150 Cricksceat amongst the Saxons 19 Normans 86 Vide First-fruits Circuits 120 Citation 113 151 242 Clerks trial 116 143 151 Killers of Clerks 116 Comites ex plebe 35 Common-pleas setled 162 Commutation vide Articuli Cleri Compurgators amongst the Saxons 56 Confession sacred 150 Constitutions at Clarindon 111 De Consimili casu 178 Conveyance vide Deeds Copy-hold vide Mannor Coroners amongst the Saxons 41 179 Corporations 48 c. 78 Coverfew 102 Councils general vide Synods Council of Lords amongst the Saxons 33 Vide Lords Counties Courts amongst the Saxons 41 Normans 82 131 After 172 179 285 Court Baron amongst the Saxons 48 Crown-pleas Mag. Chart. 164 Courtesie of England in the Saxons time 65 Custodes pagani amongst the Saxons 35 D. DAne-guelt 102 Released 118 Darreign presentment Mag. Chart. 163 Deacons 18 Deaneries amongst the Saxons 23 Debt to the King satisfaction 160 Debt to the King Mag. Chart. Decenâ—â— amongst the Saxons 43 Normans 83 Deeds among the Saxons 67 Defamation 146 149 Departure beyond Sea without license 112 Diocesses amongst the Saxons 23 Distress in the Normans time 89 Mag. Charta 161 c. Vide County-court Disseisin vide Redisseisin Novel-disseisin Dower in the Saxon time 64 Norman times 91 160. E. ECclesiastical cognizance and power 109 c. 80 127 Vide Stat Circumspecte agatis Articuli Cleri Ederbrece amongst the Saxons 63 Edward the first 133 Edward the Second 35 Elections 75 112 144 151 Elegit amongst the Saxons 59 Englishire a Saxon Law 62 Errour vide Appeals Escheats 167 Vide Forfeiture Felony Escuage Mag. Charta 173 c. Excommunication in the Saxons time 59 Normans 80 After the Normans time 113 Excommunicato deliberando 150 Excommunicato capiendo 151 182 Execution in the Saxon time 59 Executors Mag. Charta Exorcists 18 F. FAirs in the Norman time 89 Fauxonry 120 122 Feast-days Norman Law 87 Felonies and Felons punishment and forfeiture 94 121 167 Concealment 181 Defamed ibid. Feorme or Farm amongst the Saxons 47 Fightwit amongst the Saxons 62 Fine by the Normans 94 175 c. Folkmote vide County-court Fools and Ideots amongst the Normans 93 After 175 Forein Councils 130 132 137 Fornication vide Adultery Forests amonst the Saxons 51 Franchises 42 Frankpledge amongst the Saxons 78 Vide View Freemen of the Saxons 34 Normans 84 After 117 169 Frithbrech amongst the Saxons 62 Fugam fecit 53 Fugitives 167 G. GAvel-kind amongst the Saxons 66 Normans 100 Glebe amongst the Saxons 20 Goods found Saxon Law 68 Norman 89 Sale ibid. Grithbrech vide Frithbrech H. HAbendum Saxon 67 Hamsockne Saxon 63 Heresie punished by the Saxons 24 Normans 86 After 121 Haubergettum Haubertum Halbargellum what it is 194 Heretock Saxon 33 Henry the First 74 Henry the Second 104 Henry the Third 129 c. Shifts for Money 130 Forein Councils 132 Yields up his interest in the Militia to the Lords ibid. c. Heordpeny vide Peter-pence High-ways priviledge 190 Hundred and the Court Saxon 42 Norman 83 Hundred Setena Saxon 43 I. IDolatry punished by the Saxons 60 Normans 86 Vide Blasphemy Imprisonment Saxons 62 Norman 94 Incest punished by the Saxons 62 Indictment Saxon Law 53 Infancy amongst the Saxons 55 After 123 Infangtheoff Saxon 46 Inheritance Saxons 62 Normans 100 After 122 c. Inquest Saxon 56 Interdict in the Saxon time 24 After 113 Intent punished by the Normans 94 Intestate Saxon Law 68 Norman 89 Afterward 144 c. 165 c. John 106 Judgement vide Execution Judges vide Justice Judicatory 118 c. Jury grand petit amongst the Saxons 56 Justice and their Courts amongst the Saxons 52 Chief Justice 119 Judges or Justices itinerant after the Normans 120 124 177 K. KIngs amongst the Saxons election continuance covenant maintenance power in Church matters 22 c. 35 Amongst the Normans election 70 c. Covenant 72 c. Power in Church-matters 77 c. In the times of Stephen Henry the Second Richard the First and John Election 103 Power in Church-matters 109 c. In the time of Henry the Third
be a loser by so well-deserving service as in those days that was accounted Nevertheless the English look upon Henry as the fitter man for their turn being now at hand and Robert at Jerusalem and being a native born in England civilized into the English garb by education and of a wiser and fairer demeanour and more inclining to peaceable Government which both Normans and English much inclined to as being weary of thirty years service in the Wars And therefore it is not marvellous if they applied themselves to him in a way of capitulation and less wonderful if he hearkned thereunto and yet neither unadvisedly yielded unto by him nor traiterously propounded by them as some in zeal to Monarchy conclude the point The worst of the whole matter resting in this that the King bound himself to be just that he might be great and the people to submit unto Justice that they might be free like as their Ancestors were and themselves by the Law established ought to be For the capitulation was in substance setled by the ancient Laws of the Saxons mixed with some additions of Laws made by the Kings Father with the joynt advice of the grand Council of the Kingdom all which both the Norman Williams had often confirmed by solemn protestations and promises however their actions upon sudden surprisal were malae consuetudines and exactiones injustae by this Kings own acknowledgment Thus these three Norman Kings made their way to the Throne the first by Arms under colour of Title the second by a kind of Title under colour of Arms and the last by favour but all entred the same by capitulation election and stipulation and for the general had some regard to suit their course in order of retaining the good will of their people although in a different measure according to the differency of occasions CHAP. XLVI That the Government of the Normans proceeded upon the Saxon principles and first of Parliaments THE principles which I mean are these First the Legislative power and influence thereof upon the whole Secondly the Members of that Government with their several motions Thirdly the Laws and Customs or Rules of those Motions And first concerning the Legislative power Although it be true that the first Williams great and most constant labour was to have and to hold and had but little time or liberty to enjoy yet that time of rest which he had did apply it and himself in the setling of the Laws by the advice of Common-council I say not by advice of his own heart or two or three Norman Lords or of the Norman Nobility only as some men take the confidence to aver as if they had been eye-witnesses to the actions of those days but by the joynt advice of the grand-grand-Council of the Lords and wise men of the Kingdom of England I will not insist upon force of argument to shew that common reason must of necessity sway the King into this course but shall reserve that to another place the testimonies of Writers must now serve the turn and herein the testimony of the Chronicle of Lichfield must have the first place which speaks both of a Council of Lords and saith that by their advice he caused to be Summoned a meeting of all the Nobles and wise men through all the Counties of England to set down their Laws and Customs This was in the fourth year of his Reign or rather after his entry and as soon as the Kingdom was brought into any reasonable posture of quiet and which besides the intention of governing the Kingdom according unto Law doth strongly pretend that the Parliament had the Legislative power and right of cognizance and judicature in those Laws that concerned the Kingdom in general and for the particular Laws or Customs of several places or Precincts it was referred to a Committee or Jury in every County to set them forth upon Oath Secondly that this Council had power to change Laws may likewise appear in that Act made concerning the introduction of the Canon-Law which shews not only the power of that Council in Church-matters but also that the Canon was no further in force than the same would allow and this was also done by Common council and the Council of the Archbishops Bishops Abbots and all the Princes of the Kingdom which connexion shews plainly that there was a Council besides that of the Prelates and Princes Thirdly in matters of general charge upon the whole body of the people the King used also the help of this Grand-council as may especially appear in the charge of Arms imposed upon the Subjects which was said to be done by the Common council of the whole Kingdom as is witnessed even by the Kings own Law. It may seem also that the grand Officers of the State were elected by such grand assembly of the wise men for we find that Lanfrank was elected to the See of Canterbury by the assent of the Lords and Prelates and of the whole people that is by the Parliament of England and as probable it is that Bishops were therein also elected for that the Bishop of Lichfield resigned his Bishoprick in such like Assembly if the meaning of Lanfrank be rightly understood who saith in his Letter that it was in conventu Episcoporum atque Laicorum Lastly that one Law of the Kings which may be called the first Magna Charta in the Norman times by which the King reserved to himself from the free-men of this Kingdom nothing but their free service in the conclusion saith that their Lands were thus granted to them in inheritance of the King by the Common-council of the whole Kingdom and so asserts in one the liberty of the free-men and of the representative body of the Kingdom These footsteps of the Parliament find we in the Conquerors time besides other more general intimations scattered amongst the Historians which may induce opinion to its full strength that this King however Conqueror he was yet made use of this additional power of Parliament to perfect his designs and it may be more often than either of his Sons that yet had less pretence of superlative power to countenance their proceedings William Rufus was a man of resolution no whit inferiour if not surpassing his Father and had wit enough for any thing but to govern his desires which led him many times wild and might occasion conceit that he was almost a mad King though he were a witty man and therefore it is the less marvail if he used not the help of the Common-council more than needs must where Kings many times are told of that which they are loth to know Nevertheless William the second could not pass over thirteen years without a parley with his Commons and Clergy unless he meant to adventure a parley between them and his Brother Robert who like an Eagle eyed his posture though he hovered afar off But Henry the first was more wise
