at a distance and after long delay But Edward the Third sums up all into one breif and brings a compleate modell thereof into the World for future Ages to accomplish as occasion should lead the way The cours was now established to have Justices settled in every County there to be resident and attending that Service First they were named Guardians or Wardens of the Peace but within a few yeares altered their Title to Justices First they were chosen out of the good and lawfull men of each County After that they were two or three chosen out of the worthiest men and these were to be joyned with Lawyers Then was one Lord and three or foure in each County of the most worthy men adjoyned with Lawyers Afterward in Richard the Seconds time the number of Justices in each County might attain to the number of six and no Steward of any Lord to be admitted into the Commission but within half a yeare all is at large so be it that the choise be out of the most sufficient Knights Esquires and Gentlemen of the County Again within two yeares the number in each County is set at eight yet in all these the Judges and Serjeants were not reckoned so as the work then seemeth not so much as now a dayes although it was much of the same kinde and yet it grew up into that greatnesse which it had by degrees Before they were settled by Edward the Third there were Custodes pacis which might be those whom we now a dayes call the High-Constable of the Hundred whose work was purely Ministeriall Afterward about the second yeare of Edward the Third the Guardians of the Peace had power of Oier and Terminer in matters of riding Armed upon the Statute 2. Ed. 3. After that they have power of inquiry by Indictment in certain Cases within foure yeares after they have power of Oier and Terminer in Cases of false Jurors and maintenance and about tenne years after that they obtained like power in matters of Fellony and Trespasse The way of Commissions in case of life and member thus opened another occasion of Commission offers it self for a determinative power in case of offences against the Statute of Labourers and the Cognisance hereof is soon settled upon Commissioners in the Counties specially chosen for that Service which questionlesse as the times then stood was as commendable work as it was necessary For Souldiers were so many that Labourers were very few and those that once are accustomed to Armes thinke ever after meanly of the handycraft nor will they ever stoop thereto after their Spirits are once elivated by Mastery of Adventures And secondly those few Labourers that remained of the Sword Plague and other disasters of these wasting times understood their advantage and set a value upon their labours far above their merit apprehending that men would rather part with too much of a little then to let their work lie still that must bring them in all they have but these Commissioners lasted not long though the worke did The Justices of Peace are looked upon as meet for that service and its a vain thing to multiply Commissions where the work may be done by one that before this time had obtained an additionall Cognisance of all Causes of Riots Batteries wandering dangerous Persons and offences in Weights and Measures and in Purveiance To them I say all this work concerning Labourers is also committed by the Parliament and herewith a way was laid open for Crimes of greatest regard under Fellony to be determined by triall in the Countrey according to the course of Common Law The issue of all which was not only ease to the People but a great escape from the rigor of the Councel-Table in the Star-Chamber and the Kings-Bench at Westminster on the one side and also from the gripe of the Clergy on the other who hitherto held the Cognisance of the Markets in Weights and Measures to themselves This modell so pleased all men that Richard the Second that was pleased with nothing but his owne pleasure gave unto the Justices of Peace yet further power to execute the Statute at Northampton against riotous ridings and to settle the wages of Labourers and Servants to punish unlawfull Huntings by the meaner sort of people and regrators of Wooll fals Weights in the Staple unlawfull wearing of Liveries and unlawfull fishings contrary to the Statute at Westminster 2. Thus was the power of Justices of the Peace grown to that heighth in these and other things that it undermined not onely the Councel-Table and Kings Bench but the Commissions of Gaole delivery and of Oier and Terminer so farre forth as their work was much lesse then formerly for Neighbous in cases of Crime are better trusted with the lives and estates of men then strangers so as in all this the people are still the gainers The manner of Judicature by these Justices of the Peace still remains nothing appears by any Statute in these times that one Justice of the Peace might doe alone but record a forcible detainer although questionlesse in point of present security of the Peace and good behavior by the intent of the Statutes he might doe many things but in Cases of Oier and Terminer all must be done in publique Sessions which the Justices of the Peace had power to hold by Commission onely untill the thirty sixth year of Edward the Third and ever after that they held their Sessions by vertue of the Statutes and had power to determine divers things in their Sessions according to discretion These were remedies after the Fact now see what preventing Physick these times afforded One thing that much irritated the spirits of men into discontents was false newes or slanderous reports raised and spread amongst the great men For in these times the Lords were of such considerable a power as the vexation of one Lord proved the vexation of a multitude of the meaner sort and though the Statute of Westminster the 1. formerly had provided against such tales yet it touched onely such as concerned discord between the King and People although by implication also it might be construed to extend further But Richard the Second willing to live in quiet that he might injoy his pleasure would have the people know their duties in plain words and agreed to a Law that all such as published such false newes tending to sow strife between the great men should be imprisoned untill the first mover was found and if he were not found then the Relator should be punished by advice of the Councell So much power was then given to the Councell what ever it was Thus the seed was choked or was so intended to be though every passion was not thus suppressed For some angers conquer all feare and will hold possession come what will In the next place therefore provision is made against the first actings in sorting of parties by
from such an ayre Two Kings we have at once in view both of them of an elate spirit one working more closely by cunning the other more openly by Command yet neither of them pretending so high as to doe all or be all in all Peace suited more with Henry the seventh then with his Son who delighted to be accounted terrible rather then good yet both of them were glad enough to be at peace at home and were industrious to that end though by severall meanes Henry the seventh pretended Justice and Peace a welcome news to a people that formerly accounted nothing theirs but by the leave of the Souldier and therefore sets upon the reformation of the Sheriffs Courts in the entring of Plaints and making of Juries suitable to that present time wherein men of Estates were very scarce and much of the riches of the Nation evaporated into the Warrs both Civill and Forraine although the continuance of that order concerning Juries in the succeeding times of opulency hath brought these Courts into contempt and made way thereby for the Kings Courts to swell in glory and to advance Prerogative even above it selfe Secondly He reformes Goales as well in their number as their use During the Civill Warrs every small party of men that could get a strong place made the same not only a Castle but a Goale and usually imprisoned and ransomed at their owne pleasure For remedy whereof Henry the seventh restores all Goales to the Sheriffs saving such as hold hy Inheritance and gives power to two Justices of the Peace one being of the Quorum to take Baile in cases bailable and Recognisances of the Peace to be certified at the next Sessions or Goal-Delivery Thirdly Both Kings concurr in providing against such disorders as more immediately did trench upon the publique Peace and reached at the Crowne it selfe by labouring to prevent by severe punishing and lastly by regulating the proceedings of Judicature in such cases These disorders were two Inordinate wearing of Liveries and unlawfull Assemblies The first being in nature of unlawfull assembly of minds and spirits of men the second of their bodies and persons Both these had formerly been provided against but the Judges of the Common Law unto whose Cognisance these Crimes were holden did restrain their punishments to the rule of the Common Law then thought to be too facile and mean for disorders that did flye at so high a pitch and therefore they are reduced before a higher tribunall as matter of State as hath been already mentioned The severity of punishment consisted not so much in aggravating the paine as the Crime matters of injury being made Felonies and those Treason This crime of Treason at first it concerned matters acted against the Nation afterwards it reached to matters acted against the King now it reacheth even to the very thoughts and imaginations of the heart not onely of bodily harme to the King but of the Queen or their heires apparent or tending to deprive them of their Title or Name of Royall Estate This crime was formerly made but Felony by Henry the seventh and then onely extended to such offence committed by one of the Kings houshold against the Person of the King or a Lord or any of the Councell Steward Treasurer or Controller so as the person of the Queene was not then in the Case and yet then newly Crowned and at that instant bearing in her womb that royall seed which was then the onely earnest of the stability and glory of England and therefore is it a subject of wonderment unlesse it were out of extremity of Jealousie least he should seem to make too great account of her title and thereby disparage his owne and then is it a peice of wit but not without weaknesse for he that is jealous of the slightings of other men shews himselfe unresolved in his owne pretentions Now Henry the Eighth not onely raiseth the price but addeth to the thing and not onely putteth the Queen but the Prince or Heire apparent into the Case making the same Treason So as it implyeth that English Allegiance tyeth the Subject not onely to the safety of the Person of the King but also of the Queen and Heire apparent otherwise the offence is made and declared Treason against the King Secondly the Election of the object is to be considered for whether the one or other Statute be observed it will appeare that although the King was the next object expressed yet a further was intended and that the Crime is not intended in regard of his naturall Capacity as a man but of his politique Capacity and in relation to the Common good of the Nation and this is evident not onely from the severall Prefaces of the Lawes but also from the manner of Election whereby the Title of Heire apparent is taken up and not the eldest Sonn or Daughter or these and not the other Children all which are equally dearly beloved in Naturall regard Thirdly though at the Common Law Treason be properly a Crime against Allegiance yet as in cases of Felony Crimes may be by the Statute made as Treason which at the Common Law are not against the legiance of an English man for this remaineth ever one and the same but one and the same fact may be made Treason and unmade by the Statute-Law as befell this Law of Henry the eighth by a Law within twenty yeares after like as also in former times one and the same fact hath many times received the like measure Other Treasons besides these already mentioned were by Henry the eighth created as Marriage with any of the Kings Sisters Daughters or Aunts of the Fathers side or the Daughters of his Brethren or Sisters without consent first had of the King Counterfeiting of currant Money not of the Kings Coynage was likewise made Treason by Henry the seventh who was well seen in that Mistery of Money-Trade and the like also became of Counterfeitures of the Kings Privy Signet and signe manuell And Lastly that horrid trick of poysoning was reduced to this Category rather that the Penalty might be more terrible in the Death which was by boyling then for any Tincture in the Nature of the Crime or in any Forfeiture of Estate The policy of these times thus irritated against Treason had proved very irreguler if the same had not been as rigid in cases of Felony diverse new ones of that kind are also dubbed amongst which Conjuration or Witchcraft comes first an old Felony in the Saxons time but since had gotten its Clergy now well nigh for the space of five hundred years and they it so as it never walked abroad amongst the Laity but under the favour of the Cloystered People nor ever came before the Civill Power till now Henry the eighth brought it forth into its own ancient and proper regiment Other Crimes being those of the season are made into the the same degree Such
