have a Parliament wherein the People should have no more Religion then to beleive nor Learning then to understand his sense nor wisedome then to take heed of a Negative Vote But it befell otherwise for though it was called the Lack-learning Parliament yet had it well enough to discern the Clergies inside and Resolution enough to enter a second claime against the Clergies Temporalties and taught the King a Lesson That the least understanding Parliaments are not the best for his purpose For though the wisest Parliaments have the strongest sight and can see further then the King would have them yet they have also so much wisedome as to look to their own skins and commonly are not so venterous as to tell all the World what they know or to act too much of that which they doe understand But this Parliament whether wise or unwise spake loud of the Clergies superfluous Riches and the Kings wants are parallel'd therewith and that the Church-men may well spare enough to maintaine fifteen Earles fifteen hundred Knights six thousand two hundred Esquires and one hundred Hospitalls more then were in his Kingdome This was a strong temptation to a needy and couragious Prince but the Arch-Bishop was at his elbow the King tells the Commons that the Norman and French Cells were in his Predecessors time seized under this colour yet the Crowne was not the richer thereby he therefore resolves rather to add to then diminish any thing from the maintenance of the Clergy Thus as the King said he did though he made bold with the Keyes of Saint Peter for he could distinguish between his owne Clergy and the Romane The People are herewith put to silence yet harbour sad conceits of the Clergy against a future time which like a hidden fire are not onely preserved but increased by continuall occasions and more principally from the zeal of the Clergy now growing fiery hot against the Lollards For that not onely the People but the Nobles yea some of the Royall blood were not altogether estranged from this new old way whether it was sucked from their Grand-Father Duke John or from a Popular strain of which that House of Lancaster had much experience I determine not These were the Dukes of Bedford and Glocester Bedford was first at the Helme of Affaires at home whiles the King acted the Souldiers part in France as ill conceited of by the Clergy as they sleighted by him At a Convocation once assembled against the Lollards the Duke sent unto their Assembly his Dwarfe as a great Lollard though he was a little Man and he returned as he went even as Catholique as any of them all Non tam dispectus à Clero quam ipse Clerum despiciens atque eludens This and some other sleights the Clergy liked not they therefore finde a way to send him into France to be a Reserve to his Brother And in his roome steps forth Humphrey Duke of Glocester that was no lesse coole for the Romane way then he Henry the Fifth was not more hearty in Romes behalf for although he was loath to interrupt his Conquest abroad with contests at home yet he liked not of advancements from Rome insomuch as perceiving the Bishop of Winchester to aspire to a Cardinals Hat he said that he would as well lay aside his own Crowne as allow the Bishop to take the Hat Nor was he much trusted by the Clergy who were willing he should rather ingage in the Wars with France then minde the Proposalls of the Commons concerning the Clergies Temporalties which also was renued in the Parliament in his dayes Above all as the Lancastrian House loved to looke to its own so especially in relation to Rome they were the more jealous by how much it pretended upon them for its favour done to their House And therefore Henry the Fourth the most obleiged of all the rest looked to the Provisors more strictly then his Predecessors had and not only confirmed all the Statutes concerning the same already made but had also provided against Provisors of any annuall Office or Profit or of Bulls of Exemption from payment of Tythes or from Obedience Regular or Ordinary and made them all punishable within the Statute and further made all Licenses and Pardons contrary thereto granted by the King void against the Incumbent and gave damages to the Incumbent in such vexations for the former Lawes had saved the right to the true Patron both against Pope and King And thus the English Kings were Servants to the Church of England at the charges of Rome whiles the Popedome being now under a wasting and devouring Scisme was unable to help it selfe and so continued untill the time of Henry the Sixth at which time the Clergy of England got it selfe under the power and shadow of a Protector a kinde of Creature made up by a Pope and a King This was the Bishop of Winchester so great a Man both for Birth parts of Nature Riches Spirit and Place as none before him ever the like for he was both Cardinall Legate and Chancellour of England and had gotten to his aide the Bishop of Bathe to be Lord Treasurer of England Now comes the matter concerning Provisors once more to be revived First more craftily by collogueing with the Nobility who now had the sway in the Kings minority but they would none An answer is given by the King that he was too young to make alteration in matters of so high Concernment yet he promised moderation The Clergy are put to silence herewith and so continue till the King was six yeares elder and then with Money in one hand and a Petition in the other they renue their Suit but in a more subtill way For they would not pretend Roâ—e but the English Churches liberties they would not move against the Statutes of Praemuniri but to have them explained it was not much they complained of for it was but that one word Otherwhere which say they the Judges of the Common Law expound too largely not onely against the Jurisdiction of the Holy Sea but against the Jurisdiction of the English Prelacy which they never intended in the passing of those Lawes Their Conclusion is therefore a Prayer That the King will please to allow the Jurisdiction of their Ecclesiasticall Courts and that Prohibitions in such Cases may be stopped But the King either perceiving that the Authority of English Prelacy was wholly dependent on the Sea of Rome and acted either under the shadow Legatine or at the best sought an Independent power of their own Or else the King doubting that the calling of one word of that Statute into question that had continued so long might indanger the whole Law into uncertainty declined the matter saving in the moderation of Prohibitions Thus the English Clergy are put to a retreat from their reserve at Rome all which they now well saw yet it was hard to wean them The Cardinall of Winchester was a
Arrest although contrary to them made voyde as touching the Process The goods of the Clergy are discharged from Purveyance and their Houses from Quarter The later of these was an Incroachment upon the greater Clergy men For under the Title of Hospitality which the Prelates were obliged to by their great Possessions and Revenues conferred upon them to that end Kings used to quarter Messengers to and from Scotland The Kings Horses Dogs and Haukes c. But the point of Purveyance was an ancient Prerogative belonging to Kings and by no Custome were the goods of any man discharged therefrom till it was by act of grace first confirmed by Edward the first and afterwards by grant of Edward the second yet by reason of the rudenesse of the times did not those acts prevaile to that settlement that was promised till now Edward the third renued the Law nevertheless could not this Law of Edward the third perfect that worke because it was but a bare command till Richard the second made a remediall Law giving thereby the Clergie that were wronged a right of action of trespass against the Purveyors and to recover treble damages whereas formerly they were liable only to a fine to the King which many times was as soone pardoned as asked These condiscentions might have wedded the English Clergy to the English Crowne but that it was coy and expected further gratuities besides they beheld their old Stepdame Rome now in its full Splendor and power and deeply interested in the sway of affaires in this Kingdome and above all the rest the nigh affinity between the Prelate and the Pope was such that they sucked one milke breathed one aire and like the Philosophers twinns lived in each other The later of these was not discerned by those dim sighted times and therefore they could do nothing towards the dissolution of that knot but left it to future times who found no other way then to cut it asunder But Edward the Third and his successor espied the first felt the inconvenience thereof and applyed themselves to such remedy as they found most ready at hand All things that are subject to time are also subject to change which comes comonly slower upon Governments that are less Eclesiastical for Churches continue longer in a growing condition then in their compleat estate like a Christian that seldom endures long after his full ripenesse Thus England it s hitherto above a thousand yeares since the Gospel came to the Saxons and well nigh a thousand yeares since the Pope set his foot amongst us ever approaching nigher the Throne and ascending thereunto but finding it full of a King that would not remove he sits downe in his lapp a heavy burden questionlesse he was considering his claime of jurisdiction his provisions pensions exemptions impositions and such like oppressions and therefore it s no wonder if the King feeling the incumbrance gives a lift at the Popes power by stoping the currant of mony from England Rome-wards To this end the Statute made at Carlile is revived wherby the Clergy are inhibited from conveying treasure beyond the Seas but the Pope knew how to ride and will not so easily forego his saddle The Roman Eagle had made many a faire flight in England and had not yet fully gorged himselfe he grants ten thousand Marks yearly out of taxes layd upon the Church livings in England unto two Cardinals neither of which did nor by the Canon could live in England the treasurership of Yorke also to another Cardinall after that the King had conferred the same else where He proceeds also further to invade the undoubted rights of the Crown by making an election of the B. of Norwich and causing him to be invested Rege renitente the King spent eight yeares in the recovery of his right and was deluded in the conclusion he now sees it bootelesse to stand alwayes upon his defence and receive affronts he resolves therefore to enter the lists and maketh seisure of the Deanery of York which formerly by usurpation the Pope had conferred upon a Cardinall and of all Church livings given by the Pope to aliens Then a Law is made more sharp then those in the eighteenth yeare wherein Provisors of Abbies and Priories are made lyable to a Praemuniri and Provisors of other Ecclesiasticall Livings and Dignities whereby the presentation of the rightfull Patron is disturbed to be fined and imprisoned untill the fine and damages to the party wronged be paide And all such as draw men to plead out of England in cases that belong to the cognisance of the Kings Court and all obtainers of provisions in the Court at Rome these were also subject to a Praemuniri For whiles these things were thus in action the Pope bestirred himselfe notably with Citations Excommunications interdictions and such other birds of prey not only against meane men but Judges Bishops and the Kings Councell as amongst others the case of the Bishop of Ely at the solicitation of some of inferior regard as I remember a Clerke or some such thing yet as these Bull-drivers or summoners to the Romish Court were no late upstarts so were not these times the first that tooke them to task for before the Statuts of Praemuniri we find provision was made against Provisors and that some Statute did precede those in Print which punished a disturber of the Kings Incumbent by a Bull from Rome with perpetuall imprisonment or at the Kings will besides the party wronged was allowed an action for his damages Qui tam pro Domino Rege quam pro seipso sequitur and before that time also bringers of Bulls from Rome were imprisoned although in all these cases aforesaide the liberty of the Persons both of Lords and Praelats was saved And thus all the while King Edward the third kept the field he gave the Pope cuffe for cuffe but retiring himselfe to take his ease he waxing wanton waxed weake and more slowly pursued the vindication of his owne right and his Subjectes liberty The Lawes are layde aside and Rome had further day given to plead and in the mean time execution is staid the double minde is double died and advantage is soon espied above sixty Church livings more are suddainely catched and given to the favorites at Rome the Parliament rings herewith yet the King delayes the remedy and in this Edy of affaires Edward the third dies and Richard the second takes up the place who had witt enough to observe what concerned his owne interest and courage enough to pursue it But neither witt nor courage to over-rule his lusts which in the conclusion over-ruled all rule and brought himselfe to destruction He found the people at his entrance into the Throne irritated with the Popes opressions and vexed at his Grandfathers desidiousnes His Spirit is also stirred within him and himselfe thereby pressed to tread in his Grandfathers former wayes and to outrunne him in his later