which shew him to be a brave King if he was not a very rich man. Henry the second was more heavy because he had more to do yet find we but one assessment which was Escuage unless for the holy War which was more the Clergy-mens than his Richard was yet a greater burthen his Reign was troublesome to him and he deserved it for from the beginning thereof to the ending could never the guilt of his disobedience to his Father be blotted out but it was more troublesome to the people because it cost so much treasure was managed by such ill Governours except the Archbishop of Canterbury and was unsuccessful in most of his undertakings yet never invaded the liberties of the Commons by any face of Prerogative But what wanted in him was made compleat and running over in his Successor John who to speak in the most moderate sence of his Government being given over to himself when he was not himself robbed the Lords of their authority bereaved the Church of its Rights trod under foot the Liberties of the people wasted his own Prerogative and having brought all things into despair comes a desperate cure the head is cut off to save the body and a president left for them that list to take it up in future ages And thus that which Steven gave Henry the second lost Richard the first would not regain and John could not and so all were gainers but the Crown CHAP. LXI Of Judicature the Courts and their Judges IT is no silent argument that the Commons gain where Laws grow into course and it was the lot of these troublesome times to lay a foundation of a constant Government such as all men might learn which formerly was laid up onely in the breasts of wise experienced men The two most considerable points in Government is the Law and the Execution the latter being the life of the former and that of the Common-wealth I say not that the Law was augmented in the body of it or that the Execution had a freer course than in the best of the former times but both were more and more cleared to the world in many particulars as well touching matters concerning practice of the Law as touching rules of righteousness For the first whereof we are beholding to Glanvil in Henry the second 's time and for the latter to King John or rather the Barons in his time in the publishing of the Grand Charter or an enumeration of the Liberties or Customes of the people derived from the Saxons revived continued and confirmed by the Normans and their Successors which for the present I shall leave in lance dubio to stand or fall till occasion shall be of clearing the point in regard that King John soon repented of his Oath the Bond of his consent and to heal the Wound got the Pope's pardon and blessing thereupon so easie a thing it was for a Son of the Roman Church to pass for a good Catholick in an unrighteous way The execution of the Law was done in several Courts according to the several kinds of affairs whereof some concerned matters of Crime and Penalty and this touched the King's honour and safety of the persons of himself and his Subjects and therefore are said to be contra coronam dignitatem c. The second sort concern the profits of the Crown or treasure of the Kingdom The third concern the safety of the Estates of the people These three works were appointed unto three several Courts who had their several Judges especially appointed to that work Originally they were in one viz. in the supream Court of Judicature the Court of Lords whereof formerly was spoken but after through increase of affairs by them deputed or committed to the care of several men that were men of skill in such affairs and yet retained the Supremacy in all such cases still And because that which concerned the publick Treasure was of more publick regard than the other the deputation thereof was committed probably to some of their own members who in those days were Barons of the Realm and afterwards retained the Title but not the Degree and therefore were called for distinction-sake Barons of the Exchequer The particular times of these deputations appear not clearly out of any monument of antiquity nevertheless it is clear to me that it was before Henry the second 's time as well because Henry the first had his Judex fiscalis as Glanvil so frequently toucheth upon the King's Court of Pleas which cannot be intended at the Court of Lords for that in those days was never summoned but in time of Parliament or some other special occasion But more principally because the Historian speaking of the Judges itinerant reciteth some to be of the Common-pleas which sheweth that there was in those days a distinction of Jurisdiction in Judicatures And it may very well be conceived that this distinction of Judicature was by advice of the Parliament after that the Grand Council of Lords was laid aside by Kings and a privy-Privy-Council taken up unto whom could not regularly belong any juridical power because that remained originally in the grand assembly of the Lords Over these Courts or two of them one man had the prime Title of Chief Justice who then was called Lord Chief Justice of England and whose office was much of the nature of the King's Lieutenant in all causes and places as well in War as Peace and sometimes was appointed to one part of the Kingdom and by reason thereof had the name onely of that part and some other of the other parts The greatness of this Office was such as the man for necessity of state was continually resident at the Court and by this means the King's Court was much attended by all sorts of persons which proved in after-times as grievous the King as it was burthensome to the people Other Judges there were which were chosen for their learning and experience most of them being of the Clergie as were also the under-Officers of those Courts for those times were Romes hour and the power of darkness Other Courts also were in the Country and were Vicontiel or Courts of Sheriffs and Lords of Hundreds and Corporations and Lordships as formerly and these were setled in some place But others there were which were itinerant over which certain Judges presided which were elected by the Grand-Council of Lords and sent by Commission from King Henry the second throughout the Kingdom then divided into Six Circuits unto each of which was assigned Three Justices so as the whole number of Justices then was Eighteen The office was before the coming of the Saxons over hither but the assignation was new as also was their Oath for they were sworn But the number continued not long for within four years the King re-divided the Land into four Circuits and unto each Circuit assigned five Justices making in the whole the number of Twenty and one Justices for the Northern
Labour or other Contribution none of which ought to be done but by publick Law. And therefore when the Inhabitants of the County of Cornwal were to make defence against Invasion and Piracy from the Coast of Little Britain in regard they were a long slender County and upon sudden surprizals People could not so readily flock together for their joynt defence they obtained an Act of Parliament to give them power to fortifie the Sea-coasts according to the direction of the Sheriff and Justices of the Peace Lastly Wars once begun must be maintained at the charge of the undertakers If they be the Kings own Wars he must maintain them out of his own Treasury till the benefit of them do prove to the common good and in such cases the charges have been sometimes provided before the work by Act of Parliament and sometimes after Henry the Seventh and Henry the Eighth both of them at their several times went to Boloigne with their Armies Henry the Seventh with an intent to gain profit to himself by an advantagious peace and had his ends therein and was ashamed to ask aid of the people towards the charges of that War. Henry the Eighth went upon his own charge also with his Army trusting to the Parliament for consideration to be had of his employment wherein his expectation did not fail and in his absence made Queen Katherine General of all the Forces of England in his absence and gave her power with other five Noble Personages to take up Money upon Loan as occasion should require and to give security of the same for the maintaining and raising of Forces if need should require as is more particularly set forth in the Patent-rolls of these times Nevertheless the War at Sea Infra quatuor Maria was ever reputed defensive as to the Nation and under the publick charge because no War could be there but an Enemy must be at hand and so the Nation in imminent danger and therefore the maintenance of the Navy-Royal in such cases was from the publick Treasury To conclude therefore if the Parliament and Common Law in all these Cases of Levies of men for War payment of Souldiers and their deportment in cases of Fortifications and of maintenance of Wars at Sea and the deportment of such as are employed therein I say if they give the Law and carry the Supream Directory then certainly the Law rules in that which seems most lawless and though Kings may be chief Commanders yet they are not the chief Rulers CHAP. XXXIII Of the Peace PEace and War originally depend upon the same power because they relate each to other as the end to the means and receive motion from one and the same Fountain of Law that ruleth both in Peace and War. It is very true that several Ages hitherto have been troubled with arbitrary Exhalations and these very times whereof we now treat are not altogether clear from such an air Two Kings we have at once in view both of them of an elate spirit one working more closely by cunning the other more openly by Command yet neither of them pretending so high as to do all or be all in all Peace suited more with Henry the Seventh than with his Son who delighted to be accounted terrible rather than good yet both of them were glad enough to be at peace at home and were industrious to that end though by several means Henry the Seventh pretended Justice and Peace a welcome news to a people that formerly accounted nothing theirs but by the leave of the Souldier and therefore sets upon the Reformation of the Sheriffs Courts in the entring of Plaints and making of Juries suitable to that present time wherein men of Estates were very scarce and much of the Riches of the Nation evaporated into the Wars both Civil and Foreign Although the continuance of that order concerning Juries in the succeeding times of opulency hath brought these Courts into contempt and made way thereby for the Kings Courts to swell in Glory and to advance Prerogative even above it self Secondly he reforms Goals as well in their number as their use During the Civil Wars every small party of men that could get a strong place made the same not onely a Castle but a Goal and usually imprisoned and ransomed at their own pleasure For remedy whereof Henry the Seventh restores all Goals to the Sheriffs saving such as hold by Inheritance and gives power to two Justices of the Peace one being of the Quorum to take Bail in cases bailable and Recognizances of the Peace to be certified at the next Sessions or Goal-delivery Thirdly both Kings concur in providing against such disorders as more immediately did trench upon the publick Peace and reached at the Crown it self by labouring to prevent by severe punishing and lastly by regulating the proceedings of Judicature in such cases These disorders were two inordinate wearing of Liveries and unlawful Assemblies The first being in nature of unlawful assembly of minds and spirits of men the second of their bodies and persons Both these had formerly been provided against but the Judges of the Common Law unto whose Cognizance these Crimâ— were holden did restrain their punishments to the rule of the Common Law then thought to be too facile and mean for disorders that did flie at so high a pitch and therefore they are reduced before a higher Tribunal as matter of State as hath been already mentioned The severity of punishment consisted not so much in aggravating the Pain as the Crime matters of injury being made Felonies and those Treasons This Crime of Treason at first it concerned matters acted against the Nation afterwards it reached to matters acted against the King now it reacheth even to the very thoughts and imaginations of the heart not onely of bodily harm to the King but of the Queen or their Heirs apparent or tending to deprive them of their Title of Name of Royal Estate This Crime was formerly made but Felony by Henry the Seventh and then onely extended to such offence committed by one of the Kings Houshold against the Person of the King or a Lord or any of the Council Steward Treasurer or Controller so as the Person of the Queen was not then in the case and yet then newly Crowned and at that instant bearing in her Womb the Royal Seed which was then the onely earnest of the stability and glory of England and therefore it is a subject of wonderment unless it were out of extremity of Jealousie lest he should seem to make too great account of her Title and thereby disparage his own And then is it a piece of wit but not without weakness for he that is jealous of the slightings of other men shews himself unresolved in his own pretensions Now Henry the Eighth not onely raised the price but added to the thing and not onely putteth the Queen but the Prince or Heir