full wherein we have a Childe a Virgin and a married Woman to sway the Work all of them in a very unmeet condition for such a Trust and yet by the help they had they managed it well enough The power of him as King or General in the Army is all one but before it is imbodied as a King onely he may do some things in order thereto according to the Law and Custome of the Nation yet this fals under a double consideration of the time and occasion In the recess of the Parliament he is the first mover and ought to move by the advice of his Councel if occasion do provoke to Arms but if the same befall the Parlaiment then sitting no History or Record do mention that ever he moved but by their concurrent advice and direction The occasion either provoketh offensive or defensive War with other Nations or with the People of his own Nation in the case of Insurrection Examples of War with other Nations that may be called offensive Wars we have but two one in Edward the sixths time with Scotland and which was but in pursuance of a War begun by his Father and wherein the Kingdom stood ingaged in a case that concerned the publique good and safety viz. the Marriage of their King refused after promise made The other was in the time of Queen Mary with the French which somewhat reflected also upon the publique safety but more upon the dishonor of the same In none of these did either of the Supreme Powers array or raise men by Prerogative but onely such as were Volunteir in that Work And because the People were ill principled in Edward the sixths time in regard of the change of Religion he was induced to hire forrain aid out of Germany The Wars in the time of Queen Elizabeth were in order to the Defence of this Nation being ever under a malignant Aspect from abroad especially from Spain in Ireland France and the Low Countries yet were these Wars served onely by Volunteirs nor did any Commission give power of impresting men to serve against their wils in any Expedition made to any of those places as the Commissions upon Record do testifie If any Levies of Men were otherwise made or compulsory means used for such ends they are to be reckoned up amongst the errata whereof the Parliament took no notice in regard it saw the ends and issues of such reflexions in Government to be succesfull and honorable and that all was done by Councel and a Woman popularly affected and therefore less feared invasion upon their Liberties or otherwise they are to be imputed to the condition of those places being Members of the Common-wealth as the cautionary Townes in the Low Countries and the Irish Plantations were and so befall under another consideration of a defensive War in case of invasion and common danger therby or by intestine broils during which condition as it is the Kings duty to levy and array men so is it the duty of the People to be ready to assist one another in all such exegencies and to defend the publique Liberty nevertheless these Arrays are not left wholly at the Will of the King but to discretion of the Councell how far the same shall extend For never were generall Arrayes made where but one Coast was in danger and where no conquest is in pretence but only piracy or plunder But if the disease were generall as it was in the yeare 88. the Array was generall and yet it was of none but those that were of the Trained bands besides such as were Volunteir Secondly The arming of these men was also diversly there was no generall rule or Law for the arming of men since the times of Edward the first to the time of Queen Mary but the Statute at Winton the course of Tenures I mean of such men as were of the Militia of this Kingdom So as when they were raised they were raised in their own armes But for such men as passed the Seas for forrain Service as they were Volunteirs or sent over by the Parliament these were armed acccording to speciall contract But Queen Mary having gotten a safe reserve from Spaine upon all adventures and a strong Interest amongst the People by upholding the Catholique party made no bones to innovate in the point of arming of the Militia although it cost the People much more then was imposed upon their Ancestors The pattern hereof was taken from the Spanish Cabinet the Q. being loth to be inferior to her own Husband in bringing as much strength to him as he to her and both of them willing enough to appeare potent in the eyes of France that then stood in competition with them both A yoke it was yet neither the King nor Queens Will but the Parliament put it on and ere an age expired was cast off again For the better understanding see it in this Scheme Per Annum Lances Light Horse Corslets Bowes Hacquebuts Bills 1000. l. 6. 10. 40. 30. 20. 20. 1000. marks 4. 6. 30. 20. 10. 10. 400. l. 2. 4. 20. 15. 6.  200. l. 1. 2. 10. 8. 3.  100. l.  2. 3. 3. 2.  100. marks  1. 2. 2. 1.  40. l.   2. 1. 2.  20. l.   1. 1. 1.  10. l.   A Coate of Plate 1. 1.  5. l.   A Coate of Plate 1.  1. Goods 1000. marks 1. 1. 2. 4. 3.  400. l.  1. 1. 2. 1.  200. l.   1. 2. 1.  100. l.   1. 2.   40. l.   Two Coats of Plate 1.  1. 20. l.   One Coate of Plate 2.  1. 10. l.    1.  1. The Lances were to be compleatly harnised or the one half of them the Corcellets furnished with Coates of Maile and Pikes the Bowes with an Iron Cap and a sheaf of Arrowes The Hackbuts with Sallets all which was to be over and besides such Armes as men were bound unto by Tenure or Covenant with the Landlord or by vertue of the Statute 33 H. 8. ca. 5. besides town-ships which were charged with joint Armes Annuities and Coppy-holds were charged as goods If the Armes were lost in the Service the owner must make them good again The defaults were punishable with fine by the Justices of the Peace who had the view and might present them at the Sessions to be procceded upon as in other Cases Here is provision enough yet not as the Armes of the Militia of the Kingdom but as a Magazine in the hands of every particular man and as his proper goods to be imployed for the publique Service either upon sudden invasion in a defensive Warr or when the Parliament shall send them abroad And yet it is also a rule unto the Crown against arbitrary Assessments upon discretion from which it cannot recede if it mean to do right It might now very well stand with the
THE CONTINUATION OF AN HISTORICALL DISCOURSE OF THE GOVERNMENT OF ENGLAND Vntill the end of the Reigne of Queene ELIZABETH WITH A Preface being a Vindication of the ancient way of Parliaments in ENGLAND By Nath Bacon of Grais-Inne Esquire LONDON Printed by Tho Roycroft for Matthew Walbanck and Henry Twyford and are to be sold at Grais-Inne Gate and in Vine Court Middle Temple 1651. The Contents of the severall Chapters of this Book I. THe sum of the severall Reignes of Edward the third and Richard the second fol. 3. II. The state of the King and Parliament in relation of him to it and of it to him fol. 13. III. Of the Privy Council and the condition of the Lords f. 26. IV. Of the Chancery fol. 35. V. Of the Admirals Court. fol. 41. VI. Of the Church-mens Interest fol. 45. VII Concerning Trade fol. 64. VIII Of Treason and Legiance with some considerations concerning Calvins Case fol. 76. IX Of Courts for causes criminall with their Laws fo 92. X. Of the course of Civill Justice during these times fo 96. XI Of the Militia in these times fol. 98. XII Of the Peace fol. 108. XIII A view of the summary courses of Henry the fourth Henry the fifth and Henry the sixth in their severall Reignes fol. 115. XIV Of the Parliament during the Reignes of these severall Kings fol. 127. XV. Of the Custos or Protector Regni fol. 134. XVI Concerning the Privy Councell fol. 141. XVII Of the Clergie and Church-government during these times fol. 146. XVIII Of the Court of Chancery fol. 162. XIX Of the Courts of Crown Plas and Common Law fo 165 XX. Concerning Sheriffs fol. 168. XXI Of Justices and Lawes concerning the Peace fol. 170. XXII Of the Militia during these times fol. 175. XXIII A short survey of the Reignes of Edward the fourth Edward the fifth and Richard the third fol. 181. XXIV Of the Government in relation to the Parliament fol. 187. XXV Of the condition of the Clergie fol. 191. XXVI A short sum of the Reignes of Henry the seventh and Henry the eighth fol. 194. XXVII Of the condition of the Crowne fol. 202. XXVIII Of the condition of the Parliament in these times fol. 223. XXIX Of the power of the Clergy in the Convocation f. 229. XXX Of the power of the Clergy in their ordinary Jurisdiction fol. 232. XXXI Of Judicature fol. 241. XXXII Of the Militia fol. 245. XXXIII Of the Peace fol. 253. XXXIV Of the generall Government of Edward the sixth Queen Mary and Queen Elizabeth fol. 259. XXXV Of the Supream power during these times fol. 268. XXXVI Of the power of the Parliament during these times fol. 277. XXXVII Of the Jurisdiction Ecclesiasticall during these last times fol. 283. XXXVIII Of the Militia in these later times fol. 290. XXXIX Of the Peace fol. 297. XL. A summary Conclusion upon the whole matter fol. 300. A PREFACE CONTAINING A Vindication of the Ancient way of the Parliament OF ENGLAND THE more Words the more Faults is a divine Maxime that hath put a stop to the publishing of this second part for some time but observing the ordinary humor still drawing off and passing a harsher censure upon my intentions in my first part then I expected I doe proceede to fulfill my course that if censure will be it may be upon better grounds when the whole matter is before Herein I shall once more minde that I meddle not with the Theologicall right of Kings or other Powers but with the Civill right in fact now in hand And because some mens Pens of late have ranged into a denyall of the Commons ancient right in the Legislative power and others even to adnull the right both of Lords and Commons therein resolving all such power into that one principle of a King Quicquid libet licet so making the breach much wider then at the beginning I shall intend my course against both As touching the Commons right jointly with the Lords it will be the maine end of the whole but as touching the Commons right in competition with the Lords I will first endeavour to remove out of the way what I finde published in a late Tractate concerning that matter and so proceede upon the whole The subject of that Discourse consisteth of three parts one to prove that the ancient Parliaments before the thirteenth Century consisted onely of those whom we now call the House of Lords the other that both the Legislative and Judiciall power of the Parliament rested wholly in them lastly that Knights Citizens and Burgesses of Parliament or the House of Commons were not knowne nor heard of till punier times then these This last will be granted Viz. That these severall titles of Knights Citizens and Burgesses were not known in Parliament till of later times Neverthelesse it will be insisted upon that the Commons were then there The second will be granted but in part Viz. That the Lords had much power in Parliament in point of Jurisdiction but neither the sole nor the whole The first is absolutely denyed neither is