he made the penalty of Praemuniri to extend to all Farmores or others in nature of Bailiffs that held any Church maintenance to the use of any alien and unto all Aliens that are Purchasors of such Provisions to any use and unto all Lieges that shall in like manner purchase such Provisions But as touching such as shall accept such provisions he ordained Banishment for their Persons and Forfeiture of their Estate Notwithstanding all this the Romane Horse-leach would not so give over The King grew into displeasure with his Subjects and they with him and with one another they see the Pope still on Horseback and fear that the English Clergy their own Countrey men if not Friends and Abbettors yet are but faint and feigned Enemies to the Popes Cause Nor was it without Cause that their fear was such for as the Pope had two hands to receive so they had two hearts making show of forming blowes at the Pope but then alwayes at a distance or when without the Popes Guard and thus the Lawes begin to stammer and cannot speake so plain English as they were wont The people hereat offended resolve to put the Clergy into the Van and to try their mettle to the full At the last Parliament that Richard the Second did hold both the Lords Temporall and Spirituall are opposed one by one The Lords Temporall like themselves resolve and enter their Resolutions to defend the right of the Crowne in the Cases of Provisors although even amongst these great men all were not equally resolute for Sir William Brian had purchased the Popes Excommunication against some that had committed Burglary and he was committed to the Tower for his labour But the Prelates answer was ambiguous and with modifications which was all one to cry as men use to say Craven yet was the Statute made peremptory according to what was formerly Enacted And though the Prelates cautionary way of proceeding might be a principall reason why the Popes power held so long in England in an usurping way yet Kings also much conduced thereto by seeking too much their Personall ease above the Honour of their Place and the Popes blessings and opinion of his Favour more then their owne good or the Peoples liberty for there was no other balme for a distracted minde then that which dropped from the Popes lips In like manner Richard the Second being already at least in purpose estranged from his People sought to get freinds at Rome to hold by the Spirituall Sword what he was in danger to loose by laying aside the Sword of Justice which is the surest Tenure for Kings to hold by And though the Popedome was now under a Schisme between two Popes Clement and Vrban yet he was so farre won for Vrban that he not onely ingaged himselfe and the Parliament to determine his Election and uphold the same but also Ex abundante did by Implication allow to him an Indefinite Power to grant Provisions and so at once he lost the Die and gained a Stake that like a bubble looked faire but soon vanished away Neverthelesse these two Comrades whiles they were together resolved to make the most of each other that they could and therefore though the Popedome liked not the King yet the Pope had his love so farre as he could deny himselfe for he had already denied his Kingdome And if the Articles exhibited against the King by Henry the Fourth be true the Pope had his Faith also For that he might be rid of his reputed Enemy Arch Bishop Arundell he trusted the Pope with that Complement of making Walden Arch Bishop of Canterbury in Arundells stead which the Pope tooke so kindly as he made it a President for Provisors for the future Nor did the King stick in this one Singular but made it his Custome in passing of Lawes especially such as the King was most devoted unto to put more Confidence in the Popes Amen then in all the Prayers of his Commons with his owne Soit fait to boot The summe then will be that the Prize was now well begun concerning the Popes power in England Edward the Third made a fair blow and drew blood Richard the Second seconded him but both retired the former left the Pope to lick himself whole the later gave him a salve and yet it proved a Gangrene in the conclusion The second means used to bring down the power of the Pope in this Nation was to abate the power or height of the English Clergy for though the times were not so cleare as to espy the Root of a Pope in Prelacy yet experience had taught them that they were so nigh ingaged that they would not part And therefore first they let these men know that Prelacy was no Essentiall Member to the Government of the Kingdome but as there was a Government established before that ranke was known so there may be the like when it is gone For Edward the Third being troubled with a quarrell between the two Arch Bishops of Canterbury and Yorke concerning Superiority in bearing the Crosse and the important Affaires of Scotland so urging Summoned a Parliament at Yorke which was fain to be delaied and adjourned for want of appearance and more effectuall Summons issued forth but at the day of Adjournment none of the Clergy of the Province of Canterbury would be there and upon this Occasion the Parliament was not onely interrupted in their proceedings but an ill president was made for men to be bold with the Kings Summons in such Cases as liked not them and thereupon a Statute was made to inforce Obedience upon Citizens and Burgesses and such Ecclesiasticks as held per Baroniam Neverthelesse when the matters concerning Provisors began to come upon the Stage which was within two yeares after that Law was made the Clergy found that matter too warme for them and either did not obey the Summons or come to the Parliament or if they came kept aloofe or if not so would not Vote or if that yet order their tongues so as nothing was certainly to be gathered but their doubtfull or rather double minde These Prelates thus discovered the Parliament depended no more upon them further then they saw meet At sixe or seven Parliaments determined matters without their Advice and such as crossed the Principles of these men and therefore in a rationall way might require their Sense above all the rest had they not beene prepossessed with prejudice and parties in the matter Nor did Edward the Third ever after hold their Presence at so high Repute at such meetings and therefore Summoned them or so many of them as he thought meet for the Occasion sometimes more somtimes fewer and at a Parliament in his fourty and seventh yeare he Summoned onely foure Bishops and five Abbots And thus the matter in Fact passed in these times albeit the Clergy still made their claim of Vote and desired the same to be entered upon Record And
b. fol. 7. a. which is a word of a vast extent serving rather to amaze mens apprehensions then to inlighten them and therefore the Reporter did well not to trouble himself or the Reader in the clearing or proof thereof but left the Point rather to be beleived then understood nor shall I in the Negative for God himself can have no other Legiance from an English man then absolute Legiance and Kings being as other men subject to erre especially in this Point of Prerogative are much rather subject thereto being misled by such Doctrines as these are The Scripture determines this Point and cuts the knot in sunder The third property of English Legiance which the Reporter insisteth upon is that it is indefinite which he explaineth to be Proprium quarto modo so as it is both Universall and Immutable fol. 5. b. fol. 12. and neither defined by Time Place or Person As touching the Time and Person the Reporter inlarged not at all therefore I shall onely leave the Reader to chew upon the Point supposing himself in the first times of Edward the Fourth when Henry the Sixth was then alive and let him resolve to which of them his Legiance had been due considering them both in their naturall Capacity as the Reporter would have it But as touching the Place it s reported that English Legiance is not onely due from an English man to an English King in England but in all places of the Kings Dominion though otherwise Forrain as to the power of the Law of England yea saith the Reporter as farre as the Kings power of Protection doth extend And yet this had not been enough if the Premises be granted for if this Legiance whereof we speake be absolute and omni soli semper then is it due to the King from an English man ubivis Gentium Neverthelesse to take the Reporter in a moderate sense it is worth consideration whether English Legiance in the dayes of Edward the Third extended as far as the Kings power of Protection when as he had the Crown of France in a Forrain right to that of England In this the Reporter is extreamly Positive upon many grounds which he insisteth upon First he saith that Verus and Fidelis are qualities of the minde and cannot be circumscribed within the predicament of Vbi and upon this ground he might conclude that this Legiance is due to the King from an English man all the world over as well as in all the Kings Dominions but concerning the ground it may be denied for though simply in it selfe considered as a notion Verity or Fidelity are not circumscribed in place yet being qualities of the soul and that being in the body in relation thereunto it may be in the predicament of Vbi for where ever that Body and Soul is there is Faith and Truth according to its modell which though not absolute and indefinite yet if according to the Lawes of the place wherein the man is he is truely said to be Verus Fidelis Secondly the Reporter argueth that the Kings Protection is not Locall or included within the bounds of England therefore also is not the Legiance for Protectio trahit Legiantiam Legiantia Protectionem Had this reason been formed into a Syllogisme it had appeared lesse valuable for the Protection of an English King qua talis of an English man is locall and included within the bounds of the Kingdome But if the same King be also King of France or Duke of Aquitane and an English man shall travell into those parts he is still under the same Kings Protection yet not as King of England but as King of France or Duke of Aquitane otherwise let the party be of France or Aquitane or England all is one he must be whether French or English under an unlimitted absolute Protection without regard had to the Customes or Lawes of the place yea contrary to them which I beleive the Reporter never intended to affirme Thirdly the Reporter falleth upon the matter in Fact and tells us that the King of England did many times De facto grant Protections to Persons in places out of the English Confines and it will not be denied But never was any absolute and indefinite Protection so granted for the Protection extends to defence from injury and all injury is to be expounded and judged according to the Lawes of the place Nor doe any the Presidents vouched by the Reporter clear that the King of England did grant as King of England Protection to any English man in any parts of the Kings Dominion beyond the Seas which was not qualified according to the Lawes and Customes of that place especially it being apparent that an English King may hold Dominion in Forrain parts in Legiance under a Forrain King as Edward the Third held the Dutchy of Guien and therefore cannot grant absolute Protection in such place nor receive absolute Legiance from any person there being Fourthly the Reporter saith that