Bishop of London and the Embassadors from the West-Saxons could sit amongst them and attest the Conclusions therein made as well as the proper Members of that Nation He cometh in the next place to a Council holden in the year 855 which is more likely to be a Parliament than most of them formerly mentioned if the Tithes of all England were therein given to the Church but hereof I have set down 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 Laws be duly considered towards the Conclusion thereof it will appear that there was present Fidelium infinita multitudo qui omnes regium Chirographum laudaverunt Dignitates verò sua nomina subscripserunt And yet the Wittagenmotes in these times began to be rare being continually interrupted by the invasions of the Danes The three next Councils alleadged to be in the years 930 944 948. were doubtless of inferiour value as the matters therein concluded were of inferiour regard being such as concern the passing of the Kings Grants Infeodations and Confirmations The Council mentioned to be in the year 965 is supposed to be one and the same with the next foregoing by Sir Henry Spelman which calls it self a General Council not by reason of the general 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 it is evident that the King of Scots was there and that both he and divers 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 Councils which the Opponent calls Parliaments we find 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 remain before the coming of the Normans The first of which was in the year 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 Regulars and the Seculars in the King's absence by reason that he was under age and they are said to be in the year 977 and 1009. But it is not within the compass 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 knows is determinable by inferiour Courts before the high Steward of 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 Abbey of Bury Saint Edmunds in a Council wherein were present Archbishops Bishops Abbots Dukes Earls Cum quamplurimis gregariis militibus cum populi multitudine copiosa votis regiâ—s unanimiter consentientes The other taken out of the Confessor's Laws which tell us that Tythes were granted to the Church A Rege Baronibus Populo And thus I shall leave these Testimonies to debate with one another whilst the Reader may judge as seemeth most equal to himself 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 Customs rightly setled in the Saxon times which I have more particularly insisted upon that the Original Constitution of this Government may the better appear 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 Honour by the aid of the Normans Law refusing the concurrence and personal presence of Kings whom at length they excluded from their Councils with all his Nobles and therefore it is the less wonder if we hear but little of the Commons joyning with them Secondly That the Norman way of Government grew more Aristocratical than the Saxon making the Lords the chief Instruments of keeping Kings above and People underneath and thus we meet with much noise of meetings between the King and Lords and little concerning the grand meetings of the Kings and the Representative of the People although some foot-steps we find even of them also For the Kings were mistaken in the Lords who meaned nothing less than to serve them with the Peoples Liberties together with their own which they saw wrapped up in the gross Thirdly By this means the Councils of the King and Lords grew potent not onely for advice in particular occasions but in matters of Judicature and declaring of Law ordering of Process in Courts of Pleas which in the first framing were the works of the Wise and Learned men but being once setled become part of the Liberties of every Freeman And it is not to be doubted but these Councils of Lords did outreach into things too great for them to manage and kept the Commons out of possession of their right during the present heat of their ruffling condition yet all this while could not take absolute possession of their Legislative power I now come to the remainder of the particular instances produced by the Opponent which I shall reduce into several Categories for the more clear satisfaction to the Reader with less tediousness First It cannot be denied but the Council of Lords gave advice to Kings in cases of particular emergency nor is it incongruous to the course of Government even to this day nor is it meet that the Parliament should be troubled with every such occasion and therefore the giving of advice to William the Conquerour what course he should take to settle the Laws of England according to the instances in Councils holden An. 1060 and 1007. and to gain favour of the great men according to that in Anno 1106. and in the manner of endowment of the Abbey of Battel as in pag. 25 of the Opponents Discourse and what to do upon the reading of the Pope's Letter according to that in Anno 1114. And whether the Pope's Legate should be admitted as in pag. 18. And how King Stephen and Henry shall come to an Agreement as Anno 1153. And how to execute Laws by Judges and Justices Itinerant as Anno 1176. And touching the manner of ingaging for a Voyage
A brief censure of the Saxon Prelatical Church-Government 27 XVI Of the Saxons Commonwealth and the Government thereof and first of the King. 29 XVII Of the Saxon Nobility 33 XVIII Of the Freemen amongst the Saxons 34 XIX Of the Villains amongst the Saxons 35 XX. Of the grand Council amongst the Saxons called the Micklemote 36 XXI Of the Council of Lords 38 XXII Of the manner of the Saxon Government in the time of War. 39 XXIII Of the Government of the Saxon Kingdom in the times of peace and first of the division of the Kingdom into Shires and their Officers 40 XXIV Of the County-court and Sheriffs Torn 41 XXV Of the division of the County into Hundreds and the Officers and Court thereunto belonging 42 XXVI Of the division of the Hundreds into Decennaries 43 XXVII Of Franchises and first of the Church-franchise 44 XXVIII Of the second Franchise called the Marches 45 XXIX Of County Palatines ibid. XXX Of Franchises of the person 46 XXXI Of Mannors ibid. XXXII Of Courts incident and united unto Mannors 48 XXXIII Of Townships and their Markets 49 XXXIV Of the Forests 51 XXXV Concerning Judges in Courts of Justice 52 XXXVI Of the proceedings in Judicature by Indictment Appeal Presentment and Action 53 XXXVII Of the several manners of extraordinary trial by Torture Ordeal Compurgators and Battle 55 XXXVIII Of the ordinary manner of Trial amongst the Saxons by Inquest 56 XXXIX Of passing Judgement and Execution 59 XL. Of the penal Laws amongst the Saxons 60 XLI Of the Laws of property of Lands and Goods and the manner of their Conveyance 64 XLII Of the times of Law and vacancy 68 XLIII An Epilogue to the Saxons Government 69 XLIV OF the Norman entrance 70 XLV Of the Title of the Norman Kings to the English Crown that it was by Election 72 XLVI That the Government of the Normans proceeded upon the Saxon principles and first of Parliaments 75 XLVII Of the Franchise of the Church in the Norman times 77 XLVIII Of the several subservient Jurisdictions by Marches Counties Hundreds Burroughs Lordships and Decennaries 82 XLIX Of the Immunities of the Saxon Freemen under the Norman Government 84 L. Recollection of certain Norman Laws concerning the Crown in relation to those of the Saxons formerly mentioned 86 LI. Of the like Laws that concern common Interest of Goods 89 LII Of Laws that concern common Interest of Lands 90 LIII Of divers Laws made concerning the execution of Justice 94 LIV. Of the Militia during the Normans time 65 LV. That the entry of the Normans into this Government could not be by Conquest 97 LVI A brief Survey of the sense of Writers concerning the point of Conquest 99 LVII OF the Government during the Reigns of Stephen Henry the Second Richard the First and John and first of their Titles to the Crown and disposition in Government 103 LVIII Of the state of the Nobility of England from the Conquest and during the Reign of these several Kings 107 LIX Of the state of the Clergie and their power in this Kingdom from the Norman time 109 LX. Of the English Commonalty since the Norman time 117 LXI Of Judicature the Courts and their Judges 118 LXII Of the certain Laws of Judicature in the time of Henry the 2. 