the same proved by any one instance or pregnant ground in all that Book and therefore not cleerly demonstrated by Histories and Records beyond contradiction as the Title page of that Book doth hold forth to the World First because not one instance in all that Book is exclusive to the Commons and so the whole Argument of the Discourse will conclude Ab authoritate Negativa which is no argument in humane testimony at all Secondly the greatest number of instances in that Booke are by him supposed to concerne Parliaments or generall Councils of this Nation holden by the Representative thereof whereas indeed they were either but Synodicall Conventions for Church matters whereunto the poore Commons he well knoweth might not come unlesse in danger of the Canons dint or if they did yet had no other worke there then to heare learne and receive Lawes from the Ecclesiasticks And the Lords themselves though present yet under no other notion were they then as Councell to the King whom they could not cast out of their Councell till after Ages though they often endeavoured it Thirdly the Author of that Tractate also well knoweth that Kings usually made Grants and Infeodations by advice of the Lords without the ayde of the Parliament And it is no lesse true that Kings with the Lords did in their severall ages exercise ordinarily Jurisdiction in cases of distributive Justice especially after the Norman entrance For the step was easie from being Commanders in Warr to be Lords in peace but hard to lay downe that power at the foot of Justice which they had usurped in the rude times of the Sword when men labour for life rather then liberty and no lesse difficult to make a difference between their deportment in commanding of Souldiers and governing of Countrey-men till peace by continuance had reduced them to a little more sobriety Nor doth it seeme irrationall that private differences
had they might let to Farme And then wherein are the People the better for these Lawes Seeing its all one for them to be oppressed by the Sheriffe immediately and by the Proxie For preventing of this inconvenience another Law is made That the Sheriffe shall not let his Bailywicke to Farme nor be Nonresident and to this he must binde himselfe by Oathe So as now the Sheriffe is double girt and may be fairely ridden without danger to the King or People But men ride horses for ease and pleasure and he that must bend his minde alwayes to watch his horses motion will choose rather to goe on foote and therefore Henry the Fifth renewed the Law of Richard the Second that Sheriffs shall be but for one yeare and then not to be chosen again nor serve for three yeares next following This Order continued for the space of eight yeares within which time Warre and Pestilence had consumed so many of the richer sort of People that a Dispensation is granted that Sheriffs may continue in their places for foure yeares And it was above twenty yeares after ere the Stocke was recruted againe after which time the substance of the former Statutes of Edward the Third Richard the Second and 1. Henry the Fifth is revived againe with a penaltie upon the Sheriffe his Deputy or Clerke that shall execute that place above one yeare so the custome of holding that Office tenne or twelve yeares by occasion of the Dispensation for foure yeares was laid aside But the Cure would never be perfect so long as Sheriffs held by Inheritance For it was easie to finde new Deputies but not to lay downe old Customes nor could it be lasting unlesse the penalties also had beene annexed to the particular crimes For a Sheriffe before he is a yeare old by experience formerly had becomes too cunning for all these Lawes and therefore Lawes are made also against the ordinary corruption of these places such as are extorting of Fees false making of Juries false returnes of Writs c. and damages in such cases given to the party wronged and when all is done he is not trusted with taking of Indictments Thus with much adoe a Sheriffe is made a tollerable Officer and his place by Degrees so hedged in that what was in former times hard to plucke up is now become hard to sett CAHP. XXI Of Justices and Lawes concerning the Peace THe faint title of Henry the fourth to the Crowne made him ever tender of the Civill Peace without breach whereof he was sure to be quiet in the Throne he undertooke not this worke by any superlative power from and by himselfe but useth the help of the Parliament and Lawes wherein he was industrious pretending love of Unity amongst his People which neverthelesse he liked not unlesse in order to quiet between himselfe and them The former way of Justices of Peace he followed close reducing the Persons to their ancient qualifications The most sufficient Persons Inhabitants in the County worth at least twenty pound yearly unlesse they be Lawyers or such as are Justices in Corporations nor is the King troubled or trusted with the naming or electing of these men but the Chancellor or the Kings councell so as now by Law the King can neither be Justice nor make Justice Jure proprio but as his interest with the Councell is more or lesse prevalent and that power that first gave it to the Crowne the same power tooke it away or imparted and placed it elsewhere But as touching the Worke or Power of the Justices themselves it grew exceedingly much wheerof was onely of inquiry and to make Certificate as of Herisie Treason Falshood of Sheriffs c. But more of Oier and Terminer as in Case of Watches deceitfulnesse in Trades as of making arrow heads guilding of Mettall tanning of Leather inbasing of Silver selling of waxen Images and Pictures c. for the superstition of these times was such as these petty Gods were not set at so high a Price by the Seller but at a higher price by the Buyer the Parliament therefore set a truer vallue of them Viz. For the Wax so much as the Wax is worth by weight and but foure pence for the Godhead so as it seemes the Parliament was not very superstitious in their House what ever they were at Church Further-more the Justices of the Peace had power to punish deceit in Measures Weights forcible entries and Detainers In many of which Cases the Penalty being fine and imprsonment became a snare to many of the Justices especially such as were of the greater and higher ranke who having Castles of their owne under colour of justice imprisoned Delinquents in their owne Castles and ransomed them at their owne pleasure which proved a great oppression to the People and occasioned a Law that no Justice should commit any Delinquent to other then the County Goale saving Franchises to the Lords Those times are happy when justice waites not altogether at Court but growes up in the feilds and Justices of Peace as the Kings armes upon the Royall Mace are terrible onely to the bad and not as they are pictured before an Ale-house door to invite men to transgresse The Lawes for the preservation of the Peace concerne either punishment of Crimes committed or prevention of them from being committed There is a succession of Crimes as of men and ages because the Scripture tells us that the hearts of all are fashioned alike yet it is with generations as with men some incline to some Crimes more then other and that is the reason that the title Treason sometimes is set forth in Folio sometimes in a lesser Volume It s evident in Story that the violent times of Richard the second had raised the vallue of that amongst other offences above measure not long before his time his Father had reduced that wilde Notion of Treason to a certaine rule that formerly wandred in a Wildernesse of opinion But Henry the fourth either to save his own Stake or to take the People or both reduced it againe to the Statute rule of Edward the third and made void that Statute of his Predecessors which had made a former Act of Parliament and all the service thereby done Treason The dimensions of Treason thus clearly limmed and declared taught ill disposed mindes to keep out of the Letter and yet to be bold with the sense counterfeit Money they durst not yet to diminish the same they thought came not within the circle and so it became a common greivance till a Law was made that all purposed impairing of Mony shall be Treason And so the Parliament held forth to all men that they had a power to declare Treason without the bounds of the Statute of Edward the third The like power it held forth in the time of Henry the sixth for men knew that Burglary and robbery were mortall crimes they would no
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
determined to be against the King but against the Man and though against the private will of the Commander yet not against the Law nor therefore can it be said illegall or unjust The Parliament in these times held forth this Doctrine plainly to the World that it is their proper work in Cases needfull to doe right to such as are wronged by the King his command is no Warrant in such Cases If a man be wrongfully imprisoned by him he shall be released and set at liberty by them Let his Act be never so authenticall under the Broad-Seale it can take no mans right away Richard the Second did his utmost to satisfie and quiet the tumultuous rabble under Cade and Straw and granted store of Manumissions to the Bond-men by Declaration and by his Letters Patents but not one of them good enough to deprive any one of the meanest of the Free-men of their rights in those Bond-men The priviledge of shewing mercy and granting pardon hath beene antiently betrusted to the King as to an Overseer of the execution of Law yet he hath not that Prerogative To have mercy on whom he will have mercy Ever since this Narion had learned to read the Bible Murder hath been excepted from mercy nor did the Law ever allow any King any Prerogative to pardon that Edward the Third did not challenge any such not onely bound thereto by his Coronation Oath but by publique Acts of State declaring the same yet because the Parliament was not alwayes sitting and Kings were ever subject to this Temptation to favour Servants by granting mercy to Malefactors a generall rule of Inhibition is made against all pardon to be granted by the King in Case of Fellony but onely in Cases allowed by advise of the Councel It s true that in the first times of Richard the Second he liked not to be thus girt in his power which he pretended was more at liberty in his Predecessors possibly he meaned King John and Edward the Second who many times did what they listed yet under his favour no Law was so shamelesse as to hold forth such a power till Richard the Seconds Law countenanced it But why doe I call it a Law which is onely a Declaration by consent of the Lords such as then were the Commons would never owne such an opinion and therefore it soone proved abortive for within three or foure yeares by publique Act of Parliament it s peremptorily declared that the Kings Pardon shall not extend to murther So as upon the whole matter its plain that it is not the Kings will though supported by the Councell of Lords and backed by the opinion of the Judges that must be a rule for the government of this Kingdome nor doth any Allegience binde obedience thereunto in Case where Justice or the liberty of the People is concerned Three things yet remain which Kings have claimed to be their own Viz. Conferring Titles of Honour and places of Trust and the Legislative power The first is but a Feather and not worthy of regard yet it is plain that these times produce many presidents of Dukes Marquesses and Earles made in Parliament and possibly it may be apparent that the first motion of any such Title of Honour did first fetch its Originall thence if not in the field But it s not worthy of the labour The second is more considerable Viz. The power of conferring places of Publique Trust This Kings have pretended unto although in course of Congruity it will be thought more meet that it belongeth rather to that cheife and grand Trust of the whole Kingdome committed to the Parliament and the Practice of these times is not much discrepant whether we regard such as are for advice or execution Of the first of these are those whom we commonly call the Privie-Councell whose advise in course toucheth first upon the Kings