the King of England hath power to command his Subjects of England to goe with him in his Warres as well without the Realm of England as within the same therefore the Legiance of an English man to his King is indefinite and not locall or circumscribed by place or within the Kingdome of England Although the first of these be granted yet will not the inference hold for possibly this may arise from the constitution of a Positive Law and not from naturall or absolute Legiance nor doth any authority by him cited justifie any such Legiance But I cannot agree the first for it is not true that the King hath any such power from his own Personall interest nor doe the authoritie of former Ages warrant any such matter for a fuller disquisition whereof I shall refer the Reader to the eleventh Chapter ensuing because the Whole matter concerning the Militia commeth there to be handled in course Fifthly to close up all the rest the Reporter brings The Testimony of the Judges of the Common Law out of the Testimony of Hengham wherein an Action was brought by a French woman against an English man who refused to answer because the Plaintiffe was a French Woman and not of the Legiance or Faith of England This was disallowed by the Judges because Legiance and Faith was referred to England and not to the King Thereupon the Defendant averred that the Plaintiffe is not of the Legiance of England nor of the Faith of the King And upon this Plea thus amended the Plaintiffe gave over her Action The Reporter from hence observeth that Faith and Legiance is referred to the King indefinitely and generally and therefore it is so due to him The reason might have had more force had the Object of Allegiance or the nature thereof been the point in question but neither of them comming to debate and Allegiance being subjected to England and Faith to the King I see not what more can be concluded from hence but that Allegiance
feminine Spirit which they sent over into England to be their Queen and in one Civill Warre shedding more English blood by the English Sword then they could formerly doe by all the men of France were revenged upon England to the full at the English mens own charge For what the English gain by the Sword is commonly lost by discourse A Kingdome is never more befooled then in the Marriage of their King if the Lady be great she is good enough though as Jezabell she will not either reverence her Husband obey her Lord and King nor regard his People And thus was this Kingdome scourged by a marriage for the sinne of the Wise men that building upon a false Foundation advised the King in the breach of Contract with the Earle of Arminiacks Daughter And thus the King also for that hearkning to such Councell he murthered the Duke of Glocester that had been to him a Father yeilded up his Power to his Queen A Masterlesse and proud Woman that made him like a broken Idol without use suffered a Recovery of his Crown and Scepter in the Parliament from his owne Issue to the Line of Yorke then renewing the Warre at his Queens beck lost what he had left of his Kingdome Countrey and Liberty and like the King that forgot the kindnesse of Jehojada lost his life by the hand of his Servant CHAP. XIV Of the Parliament during the Reignes of these Kings THe interest of the Parliament of England is never more Predominant then when Kings want Title or Age The first of these was the Case of Henry the Fourth immediately but of them all in relation to the pretended Law of the Crown but Henry the Sixth had the disadvantage of both whereof in its due place The pretended Law of the Crown of England is to hold by Inheritance with power to dispose of the same in such manner by such means and unto such persons as the King shall please To this it cannot be denied divers Kings had put in their claimes by devising their Crowne in their last Will but the successe must be attributed to some Power under God that must be the Executor when all is done and which must in Cases of Debate concerning Succession determine the matter by a Law best known to the Judge himselfe Not much unlike hereunto is the Case of Henry the Fourth who like a Bud putting up in the place of a fading Leafe dismounts his Predecessor First from the Peoples regard and after from his Throne which being empty some times he pretending the resignation of his Predecessor to him other whiles an obscure Title by descent his Conscience telling him all the while that it was the Sword that wrought the worke But when he comes to plead his Title to Forrain Princes by Protestation laying aside the mention of them all he justifies upon the unanimous consent of the Parliament and the People in his own onely Person And so before all the World confessed the Authority and power of the Parliament of England in disposing of the Crown in speciall Cases as a sufficient barr unto any pretended right that might arise from the House of Mortimar And yet because he never walks safely that hath an Enemy pursuing him still within reach he bethinks himself not sure enough unlesse his next Successors follow the dance upon the same foote to this end an Act of Parliament leades the tune whereby the Crowne is granted or confirmed to Henry the Fourth for life and intailed upon his Sonnes Thomas John and Humphrey by a Petition presented 5. Hen. 4. Thus Henry the Fourth to save his owne stake brought his Posterity into the like capacity with himselfe that they must be Kings or not subsist in the World if the House of Yorke prevailes and so he becomes secured against the House of Yorke treading on his heeles unlesse the Parliament of England shall eat their owne word However for the present the House of Lancaster hath the Crown intailed and the Inheritance is left in the Clouds to be revealed in due time For though this was the first president of this kinde yet was it not the last wherein the Parliament exercised a Power by Grant or Confirmation to direct the Law and Course of the Crown as they pleased The due consideration hereof will make the things that follow lesse strange For the Parliament according to occasion as the Supreame power of this Kingdome exercised Supreame Jurisdiction in order to the safety of the Kingdome as if no King had beene to be found in issuing forth Writs under the great Seale concluding of matters without the Royall assent treating of Peace with Forrain Nations and of other matters and determining their Resolves before discovery made to the King of their Councells making Ordinances and ruling by them 3 H. 6. n. 29. 2 H. 6. n. 27. 8 H. 6. n. 12. referring matters determinable in Parliament to be determined according to their directions Authoritate Parliamenti Confirming Peace made by the King protesting against Peace made without or against their consent making Ambassadours with power to ingage for the Kingdome making Generals of the Army Admiralls at Sea Chancellors Barons and Privy Councellors and giving them instructions 8 H. 4. n. 73. 76. 31. 5 H. 4. n. 57. 31 H. 6. n. 21. and binding them to observance upon Oath 11 H. 4. n. 19.39 Ordering the Person of the King denying his power of Judicature in Parliament and ordering his Houshold and Revenue besides many other particulars Now if such as these things were thus done not by one Parliament which possibly might be overwayed by Factions but by the course of a Series of Parliaments that mightily laboured against Faction and unworthy ends and aimes that man shal determin the same to be unjust or indiscreet should himself first be determined to be very just and exceeding wise Nor was the Parliament partiall in all this but being in a way of Reformation it set upon the work of reforming it selfe Some that are very zealous in the point of Arbitrary and absolute Government of Kings in this Nation and all in other amongst other grounds rest upon this one That an English King hath power to call Parliaments and dissolve them to make and unmake Members as he shal please I do easily grant that Kings have many Occasions and Opportunities to beguile their People yet can they do nothing as Kings but what of right they ought to doe They may call Parliaments but neither as often or seldome as they please if the Statute-Laws of this Realme might take place Nor if they could is that power necessarily and absolutely arising from Supremacy seeing it is well known that such power is betrusted by the Superiour States in other Nations to the Inferiour who dayly attend on publique Affaires and therefore can discern when the generall Conventions are most necessary As touching the dissolving of Parliaments against the wills of
underlings to the great men then they are to their Fethers to were them no longer then they will make them brave Secondly the Person thus agreed upon his intertainment must be accordingly and therefore the manner of taxing in full County and levying the rate of Wages for their maintenance is reformed and settled And lastly their Persons are put under the Protection of the Law in an especiall manner for as their work is full of reflexion so formerly they had met with many sad influences for their labour And therefore a penall Law is made against force to be made upon the Persons of those workmen of State either in their going to that Service or attending thereupon making such Delinquents liable to Fine and Imprisonment and double damages And thus however the times were full of confusions yet a foundation was laid of a more uniforme Government in future times then England hitherto had seen CAHP. XV. Of the Custos or Protector Regni KIngs though they have vast dimensions yet are not infinite nor greater then the bounds of one Kingdome wherein if present they are in all places present if otherwise they are like the Sunn gone down and must rule by reflexion as the Moone in the night In a mixt common wealth they are integrall members and therefore regularly must act Per deputatum when their Persons are absent in another Ligialty and cannot act Per se Partly because their Lustre is somewhat eclipsed by another Horizon and partly because by common intendment they cannot take notice of things done in their absence It hath therefore been the ancient course of Kings of this Nation to constitute Vicegerents in their absence ' giving them severall titles and severall powers according as the necessity of affaires required Sometimes they are called Lord Warden or Lord Keeper of the Kingdome and have therewith the generall power of a King as it was with John Warren Earle of Surry appointed therunto by Edw. the first who had not onely power to command but to grant and this power extended both to England and Scotland And Peter Gaveston though a Forrainer had the like power given him by Edward the second over England to the reproach of the English Nobility which also they revenged afterward Somtimes these Vicegerents are called Lievtenants which seemeth to conferr onely the Kings power in the Militia as a Lievtenant Generall in an army And thus Richard the second made Edmund Duke of Yorke his Lievtenant of the Kingdome of England to oppose the entry of the Duke of Hertford Afterwards called Henry the fourth into England during the Kings absence in Ireland And in the mean while the other part of the Royalty which concerned the revenues of the Crowne was betrusted to the Earle of Wiltshire Sir John Bush Sir James Baggot and Sir Henry Green unto whom men say the King put his Kingdome to farme But more ordinarily the Kings power was delegated unto one under both the titles of Lord Gaurdian of the Kingdome and Lievtenant within the same such was the title of Henry Lacy Earle of Lincolne and of Gilbert De clare Earle of Glocester and of Audomar De valentia Earle of Pembroke all of them at severall times so constituted by Edward the second as by the Patent Roles appeareth So likewise did Edward the third make his Brother John of Eâ—tham twice and the black Prince thrice and Lionell Duke Clarence and his Brother Thomas each of them once in the severall passages of Edward the third beyond the Sea in the third fifth twelfth fourteenth sixteenth nineteenth and thirty third years of his reigne concerning which see the Patent Rolls of those yeares And Henry the fifth gave likewise the same title and authority to the Duke of Bedford upon the Kings voyage into France and afterward that Duke being sent over to second the King in the French Wars the Duke of Glocester obtained the same power