120 LXIII Of the Militia of this Kingdom during the Reign of these Kings 125 LXIV OF the Government of Henry the Third Edward the First and Edward the Second Kings of England And first a general view of the disposition of their Government 129 LXV Of the condition of the Nobility of England till the time of Edward the Third 137 LXVI Of the state of the English Clergie until the time of Edward the Third and herein concerning the Statutes of Circumspecte agatis Articuli Cleri and of General Councils and National Synods 140 LXVII Of the condition of the Freemen of England and the Grand Charter and several Statutes concerning the same during the Reign of these Kings 158 LXVIII Of Courts and their Proceedings 177 LXIX Of Coroners Sheriffs and Crown-Pleas 179 LXX Of the Militia during these Kings Reigns 184 LXXI Of the Peace 188. THE PREFACE THe policy of the English Government so far as is praise-worthy is all one with Divine Providence wrapped up in a Vail of Kings and Wise men and thus implicitely hath been delivered to the World by Historians who for the most part read Men and wear their Pens in decyphering their Persons and Conditions Some of whom having met with ingenious Writers survive themselves possibly more famous after death than before Others after a miserable life wasted are yet more miserable in being little better than Tables to set forth the Painters Workmanship and to let the World know that their Historians are more witty than they of whom they wrote were either wise or good And thus History that should be a witness of Truth and Time becomes little better than a Parable or rather than a Nonsence in a fair Character whose best commendation is that it is well written Doubtless Histories of Persons or Lives of Men have their excellency in Fruit for imitation and continuance of Fame as a reward of Vertue yet will not the coacervation of these together declare the nature of a Commonwealth better than the beauty of a Body dismembered is revived by thrusting together the Members which cannot be without deformity Nor will it be denied but many wise and good Kings and Queens of this Realm may justly challenge the honour of passing many excellent Laws albeit it is the proper work of the Representative Body to form them yet to no one nor all of them can we attribute the honour of that Wisdom and Goodness that constituted this blessed Frame of Government For seldom is it seen that one Prince buildeth upon the foundation of his Predecessor or pursueth his ends or aims because as several men they have several Judgements and Desires and are subject to a Royal kind of self-love that inciteth them either to exceed former Precedents or at least to differ from them that they may not seem to rule by Copy as insufficient of themselves which is a kind of disparagement to such as are above Add hereunto that it is not to be conceited that the wisest of our Ancestors saw the Idea of this Government nor was it any where in precedent but in him that determined the same from Eternity For as no Nation can shew more variety and inconstancy in the Government of Princes than this especially for three hundred years next insuing the Normans So reason cannot move imagination that these Wheels by divers if not contrary motions could ever conspire into this temperature of policy were there not some primum mobile that hath ever kept one constant motion in all My aim therefore shall be to lay aside the consideration of Man as much as may be and to extract a summary view of the cardinal passes of the Government of this Kingdom and
they were in their original and what overplus they had by Laws And first concerning the Metropolitan In his original his Office was to visit the Bishops admonish and exhort them and in full Synod to correct such disorders as the Bishop could not reform and in all things to proceed according to the prescript Canon Thus witnesseth Boniface an Archbishop to an Archbishop of an Archbishop not according to the practice of the times wherein it was written but according to the ancient rule For long before Boniface his time Archbishops were swoln beyond the girt of the Canon and before that England waâ— honoured with that rank of men Metropolitans were become Metronoâ—â—ians and above all rule but that of their own will and through common custom had no regard to any other so as if England will have them it must be content to have them with their faults But the truth is the dignity or title which you will was a plant of that virulent nature that would scarce keep under-ground in the time of the hottest persecution For Steven Bishop of Rome liked the title of Universal Bishop And after a little peace it 's a wonder how it grew to that height that it had and no less wonderful that the Saxons gave entertainment to such Potentates Much of whose spirits they might have observed in the entrance of their first Archbishop Austin if God had not given them over to thraldom under the mystery of iniquity of sinful man aspiring into the place of God taught by that Courtly messenger of Rome because they would not stoop to that mystery of godliness God manifested in the flesh as it was taught in simplicity by the rural Picts and Britons But this was not all for because Archbishops were gotten above Canon which was thought scandalous therefore they gave as large a power by Canon as the former usurpation amounted unto and so stretched the Canon to the mind of the man whenas they should have rather reduced the man to the Canon The words of the Canon in our English tongue run thus It belongs to the Metropolian Bishop to rule Gods Churches to govern chuse appoint confirm and remove Abbots Abbotesses Presbyters and Deacons and herewith the King hath nothing to do And thus though the apparent power of Archbishops was great and unlimited yet what more was wrapped up in that word Churches only time must declare for it is very likely that in those daies it was not understood yet the practice doth not obscurely declare the matter for before this Law was established by Withered in a Council wherein Bertnaldus Archbishop of Canterbury was president and who was first Primate of England Theodore Archbishop of Canterbury used such power over other Bishops in ordaining or removing them as a Writer saith that his rule was no other than perturbatio and impetus animi But the Metropolitan in England as the times then were had yet a further advantage even over Kings themselves for there were divers Kingdoms in this Island and Kings had no further power than their limits afforded them But there was but one Metropolitan for a long time in all the Saxon Territories so as his power was in spirituals over many Kingdoms and so he became indeed Alterius orbis Papa And it was a remarkable testimony of Gods special providence that the spirits of these petty Popes should be so bound up under the notion of the infallibility of the Roman Chair that they had not torn the European Church into as many Popedoms as Provinces But no doubt God ordered it for a Scourge to the World that Antichrist should be but one that he might be the more absolute Tyrant and that Kings should bow down their necks under the double or rather multiple yoke of Pope and Archbishops for their Rebellion against the King of Kings CHAP. VIII Of the Saxon Bishops HAd not Bishops been somewhat sutable the Roman Clergy had not been like it self and it had been contrary to Austin's principles to have advanced to Bishopricks men better qualified than himself They first ruled the Saxon Church joyntly in the nature of a Presbytery till about Sixty years after Austin's time their pride would not endure together any longer and it may be grew somewhat untractable under the Metropolitan that resolved to be prouder than all and thereupon Theodore Archbishop of Canterbury first divided his Province into Five Diocesses and by appointment of the Kings and People placed Bishops over each every one of them being of the right Roman stamp as himself was of the right Roman shaving And it had been a wonder if Episcopacy now for the space of Three hundred years degenerated and that into such a monstrous shape as a Pope should by transplanting become regenerate into their original condition of meekness and humility But it is a much greater wonder that they should become so purely ambitious as not to endure a thought of the ways of sobriety but would be proud by Law to let all the world know that they held it no infirmity but an honour For albeit that in the first time the Bishops work was to instruct teach to see the service of God to be diligently purely administred in publick Congregations to Exhort Reprove by teaching to amend such matters as he should find in life and Doctrine contrary to Religion and accordingly they carried themselves meekly and humbly studying peace truth and medled not with Secular Affairs they are now grown up into State and must now ride on horse-back that were wont to go on foot Preaching the Word and must be respected above the rank of ordinary Presbytery none must doubt of their truth nor question their words but they must be holden Sacred as the word of a King sine juramento sit irrefragabile Their presence must be a Sanctuary against all violence all Clerks and Religious houses must stoop under their power their sentence must be definitive and thus advanced they must keep state viz. not go too far to meet Princes in their approach towards them nor to light off their Horses backs to do Princes Reverence at their meeting because they are equal to Princes and Emperours and if any Bishop shall behave himself otherwise and after the old rustical fashion for such are the words of the Canon for disgrace done to their Dignity they must be suspended So as by their own confession Bishops henceforth are Bishops of a new fashion that must incur a note of infamy for shewing any gesture of humility to Princes which if any man will see more fully let him peruse the Canon if he please But this is not sublime enough they must be not only equal but in many respects superiour to Princes for in matters that concern God Omnibus dignitatibus praesunt and more plainly Princes must obey them Ex corde cum magna humilitate and this was
declared according to the entry in that Case aforesaid Habito Concilio cum Episcopis Comitibus Baronibus adjudicavimus c. The honour of this Court was great so long as the Lords had liberty or care to attend thereon but when Kings began to have private interests they would have these to be more private Councils which weakned the esteem of Conclusions that there passed and reduced the honour thereof scarce to the degree of a Conventicle And by this means the necessity of calling together the whole Body-Representative was made more frequent the power of the Nobility of England decayed and this Court forfeited all its Juridical power to the three Courts at Westminster viz. the Kings-bench Common-pleas and Exchequer saving still the supreme Judicature unto the grand Convention of Estates in Parliament where all the Lords had liberty of meeting and free voting without impeachment CHAP. LIX Of the state of the Clergie and their power in this Kingdom from the Normans time IF the Prerogative of Kings prevailed not to its utmost pitch during the Normans time it did much less in these times succeeding wherein the Clergie took up the Bùcklers and beat both King and Commons to a Retreat themselves in the interim remaining sole Triumphers in the Field In their first Adventure they paced the Stage no man appearing to oppose Steven then was King by their leave and their Bond-servant and they might have any thing sobeit they would suffer him to enjoy his Crown His Brother the Bishop was the Pope's servant the Church-mens patron and the King's surety in whom the Clergies favour to the King and his good behaviour toward them and all men concentred Besides all this the King was but so upon condition and there being no better Title than Election Conscience in those times was well enough satisfied in the breach of Covenant on their part when on the King's part it was first broken All this the King saw full well and therefore what can he deny to such Benefactors Vacancies of Churches he readily parts with