Person but by reflexion worketh strong impressions upon the People so far as the influence of the Kings power extends And therefore it s not beyond the Sphear of the Parliament to interpose and qualifie that influence so as it may be for the generall good of the whole Kingdome For many times Kings are either above or beneath themselves and in such Cases if the Councell be of the Kings suite he is of the deeper die and proves more Malignant to the People Edward the Third growing into great opinion in the World his Proportion exceeds his own Portion and the Peoples good wills to boote they think the fault is in the privy Councell and an Inquisition set upon it So also they doe in his fiftieth yeare when he growes downward And the like in the beginning of Richard the Seconds Reigne he being now a Youth and therefore unstable in his Resolutions and unable to make Election So as upon the whole matter if the King fall short in point of judgement or Resolution or inordinate in his Affections But more especially where they observe the Major or more considerable part of the Councell to draw towards a designe in such Cases as these the Parliament as its own duty undertooke to settle a good Councell about the Kings Person that might advise him during their Recesse For the Privy Councell is never more it selfe then when it is an Epitome of the Common Councell of the Kingdome In like manner such Officers as concern Execution of Law and Councell are as narrowly to be inquired into for if their motion be irregular it s lesse materiall what the rule be the Parliament therefore held it their duty to interpose in the Election of grand Officers of the Kingdome such as are the Chancellors Judges and Justices or to confirm or displace them or binde them by Oath the Rolls of the eighth fourteenth fifteenth and thirty sixth years of Edward the Third and the sixth tenth and eleventh years of Richard the Second do manifest this sufficiently I have done with the Subject matter or work of the Parliament in the mutuall Relation of the King and it the manner of proceeding was either joyntly with the King or without him and either joyntly with the two Houses or severally and either immediately by themselves or their Committees As touching the first its evident that in all matters wherein gain ariseth to the Crown from the people by Subsidy or otherwise the strength of the Grant by Act of Parliament resteth in the two Houses and that the Kings assent is but Pro forma as touching that matter and therefore such Grants have been made as tended in some measure to derogate either from the Kings wisedome care or fidelity yet even these have passed with the Royall Assent though the full Assent or good will of the Person of the King was not correspondent thereto as in these Cases formerly noted where Subsidies were given with Limitations and Conditions and upon rendering account to the People And it is as evident that where the Kings Person is
disabled to understand as in Case of Infancy there the Royall Assent can bear litle weight with it but most of all in the Kings absence where either the Assent is put thereto by Commissioners that know not the Kings particular minde or the Act is done onely by the Houses in nature of Ordinances and yet these of force to binde all Parties but the King But nothing more debased the Royall Assent in these times then a trick that Edward the Third plaid in the middest of the fullest strength of his Government It was in time of War which never is time of good Husbandry and laying up nor of sober advise in laying out nor of equity in levying and collecting money for the nerves of War This forward Warrier in the heat of his Atchievements findes his strength benummed for want of money he leaves off comes home rages against his A. Bishop to whom he had committed the care of Provision for his War and the A. Bishop as hotly falls upon some of the Treasury in the Army on the one side and upon others in the Countrey whose oppressions saith he in stead of bringing in money made the people to give a stop thereto A contest hereupon thus had it was concluded by the Power of the Parliament that such men should be questioned and that the Parliament from time to time should call all Officers of State to account and thereupon ensues a calme After the Parliament ended the King repeats the matter it makes his heart sick he disgorgeth himself by a Proclamation made by advise of Nobles and Wise men as he saith and tells all the World he dissembled with his Parliament and what he did was done by duress of minde to please for the time and to gain his ends which being now had he by his Proclamation revokes what he had done in Parliament or indeavoured it And thus is England put to school to learn to dissolve three hard knots First Whether a King can dissemble with his Parliament Secondly Whether Edward 3. his dissembling assent makes a Law Lastly Whether by a Proclamation by advise of Nobles and Wise men he can Declare that he dissembled with his Parliament and therein not dissemble the Royall Assent so as to bring all the Lawes made in any Kings time into question at least during his life However the result may be its evident the Royall Assent gets no honor hereby and the Statute as little that hath suffered this Proclamation all this time to passe among the number of the Statutes in Print as a Law when as many Statutes that are Lawes of note are left out as uselesse Although in the generall the two Houses joyned in every Act Ad extra yet Ad intra and in relation one to another they had their severall operations the House of Commons intermedled more in the matter of fact the House of Lords in matter of right although in either of these there is a mutuall aspect from both In matters of judicature much rested with the Lords and therefore it is ordained that The House of Lords shall remedy all offences contrary to the Law of Magna Charta And in cases where no remedy is left nor judgment by the Law the matter shall be determined in Parliament and the King shall command execution to be done according to the judgment of the Peeres Which Lawes seeme to bee but declarative of the former Lawe and in the nature of reviving that power into Act which was formerly layd asleep and doth strongly implye that the ultimate act in judicature rested with the Lords in relation not onely to the House of Commons but also in relation to the King whose work in such cases is not to judge above or with the Peers but to execute their sentence and that carries with it a list whereby the power of a King may appeare not to be so supreame in making of the Law as some would have it for if his Judgement and Conscience be bound by the Votes of the Peers in giving a Law in Case of a particuler person where the Law was not formerly known Let others judge of the value of this Negative Vote in giving Law to the whole Kingdome It s true that this Parliament was quarrelled by the King and he kept it at a bay by a Proclamation that pretended Revocation as far as a Proclamation could revoke an Act of Parliament but it effected nothing nor did the contest last long Now though this Jurisdiction thus rested in the House of Lords in such Cases as well as in others yet is it not so Originally in them as to be wholly theirs and onely as they shall order it for the Commons of England have a right in the course and order of Jurisdiction which as the known Law is part of their liberty and in the speedy execution of Justice as well as they have right to have Justice done and therefore whereas in Cases of Error and delayes the Appeale was from the inferiour Court to the Parliament which immediately determined the matter and now the trouble grew too great by the increase of Pleas For remedy hereof a kind of Committee is made of 1 Bishop 2 Earls 2 Barrons who by the advice of the Chancellor Treasurer and the Judges shall make good judgement in all Cases of Complaint of delay in Judgement which Committee is not made by Order of the Lords alone which they might have done in case Jurisdiction had bin wholly and onely shut up in their custody but by Act of Parliament and joynt concurrence of the Commons with the Lords For as the Commons challenge speedy Execution of Justice as one of their liberties So also to be under the jurisdiction of such Judges and Courts as the Lawes in the making whereof themselves challenge a Vote do establish appoint I will conclude this Chapter with the Constitution of the Parliament in these times For the difficulties that befell between the Kings and their people or Houses of Parliament wrought two sad effects Viz. A propensity to decline calling of Parliaments so often as was used and exspected and when it assembled as great a propensity in the Members to decline their attendance by means whereof as the Historians tell us the Parliament was somtimes inforced to adjourn it self for want of number sufficient the first of these arose from want of good will in the Kings the other from want of courage and zeale in the people The first of these was fatall and destructive to good Government for though in distempered Parliaments its good to withdraw yet in distempered times its necessary to meete and gain a right understanding of all parties and therefore these times were so happy as to binde themselves by publique Acts of State to recontinue the Assembling of Parliaments For the face of the Times represented unto all that Agitations were like to be quick violent and to continue for some succession of Time It s
confusion in stead of Law CAHP. VI. Of the Churchmens Interest BUt the Churchmens interest was yet more tarte standing in need of no lesse a lay then that of the Kings Authority for that the King is no lesse concerned therein then the People and the rather because it was now growne to that pitch that it is become the Darling of Kings and continually henceforth courted by them either to gaine them from the Papall Jurisdiction to be more ingaged to the Crowne or by their means to gaine the Papall Jurisdiction to be more favourable and complying with the Prerogative Royall The former times were tumultuous and the Pope is gained to joyne with the Crowne to keep the people under though by that means what the Crowne saved to it selfe from the people it lost to Rome Henceforth the course of Affairs grew more civill or if you will graced with a blush of Religion and it was the pollicy of these times whereof we now Treat to carry a benigne aspect to the Pope so farre onely as to stave him off from being an enemy whiles Kings drove on a new designe to ingratiate and ingage the Churchmen of their owne Nation unto its owne Crowne This they did by distinguishing the Office or Dignity of Episcopacy into the Ministeriall and Honourable parts the later they called Prelacy and was superadded for incouragement of the former and to make their work more acceptable to men for their Hospitalities sake for the maintenance whereof they had large Endowments and Advancements And then they reduced them to a right understanding of their Originall which they say is neither Jus Divinum nor Romanum but that their Lordships Power and great Possessions were given them by the Kings and others of this Realm And that by vertue thereof the Patronage and custody of the Possessions in the vacancy ought to belong to the Kings and other the Founders and that unto them the right of Election into such advancements doe belong and not unto the Pope nor could he gain other Title unto such power but by usurpation and incroachment upon the right of others But these Great men were not to be wonne by Syllogismes Ordinarily they are begotten between Ambition and Covetousnesse nourished by Riches and Honour and like the Needle in the Compass turn ever after that way Edward the Third therefore labours to winne these men heaped Honour and Priviledges upon them that they might see the gleanings of the Crowne of England to be better then the vintage of the triple Crown Doubtlesse he was a Prince that knew how to set a full value upon Churchmen especially such as were devout and it may be did somewhat outreach in that course For though he saw God in outward events more then any of his Predecessors and disclaiming all humane merits reflected