and place But Henry the sixth added a further title of Protector and Defendor of the Kingdome and Church of England this was first given to the Duke of Bedford and afterwards he being made Regent of France it was conferred upon the Duke of Glocester And towards the later time of Henry the sixth it was granted by him to Richard Duke of Yorke This title carried along with it a power different from that of a King onely in honor and the Person so adorned may be said to sway the Scepter but not to weare the Crowne And therefore in the minority of Henry the sixth when as the Government was ordered by the Parliament and to that end a Protector was made and he wel guarded with a Privy Councill and they provided with instructions one of them was that in all matters not to be transacted ordinarily but by the Kings expresse consent the Privy Councell should advise with the Prorector but this is not so needfull in regard that it concerneth the power of executing of Lawes which by right of the liberty of the Subject is the known duty of the Scepter in whose hands soever it is holden And therefore I shall passe to the Legislative power wherein its evident that the Protectors power was no whit inferiour to the Kings power For first the Protector Ex officio by advice of the Councell did summon Parliaments by Writs even as the Kings themselves under their owne Teste and if not bear the Royall Assent yet did they direct the same and received Petitions in Parliament to them directed as to Kings and every way supplied the roome of a King in order to the perfecting publishing and inforcing of Law to Execution Secondly the Parliaments holden by Protectors and Lawes therein made are no whit inferiour to those by the King whether for Honour or Power And therefore if a Parliament be-holden by the Lord Warden and sitting the Parliament the King in person shall arrive and be there present neither is the Parliament interrupted thereby nor the power thereof changed at all though the power and place of the Wardenship of the Kingdome doth utterly vanish by the personall accesse of the King because in all Cases where the King is subservient to the Kingdome or the Common-wealth The Lord Warden in his absence is conservient unto him being in his stead and not under him for the very Place supposeth him as not because not present And this was by a Law declaratively published at such time as Henry the fifth was Regent of France and therefore by common presumption was likely to have much occasion of residence in that Kingdome and it holdeth in equall force with all other Lawes of the highest Size which is the rather to be noted because it is though under a Protector obligatory to the King and makes his personall presence no more considerable then the presence of his shadow For the King spent three whole yeares in the French Warres and during that time never saw England where
were by the Law Judges of the matter in fact as well as the King yet in the conclusion the King only was of the Quorum all this yet further appears in the penalty for by a Provisor it is moderated as to all forfeitures of Life Limb or Estate and in the conclusion extended only to Fine and Imprisonment unlesse in some cases mentioned and excepting offences against Proclamations made by the King or his Successors concerning Crimes of Heresie For it is the first clause of any positive Law that ever intimated any power in the King of such Cognisance and punishment of Heresie too weake a principle it is to settle a prerogative in the King and his Successors as supream head of the Church thus by a side winde to carry the keyes of Life and Death at their girdle and yet a better ground cannot I find for the martyrdome of diverse brave Christians in those times then this touch of a Law glancing by All which passing Sub silentio and the Parliament taking no notice thereof made way for the Statute 32. H. 8. ca. 26. Formerly mentioned to come more boldly upon the Stage This was one wound to the legislative power of the Parliament thus to divide the same Another ensues that in its consequence was no lesse fatall to that power which remained and it was wrought by some Engine that well saw that the disease then so called grew to be epidemicall amongst the more considerable party in the Kingdome that the Lady Jane Seymor now Queene was no freind to the Romanists that she was now with child which if a Sonn as it proved to be was like to be Successor in the Throne and be of his Mothers Religion and so undoe all as in the issue all came so to passe To prevent this neverthelesse they fancy a new conceit that Lawes made by English Kings in their minority are lesse considerately done then being made in riper yeares And so by that one opinion countenanced a worse which was that the Legislative power depended more upon the judgment of the King then the debates and results of the Parliament a notion that would down exceeding well with Kings especially with such an al-sufficient Prince as Henry the eight conceived himself to be upon this ground a Law is made to enable such of the Kings Successors by him appointed as shall be under the age of twenty and foure yeares when Lawes by him are made to adnull the same by Letters Patents after such Prince shall attaine the said age of twenty foure yeares Thus the Armes of the Parliament are bound from settling any Reformation let them intend it never so much a Muse is left open for the Romish Religion still to get in when the Season proves more faire The Parliament was now in its minority and gives occasion to the Reader to bewaile the infirmities of the excellency of England A fourth advance of Prerogative concerned the executive Power in the Government of the Church This had formerly much rested in the Prelacy and that upon the cheife Praelatissimo at Rome now there is found in England a Prelater then he the Pope was already heheaded and his head set upon the Kings shoulders To him it is given to nominate all Bishops and Arch-Bishops within his dominions by long desire and that the party once elected shall sweare fealty and then shall be consecrated by Commission and invested but if upon the long desire no election be certified within twelve dayes the King shal by Commission cause his own Clerke to be consecrated and invested The occasion that first brought in this President was the accesse of Cranmer to the See at Canterbury for though the head-ship had beene already by the space of two yeares translated from Rome to England and yet the course of Episcopizing continued the same as formerly it had beene I mean as touching the point of Election For though in their originall Bishops were meerely Donatives from the Crowne being invested by delivery of the Ring and pastoral staffe and untill King Johns time the Canonicall 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 diverse publique 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 yeares for the Reformation intended by the King was not done at once but by degrees and therefore though this course of long desire was brought into use yet the Parliament being of six yeares 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 owne will otherwise they should be consecrated by Commission without his consent this at the first the Popes concurrence was not excluded though his Negative was In this posture of Affaires comes Cranmer to be consecrated Arch-Bishop And being nominated therunto by the King the wily Pope knowing the Kings aime meaned not to withstand least he should loose all but granted the Pall as readily as it was desired so as Cranmer is thus far Arch-Bishop of Canterbury without all exception yet he must go one step further 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 affirme it was done Perfunctoriè like some worne Ceremony or civill Complement Neverthelesse it was not so soone turned over the Arch-Bishop loved not the Office the King loved no partnorship 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 the looser the English Clergy the savers for the Pall cost Cranmer nine hundred markes And the Crown is the great gainer for hereby the King got the men sure to him not onely by their own acknowledgment and submission but also by a Statute Law And lastly by Oath which to make sure was treble twined once upon their first submmission in the Kings twenty second yeare when they had beene under Premuniri Secondly soone after the decease of Queene Katherine Dowager in the twenty sixth yeare which Oath was more compleat then the former containing First A Renunciation of all fealty to the Pope or any sorraine Power Secondly an obligation to adheare to the cause of the King and his Successors Thirdly a disavowing of the Pope otherwise then as another Bishop or fellow Brother Fourthly an ingagement to observe all Lawes already established against the Popes Power Fifthly A disavowing of all appeales to
them Church-motes For the first of them which is sayd to be holden in the yeare 816. is called a Synod and both Preists and Deacons were there present which are no Members of Parliament consisting onely of the House of Lords and they all of them did Pariter tractare de necessarijs utilitatibus Ecclesiarum The second of them is called a Synodall Councill holden Anno 822. and yet there were then present Omnium dignitatum optimates which cannot be understood onely of those of the House of Lords because they ought all to be personally present and therefore there is no Optimacy amongst them The last of these three is called Synodale Conciliabulum a petty Synod in great letters and besides there were with the Bishops and Abbots many Wise men and in all these respects it cannot be a Parliament onely of the great Lords The next Councill said to be holden in the yeare 823. cannot also be called properly a Parliament but onely a consultation between two Kings and their Councill to prevent the invasion of the Danes and the attests of the Kings Chapplain and his Scribe doe shew also that they were not all Members of the House of Lords The Councill cited by the Opponent in the next place was holden An 838. being onely in nature of a Councill for Law or Judicature to determine the validity of the Kings Grant made to the Church of Canterbury which is no proper worke for a Parliament unlesse it befall during the fitting of the same The next is but a bare title of a Councill supposed to be holden An. 850. And not worth its room for it neither sheweth whether any thing was concluded nor what the conclusions were The worke of the next Councill alleadged to be holden An. 851. was to confirme the Charter of the Monastry of Croyland and to determine concerning affaires belonging to the Mercinies and if it had beene a Parliament for that people it might be worthy of inquiry how regularly the Arch-Bishop of Canterbury and the Bishop of London and the Ambassadors from the West Saxons could sit amongst them and attest the conclusions therein made as wel as the proper members of that Nation He commeth in the next place to a Councill holden in the yeare 855. which is more likely to be a Parliament then most of them formerly mentioned if the Tithes of all England were therein given to the Church but hereof I have set downe my opinion in the former part of the discourse And though it be true that no Knights and Burgesses are therein mentioned as the Opponent observeth out of the Title yet if the body of the Lawes be duly considered towards the conclusion thereof it will appeare that there was present Fidelium infinita multitudo qui omnes regium Chirographum Laudaverunt Dignitates vero sua nomina subscripserunt And yet the Witagen-motes in these times began to be rare being continually inrerrupted by the invasions of the Danes The three next Councills alleaged to be in the yeares 930. 944. 