and his right of investiture of the Mitred Clergie he dispensed so as he open'd the way to his Successours of an utter dereliction of that Priviledge He sees his Brother the Legate deflower the Crown of England by maintaining Appeals from the Courts in England unto the Court of Rome and he says nothing he is contented with the stump of the Crown and with Saul if he be but honoured above or before all others of the people it is enough But the Clergie like the barren Womb hath not yet enough The King hath allowed them Castles and too late he sees that instead of being Defences against the Imperial power of the Empress they are now made Bulwarks against the lawful power of a King he had therefore endeavoured to get them down and gotten some of them into his power The King himself is now summoned to answer this before a Legatine Council wherein his Brother is President That was a bold adventure in them but it was extreme rashness in him to appear and plead the Cause of the Crown of England before a Conventicle of his own Subjects And thus to secure Rome of Supremacy in Appeals he suffers a recovery thereof against his own person in a Court of Record and so loses himself to save the Crown Thus are Synods mounted up on Eagles wings they have the King under them they will next have the Crown Within a while Steven is taken prisoner The Empress perceiving the power of the Clergie betakes her case to them now assembled in Synod they now proud of the occasion and conceiting that both Law and Gospel were now under their decree publish That the Election of the King belongeth unto them and by them the Empress is elected Queen in open Synod Steven's Brother leading the game and had she been as willing to have admitted of the Laws as Steven was she had so continued and had left a strange President in the English Government for Posterity But the Citizens of London who had made the way to the Throne for Steven reduced the Synod to sober consideration and helped the King's return unto his Throne again wherein he continued a friend to the Clergie during the rest of his time Henry the second succeeded him as brave a man as he but beyond him in Title and Power and one that came to the Crown without pre-engagement by Promise or Covenant saving that which was proper for a King. A man he was that knew full well the Interests in the Government the growing power of the Clergie and the advantages lost from the Crown by his Predecessor And to regain these he smooths his way towards these braving men speaks fair profers fair he would act to increase the bounds of the Church He would have the Pope's leave to do him a kindness and sobeit he might gain an interest in Ireland he would take it from the Pope who pretended as Heir of Jesus Christ to have the Islands and utmost parts of the Earth for his possession and as if he meaned to be as good to the Church as Steven was and much better he desires the Pope's kindness for the confirmation of the Liberties and Customs of his Crown and Kingdom and no sooner desired than obtained This was a second Example of a King of England but the first of an English King that sought to Rome for Right in the Crown and thereby taught the Pope to demand it as a priviledge belonging to the Tripple Crown Nor was Henry the second less benign to the Church-men till he found by his dear-bought experience that he had nourished Scorpions and would have suppressed them but was rather suppressed himself as in that shameful success of the death of Becket may appear wherein he yielded the day up to the Clergie who formerly scorned to stoop to the greatest Potentate on Earth The State of Kings is to be pitied who must maintain a politick affection above and sometimes against Nature it self if they will escape the note of Tyranny in their Undertakings and of a feeble Spirit in their Sufferings For the King having made Becket Chancellor of England and then Archbishop of Canterbury he became so great that his Feathers brushed against the King's Crown who begins to rouse up himself to maintain his Honour and Prerogative Royal. The Bishops side with Becket the King intending the Person and not the Calling singles out the Archbishop and hunts him to soil at Rome yet before he went the King puts the points of his Quarrel in Writing and made both Archbishop and Bishops signe them as the Rights of his Crown and as the Consuetudines Avitae But Becket repenting went to Rome and obtained the Pope's pardon and blessing the rest of the Bishops yielding the Cause The particulars in debate were set down in the nature of Laws or Constitutions commonly called the Constitutions at Clarindon which shew the prevailing humour that then
demise he died a death meet to be for ever blotted out of the thoughts of all Subjects but to be had in everlasting remembrance of all Kings For if a Kingdom or Parliament misleads the King at the worst he is but misled by his Council but if he be drawn aside by favorites he must thank his own lust in the one he hath but the least share in the burthen in the other he must bear the whole CHAP. LXV Of the condition of the Nobility of England till the time of Edward the Third NOw was Prerogative mounted up to the highest pitch or endeavoured so to be either through the weakness or power of these Kings of whom the first and last had little to ground upon but their own will and the other I mean Edward the first had more wisdom and power but was otherwise distracted by foraign and more urgent employments so as the work fainted before it came to its full period The contest was between the King and Barons who till those days were rather the great and richer sort of men than Peers although they also were of the number I am not so sharp-sighted as to reach the utmost intentions of the Lords but their pretences are to such publick nature as it is plain that if their private interest was wrapped up therein they were inseparable And I shall never quarrel the Lords aim at private respects whenas it is plain the publick was so importantly concerned and yet I will not justiâ—ie all that I find written concerning their Words and Actions The Speech of the E. of Cornwal to his his elder Brother and King Henry the Third I will neither render up my Castle nor depart the Kingdom but by the judgment of the Peers and of Simon the E. of Leicester to the same King that he lyed and were he not a King the Earl would make him repent his word and of the Lords that they would drive the King out of his Kingdom and elect another and of the E. Marshal to Edward the first that he would neither go into Gascoine nor hang and such other do savour of passion especially that of the E. of Leicester and the Lords and may seem harsh and unmannerly and yet may admit of some allay if the general rudeness of the time the King 's injurious provocations and the passions of cholerick men be weighed together Yet will not all these trench upon the cause nor render the state of the Lords too high or disproportionable to their place in the policy of the Kingdom of England as things then stood I say it was not disproportionable for where the degree of a King was mounting up to such a pitch as to be above Law the Lords exceeded not their places in pressing him with their Counsels to conform to the Laws and in maintaining that trust that was reposed in them in keeping off such sinister Counsels and invasions as might violate the Laws and Liberties or hinder the current of Justice concerning which I shall shortly state the case and leave it to the censure of others The Government of the people of this Nation in their original was Democratical mixt with an Aristocracie if any credit be to be given to that little light of History that is left unto us from those ancient times Afterwards when they swarmed from their hive in Forreign parts and came over hither they came in a warlike manner under one conducter whom they called a King whose power whatever in the War yet in time of peace was not of that height as to rule alone I mean that whereas the Lords formerly had the principal executory power of Laws setled in them they never were absolutely devested of that power by the access of a King nor was the King ever possessed of all that power nor was it ever given to him but the Lords did ever hold that power the King concurring with them and in case the King would not concur the people generally sided with the Lords and so in conclusion the King suffered in the quarrel From this ground did arise from time to time the wandrings of the people in electing and deposing their Kings during the Saxon times Nor did nor could the Norman Williams shake off this co-partnership but were many times as well as other ensuing Princes perswaded against their own minds and plotted desires Nor can it otherways be supposed where Councils are setled for whereto serve they if notwithstanding them the King may go the way of his inordinate desire If the Lords then did appear against these Kings whereof we treat in cases where they appeared against the Laws and Liberties of the people it was neither new nor so heinous as it is noised for them who are equally if not more entrusted with the Common-wealth than the King by how much the Counsellors are trusted more than the Counselled to be true for the maintenance of their trust in case the King shall desert his But the greater question is concerning the manner by Threats and War. It is as probable I grant that the Lords used the one as the other for it was the common vice of the times to be rugged yet if we shall add to what hath been already said first that Knight-service was for the defence of the Kingdom principally Secondly that the greatest power of Knight-service rested with the Lords not only in propriety and ownership but in point of direction for the benefit of the Commonwealth and lastly that the state of the times now was such as the Kingdom was oppressed by strangers Counsels and the Counsels of the Kingdom rejected that instead of Law Garrisons of strangers ruled that no man could own his own that the Subjects were looked upon as enemies and of all this the King made the principal instrument who had ruled and over-ruled in this manner and so was resolved to continue I shall leave it to the better judgement of others what other healing plaister was to be had for such a sore Albeit it cannot be denied that more due respects might have been tendred to Kingly dignity than was in those times practised And yet there was a difference also in the occasions of War for certainly that last War with Edward the second was more fatal and yet less warrantable and in the issue declared that there was more of the Queen therein than of the Lords who knew a way of removing Favourites from the King without removing the King from the Kingdom or driving him out of the World. In all which nevertheless it cannot be concluded that the Lords party was encreased more than in the former Kings times for the loss of the field in Henry the Thirds time against the Prince kept them in awe all the succeeding Reign although they were not then tongue-tyed and their second loss against Edward the Second which was yet more sharp questionless quelled their spirits although they lost no right thereby and encreased the Kings party much