much upon Gods mercy even in smaller blessings yet we finde his Letters reflect very much upon the Prayers of his Clergy and loved to have their Persons nigh unto him put them into places of greatest Trust for Honour and Power in Judicature that not altogether without cause he had thereby purchased unto his Kingdome the name and repute of being a Kingdome of Preists But all this is but Personall and may give some liking to the present Incumbents but not to the Expectants and therefore the Royall Favor extended so far in these times as to bring on the Parliament to give countenance to the Courts and Judiciary power of the Ordinaries by the Positive Law of the Kingdome although formerly the Canons had already long since made way thereto by practice I shall hereof note these few particulars ensuing Ordinaries shall not be questioned in the Kings Court for Commatation Testamentory Matters or Matrimoniall Causes nor other things touching Jurisdiction of Holy Church Things formerly bred by the Canon nourished by continuall practise allowed by Ordinance of Parliament or Grant from Kings in Parliament are now confirmed by solemne concurrence of the whole representative Body of the Kingdome to have and to hold with Warranty And yet the sense is not so generall as the words nor doth it seeme much other then a Confection made for the Arch Bishops appetite to cure a distemper between him and the King for the Civill Judge lost nothing hereby nor would the Crowne as may appear by a Law of equall Authority with the former for though an Executor or Administrator may cheat yet it tells us that Ordinaries onely can oppresse and extort from dead men and therefore in such cases doth provide remedy by inquiry and Indictment before the Kings Justices They shall have Cognisance of Vsury during the Delinquents life and the King after the Delinquents death The difference ariseth from the different end the first being to reforme the Person by Church-censures and to urge him to restitution the latter is for the Kings Fine or Forfeiture For as touching the Usurers estate the offence was in the nature of Felony forfeiting both Lands and goods to the King after the Delinquents death And it seemeth the manner was to Indict the Delinquent during his life and that stuck to him as a deadly arrow in his side till he died Nor did it lye in the power of the Ordinary by Ecclesiasticall censure so to reforme the Offender as to cleare him to the King unlesse the party offending made his peace with the King by Composition and thus the Law continued for ought appeareth to mee till the time of Henry the Eighth They shall have Cognisance of avoydance of Benefices of Right They shall certifie Bigamy and Bastardy had beyond the Sea and whether a Prior be perpetuall or dative The first of these concerning avoydance of Churches it seemeth was somewhat doubtfull in point of Practice for that the Civill Judge used to determine all manner of avoydances as well in Fact as of right but by this Statute they are restrained onely unto avoydances in Fact so as after this Statute it is holden that avoydances by death shall be tried by the Countrey but if the avoydance be by Deprivation Resignation Creation or otherwayes it shall be tried by the Ordinary because by common intendment he is more connusant of the thing then Countrey people But as touching the point of Bigamy the matter is more doubtfull in regard that commonly the marriage of a second Wife or Widow is a matter in Fact done in the face of the People and of which they take notice especially where the life of man is concerned which rather requireth the judgement of his Peires then where the outward maintenance onely is ingaged Neverthelesse because the main point is whether the Party be a Clerk or not and the same anciently rested upon the Certificate of the Ordinary It s by this Law again allowed to him to try and certifie this point of Bigamy also although the Statute of Bigamists might seeme to Intitle the civill Magistrate thereto as the Law
the most part grounded upon self respects and private prudence laboured to conceale that which could not be made whole by revealing and by after consent skind over the sore as to themselves which corrupted inwardly and indangered the whole body to cure which a Law is made to restrain such late connivance in the Woman by depriving her both of her Joyncture and Inheritance which otherwise had been saved to her by such compliance as after consent unto such violations CHAP. X. Of the Course of Civill Justice during these Times HOwever the course of the Law concerning matters of the Crown passed in a troubled wave yet in matters of Common Pleas it passed in a calme and full Channell as the Reports in Print doe sufficiently witnesse nor was their any change of Principles but onely some alteration tending to a clearer manifestation of the same I will not touch upon every particular but onely upon two which reflect somewhat upon the Publique pollicy the one touching the course of Inheritance in some particular Cases the other touching pleading in the Courts of Civill Justice The first of these was occasioned from Conjuncture of Affaires the Case being such that Edward the Third had now gotten himselfe a new Kingdome unto that of England and must looke to maintaine that by Power which he obtained by force and conducing thereunto must have continuall imployment of the English in that Service as being most trusty to his Cause And that it is un reasonable that such English as had devoted themselves to his Service in this Cause and in order thereunto had transported themselves and their Families into those Forrain parts should thereby loose the benefit of Leiges in the Birth-right of their Children borne in those Forraine parts Upon consideration had hereof and of a former leading Opinion of the Lawyers and Parliament a Declarative Law was made That all Children borne without the Kings Legiance whose Father and Mother at the time of their Birth shall be under the Faith and Legiance of the King of England shall have the benefit of Inheritance within the same Legiance as other Inheritors have These are the words of the Statute and doe occasion a double observation one from the matter the other from the manner of the Expression The Subject matter is so delivered not as an Introduction of a new Law but as a Declarative of the old that lay more obscurely hidden for want of occasion to reveale it and the substance thereof resteth onely in this to enable the Children of English Natives borne beyond the Seas not the Children of those that are of Forraine birth though within the Kings Teritories in those parts as the opinion hath beene nor doth any ancient President or Case warrant the same as might be at large manifested if it might conduce to the end of this discourse and for the same cause after this Statute when as the Commons would have had a generall Naturalizing of all Infants borne beyond the Sea within the Kings Segniories the same would not be granted otherwise then according to the former Statute and the Common Law That which in the next place concerneth the manner of expression is this That a Childe is said to be borne out of the Kings Legiance and yet the Father and Mother at the same time to be of the Faith and Legiance of the King of England It seemeth to me that it intendeth onely those Children of English Parents borne within the Kings Teritories beyond the Seas because the words insuing concerning Certification of Bastardy of such Children are that the same shall be made by the Bishop of such place upon the Kings Writ directed to him which could never have passed into those places that are not of the Kings Teritories and so the Issue will be that the Legiance of those born in those parts though they are Leiges to the King yet they are not of the Legiance of the King of England but as Lord of that Teritory The other matter to be observed concerning pleading in the Courts of Civill Justice is this That whereas anciently from the Normans time till these times the pleadings were in the Norman tongue they shall be henceforth in English out of an inconvenience I beleive rather supposed then felt for though some kinde of knowledge of Law-termes may be increased thereby yet unlesse that shall be professedly studied it will breed nothing but Notions and they an overweening conceit which many times sets men to suites in Law to their owne losse like some weake influence of the Celestiall bodies that are strong enough to stirre up humours but not to expell them or draw them out However even thus in part is the reproach of Normandy rolled away like that of Egypt from the Israelites at Mount Gilgall CHAP. XI Of the Militia in these Times WArre is ever terrible but if just and well governed majesticall the one may excite resistance and defence but the other Conquers before blow given because it convinceth the judgement and so prevails upon the Conscience For that heart can never be resolute in its own defence that is at Warre with its own understanding nor can such a heart consider such a Warre otherwise then as Divine and bearing the face of an Ordinance of God and then how can the Issue be unsuccessfull It is no strange thing for Kings to miscarry in their Warres because it s rarely seen that they are under good Councell but if a Christian Councell miscarry we may conclude it extraordinary in the efficient Cause and no lesse wonderful in the issue and end Upon this ground it concerneth a Christian Nation not onely in point of Honour but of safety and continuance to settle fundamentall Lawes for War against time of War as of Peace in time of Peace Neither was England deficient herein saving that ancient times were more obscure in the particulars and these dayes revealed them at such a time wherein we may say that Edward the Third approved himself not onely King of England but of himself above the ordinary strain of expectation for being now become a famous Commander and Conquerour having also an Army inured to fight and overcome and so might have given a Law he neverthelesse received the same submitting both it and himself to the Directory of the Parliament in making a Warre with France which was three to one against him in every respect but in the Title besides the disadvantage from Scotland that lay continually beating upon his reare The like may be observed of his Warre with Scotland in both which he evidently telleth the World that he held it unreasonable to enter upon the managing of an offensive Forraine Warre without the concurrence of the common consent of the people and that not onely for the thing it selfe but also for his owne personall ingagement in the Service For a King though he be the Generalissimo yet is he so from the people and his person being of that