948. Were doubtlesse of inferiour value as the matters therin concluded were of inferiour regard being such as concerne the passing of the Kings Grants Infeodations and confirmations The Councill mentioned to be in the yeare 965. is supposed to be one and the same with the next foregoing by Sir Henry Spelman which calls it selfe a generall Councill not by reason of the generall confluence of the Lords and Laity but because all the Bishops of England did then meet The Primi and Primates were there who these were is not mentioned but its evident that the King of Scots was there and that both he and diverse that are called Ministri Regis attested the conclusions It will be difficult to make out how these should be Members of the House of Lords and more difficult to shew a reason why in the attesting of the acts of these Councills which the Opponent calls Parliaments we finde so few of the Laity that scarce twelve are mentioned in any one of them and those to descend so low as the Ministri Regis to make up the number Five more of these instances remaine before the comming in of the Normans The first of which was in the yeare 975. and in a time when no Parliament according to the Opponents principles could sit for it was an Inter regnum The two next were onely Synods to determine the difference between the Regulers and the Seculers in the Kings absence by reason that he was under age and they are sayd to be in the yeares 977 and 1009. But it s not within the compasse of my matter to debate their dates The last two were Meetings or Courts for Judicature to determine the crime of Treason which every one knowes is determinable by inferiour Courts before the high Steward or Judges and therefore not so peculiar to a Parliament as to be made an argument of its existence And thus are we at an end of all the instances brought by the Opponent to prove that Parliaments before the Norman times consisted of those whom we now call the House of Lords All which I shall shut up with two other notes taken out of the Book of Councils published by Sir Henry Spelman The first of which concerneth a Grant made by Canutus of an exemption to the Abby of Bury Saint Edmonds in a Councill wherein were present Arch-Bishops Bishops Abbots Dukes Earles Cum quamplurimis gregariis militibus cum populi multitudine copiosa votis regiis unanimiter consentientes The other taken out of the confessors Lawes which tells us that Tithes were granted to the Church A Rege Baronibus populo And thus shall leave these testimonies to debate with one another whiles the Reader may judge as seemeth most equall to himselfe Being thus come to the Norman times and those ensuing I shall more summarily proceed with the particulars concerning them because they were times of force and can give little or no evidence against the customes rightly setled in the Saxon times which I have more particularly insisted upon that the originall constitution of this government may the better appeare Now for the more speedy manifesting of the truth in the particulars following I shall pre-advise the Reader in three particulars First that the Church-motes grew more in power and honor by the aide of the Normans Law refusing the concurrence and personall presence of Kings whom at length they excluded from their Councils with all his Nobles and therefore it is the lesse wonder if we heare but little of the Commons joyning with them Secondly that the Norman way of government grew more Aristocraticall then the Saxon making the Lords the cheif Instruments of keeping Kings above and people underneath thus we meet with much noise of meetings betweene the King and Lords and little concerning the grand meetings of the Kings and the representative of the people although some footsteps wee finde even of them
by Law The first served as a scare for though it were but by Proclamation men might justly fear that he that was so stout against the Pope would not stick to scourge his owne Subjects out of his way in the time of his heat The King thus entered the Lists both against Pope and Cardinall now under Praemuniri whereof he died meets the English Clergy thus loosing their top-gallant standing up in the reare against him and talking at large Neverthelesse the King stops not his carreere puts them to the rout for maintaining the power Legatine They soon submit crave pardon give a summe of money and perfume their Sacrifice with that sweet Incense of Supreame Head of the Church of England This was done not by way of Donation for the Convocation had no such power but by way of acknowledgement in flat opposition to the Jurisdiction of the Pope It became the common subject of discourse amongst all sorts but of wonderment to the Pope Yet for fear of worse he speaks faire for he was not in Posture to contest but all would do no good the Queen had appealed to Rome the Pope by Woolsies advice makes delayes The Parliament espying the advantage at once tooke all appeales to Rome away and established all sentences made or to be made within this Land notwithstanding any Act from Rome and enjoyned the English Clergy to administer the severall acts of publique worship notwithstanding any inhibition or excommunication from any forrain pretended Power The grounds upon the preamble of the Law will appeare to be two First that the King of England is supream head in rendring Justice within the Nation in all causes therein arising which is more then the recognisance of the Clergy two yeares before this Act did hold forth yet this acknowledgment is not absolute but in opposition to Forraine pretentions Secondly that the Clergy in England having Power may in matters spirituall determine all doubts without forrain help and administer such duties as to their place do belong not hereby determining that the Church-men ever had such Power by Law nor that they ought originally to have such Power They never had it for no sooner were they disjoyned from the Laity in these affaires but immediately they were under the Pope and received their Power from him And De jure they cannot challenge such power but by a positive Law such as this Law of Henry the eighth which also giveth but a restrictive and limited power Viz In matters testamentary of divorce matrimony tithes oblations and obventions So as if they will challenge such power they must thanke the Parliament for it and use the same accordingly as persons deputed therunto and not in their owne right or right of their places In all this the Kings supremacy is but obscurely asserted and rather by implication shewing what in reason may be holden then by declaration of what was making way thereby First into the opinions of men before they were enjoyned to determine their actions but within two yeares ensuing or thereabout the Law is made positive The King shall be taken and accepted the onely supreame head on earth of the Church of England and have power to visite correct represse redresse reforme restraine order and amend all such errours heresies abuses offenses contempts and enormities as by any manner of spirituall authority or jurisdiction ought or may lawfully be reformed Which in the preamble is saide to be made to confirm what the Clergy in their Convocation formerly had recognized The corps of his Act is to secure the Kings Title the Kings Power and the Kings Profit As touching the Kings Title it is sayde that in right it did formerly belong to him which is to be granted by all so far as the Power is rightly understood But as touching the Kings Profit it cannot be saide that the whole lump thereof did belong to the King because much thereof was not so ancient but De novo raised by the Popes extortion and therefore the true and reall Profits are by particular Acts of Parliament ensuing in speciall words devolved upon him The nature of this power is layd downe in this Statute under a three fold expression First it is a visitatory or a reforming Power which is executed by inquiry of offences against Lawes established and by executing such Lawes Secondly it is an ordinary jurisdiction for it is such as by any Spirituall authority maybe acted against irregularities and thus the Title of supreame Ordinary is confirmed Thirdly it is such a Power as must be regulatd by Law and in such manner as by any spirituall Authority may lawfully be reformed It is not therefore any absolute arbitrary Power for that belongs onely to the supreame Head in Heaven Nor is it any legislative Power for so the Law should be the birth of this Power and his Power could not then be regulated by the Law nor could ever Ordinary execute such a Power nor did Henry the eighth ever make claime to any such Power though he loved to be much trusted Lastly this Power was such a Power as was gained formerly from the King by forraine Usurpation which must be intended De rebus licitis and once in possession of the Crown or in right thereto belonging according to the Law for the King hath no Power thereby to confer Church-livings by Provisorship or to carry the Keyes and turn the infallible Chaire into an infallible Throne In breife this Power was such as the King hath in the Common-wealth neither legislative nor absolute in the executive but in order to the Unity and Peace of the Kingdome This was the right of the Crowne which was ever claimed but not enjoyed further then the English Scepter was able to match the Romish Keyes And now the same being restored by Act of Parliament is also confirmed by an Oath enjoyned to be taken by the People binding them to acknowledge the King under God supreame head on earth of the Church of England Ireland and the Kings Dominions in opposition to all Forraine jurisdiction And lastly by a Law which bound all the People to maintaine the Kings Title of Defender of the faith and of the Church of England and Ireland in earth the supream head under the perill of Treason in every one that shall attempt to deprive the Crowne of that title We must descend to particulars for by this it will appeare that these generall Lawes concerning the Kings refined title contained little more then matters of Notion otherwise then a generall barr to the Popes future interests And therefore the Wisdome of the State as if nothing had been already done did by degrees parcell out by severall Acts of Parliament the particular interests of the Popes usurped Authority in such manner as to them seemed best And First concerning the Legislative Power in Church government It cannot be denied but the Pope De facto had the Power of a negative vote in all
Chancellor hath his Conscience the Arch-Bishop brings Religion the Judges bring Law so as its probable nothing will be done but according to Justice Conscience Religion and Law a very faire mixture but that there was a Treasurer in the Case yet the successe answered not expectation the Persons offended were many times inferiour and their estates not great the Offenders more meane and of desperate fortunes for great men were too wise to try this new way or to tast of their entertainment Therefore within nine yeares the Judges of Assize are betrusted with all and that Court so continued for as many yeares more and then the King marked out one Crime amongst the rest for his owne tooth belonging to the great men onely for they onely are able to commit the Crime and to give recompence sutable to the Kings Appetite It is giving of Liveries and Retainders a sore evill in the eyes of a jealous King tending to draw the inferiour sort to honour and admire and be of the suit of those of the greater sort and then beware the Crown These therefore must be tried before the King himself and his Councell that he may know whom he is to feare and of whom to take heed And herewith is a strange power given to summon upon a meere Suspition To proceed without information To examine the Defendant upon Oath and make him his own Accuser To punish according to discretion by fine and Imprisonment and thus the King and his Councell have gotten a power under colour of Liveries and Retainders to bring the whole Kingdome to be of their Livery or else they can suspect whom they please apprehend whom they suspect put him presently to the rack of confession and so into prison till he hath satisfied both displeasure and jealousie and covetousnesse it self Never was England before now in so low a degree of thraldome bound under a double knot of self-accusing and arbitrary Censure and this out-reached not onely in matters meerly civill tending to the common Peace but was intruded also into matters Ecclesiasticall in order to the Peace of the Church All bound unto the good behaviour both in Body and Soul under perill of losse of all that a man hath deare to him in this World The plot of all this was first laid by Henry the seventh and was followed by Henry the eighth who put that into practise which his Father had in designe being led thereto by such a skilfull Guid as Cardinall Woolsie was who though of meane Birth yet of a Spirit above a King and equall to the Popedome strained the string of Prerogative to its utmost