and nothing shall hinder it but the special reservation of the donor and yet he saith that such gift or grant taketh not away the right of the Lord Paramount in his Tenure albeit the gift be in free Alms. Nevertheless it seemeth to be such restraint that the Templars and Hospitallers were fain to find out a new way which was to protect mens Tenements from execution of Law by levying crosses thereon albeit the right of the Lords was not barred and therefore Edw. 1. provided a Law to make this also in nature of a Mortmain within the Statute made in the seventh year of his Reign called the Statute de Religiosis by which it was enacted that in case of such alienations in Mortmain the Lord should have liberty to enter if he failed then the Lord Paramount or if he failed the King should enter and dispose of the same and that no license of Mortmain should be sued out but by the mean Lord's assent and where part of the premises remain still in the Donor and the original Writ mentioneth all the particulars And thus at length was this issue for the present stayed which hitherto wasted the strength of the Kingdom and by continual current emptying it into the mare mortuum of the Clergie consumed the maintenance of Knight service by converting the same to Clerk-service No Judge shall compel a Free-man to make Oath without the Kings command So is the sence of the Law rendred by an ancient Authour and I hope I shall not wrong the Text if I affirm that the Ecclesiastical Judge was included within the equity though properly he be not Balivus for the Law intends to shew that it is a liberty that the Subject hath not to be compelled to take Oath without the Kings especial command and by consequence it sheweth also that the King at that time and until then had the directory of Oaths for it was an ancient Liberty given in the Kings Charters unto such as they pleased viz. to impose Oaths and to punish for breach of Oath and this passed under the word Athae or Athas and so Edmund the Saxon King gave to the Abbey of Glastenbury amongst other Athas Ordulas and the Church-men that first procured vacations from Suits of Law during holy times procured a Law also to be setled by Edward the Saxon King and Gunthurne the Dane that Ordeal and Oaths should be forbidden upon the holy Feasts and lawful Fasts And a wonder it is how it escaped the gripe of the Clergie so long who catched at any thing that had but a glance of Gods worship in it And if this were the Subjects Liberty not to be compelled to Swear surely much more not to be compelled to accuse himself unless by the Law he be especially bound for it is Glanvil's rule Ob infamiam non solet juxta legem terrae aliquis per legem apparentem se purgare nisi prius convictus fuerit vel confessus in curia But the power of the Clergie now was grown strong and they begin to remember themselves and that Oaths are of a holy regard and they men for holiness best able to judge when and to whom they shall be ministred and therefore now they begin to enter their claim and to make a sure Title they get a grant from Pope Innocent to Steven Langton Arch-Bishop of Canterbury of a faculty of licensing administration of Oaths during the time of Lent and he accordingly enjoyed it during the mad time of Henry the Third But Edward the first quarrelled it and left it questionable to Edward the Second who being in his condition as a lost man had less care of such smaller matters and therefore allowed that his Judges of Assizes should be licensed by the Arch-bishop to administer Oaths in their Circuits in the sacred times of Advent and Septuagessima and this course continued till Henry the Eighth's time The Clergie having thus gotten the bridle gallop amain they now call whom they will and put them to their Oaths to accuse other men or themselves or else they are Excommunicated Henry the Third withstood this course if the Clergie-mens complaints in the times of that King Artic. 9. be true and notwithstanding the same the Law holds its course and in pursuance thereof we find an attachment upon a prohibition in this form ensuing Put the Bishop of N. to his pledges that he be before our Justices to shew cause why he made to be summoned and by Ecclesiastical censures constrained Lay-persons men or women to appear before him to swear unwillingly at the Bishops pleasure to the great prejudice of our Crown and Dignity and contrary to the custom of the Kingdom of England And thus both King and Clergie were at contest for this power over the peoples Consciences to which neither had the right otherwise than by rules of Law. Bigamists shall not be allowed their Clergie whether they become such before the Council of Lyons or since and that Constitution there made shall be so construed Whatsoever therefore their Synods in those times pretended against the married Clergie it seemeth by this Law that they had Clergie that were married once and again and yet before and after the Council were admitted as Clerks in the judgment of the Law. But the general Council interposes their authority and deprives them that are the second time married of all their priviledges of Clergie It was it seemeth twenty years and more after that Council before the Church-men in England were throughly reformed for either some were still Bigami at the making of this Law or as touching that point it was vain nor is it easie to conceive what occasion should after so long a time move such exposition the words of the Constitution being Bigamos omni privilegio clericali declaramus esse nudatos Now whether this slow Reformation arose from the defect in Law or in obedience thereto may be gathered from some particulars ensuing First it is apparent that the Canons of general Councils eo nomine had formerly of ancient times gotten a kind of preheminence in this Nation but by what means is not so clear In the Saxon times they were of no further force than the great Council of this Kingdom allowed by express act For the Nicene Faith and the first five general Councils were received by Synodical confirmations of this Kingdom made in the joynt meeting both of the Laity and Clergie and during such joynt consulting the summons to the general Councils was sent to the King to send Bishops Abbots c. but after that the Laity were excluded by the Clergie from their meetings and the King himself also served in the same manner the Summons to the general Council issued forth to the Bishops immediately and in particular to each of them and to the Abbots and Priors in general by vertue whereof they went inconsulto Rege and sometimes Rege
renitente and appeared either personally or by proxie Others came as parties to give and receive direction or hear Sentence in matters tending to spiritual regards And for this cause issued Summons even to Kings as at the Council of Lyons aforesaid it is said that the Pope had cited Regis terrae alios mundi principes dictum principem meaning Henry the third the matter was for assistance to the holy War and to determine the matter between Henry the third and his Clergie men And as in that case so in others of that kind Kings would send their Embassadors or Proctors and give them power in their Princes name interessendi tranctandi communicandi concludendi First of such matters quae ad reformationem Ecclesiae universalis in capite membris then of such as concern fidei orthodoxae fulciamentum Regumque ac principum pacificationem or any other particular cause which occasionally might be inserted So long then as Kings had their votes in the general Councils they were engaged in the maintenance of their decrees and by this means entred the Canon-law into Kingdoms Nor was the vote of Kings difficult to be obtained especially in matters that trenched not upon the Crown for the Pope knowing well that Kings were too wise to adventure their own persons into foraign parts where the general Councils were holden and that it was thrift for them to send such Proctors that might not altogether spend upon the King's purse allowed Bishops and Clergy-men to be Proctors for their Princes that in the Negative they might be pii inimici and less active but in the Affirmative zealous and so make the way wider by the Temporal and Spiritual vote joyned in one Neither did Kings onely save their purse but they also made their own further advantage hereby for by the engagement and respect which these their Proctors had in Councils they being for the most part such as were had in best esteem obtained better respect to the cause that they handled and speedier dispatch Nevertheless the case sometimes was such as could not expect favour and then as the King's temper was they would sometimes ride it out with full sail and to that end would either joyn with their Ecclesiastcal Proctors some of the Barons and great men of their Realm to add to the cry and make their affairs ring louder in the ears of fame although the Pope had the greater vote or otherwise would send an inhibition unto their Proctors and their assistants or an injunction to look to the rights of the Crown as Henry the Third did at the Council at Lyons and this sounded in nature of a Protest and within the Realm of England had the force of a Proviso or Saving But if the worst of all come to pass viz. that the Council passed the cause against Kings without any Inhibition or Injunction yet could it not bind the Law of the Land or Kings just Prerogatives no not in these times of Rome's hour and of the power of darkness For at a Synod holden by Arch-bishop Peckham An. 1280. the Acts of the Council of Lyons were ratified and amongst others a Canon against non-residency and pluralities and yet neither Council nor Synod could prevail for in Edward the Second's time an Abbot presenting to a Church vacant as was supposed by the Canon of pluralities the King whose Chaplain was disturbed enjoyned the Abbot to revoke his presentation upon this ground Cum igitur c. in English thus Whereas therefore that Decree bindeth not our Clerks in our service in regard that the Kings and Princes of England from time to time have enjoyed that liberty and prerogative that their Clerks whilst they attend upon their service shall not be constrained to undertake holy things or to be personally resident on their Benefices c. And if this present Law be considered whereof we now treat which took leave to enact a sence upon a former Canon so long since made and which is all one to makâ— a general Council will or nill it to tread in the steps of an English Parliament or which is more mean to speak after the sence of an English Declaration that had not yet attained the full growth of a Statute as was then conceived it will evidently appear that the power of a council made up of a mixture of a few votes out of several Nations or the major part of them being unacquainted with the Laws and Customs of Nations other than their own was too mean to set a Law upon any particuler Nation contrary to its own original and fundamental Law. And as the Voters sent to the grand Councils from