from the Truth some of the common Books have the words thus None shall be destrained to goe out of their Counties unlesse for cause of necessity and of sudden coming of Strangers or Enemies into the Kingdome Others reade it thus But where necessity requireth and the coming of strange Enemies into the Kingdome The Kings answer to the Parliaments Declaration concerning the Commission of Array would reade it thus Vnlesse in case of Necessity or of sudden coming of strange Enemies c. But the words in the Roll are these Et que nulls ne soient distresses d'aller hors de les Countees Si non pur Cause de necessity de suddaine venue des Stranges Enemies en Reqaulme In English thus word for word And that none be destrained to goe out of the Counties if not for cause of Necessity of sudden coming of strange Enemies into or in the Kingdome which words determine the Point That none shall be by Commission of Array drawn out of their County but in case of Necessity And secondly that this Case of Necessity is onely the coming of strange Enemies into or in the Kingdome so as probably the Invasion must be actuall before they be drawn out of their Counties and not onely feared and it must be a sudden Invasion and not of publique note and common fame foregoing for then the ordinary course either of Parliament or otherwise must be used to call those that are bound by Statute or Tenures or Volunteires to that Service seeing every Invasion is not so fatall as to require a Commission for a Generall Array Against what hath been thus noted the judgement of Sir Edward Coke in Calvins Cafe lies yet in the way who affirmeth that the Subjects of England are bound by their Legiance to goe with the King in his Warres as well within the Realme as without and this Legiance he telleth us is that Naturall Legiance which he saith is absolute and Indefinite c. and not Locall which if not so then were not the English bound to go out of England an inference that is neither necessary nor is the thing affirmed certain It is not necessary because English men may be bound to goe out of England by vertue of their Tenures particular Contract or else by speciall Act of Parliament and not by vertue of that Naturall Legiance which in Truth is no where Now for the maintenance of the Point the Reporter alledgeth two Statutes affirming the thing and Common practice and lastly Authorities of the Judges of the Common Law As touching the Statutes one in Henry the Sevenths time and the other in Edward the Sixths time I shall speake of them in the succeeding times when we come at them for they are no Warrant of the Law in these times whereof we now treat much lesse is the modern practice of these later dayes a Demonstration of the Law in the times of Edward the Third nor of the Nature of the Law in any time seeing that it is obvious to times as well as particular Persons to doe and suffer things to be done which ought not so to be and therefore I shall for the present lay those two Considerations aside But as touching the Opinions of the Judges of the Common Law two Cases are cited in the Affirmative which seeme in the Negative and the rest conclude not to the Point The first of the two cases is the opinion of Justice Thirning in the time of Henry the Fourth word for word thus A Protection lies for the Defendant in a Writ upon the Statute of Labourers and yet the Defendant shall not have such matter by way of Plea Viz. That the King hath retained him to goe beyond the Sea for the King cannot compell a man to goe out of the Kingdome That is as the Reporter saith Not without Wages intimating thereby that if the King shall tender wages to any man he must goe whither the King shall please to send him which is not onely destructive to the opinion of Thirning concerning the Plea but also though granted is destructive to the Reporters judgement in the main point For if an English man may refuse to goe without wages then is he not bound to goe by any naturall absolute Legiance as the Reporter would have it And as touching the second Case which is Bigots and Bohuns Case it cleareth the same thing for it was resolved that they ought to goe but in manner and form according to the Statutes then is not the ground in the absolute Legiance for that is not qualified but in the Positive Statute-Law which tieth onely in manner and form and that by voluntary consent in Parliament The rest of the Cases do neither conclude the main point nor the particular thing that the Reporter intendeth for he would imply to the Reader that English men were anciently used to be imprested for the Warres in France and hereunto he voucheth one Authority out of ancient Reports of Law in Edward the Thirds time one authority in the time of Henry the Fourth and three in the time of Henry the Sixth none of all which doe speake one word concerning impresting and that in Edward the hird doth imply the contrary for the Case is that in a Praecipe quod reddat a Protection was offered by the Defendant as appointed to goe beyond Sea with the Duke of Lancaster and the Plaintiffes Councell alledged that the Defendant had been beyond Sea with the Duke and was returned To this the Defendants Councell answered that the Duke was ready to return again and for this cause the Protection was allowed Yet a Quere is made upon this ground that it might be that the Defendant would not goe over with him nor was it proved that he would which sheweth plainly the party was not imprested for then the thing had not been in his power to will or nill The last instance that the Reporter produceth is that of Forinsecum Servitium or Forrain Service and that seemerh to be Knight Service to be performed abroad But this falleth short of the Reporters intention in three respects First though it belongeth to the King yet not to him onely but to other cheif Lords so saith Bracton Secondly it is not due from every English man And lastly it is a Service due by vertue of Tenure and then the Conclusion will be That which is due by Tenure of Lands is not due by naturall and absolute Legiance and so this Forrain Service arising meerly by compact and agreement between Lord and Tenant and not by the naturall duty of an English born Subject which is the thing that the Reporter driveth at in all this discourse will be so far from maintaining the Reporters opinion as it will evidently destroy the same And thus the Posture of this Nation in the Feild remaineth regular in the rule what ever hath been said against it notwithstanding that in the very instant of Action there may be some
tokens and liveries utterly inhibiting the meaner sort of the people from giving of Liveries to maintain quarrells upon pain of Fine and Imprisonment and the triall to be before the Justices of Assize which it seems was in affirmance of former Lawes as by the Preamble of the Statute doth appeare though the Lawes themselves are not extant About fifteen years after it was by sad experience found that the Lords maintained quarrells by multitude of Liveries and therefore another Law was made inhibiting the Lords to give Liveries to any but their meniall Servants and it s ordered that the Justices of the Peace shall make inquiry of such offences and punish them according to their discretion A third prevention was provided against gathering together of parties after they are sorted For the humors may so abound as nothing will keep them in they must either breake out into a sore or a long sicknes of State will certainly follow To this end therefore the Statute made at Northampton is again revived expresly forbidding all Persons to ride Armed unles in some particular Cases of executing Justice or guarding the Person of the King or his Justices and such like And if men will be so adventerous as to outdare Law by publique force Troopings together and Riotous ridings Another course is taken not by Commission of the Peace but rather of Warre directed unto valiant persons in every County and they have power thereby to apprehend such Offenders and imprison them untill the Goale-delivery though no Indictment be found thereof untill the Goale-delivery shall be By this Commission therefore power is given of Posse Comitatus in nature of a Commission of Array with an additionall power of fighting and destroying so as though the King granteth the Power by the Commission yet the Parliament giveth the power to the Commission and be it a Commission for Peace or Warre it is Originally from that power The fourth and last prevention was the taking away means of continuance and supporting such Riotous wayes Viz. Castles and Goales out of the Custody of private hands and restoring them to their Counties For Goales and Castles are taken promiscuously for places of security in times of Peace to keep ill persons from going out and in times of Warre from getting in Amongst these some belonged to the King and were committed to such as he favoured who commonly in such times of Oppression and Violence grew too big for Justice usurping a Gaole-delivery and making such places of strength many times even to the innocent a Prison to keep them from the Law but unto guilty persons an Assilum to defend them against the Law And these thus belonging to the King were under no Law but of Prerogative whereas other Castles of private persons were under the yoake of the Statute 13 E. 1. For remedy of all which the Kings Castles are once more returned to the Sheriffes Custody by Act of Parliament who questionlesse hath the power to dispose of all places of Strength whether in order to Peace or Warre and could not dispose them into a more fafe and indifferent hand then the Sheriffes who is as well the Kings Officer as the Kingdomes Servant and much intrusted by the Law in the execution of its owne power And thus is this Nation now prepared for a settled Peace a Condition that is long in ripening and soon rotten unlesse it be well fenced and over-awed by a good Conscience But Richard the Second was neither so good nor so happy his Heart affected to be high but his Head could not bear it he turns giddy and runs far wide Those that would reduce him he inforces into Forrain Countries and himselfe holds on his careere over hedge and ditch into Ireland where under pretention of holding Possession of that Kingdome he lost England and whiles he playes his game in that Country another playes King by your leave in this and steps into the Throne teaching the King thereby this lesson though too late That Nonresidency is dangerous for a Preist but unto a Prince fatall unlesse his Subjests be fast to him when he is loose to them CHAP. XIII A view of the summary Courses of Henry the Fourth Henry the Fifth and Henry the Sixth in their severall Reignes HE that played this pranke was the banished Duke of Hertford sonne of John of Gaunt and by his death now become Duke of Lancaster by Title and as the times then were it proved not hard to get more For in uncertain Common-wealths it is an easie thing for a man of opinion that hath lesse then his due to get more then he ought As sonne of John of Gaunt this Duke had the peoples good wishes he a wise and a brave man and under oppression gained the more upon the people by how much they love brave men and compassionate such as suffer wrong especially from such persons from whom they all found the like measure All these concurring with the Kings absence invited the Duke to adventure himself upon the influence of the peoples favour to gain his own right and what more the people would allow him and if no more yet his Honour is saved he came for his own and attained his end Thus then he comes over without Army or Forraine power or other help saving the advice and interest of Arch-Bishop Arundell who was his Companion in suffering Partner in the Cause and no lesse welcome to the Clergy then the Duke himself was to the people and so gained power to the Duke though he brought none Upon their Arivall the aspects of all are benigne the Dukedome waits for him and in that as in a mirrour he beholds the way fair and easie yet further it pities him to see the Kingdome so torne in peices and spoyled The People knew him able and hoped him willing to amend all they offer him their Service which he accepts and therewith the Crowne so hard a thing it is for to put a stop to a Conquerour in his careere By this time was the Duke of Hertford thus become Duke of Lancaster and King of England under the name of Henry the Fourth by a designe that in the proof was more easie then commendable and which being effected cost more skill to make that seem fair which was so foul then to accomplish the thing He therefore first heaps together Titles enough to have buried the clamour of Usurpation if it would have succeeded Conquest was a Title freest from dispute whiles Power holds but it lookes better from a Forrain Enemy then one sworn to the English Crowne and therefore after that had served his turne he disclaymed it as that which was though meet enough to have yet unmeet to hold His right by Designation from his Predecessour he glanced upon but durst not adventure it too deep into the Peoples consideration whose Ancestors had formerly over-ruled the Case against King John He then stayed upon a concealed Title from a concealed Sonne of