heighth and then taught the King to play thereon which he did after his blunt manner till his dying day And thus though the Clergy are brought a Peg lower and the Nobility advanced higher yet was it the pollicy of these Kings to make them all of their own Livery and Retaindership to keep them in an upper region looking on the poore Commons at a distance far below and well it was for the Commons thus to be till the influence of these blazing Stars grew cooler CHAP. XXXII Of the Militia IT may fall within the verge of opinion that the guilty Title of Henry the seventh to the Crowne of England galled his minde with jealousie the greatest part of his Reigne Whether it were that he had not declared himself so fully upon his Title by his Wife or that as yet he feared some unknown Plantagenet would arise and put his Crown to the question This made him skilfull in the point of Fortification wherein he likewise spent the greatest part of his Reigne not so much by force of Armes for he cared not much for that noise well knowing that Peace is the safer condition for a King that comes in by power but principally by way of gaining Concessions and acknowledgment from the Subjects a Musick that he much delighted to heare well knowing it would conclude those amongst them that knew too much and instruct them that knew too little and so in time he should passe for currant amongst them all It was no hard matter for the King to accomplish this the greater part of the Kingdome being pre-ingaged unto his Title and of them many depending upon him for livelyhood if he failed they must look to loose all But the present occasion urged more importantly the Title to the Crown was already put to the question by the pretentions of one that named himself Duke of Yorke And it s now high time for the Law to declare it self to direct the People in such a Case What shall the People do where Might overcomes Right or if dayes come like those of Henry the sixth wherein the Subjects should be between two millstones of one King in Title and another King in possession for whom must they take up Armes if for Edward the fourth then are they Traitors to Henry the sixth if for Henry the sixth then are they Traitors to Edward the fourth and so now if for Henry the seventh then they may be Traitors to the Duke of Yorke if for the Duke of Yorke then are they Traitors to Henry the seventh For though the Duke of Yorke was said to be but a contrivance of the House of Burgundy yet a great part both of the great men and others were of another opinion and the King himself was not very certaine of his condition for the space of six years thereby This puts the Title of allegiance and that power of the Militia to the touch at length both King and Parliament come to one Conclusion consisting of three particulars First that the King for the time being whether by right or wrong ought to have the Subjects Allegiance like to that of the wise Councellor of that brave King of Israell Whom the Lord and his People and all the men of Israell chuse his will I be And this is not onely declared by the expresse words in the Preface of the Law but also by the Kings own practise for he discharged such as aided him against Richard the third then King by pardon by Parliament but such as aided him being King by declaration of the Law Secondly that this Allegiance draweth therewith ingagement for the defence of that King and Kingdome Thirdly that the discharge of this Service whereto the Subjects are bound by allegiance ought not to be imputed unto them as Treason Nor shall any person be impeached or attainted therefore the first and the last of these need no dispute The second is more worthy of consideration in the particular words set downe in the Statute Viz. That the Subjects are to serve their Prince in his Warres for the defence of him and the Land against every rebellion Power and Might reared against him and with him to enter and abide in Service in Battell Wherein two things are to be considered the Service and the time or occasion The Service is to serve the Prince
not so fill he would have Souldiers but they must be his Patentees not for any skill or valour in them above others but he hoped they would compound with him for Licenses to absent rather then to adventure themselves and so he might get the more Money that could finde pay for Souldiers more and better then they were or would be for otherwise the Patentees might by the Statute have beene allowed to serve the King by their Deputies which would have done the King better Service in the Warrs then themselves could have done and for this very purpose much use was made of these Statutes as well by Henry the seventh as Henry the eighth both for Licenses and Pardons for composition in such Cases as their Records do plentifully shew Secondly let the Claime of Kings be what they will yet the matter in fact shew plainly that they never had possession of what they claimed Both these Kings pretended a Forraine-Warr each of them once against one and the same Nation and to that end advanced unto one place with their Armies although the one went in good earnest the other in jest Their Armies were not gathered by Prerogative but of Volunteirs this not only the Records but also the Statutes do clearly set forth Some souldiers served under Captaines of their own choise and therefore the Law inflicteth a penalty upon such Captains as bring not their number compleat according to their undertaking other Souldiers are levied by Commission by way of imprest which in those dayes were Volunteirs also and expecting favour from the publique the rather because they devoted themselves thereto without relation to any private Captaine willingly therefore received imprest Money And of this course the State saw a necessity both for the better choise of men and for the more publique owning of the worke For such as had been usually levied by the Captaines were fit only to fill up room and make up the number and yet many times there was a failing in that also and this manner of raising the Infantry was continued by Henry the eighth as by the like Law in his time may appeare As touching the levying of the Horse although diverse Statutes were made for the maintenance of the breed of Horses and Persons of all degrees of ability were assessed at the finding and maintaining of a certaine number of Horses yet do none of them tell us that they shall finde and maintaine them armed compleatly for the Warrs nor shall send them forth upon their own charge and therefore I suppose they were raised as formerly these two Kings had the happinesse to be admired the one for his shrewd cunning Head the other for a resolute and couragious Heart And it was no hard matter to finde men that loved to ingratiate themselves and indeavour to catch their favour though with the adventure of their Lives especially if they looked after Honour and Glory which as a Crowne they saw pitched at the Goale of their Actions Thirdly Concerning the pay of the Souldier the Law was the same as formerly the same was ascertained by the Statute-Law the payment was to be made by the Captaine under perill of imprisonment and forfeiture of Goods and Chattels and the true number of his Souldiers to be maintained and listed under the like perill Fourthly As touching the Souldiers service the same course also was taken as before if they dissert their Colours they shall be punished as Felons and the manner of tryall to be at the Common Law Fifthly For Fortifications the power properly belongeth to the supream Authority to give order therein For the people may not fortifie themselves otherwise then in their particular Houses which are reputed every mans Castle because publique Forts are enemies to the publique peace unlesse in case of publique danger concerning which private persons can make no determination And furthermore no Fortifications can be made and maintained without abridgement of the Common liberty of the people either by impairing their Freehold or exacting their labour or other Contribution none of which ought to be done but by publique Law and therefore when the Inhabitants of the County of Cornwall were to make defence against Invasion and Piracy from the Coast of Little Brittaine in regard they were a long slender County and upon sudden surprisals people could not so readily flock together for their joint 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 Warrs once begun must be maintained at the charge of the undertakers If they be the Kings own Wars he must maintaine them out of his owne Treasury till the benefit of them doe 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 severall times went to Boloigne with their Armies Henry the seventh with an intent to gaine profit to himselfe by an advantagious peace and had his ends therein and was ashamed to aske ayde of the people towards the charges of that Warr. Henry the Eighth went upon his owne charge also with his Army trusting to the Parliament for consideration to be had of his imployment wherein his expectation did not faile and in his absence made Queen Katharine Generall of all the Forces of England in his absence and gave her power with other five Noble Personages to take up Money upon Loane as occasion should require and to give security for 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 Neverthelesse the Warr at Sea Infra quatuor maria was ever reputed Defensive as to the Nation and under the publique charge because no Warr could be there but an Enemy must be at hand and so the Nation in eminent danger and therefore the maintenance of the Navy Roiall in such cases was from the publique Treasury To conclude therefore If the Parliament and Common Law in all these cases of Levies of men for Warr payment of Souldiers and their deportment in cases of Fortifications and of maintenance of Warrs at Sea and the deportment of such as are imployed therein I say if they give the Law and carry the supream directory then certainely the Law rules in that which seemes most Lawlesse and though Kings may be cheife Commanders yet they are not the cheife Rulers CHAP. XXXIII Of the Peace PEace and Warr originally depend upon the same power because they relate each to other as the end to the meanes and receive motion from one and the same fountaine of Law that ruleth both in Peace and Warr It is very true that severall Ages hitherto have been troubled with arbitrary exhalations and these very times whereof we now treat are not altogether cleare
left the Duke to stand or fall before some other power which came to passe upon the entry of the next Successor The greatest trouble of his Government arose from the prosecution of a designe of his Grand-Fathers Henry the seventh for the uniting of the two Crownes of England and Scotland by marriage and settling an induring peace within this Isle and unto this worke all were ayders in both Nations but the Enemies of both But Gods wayes are not as Mans its a rare example to finde out one Marriage that did ever thrive to this end England meaned well in profering Love but the wooing was ill favoredly carried on by so much Blood Lastly As the Government was now tender so was it carried with much compliance with the People which ever gives occasion to such of them that are irregular to be more and such as are wel governed to be less because though pleasing it be yet it is with lesse awe and spirit which renders their obedience at the best but carelesse and idle unlesse such as are very consciencious be the more carefull over their owne wayes by how much their superiours are the lesse NOt thus was Queen Mary but like a Spaniard shee overruled all relations and ingagements by designe she was about forty yeares old and yet unmarried when shee came to the Throne it may seeme shee wanted a minde to that course of Life from naturall abstinency or was loath to adventure her feature which was not excellent to the Censure of any Prince of as high degree as shee held her self to be or her value was unknown so as to persons of meaner Interests shee might seeme too much above and to those of greater too much beneath Or possibly her Father was loath to let the World know her Title to the Crowne till needs must or to raise up a Title for an other man so long as he had hope of a Son of his own to succeed him and yet had formerly designed her for a wife to Charles the fifth and afterwards to the Dauphine