England were but few so neither were the Proctors as may appear from this that Pope Innocent out of his moderation if we may believe it and to avoid much expence as he saith did order that the number of Proctors in such cases should be few But in truth the times then were no times for moderation amongst Popes and their Officers and therefore it was another thing that pinched for multitude of Proctors if their number had not been moderated might perhaps if not prevail yet so blemish the contrary party that what the Pope should get must cost him loss of spirits if not bloud And although the Bishops being fast Friends to the Pope by vertue of their Oath did prevail in power and the Pope had the controul of the Council yet the exceeding number of the Proctors on the contrary might render their conclusions somewhat questionable in point of honesty as being made against the mindes of the greater number of persons present though their votes were fewer To avoid this difficulty therefore for more surety-sake the Popes enlarged the number of Voters for whereas it seemeth to be an ancient rule that onely four Bishops should go out of England to the general Council in after-ages not one Bishop could be spared unless in cases of great and emergent consequence as may appear by the Pope's Letter to Henry Third and the case required it for the oppressions of the Pope began to ring so loud as the holy Chair began to shake Neither did Kings confine themselves to any certain number of Proctors notwithstanding the Pope's moderation but as the case required sent more or less as unto the Council at Pisa for the composing and quieting that great Schism in the Popedom Henry the Fourth sent solemn Embassadors and with them nigh eighty in all But unto the Council at Basil Henry the Sixth sent not above twelve or thirteen as Mr. Selden more particularly relateth And unto the Council at Lyons formerly mentioned the Parliament sent but six or seven to remonstrate their complaints of the extortions of the Court at Rome their Legates and Emissaries The sum of all will be that the Acts of general Councils were but Counsels which being offered to the sence of the Parliament of England might grow up
eat their own word However for the present the House of Lancaster hath the Crown entailed and the Inheritance is left in the Clouds to be revealed in due time For though this was the first precedent of this kind yet was it not the last wherein the Parliament exercised a Power by Grant or Confirmation to direct the Law and Course of the Crown as they pleased The due consideration hereof will make the things that follow less strange For the Parliament according to occasion as the Supream Power of this Kingdom exercised Supream Jurisdiction in order to the safety of the Kingdom as if no King had been to be found in issuing forth Writs under the Great Seal concluding of matters without the Royal Assent treating of Peace with Foreign Nations and of other matters and determining their Resolves before discovery made to the King of their Counsels making Ordinances and ruling by them 3 H. 6. n. 29. 2 H. 6. n. 27. 8 H. 6. n. 12. referring matters determinable in Parliament to be determined according to their directions Authoritate Parliamenti confirming Peace made by the King protesting against Peace made without or against their consent making Embassadours with power to engage for the Kingdom making Generals of the Army Admirals at Sea Chancellors Barons and Privy Counsellors and giving them instructions 8 H. 4. n. 73. and 76. and 31. 5 H. 4. n. 57. 31 H. 6. n. 21. and binding them to observance upon Oath 11 H. 4. n. 19 39. ordering the person of the King denying his power of Judicature in Parliament and ordering his Houshold and Revenue besides many other particulars Now if such as these things were thus done not by one Parliament which possibly might be overswayed by Factions but by the course of a Series of Parliaments that mightily laboured against Faction and unworthy ends and aims that man who shall determine the same to be unjust or indiscreet should himself first be determined to be very just and exceeding wise Nor was the Parliament partial in all this but being in a way of Reformation it set upon the work of reforming it self Some that are very zealous in the point of Arbitrary and Absolute Government of Kings in this Nation and in all other amongst other grounds rest upon this one That an English King hath power to call Parliaments and dissolve them to make and unmake Members as he shall please I do easily grant that Kings have many Occasions and Opportunities to beguile their People yet can they do nothing as Kings but what of right they ought to do They may call Parliaments but neither as often or seldom as they please if the Statue-Laws of this Realm might take place Nor if they could is that power necessarily and absolutely arising from Supremacy seeing it is well known that such power is betrusted by the Superiour States in other Nations to the Inferiour who dayly attend on publick Affairs and therefore can discern when the general Conventions are most necessary As touching the dissolving of Parliaments against the wills of the Houses it is true that sad precedents have been of later times in that kind and so for want of due attendance Parliaments have been enforced to adjourn to prevent a worse inconvenience but these are infirmities better buried in silence than produced as Arguments of power seeing it is evident that Kings themselves were no greater gainers thereby than an angry man is by his passions It is true alâ—o that Kings may make Lords and Corporations that may send their Burgesses to the Parliament and thus the King may make as many as he will as the Pope did with the Bishops in the Council of Trent yet cannot he unmake them when he pleases nor take the Members from the Parliament without attainder and forfeiture according to the known Law. Neither can all these Instances prove that the Kings of England have the sole and supreme power over the Parliament Nor did the Parliament in these times allow of any such Authority and therefore proceeded for the reforming of themselves by themselves in many particulars as the Statutes do hold forth And first in the point of Elections for an errour in that is like an errour in the first Concoction that spoils the whole Nutriment they ordained that the Election of Knights shall be at the next County-Court after the Writ delivered to the Sheriff That in full Court between the hours of eight and nine in the morning Proclamation shall be made of the day and place of the Parliament That the Suters duly summoned and others there present shall then proceed to the Elections notwithstanding any Prayer or Commandment to the contrary That the names of the persons elected whether present or absent they be shall be returned by Indenture between the Sheriff and the Elizors and that a Clause to that end shall be added to the Writ of Summons This was enough to make the Sheriff understand but not to obey till a penalty of one hundred pound is by other Laws imposed upon him and a years imprisonment without Baibor Mainprise besides damages for false return in such cases and the party so unduly returned fined and deprived of all the Wages for his service Thus the manner of Election is reduced but the persons are more considerable for hitherto any man of English bloud promiscuously had right to give or receive a Vote although his Residency were over the wide World. But the Parliament in the time of Henry the Fifth reduced these also whether they were such as did chuse or were chosen unto their proper Counties or else rendred them uncapable to vote or serve for any County And the like Order was made for the Burroughs That no person must serve for any City or Burrough nor give vote in Electing such as shall serve for that Town unless they be both free and resiants within that City or Burrough A Law no less wholsom than seasonable For the times of Henry the Fourth had taught men to know by experience That a King that hath Souldiers scattered over the Kingdom can easily sway the County-courts and make Parliaments for their own Tooth Yet this was not enough for all Elizors though of the meanest sort yet are still able to do as much hurt with their Vote as those of the best sort both for wisdom and publick mind can do good by theirs This made Elections much subject to parties and confusions and rendred the Parliament much less considerable A remedy hereunto is provided in the minority of Henry the Sixth viz. That no man should give his Vote in Elections in the County unless he hath forty shillings yearly in free Lands or Tenements and this is to be testified upon Oath of the party And more plainly it is orderded within two years after that each Elizor shall have Frank-Tenement of that value within the same County
And thus the Free-men yielded up their liberty of Election to the Free-holders possibly not knowing what they did nevertheless the Parliament well knew what they did this change was no less good than great For first These times were no times for any great measure of Civility The Preface of the Statute shews That the meanest held himself as good a man as the greatest in the Country and this tended to Parties Tumults and Bloudshed Secondly Where the Multitude prevail the meaner sort are upon the upper hand and these generally ignorant cannot judge of persons nor times but being for the most part led by Faction or Affection rather than by right Understanding make their Elections and thereby the general Council of this Nation less generous and noble Thirdly There is no less equity in the change than policy For what can be more reasonable than that those men onely should have their Votes in Election of the common-Common-Council of the Kindom whose Estates are chargeable with the publick Taxes and Assessments and with the Wages of those persons that are chosen for the publick Service But above all the rest this advancing of the Free-holders in this manner of Election was beneficial to the Free-men of England although perchance they considered not thereof and this will more clearly appear in the consideration of these three particulars First It abated the power of the Lords and great Men who held the inferiour sort at their Devotion and much of what they had by their Vote Secondly It rendred the Body of the People more brave for the advancing of the Free-holder above the Free-man raiseth the spirit of the meaner sort to publick regards and under a kind of Ambition to aspire unto the degree of a Free-holder that they may be somewhat in the Commonwealth And thus leaving the meanest rank sifted to the very bran they become less considerable and more subject to the Coercive power whilst in the mean time the Free-holder now advanced unto the degree of a Yeoman becomes no less careful to maintain correspondency with the Laws than he was industrious in the attaining of his degree Thirdly But this means now the Law makes a separation of the inferiour Clergie and Cloistered people from this service wherein they might serve particular ends much but Rome much more