many of the People And therefore did in these times both place and displace him as they saw expedient In a word he is become the Kingdomes Darling and might be more bold with the Common Law then any of his Peeres CHAP. XIX Of the Courts of Crowne Pleas and Common Law AS the Chancery on the one side did swell and increase so was the Kings Bench in an Ebb the Councill Table in the Star-Chamber on the one side and the Itenerant Courts in the Countrey intercepted and drew away much to their own shares Making themselves fat the Kings Bench leane and the Rurall Courts for Crown Pleas almost to starve The Crown Pleas formerly had been determinable in the Kings-Bench Goale-Delivery Oier and Terminer and many of them by Justices of the Peace Coroners and Sheriffe The Goale-Delivery was afterwards united to the Judges of Assize and if one of them were a Clergy man then to the other and cheif men of the County This was usefull for the Publique but not beneficiall for some men and therefore they laboured for Commissions especially directed to parties that they thought would partake but these were found soone to be dangerous soone taken away and the Goale-Delivery restored to the Judges of Assize as formerly The Commissions of Oier and Terminer were sued forth upon extraordinary immergencies and offences wherein the State was much concerned for speedy Execution In former times both these and Goale-Deliveries were but rarely had and then granted unto some that perchance knew more of the Case then before hand was meete to be known Edward the Third amended this errour and ordered that no Commissions of Oier and Terminer should issue forth but unto Commissioners named by the Court and not by the party complaining But the Judges of Assize are now in the growing hand hoth for Honour Use and Power the rather because their Persons are of high repute in the Benches at Westminster which are the Master-peices of Judicature and their Iters are constant and ordinary Neverthelesse the Judges of Assize though they have the Goale-Delivery annexed to them yet have they not that absolute power of the Kings-Bench but are still under the rule of their Commission which is not alterable but by Parliament and which by it was altered by way of adding of new powers as new crimes arose that required the eye of the State to provide and so the Judges of Assize by degrees grew to be the ordinary Administrators of Justice throughout the Kingdome yet holding still forth to them a limited power to heare and determine in some Cases but in others onely to inquire and certifie as in the Case of false returns by the Sheriffe of persons elected for the Parliament And also in Cases concerning the Statutes of Labourers and unlawfull games and pastimes in which case the Certificate is to be made to the Chancellor And also in Cases concerning Liveries contrary to the Statutes wherein the Certificate is to be made to the Kings-Bench which power in this last Case continued in that manner by the space of thirty yeares and then by another Statute they had the power to determine such cases before themselves In like manner they had power to heare and determine cases of falshood in counterfeiting and corrupting of money by washing clipping c. And also defaults committed by Sheriffs Bayliffs and their Officers against the Statutes of forcible Entries and of wearing of Liveries as aforesaid These were signes of much confidence and trust in them and yet notwithstanding in these nor none of these were the Penalties by Fine left to the Arbitry of the Judges no nor to the Justices of the Kings-Bench but were by the very Letter of the Law determined Nor would the Parliament trust these men with doing Justice in the cases aforesaid in their own Counties where they dwelled nor did it think expedient to allow the cheif Justice of the Kings Bench unto that Service in any of them all but onely once in the County of Lancaster and then onely at the Kings pleasure otherwise it was to be as was used by the space of one hundered yeares foregoing possibly because his power was too great to be trusted amongst the People Lastly the Judges of Nisi prius were anciently made by Edward the First by whom also the Assizes were setled at certain times of the yeare and afterwards by the Statute at Yorke the Nisi prius in smaller cases was granted before one Justice of the Bench where the Plea dependeth and one substantiall man of the County but those of greater concernment were to be had before two Justices of that Bench or in case they were wanting then before Justices of the other Bench or in default of them before the cheif Baron if he were a man of Law and in default of that before the Judges of Assize Therefore in those dayes the Justices of the Benches in their Iters in the Counties divided in their power Some being for Assizes others for Nisi prius and in some times and cases some were for both For in those times of Edward the Third Judges of Assize had power to inquire in some matters that concerned the Crowne or to try Nisi prius nor were these powers united till in Henry the Sixths time Justices of Nisi prius had the power of Oier and Terminer annexed to them in all cases of Fellony and Treason What was formerly provided by Edward the Third and Richard the Second for Instruction to these Judges and to binde them thereto by solemne Oath I shall not particularly mention but shall leave the consideration of the Originall of the whole Judicature of this Nation unto the Readers observation upon the Premises CHAP. XX. Concerning Sheriffs HEnry the Fourth after a small rest in his Throne though he alwayes sate loose sought after the civill Peace as the corner Stone of his subsistence and that by a way of Justice which found more acceptance with the Vulgar then the common Education of the greater number in these times could promise for the worst of men cannot endure to suffer injustice though themselves will doe it Now because where Kings are reputed to be the Fountain and Life of Justice Sheriffs may be reputed to be the breath thereof and by their irregularities doe render the Government of the King as loathsome as unsavoury breath doth the Person whose it is Therefore Henry the Fourth chose rather to be a looser in his Farme-Rents of the Sheriffwicks then to occasion the Sheriffs to save their bargains by oppression And to this end he tooke away the course of forming of Sheriffwicks and made the Sheriffs bare accountants for the Annuall profits and as touching the casuall profits the Sheriffe discharged himselfe upon Oath This was a good security to the King but yet the People was not herewith satisfied For though the Sheriffs might not take to Farme yet what they
therefore Edward the Fourth now in Armes though he found it a hard Notion to maintain the Peoples Liberty where no man is free from the Souldier yet he inclined thereto we reade of multitude of Taxations of all sorts and of benevolences the worst of all those sorts for Souldiers must have money or if not they will have it but the King would not force things so far as his power could reach he will have money but it shall be by Order of the Parliament He might have pretended much upon the Commission of Array yet did it not but chose rather to be Lord of the Seas and because it was too great a Farm for his private purse he prayes aid of the Parliament by the way of Tonnage and Poundage which was in demand nine yeares before the Parliament granted it and when it was granted it was with such restrictions that it is evident the King preferred the right of the Parliament therein above his private Honour Secondly Titles of Honour are but windy Notions and every one knowes what claim is made by Kings to have the sole interest in conferring the same this Edward the Fourth neglected so far as he interested the Parliament both in the in the conferring of them and resuming of the same Thirdly the course of Trade was now more especially looked to not by the King and Privy Councell but by the Parliament and because it was much decayed partly by reason of the ill Government thereof and partly by the excessive lavishnesse of these times many Lawes are made for remedy of both And first the Staple was settled sometimes at Callis alone sometimes at it and Middleburrough and by this means England gained Trade from both Nations but the principall thanks is to be given to the interest between the King and the House of Burgundy Then course is taken for the bringing of the Staple Commodities onely to those places and the return to be made in money and not commodity by exchange Then for the well making of Staple Manufactures and restraining Importation of Forrain Manufactures of such kinds Then against transporting of English Coyn and Importing of Forrain Coyn other then Bullion And as touching the second greivance it seems gallantry or vanity of Apparrel was a sore disease of these times which were become times of Fashions and wherein the King led the way by his own example for he desired to be brave and that he might be more brave he passed Lawes that the People should be lesse brave assessing a sort of Apparrell for every degree and therein stooped so low as to define the fashions of their very shooes Fourthly the Parliament retained their ancient right of reducing the course of Judicature for whereas Sheriffs had hitherto holden their course of triall of the meaner sort of Fellonies and Trespasses and Offences determinable onely by Imprisonment or Fines and Amerciaments whereby mens Estates did lie under the continuall pillage of these covetous and extorting Officers It was established by the Parliament that these men should have for the future onely power of inquiry and to certifie at the next Sessions and there the Triall to be and Fines and Amerciaments to be set taxed and estreated unto the Exchequor and from thence to be levied and thereof the Sheriff to give account this was a great security to the Peoples estates but gave them not a full remedy for though the Triall was now more fair yet these Officers were Judges of suspition and had still power upon suspition to imprison their persons and seize their Estates under colour to save them for the King in case Conviction followed For remedy hereof the Justices of the Peace have now power given them to Bail in Cases of light Suspition and it is further declared that no mans Estate shall be first seized till Conviction and Attainder first be had And because Estheators grew no lesse burdensome in their way it was therefore Ordered that no man shall be allowed in such Office unlesse he hath Lands to the vallue of twenty pounds per annum and that he shall be responsable for such wrong done by himself or by his Deputy and Farmer Thus Edward the Fourth quitted himself like a King in many regards but soon ran himself out of breath gave his Lamp to his Sonne that was too weake to hold it a Third snatches it away and for two yeares carrying it exceeding well yeilded up all incroached Royalty to the People and his Crown and Life to his Successor CHAP. XXV The Condition of the Clergy IF any gains were had in these uncertain times the Church-men might seem to have them having now this advantage that the Commonalty was distracted with uncertain Interests of the Succession of the Crown And themselves onely united under the Popedome now freed from all Schisme and the Popedome mannaged by Sixtus the Fourth who had the hap to be accounted more vertuous then any of his Predecessors had been and to have all the Christian Princes wholly at his Devotion And lastly both the Clergy and the Kings were now joyntly ingaged against the rising power of Religion then called Heresie in order whereunto the Clergy leading the way had the applause of them that followed upon an implicite Faith that whatsoever was done was exceeding well done Nor was it wisdome for Kings that sate loose in their Thrones to stumble the good Opinions of so considerable party towards them And therefore Edward the Fourth in his first entrance granted to the Clergy that which could never be by them obtained from any of the foregoing Kings Viz. Free liberty of Process in all Cases Ecclesiasticall and in Tythes of Wood above twenty yeares growth and in Case they were troubled upon the Statutes of Provisors they should have their remedy in the Chancery against those Judges and their proceedings in such Cases to be there Cancelled This was done by Charter and was sufficient to shew what the desire of the Clergy and the intention of the King was Viz. At once to favour the Church and under colour of favour done to the Clergy â—o cancell both Common and Statute Lawes of the Kingdome by the power of the Chancellors Decree neverthelesse all this was but the Kings breath the policie changed never a whit the more For the Common Law held on its course not onely in Cases depending before the holy Chair but also even before the Bishop of the Diocess at home so as neither the King was concluded from his Suit nor the party endammaged from his Action by any such Charter And so far was the Judges of the Common Law from being bound by the Chancery in such Cases that they professed they would not delay to grant the Habeas Corpus to deliver any Prisoner by Decree of the Chancellor in any Case triable at the Common Law Much lesse did the Parliament favour these men so far as to give them