of France Or it may be her self had set a command upon her self not to change her Estate till shee saw the course of the Crown either to or fro however the time is now come that shee must marry or adventure her Woman-hood upon an uncertaine and troublesome state of Affaires Shee liked the Lord Courtnoe above the Prince of Spaine but feared he would not designe with her Shee held him not unmeet for her degree for shee feared he was good enough for her Sister that then also had the Title of a Kingdome waiting so nigh her person as shee was an object of hope to her Freinds and feare to her Enemies And yet Queene Mary married the Prince of Spaine It may be it ran in the blood to marry into their owne blood or rather shee was thereto led by reason of state partly to inable her with greater security in the reseisure of her Kingdome in the Popish Religion wherein shee knew shee had to do with a People not easie to be reduced where Conscience pretended reluctancy and partly to assure her Dominion against the outworks of the French and Scottish designes And so shee yeilded up the Supremacy of her Person to the Prince of Spaine but thanks to the Nobility the Supremacy of the Kingdome was reserved to her own use for it was once in her purpose to have given up all to the man rather then to misse of the man And yet their condition was not much comfortable to either the peoples dislike of the match sounded so loud abroad that when the Prince was to come over the Emperour his Father demanded fifty Pledges for his Sons safty during his abode in this Land which was also denied when he was come over the English Feare the Spanish Tiranny and the Spanish the old Saxon entertainment of the Danes so both ly at their close guards as after some time the King and Queen did no lesse for the Queen was either never earnest in her affection or now much lesse finding his Body diseased and his Minde lingring after unlawfull game On the other side the King not finding that content in her Person especially after her supposed Concepcion that he expected looked to his owne Interest apart from hers and thereby taught her to do the like and this she thought cost England the losse of Callis and he Spaine the losse of many advantages that might have been obtained and was expected from this conjunction Thus by the severall interests betweene the King Regnant and the Queen Regent the Government of England became like a knot dissolving neither fast nor loose Towards the People she might well be reserved if not rigid for she knew her entry was not very acceptable though accepted and that her designe was contrary to her ingagements and therefore it was vaine to think to please her self and pleasure them Nor did she much busie her thoughts therewith that abominated trick of Impost upon Merchandise she brought into fashion which had by many publique acts been damned for the space of two hundred years this was done without either shame or fear for if the People turned head she knew she had a good reserve from Spaine and the People might very well consider of that though for her part she desired not much to improve that Forraine Interest because she might well see that Spaine designed to keep England so far beneath that France might not get above And that Phillip neither loved the double Crowne of England no nor the triple Crowne at Rome otherwise then in order to that of Spaine This distance between her and her King wrought her to a more nigh dependency upon her Councell and English Nobility and so became lesse discerned in her Government although questionlesse she did much and wanted not Wisdome or courage to have done more but that she was not wholly her owne Woman All men do agree that she was devout in her kind of profession and therin as deeply ingaged as her Brother Edward had beene in his though it may be out of tendernesse of Conscience but she out of a Spanish kind of gravity that indures not change and whereunto she was well aided by her Clergy who were her beloved for her Mothers sake and now also so much the more sowre by how much the nigher to the bottome It s the lesse wonder therefore if the zeale of these times burnt into a flame that at length consumed even those that kindled it In one thing more above all the rest she acted the part of her Sect rather then her Place and the same contrary to the advice of her Ghostly Fathers and all rules of policy and the agreement between her King and self upon Marriage which was the ingageing of England in the Warr at Saint Qui ntins against the French contrary to the Nationall league formerly made Neverthelesse the issue was but sutable for though the English
92 165 Benevolence first used by Edward the fourth 184. taken away by Richard the third 185. taken up again by Henry the seventh 196 Bishops not impeachable before the civil Magistrate 49. their Temporalties to be neither seised nor wasted in the vacancy 50. vide Ordinary Buggery made Felony 299 C. CAnons their power anciently in debate 61. such as are not according to the Law are taken away 236 Castles and Gaols restored to the County 113. vide Forts and Fortifications Chancery once an Office afterwards a Court 35. the power grows by Act of Parliament 36 162. the manner of the Proceedings 38. Keeper of the great Seal increaseth in power 162 Chancellor elected by the Parliament 39 Cheshire made a Principality 11 Children carried into Cloisters remedied 163 Clergy priviledged from Arrest 52. discharged of purveyance and free quarter 52. their Temporalties in question 63. the Commons love not their persons 147. their first declining from Rome in the matter of Provisors 150. they gain free process in matters Ecclesiastical 192. their defection from Rome and submission to the Crown 206 Clergy upon Triall but once allowed 257. in some cases disallowed 250 298 Commissioners Ecclsiastical 288. High Commission ibid. Conjuration vide Witchcraft Conservators of the Truce 162 Constables Court vid. Marshals Court Convocation established by Parliament 151. it then undertook great matters but much more after the Clergies forsaking the Pope 229 Councels the Privy Councel ordered by Parliament 21 33 141. of use for suddain motions 27. their Oath 29. and jurisdiction 31. and power 142 Magnum Concilium or the grand Councel of Lords 28 Crown intitled not by Discent 128 277. but intailed 128. vide 188. Womanhood 270. Coverture 273 Custos Regni a formality of State under the Parliaments Order 134. many times conferred upon Children 137. and upon a Woman 252 D. DElegates though named by the King yet by Authority of the Parliament 227 Defender of the Faith 213 Dispensations Licenses and Faculties never in the Crown but by the Parliament given to the Archbishop under Limitations 234 238 Duels ordered by the Martiall as Subservient to the Common Law 108 E. EDward the third his Reign 3. his Title upon Entry by Election ibid. Edward the fourth his Reign though had Title of Inheritance yet entred by Election 181 Edward the fifth approached the Crown by Inheritance but never put it on 184 Edward the sixth his Reign his Title and Possession did meet though he was a Childe and his Sister Mary grown in age 259 Ecclesiastical power vide Prelacy and Prelates Elizabeth Queen her Reign 264. her Title by Election 278 Englishire taken away 95 Episcopacy vide Prelates and Prelacy Errors vide Heresie Exchange ordered by the statute 75 Excommunication 271. the Writ de excommunicato capiendo ordered 289. vide Parliament exportation 72 F. FAlse News punished 112 Felony by riding in armed Troops 95 113 172 257 299 First-fruits regulated 153. taken away from Rome 222 Forcible Entries 173 Forts Fortificacations and Castles ordered by Parliament 252 295 G. GAol-delivery by the Judges of the Benches 92 165. vide Judges Gaols regulated 113 254 Guard for the Kings Person brought in by Henry the seventh 195 Gipsies made Felons 299 H. HEnry the fourth his Reign doubtfull in his Title but rested upon Election chosen by Parliament sitting when there was no King 116 c. Henry the fifth his Reign his Title by an Intail by the Parliament 119 c. Henry the sixth his Reign his Title by the Intail last mentioned though a Childe he is admitted to the Crown 123 c. Henry the seventh first settled a constant Guard his sixfold Right to the Crown and his gaining Prerogative in the Person and Estates of the People ibid. 194 c. Henry the eighth his natural Endowments 199 c. his power in the matters Ecclesiastical 206 c. in Tempoporals 213 c. H. HEresie and Error in Doctrine under the cognisance of the Civil Magistrate 62 156. not punishable by death by Law till Henry the eighths time 216 236. the Writ De Heretico comburendo hath no legal ground in any of those former Times 63 158 161 216 236. Honors vide Parliament Hospitals visited by the Prelacy 154 I. IMportation 70 Judges of Assize 165 244 Jurisdiction Ecclesiastical not originally in the Prelacy nor absolutely 235 Justices of the Peace their residency and quality their number various their work also 109 171. one Justice 112. and the settling of their Sessions ibid. their power to take Bail 254 K. KIngs vide Parliament Allegiance Supremacy Militia L. LAbourers their Work and Wages 70. ordered by the Justices of the Peace 110 Lancaster the Princes of that House freinds to the Clergy in policy 146 Laws made by the Successors of Henry the eighth during their minority annulled 217. Ecclesiastical Laws vide Parliament Leiges by Birth though not born within the Allegiance of England 97 Liveries and Tokens inhibited to the Lords 112 177. and limited in the Kings person 177. means of jealousie between the King and his People 244 Libels in the Spiritual Court to be delivered in Copies upon demand 154 Licenses vide Dispensations Lords their power and jurisdiction in the Parliament 23. in Councel 29 242 Lunacy no impediment in Triall of Treason 258 M. MAry Queen her Reign 261. her Title by Election 278. she prejudiced her Supremacy by Marriage 275 Marque and Reprisal 279 Martials Court 107 Matrimonial Causes after the Reformation by Henry the eighth in the Cognisance of the Clergie by leave 238 Militia 98 175 245 290 vide War Mint 74 142. vide Parliament Monastries dissolved 220 maintained by Henry the fourth 147 Money out of England to Rome stopped 54 N. NAvy Royall as Forts for the publique safety maintained at the publique charge 253 Nisi prius 167 Non-residency 238 Noble Ladies Triall 174 O. OYer Terminer 92 165 Ordinary not to be questioned in the Civil Courts for things under Ecclesiastical jurisdiction 47 49. hath Cognisances of Vsury 47. of Avoidances Bigamy and Bastardy 48. grant Administration 51. visit Hospitals and call Executors to account 154. hath power to fine and imprison 157 239. to keep Courts but the Authority doubtfull 235. have Cognisance of the Heresie 156 236. Matrimony Non-residency 236. In Queen Elizabeths time their jurisdiction left in doubt 286 c. Oath ex Officio first brought in by the Church-men in matters Ecclesiastical 157. afterwards by the Parliament into the Star-chamber in cases criminal 244 P. PArdon of Crimes not absolutely in the King 19 Parliament without the King consisting of three States 117. without the Clergie 58 Parliaments power in ordering of the Crown 127 228 277 In ordering the Kings Person by Protectors 14. vide Protector In ordering their children In ordering their Family 15 129 In ordering their Revenues 16 129 115 In ordering their Councel 141 In the Militia vide Militia and War In conferring places of Honor and Trust