For nothing appeareth but that these dead persons in Law were nevertheless Free-men in Fact and lost not the liberty of their Birth-right by entring into Religion to become thereby either Bond or no Free Members of the people of England Lastly As a binding Plaister above the rest First a Negative Law is made that the persons elected in the County must not be of the degree of a Yeoman but of the most noted Knights Esquires or Gentlemen of the County which tacitly implies that it was too common to advance those of the meaner sort Whether by reason of the former wasting times Knights and Esquires were grown scant in number or by reason of their rudeness in account or it may be the Yeomanry grew now to feel their strength and meant not to be further Underlings to the great Men than they are to their Feathers to wear them no longer than they will make them brave Secondly the person thus agreed upon his Entertainment must be accordingly and therefore the manner of taxing in full County and levying the rate of Wages for their maintenance is reformed and settled And Lastly their persons are put under the protection of the Law in an especial manner for as their work is full of reflection so formerly they had met with many sad influences for their labour And therefore a penal Law is made against force to be made upon the persons of those Workmen of State either in their going to that Service or attending thereupon making such Delinquents liable to Fine and Imprisonment and double damages And thus however the times were full of Confusions yet a foundation was laid of a more uniform Government in future times than England hitherto had seen CHAP. XV. Of the Custos or Protector Regni KIngs though they have vast Dimensions yet are not infinite nor greater than the bounds of one Kingdom wherein if present they are in all places present if otherwise they are like the Sun gone down and must rule by reflexion as the Moon in the night In a mixt Commonwealth they are integral Members and therefore regularly must act Per deputatum when their persons are absent in another Legialty and cannot act Per se Partly because their Lustre is somewhat eclipsed by another Horizon and partly by common intendment they cannot take notice of things done in their absence It hath therefore been the ancient course of Kings of this Nation to constitute Vice-gerents in their absence giving them several Titles and several Powers according as the necessity of Affairs required Sometimes they are called Lord Warden or Lord Keeper of the Kingdom and have therewith the gegeral power of a King as it was with John Warren Earl of Surrey appointed thereunto by Edward the First who had not onely power to command but to grant and this power extended both to England and Scotland And Peter Gaveston though a Foreigner had the like power given him by Edward the Second over England to the reproach of the English Nobility which also they revenged afterward Sometimes these Vice-gerents are called Lieutenants which seemeth to confer onely the King's power in the Militia as a Lieutenant general in an Army And thus Richard the Second made Edmund Duke of York his Lieutenant of the Kingdom of England to oppose the entry of the Duke of Hertford afterwards called Henry the Fourth into England during the King's absence in Ireland And in the mean while the other part of the Royalty which concerned the Revenues of the Crown was betrusted to the Earl of Wiltshire Sir John Bush Sir James Baggot and Sir Henry Green unto whom men say The King put his Kingdom to farm But more ordinarily the Kings power was delegated unto one under both the Titles of Lord Guardian of the Kingdom and Lieutenant within the same such was the Title of Henry Lacy Earl of Lincoln and of Gilbert de Clare Earl of Gloucester and of Audomar de Valentia Earl of Pembrooke all of them at several times so constituted by Edward the Second as by the Patent-Rolls appeareth So likewise did Edward the Third make his Brother John of Eltham twice and the Black Prince thrice and Lionel Duke of Clarence and his Brother Thomas each of them once in the several passages of Edward the Third beyond the Sea in the third fifth twelfth fourteenth sixteenth nineteenth and thirty third years of his Reign concerning which see the Patent-Rolls of those years And Henry the Fifth gave likewise the same Title and Authority to the Duke of Bedford upon the King's Voyage into France and afterward that Duke being sent over to second the King
in their Original Bishops were meerly Donatives from the Crown being invested by delivery of the Ring and Pastoral Staff and until King John's time the Canonical way of Election was disallowed yet King John by his Charter De communi consensu Baronum granted that they should be eligible which also was confirmed by divers publick Acts of Parliament in after-times and now by this Law last recited and with this way the King was contented for the space of Six years for the Reformation intended by the King was not done at once but by degrees and therefore though this course of Conge d'eslire was brought into use yet the Parliament being of Six years continuance a necessary thing in times of so great change of Policy began this course of Election by giving the King power to nominate and allowing of the Pope power to grant to such his Bulls or Pall at his own will otherwise they should be Consecrated by Commission without his consent And thus at the first the Pope's Concurrence was not excluded though his Negative was In this posture of affairs comes Cranmer to be consecrated Archbishop And being nominated thereunto by the King the wily Pope knowing the Kings aim meaned not to withstand lest he should lose all but granted the Pall as readily as it was desired so as Cranmer is thus far Archbishop of Canterbury without all exception yet he must go one step farther and take the old Oath to the Pope which the King allowed him to do Pro more and which he did renitente Conscientia say some and with a Salvo say others and all affirm it was done Perfunctorie like some worn Ceremonie or civil Complement Nevertheless it was not so soon turned over the Archbishop loved not the Office the King loved not Partnership in this matter and it was evident to all that no man could serve these two Masters any longer an agreement is soon concluded in Parliament to exclude the Popes Power quite out of this game and all is left to be done by the King and his Commissioners by the Law formerly propounded In all this the Pope is loser the English Clergie the savers for the Pall cost Cranmer Nine hundred Marks And the Crown is the great gainer for hereby the King got the men sure to him not onely by their own acknowledgement and submission but also by a Statute-Law And lastly by Oath which to make sure was treble twined once upon their first submission in the Kings Twentie second year when they had been under Praemuniri Secondly Soon after the decease of Queen Katherine Dowager in the Twentie sixth year which Oath was more compleat than the former containing First A Renunciation of all Fealty to the Pope or any Foreign Power Secondly An Obligation to adhere to the Cause of the King and his Successors Thirdly A Disavowing of the Pope otherwise than as another Bishop or fellow hrother Fourthly An Engagement to observe all Laws already established against the Pope's power Fifthly A Disavowing of all appeals to Rome Sixthly An Engagement to inform the King of all Messages or Bulls sent from Rome into England Seventhly An Engagement not to send or be privy to the sending of any Message to Rome for any such purpose The third Oath was that of Fealty which anciently was due to Kings and now revived to be taken by all Bishops upon their admission And thus the English Prelacie having been sworn Slaves to the Papacie ever since Becket's time are now preferred to a more Royal Service and the pursuit by Kings after their right being laid aside by the space of 300 Years is now renewed and the prey seized upon by the Lion who found it upon a better Title and in better condition by much than when at the first it was lost For it was upon some semblance of Reason that the Archbishop and Clergie gained it but being afterwards dispossessed thereof by the Pope and yet without any other shadow of Title but the power of his own gripe for the present he is the Occupant and becomes Proprietor by prescription till now the Felon being apprehended the stolen Goods are the Kings in Right and by Remitter whereunto the Parliament by the Statute adding their Conveyance establishes the same by an unquestionable Title Nevertheless their service is no less servile to this Crown than it had been to the Romish Miter formerly they asserted the Pope's Infallibility now the King's Supremacy They are now called by the King made by the King sent by the King maintained by the King whatsoever they are whatsoever they have all is the King 's He makes Bishops he makes new Bishopricks and divides or compounds the old as he pleaseth by a power given to Henry the Eighth by Parliament Which Oath was never in any Prince before or after him that I can find so as the Crown had it not but the man and it died with him The King thus loaden with Power and Honour above all his Predecessors if without proportionable Maintenance to support the one and act the other must needs consume himself as one in a Tympanie by growing great For though he was left rich by his Father's Treasure yet his Zeal to Rome in its now poor captivated condition under the Imperial power stirring up in him great undertakings abroad besides his own Pleasures and Gallantry at home exhausted that and doubtless had starved these his grand designs had he not found the hidden Treasures of the Cells and Monasteries the sight whereof so rouzed up his Spirits that he adventured upon the purchase though he knew difficulties enough to have stopped his undertakings if he had not resolved both against fear and flattery It was not done without deliberation for the thing was felt as a grievance before the Norman times and complained of in Parliament above a hundred and forty years ago and divers times since but Kings either understood not or believed not or durst not give remedy or had much else to do But now the King is beyond all his Predecessors he knows much dares do more and is at leisure He will go as far as Emperour or French King and beyond them also but would not try masteries with either for they were all Cocks of the game The first occasion that discovered the work feasible was a president made by Cardinal Wolsey whose power was enough to dissolve some petty Cells and no opposition made The King might well expect the work would be as lawful for him and not much more difficult or if any Storms ensued the people that had so long complained and felt the burthen of these excrescences of the Clergie would soon find out a way to calm them the King need do no more than speak and the people will do This opened the door but that which brought the King in was the hold the Pope had in this Kingdom by these Cloistered people who were persons dead in Law and dead to all Law but the