Parliament is looked upon as the cheif supporters in the maintaining both the Honour and Power of that Authority that otherwise would fall under contempt A work that must be done with a curious touch or a cleare hand or they must look for the like Censure to that of a King to a great Lord that Crowned him My Lord I like your work very well but you have left the print of your fingers upon my Crown Such was the condition of these times wherein a Child and two Women are the cheifs but ever under the correction and direction of the Common Councel in matters of common concernment Two things declare the point the course of the Title of the Crown and the order of the powers thereof The Title ever had a Law which was at the Helm although diversly expounded Kings ever loved the rule of inheritance and therefore usually strained their Pedegree hard to make both ends meet though in truth they were guilty oftentimes to themselves that they were not within the degrees The People ever loved the Title of Election and though ever they joyned it to the Royall blood and many times to the right Heire to make the same pass more currant without interruption of the first love between them and their Princes yet more often had they Kings that could not boast much of their birth-right in their first entry into their Throne Of three and twenty Kings from the Saxons time foure of the former had no Title by inheritance the two Willams Henry the first and King Steven of two others Viz. Henry the second and Richard the first had right of birth yet came in by compact The seventh which was King John had no title but election The eight Viz. Henry the third came in a Child and contrary to compact between the Nobility and the French Lewes the ninth and tenth succeeded as by unquestionable Title of discent yet the Nobles were preingaged The eleventh which was Edward the third in his entry eldest Son but not Heire for his Father was alive but his Successor was his Heire its true there were other Children of Edward the third alive that were more worthy of the Crown but they were too many to agree in any but a Child that might be ruled by themselves Three next of the ensuing Kings were of a collatterall line Their two Successors Viz. Edward the fourth and Edward the fifth were of the right line yet Edward the fourth came in by dissesin and Edward the fifth by permission Richard the third and Henry the seventh were collatterall to one another and to the right blood Henry the eighth though when he was King might claime from his Mother yet came in as Heire to his Father And if Edward the sixth was right Heire to the House of Yorke by his Grand-Mother yet cannot the Crown be said to descend upon the two Sisters neither as Heires to him nor Henry the eighth nor to one another so long as the Statute of their illigittimation remained which as touching Queen Mary was till three Months after her entry upon the Throne and as touching Queen Elizabeth for ever for that Virago provided for her self not by way of repeale as her Sister had done but more tenderly regarding the Honour of her Father and the Parliament then to mention their blemishes in Government by doing and undoing She overlooked that Act of Henry the Eighth and the Notion of Inheritance and contented her self with her Title by the Statute made by her Father in his thirty fifth yeare which to her was a meere purchase and was not ashamed to declare to all the World that She did have and hold therby and that it was high Treason for any Subject to deny that the course of the Crown of England is to be ordered by Act of Parliament And this power did the Parliament exercise not onely in ordering the course of the Crown to Queen Mary and Queen Elizabeth but during the Reign of Queen Elizabeth so far as to dis-inherit and dis-able any person who should pretend Right to the Crown in opposition to the Right of Queen Elizabeth and upon this point onely did the whole proceedings against Mary Queen of Scots depend who claimed to be and doubtless was Heir unto Henry the eighth after the determination of his right Line and yet She was put to death for pretending Right by the Common Law in opposition to the Act of Parliament True it is that this Doctrine doth not down well with those that do pretend to Prerogative aided as they say by the Act of Recognition made to King James and the Oaths of Supremacy and Allegiance which do make much parly concerning Inheritance and Heirs nevertheless it is as true that the Act of Recognition made no Law for the future nor doth the same cross the Statute of 13 Eliz. nor doth it take away the power of the Parliament from over-ruling the course of the Common Law for after Ages Nor do the Oaths of Supremacy and Allegiance hold forth any such Obligation unto Heirs otherwise then as supposing them to be Successors and in that relation onely And therefore was no such Allegiance due to Edward the sixth Queen Mary or Queen Elizabeth untill they were actually possessed of the Crown as may appear by the Oath formed by the Statute of Henry the eighth touching their Succession Nor did the Law suppose any Treason could be acted against the Heirs of Edward the sixth Queen Mary or Queen Elizabeth untill those Heirs were actually possessed of the Crown and so were Kings and Queens as by express words in the severall Statutes do appear Nor did the Recognition by the Parliament made to Queen Elizabeth declare any ingagement of the People to assist and defend her and the Heirs of her Body otherwise then with this Limitation Being Kings and Queens of this Realm as by the Statute in that behalf made doth appear And lastly had these Oaths bin otherwise understood the Crown had by the vertue of them been pre-ingaged so as it could never have descended to Queen Mary Queen Elizabeth or King James but must have remained to the Heirs of Edward the sixth for ever Secondly the same power that the Parliament exercised in ordering the course of succession in the Crown they exercised likewise in determining and distributing the Powers and Priviledges belonging to the same for these Times were full of Novelties The Crown had formerly fitted a childes head more then once but it never tried to fit a Womans head since the Saxon Times till now that it must make triall of two France might afford us a trick of the Salique Law if it might finde acceptance And the unsettled estate of the People especially in matter of Religion might require the wisest man living to sit at the Helm and yet himself not sufficient to steer a right course to the Harbour Nevertheless the Parliament having the Statute of Henry the
eighth to lead the way chose rather to pursue a Rule then to make one and soon determined the point viz. That the Crown of England with all the Priviledges thereof equally belong to a Woman in possession as to a Man or Childe A bold Adventure I say it was but that Henry the eighth was a bold Leader and yet the bolder it was if the consequence be considered for Queen Mary as a Woman brought in one new President but in her Marriage a worse for she aimed not onely at a forrain blood but at a Prince in Power and Majesty exceeding her own and thereby seeking advancement both to her self and her Realm indangered both The matter was long in debate between the Spanish and English and now had busied their wits above ten years at length a Supremacy is formed sutable to the Lord and Husband of Queen Mary that could not be content to be one inch lower then her self Philip had the name of a King and precedency and in many cases not without the Allegiance of the English Their offences against his person equally Treason with those against the Queens own person and Indictments run Contra pacem coronam D. Regis Reginae That in some cases he participated in the Regal Power may appear in that by the Articles he was to aid the Queen in the Administration of the Kingdom he joyned with the Queen in the royall Assent and in Commissions Letters Patents and in Writs of Summons of Parliament as well as others yet in the words the Crown is reserved onely to the Queen and she must reign as sole Queen Now if the King had broken this Agreement either the Parliament must over-rule the whole or all that is done must be undone and England must bear the burthen A Queen Regent is doubtless a dangerous condition for England above that of an Infant King unless she be married onely to her People This was observed by Queen Elizabeth who therefore kept her self unmarried nor did the People otherwise desire her Marriage then in relation to Posterity Few of them liking any one of their own Nation so well as to prefer him so highly above themselves and fewer any Forrainer This was soon espied by forrain Princes and the Queen her self perceiving that she was like to receive prejudice hereby in her interest amongst them signified by her Embassadours that she never meaned to stoop so low as to match with any of her Subjects but intended to make her choise of some forrain Prince who neither by Power or Riches should be able to prejudice the interest of any of her neighbouring Princes A pretty Complement this was to gain expectation from those abroad and better correspondency thereunto Upon this ground divers Princes conceived hopes of more interest then by triall they could finde And the Arch-duke of Austria began a Treaty which seemingly was entertained by her but her Proposals were such as silenced all those of the Austrian Interest for ever after viz. 1. That the Romish Religion should never be admitted into England 2. That no man that she married should ever wear the Title of King 3. That no Forrainer should ever intermeddle in the Rule and Government of the Church or Common-wealth nor in the Ministry of the Church 4. That if he survived the Queen he should never challenge any Title or Interest in the Government or any Possession in England 5. She would never marry any one that she might not first see So as either she aimed at some inferior Prince that durst not look so high or else she did but make semblance till she was nigh fourty years old and in all declared that she liked not her Sister Maries choise To these two Powers of Determining and Distributing I shall add a third of Deputing which the Parliament exercised as formerly it had done Henry the eighth had in Ecclesiastical matters exercised a Power beyond the reach of Law and yet by Parliament had provided positive Laws by which the same ought to have been ordered these were also confirmed in Edward the sixths time with some Additionals By these particular Commissioners were appointed for the making of Ecclesiastical Constitutions and the King himself had a power Episcofactory without Conge deslire They likewise limited the power of Ecclesiastical Courts altered their Process reformed their Censures even that grand Censure of Excommunication it self The like or much more may be said of their deputing power in Civil Affairs as well inlarging the Kings power as in abridging the same for whereas some of the Successors of Henry the 8. had power by vertue of his Letters Patents after 24 years of age to annull any Act of Parliament by them made before that Age. In the time of Edward the sixth notwithstanding the Proviso in that Law and although Edward the sixth was not then twelve years old yet the Parliament repealed all and restored to Edward the sixth onely that power for the time to come but not to any of his Successors and whereas Henry 8. had gained to himself his Successors a Legislative Power by Proclamation the Parliament in Edward the sixths time took the fame quite away and reduced Proclamations into their former sober posture The like may be observed of the power of the Parliament in ordering the Lives Members and Estates of the People in matters criminal and in making and altering Courts of Justice and bounding their power altering their Process abridging their Terms for Judicature reforming Errors in pleading amending common Conveyances and Assurance as in passing Fines with Proclamations their course in the County Palatine Limitations of Prescription fraudulent Deeds Recoveries by Collusion c. in all which the Crown had no power but in and by the Parliament Many particulars more might be added if the matter so required for the Statutes are more full in these later Times then formerly and may soon lead us beyond a just Period in so clear a matter CHAP. XXXVII Of Jurisdiction Ecclesiastical in these last Times IN the general and in relation to the forrain Jurisdiction of Rome it was like a Childe in an Ague under Fits of Heat and Cold but in it self under the Prelacy still growing in stature though not in strength Edward the sixth came in like a storm that tore up Episcopacy by the Roots yet a Top-Root remained intire with the stock bearing shew of a kinde of Divinity that though bared of the old Soile of the Papacy yet transplanted into the new Mould of Royalty soon conveyed a new life which made the stock still flourish and grow into a better condition then formerly it had Their Legislative power in matters concerning their own interest though in outward view seeming their own yet was doubly disturbed from the Pope and the King who though many times opposed one another yet evermore were both of them in opposition to the Church with the greater bitterness by their