Money possibly when he had no need and paying them againe thereby to gain credit for greater sums of which he intended not so suddain returne Then he charges them home with Benevolences a trick gained in right of his Wife from her Father for he hoped that the Person of Richard the third was now become so abominable as his Laws would be the lesse regarded But in this course he gained nothing but winde then as Edward the fourth he falls upon Malevolences of penall Lawes things made in terrorem to scare men to obedience rather then to compell them but are now executed Ad angorem and the people find that he is but a word and a blow with them and thus serving his Prerogative with Power and his Purse with his Prerogative he made all serve his owne turne Humanitatem omnem vicente periculo In the feild he alwayes put his Wisdome in the Van for as he was parcimonious in expences of Money so much rather of Blood if he could prevaile by wit Generally he was the first in armes to make men beleeve he was more ready to fight then they Thus he many times gained the advantage of his adversaries and sometimes came off without blowes In the Battell he did put on courage as he did his armor and would dare to adventure just as far as a Generall should as if he had ever regard of his Crown rather then of the honor of a forward Souldier which neverthelesse was also so dear to him as he is seldome found in the reare although his judgment commanded in cheife rather then his courage In the Throne he is much more wise because he was willing it should be known In doing Justice he is seldome suspected unlesse where himselfe is party and yet then he is also so shamfaced as he would ever either stalk behinde some Law that had a semblance to his ends or when he meant to step out of the way he would put his Ministers before not so much that his finenesse might be known but his royalty For the Lion hunts not his own prey nor is it regall for a King to be seen in catching of mony though he be understood besides it was needlesse he had Lords Bishops Judges and other instruments of malevolent aspect as so many furies outwardly resembling men for the Common-wealth but working for the common mischeife like some pictures one way looking right and another looking wrong and thus the King comes lawfully by what he catched though his instruments did not and must be still holden for a good King though it be his hard hap to have ill Servants Take him now amongst the People he is alike to all yea in some things that might seem to brush upon the Kings owne traine for he had some of his suite that were not altogether of his minde and these he would spare to the Course of Justice if need were as it befell in the Case of the Duke of Suffolk whom he suffered to be tried at the Kings Bench bar for a murther done upon a meane person and by such meanes obtained the repute of a Zealous Justiciar as if Justice had been his principall vertue All this suited well with his maine end for he that will milk his cattell must feed them well and it incourages men to gather and lay up when they have Law to hold by what they have His religion I touch upon in the last place as most proper to his temper for it was the last in his thought though many times the first in the acting but where it stood in his way he turned it behinde him he made Church-men his instruments that the matter might better relish for who wil expect ought save well from men of religion and then if the worst come he was but misled by such as in common reason ought to be trusted And it is his unhappynesse to meet with Clergy men to serve a turn and a Pope to give his benediction to aâ—l Nor was this Gratis for there were as many mutuall ingagements between the Clergy and him as any of his Predecessors of the hous of Lancaster besids Lastly it may wel be supposed however wise this King seemed to be that many saw through him which procured him a troublesome reigne though many times occasioned by his owne interposing in forraine Interests wherein he suffered more from others then they from him Amongst the rest the Dutches of Burgundy though a Woman shee were mated him with Phantomes and apparitions of dead bodyes of the House of Yorke the scare whereof put the King and all his people in allarme and striking at idle shadows slew one another All which together with the appearances of Collections Taxes and other accoutrements to furnish such imployments were enough to disturb that ease and rest that the King aimed to enjoy make him burdensome to his People and both himselfe and them weary of each other and so he went down to the grave with but a dry funerall leaving no better testimony behinde him then that he was a cunning man rather then a wise English King and though he died rich yet is he since grown into debt to the Pen-men of his story that by their owne excellency have rendred him a better King then he was HEnry the Eight was a conception in whom the two Bloods of Yorke and Lancaster did meete both of them unconquered both of them predominant and therefore no wonder if he was a man beyond the Ordinary proportion of other men in stature of body and in qualities of mind not disproportionable It s regularly true that great bodies move slowly but it holds not where much spirit is and it was the condition of this Prince to have a Spirit of the largest size that acted him into motion with no lesse speed then mighty Power This himselfe understood right well and therefore might be haughty upon a double title both of purchase and inheritance nor did he faile of expectation herein for he could not endure that man that would owne his right in competition with the Kings aimes and therefore would have his Kingdome be like his doublet to keep him warme and yet sit loose about him that he might have elbow room suitable hereunto were his undertakings invited thereunto by the inordinate motions or rather commotions of his neighbouring Princes for it was now full Sea in all Countries and though England was inferiour to some of them yet the King held it dishonorable for him not to adventure as far as the bravest of them and in the end outwent them all What he wanted in number he supplyed in courage wherein he so exceeded that he avoyded dangers rather out of judgment then feare His thoughts resolutions indeavors and actions were all the birth of occasion and of each other as if he had obtained a generall Passe from Providence with warranty against all Counterguards whatsoever His Wisdome served him to espy present opportunities rather then to foresee
20 39 In ordering the Mint vide Mint In making Ecclesiastical Laws Concerning Church-Government 224 c. 208 281 Concerning Doctrine 211 224 236 c. Concerning Worship 224 Concerning Church-censures 240 In granting Licenses and Dispensations 234 In final Appeals 227 In ordering it self 24 130 In judicature 25 190 Parliament not inconstant though mutable 188 Peace Justices and their Sessions 109 c. 170 c. 253 c. 297 c. Penal Laws executed to get money 184 196 Pleadings in English 98 Popes power in England abated 56 c. vide Ordinary Supremacy Arch-bishop Prelacy not favoured by the Canon 239. their power since the time of Queen Mary 283. their dignity and power distinguished 46 58 Preists Wages 70 155 Praemunire and Provisors 54 58 c. 151 Proclamations made equal to Laws 214. altered 269. Protectors variety of them makes a doubtfull Government 4 8 123 Purveyance regulated 53 65 R. RAvishment consented to forfeits Jointure 96 Requests Court established by Cardinal Woolsey 241 Richard the second his Reign 6. endeavours to over-rule the Parliament but failed in the Conclusion 11 Richard the thirds Reign 184. his Title by Vsurpation and Murder ibid. Riots 173 S. SAnctuaries changed into fewer priviledged places 257 Servants imbesselling Felony 258 299 Sheriffs Courts regulated 254. Election of Sheriffs 93. Farm of the County 168. continuance in service ibid. Extortion ibid. Souldiers vide War Staple â—72 c. â—90 Star-chamber 31 c. 242 Stealers of Men and Women Felony 299 Supremacy supreme Head 206. certainly not absolute or arbitrary power nor a Legislative power 208 c. Supreme Governour 270. in causes Ecclesiastical 270 c. in Temporal ibid. T. TEnths and first-fruits 222 Torniament 108 Tonnage and Poundage 189 Trade 64 190 Treason 76. c. By thoughts by marriage and counterfeiture 255 256. tryed where the King will 258. Petty Treason 94. W. WAles subdued by Henry the fourth 118. Vnited to the English Crowne by Henry the eighth 241 Warr by advice of Parliament 98 175. Levying of men 101 176 248 290. Jurati obligati ad arma taken away 100. Arming of men 100 290. Conduct to their Rendezvous 101. Runing from their Colours 101 180 296. Plunder satisfied 101. Their pay 176.251 296. Offensive and defensive 291. Watches inquired into by Justices of the Peace 173. Wickleif 60. Wills probate 154. Witchcraft made Felony 257 299. FINIS Pag. 126. Concil Britt Pag. 212. Ibid. pa. 194. Ibid. pa. 242.245 Pag. 219. Pag. 300. Pag. 321. Concil Brit. Pag. 328. Concil Brit. Pag. 334. Concil Brit. Pag. 350. Concil Brit. Pag. 480. Concil Britt Pag. 490. Pag. 534. Pag. 621. Pag. 23. Mr. Seldens Title of Honor. Tit. Honor Pag. 703. Tit. Honor Pag. 703. Littlet lib. 2. cap. 3. Britt Pa. 122. Antiq. Brit. Rich. 2. The. lib. 4. Cap. 21. Hist Eccles Ang. Antiq. Brit. â—62 11. Rich. 2. n. 8.13 21. Rich. 2. cap. 9. 21. Rich. 2. cap. 3. 1 E. 3. Stat. 1. 9 Rich. 2. n. 31. 11 Rich. 2. n. 23. 5 Rich. 2. n. 17 18. 2 Kich 2. n. 12. 9 Rich. 2. n. 4. or 41. 14 E. 3. n. 6. 27 E. 3. n. 8. 9 R. 2. n. 40. 15 E. 3. n. 16. 14 E. 3. cap. 20. 25 E. 3. n. 16. 1 E. 3. vet 1. 1 Rich. 2. n. 48. 25 E. 3. Provisor 21 E. 3. n. 64. 3 Rich. 2. n. 83. 2 Rich. 2. n. 38. 15 E. 3. n. 6 7. 1. E. 3. Ver. 1. 15 E. 3. cap. 3. 11 Rich. 2. n. 11.12.15.17 5 Rich. 2. n. 8.12.13 10. E. 3. cap. 2. 14 E. 3. c. 15. 2 E. 3. cap. 2. 13 Rich. 2. Sr. 2. cap. 1. 11 Rich. 2. n. 3.6 21 Rich. 2. n. 35. 14 E. 3. n. 55. 50 E. 3. n. 10. 1 Rich. 2. n. 5â— 3 Rich. 2. n. 34. 5 Rich. 2. n. 17 18.28 6 Rich. 2. n. 19. 37 E. 3. n. 34. 1 Rich. 2. n. 5. 5 Rich. 2. n. 75. 15 E. 3. c. 3. Antiq. Britt Eccles 15 E. 3.50 15 E. 3. c. 1. 15 E. 3. c. 3 4. 14 E. 3. cap. 5. Walsing An. 1315. 4 E. 3. cap. 14. 36 E. 3. c. 10. 1 Rich. 2. c. 4. 12 Rich. 2. cap. 12. 16. E. 3. Memb. 5. in Dors 27 E. 3. Stat. 2 28 E. 3. cap. 13. Mag. Cart. Vet. 20. Ass pl. 52. 41 E. 3. Rat. Clauâ— 16 Rich. 2. Memb. 11. in Dors Fleta li. 2. cap. 34. 38 E. 3. Rot. Pat. Ps 1. Memb. 13. 39 E. 3. Ps 1. M. 13.42 E. 3. Rot. claus Memb. 8. in Dors 2 Rich. 2. Rot. Pat. Ps 1. 12 Rich. 2. cap. â— 43 Ass pl. 38. Co. Instit 4. c. 5. 22 Ass pl. 75. 13 Rich. 2.12 Tit. Prohibition 5 E. 3. cap. 9. 37 E. 3. c. 17. 25 E. 3. c. 4 5. 42 E. 3. c. 3. 4. 1 Rich. 2. n. 87. Fabian Vit. Hen. 3. ann 1141. 43. Ass pl. 38. 43. Ass pl. 38. Miror cap. 4. Sect. 2. Fleta lib. 2. cap. 13. Fleta lib. 2. cap. 13. Sect. 8. Instit 4. c. 8. fol. 78. 4 E. 3. cap. 12. 9 E. 3. cap. 1. 14 E. 3. cap. 5. 27 E. 3. cap. 26. 36. E. 3. c. 9. cap. 13. 12 Rich. 2. c. 12. 27 E. 3. c. 24. 22 Ass pl. 25. Bro. scire fac 154. 24 E. 3.73 43 Ass pl. 32. 24 E. 3. pl. 35. 39 E. 3. fo 14. 21 E. 3. fo 47. 43. Ass pl. 35. 37 E. 3. cap. 27. 38 Ed. 3. c. 9. 17 Rich. 2. cap. 6. 43 Ass pl. 32. 15 E. 3. n. 10.15 15 E. 3. c. 3. 10 Rich. 2. n. 16.10 Instit 4. cap. 22. fol. 142. 144. Gloss fol. 16. 15 Rich. 2. c. 3. Dier 15. 16. El. mic pl. 2. 8 E. 3. Coronn 199. 13 Rich. 2. cap. 5. 15 Rich. 2. cap. 5. 25 Rich. 2. cap. 3. 2 Rich. 2. cap. 4. 25 E. 3. Stat. 6. 15 E. 3. cap. 6. 22 Ass pl. 70. 45 E. 3.24 Fus consultat 5. 31 E. cap. 4. 25 E. 3. Stat. 3. cap. 9. 15 E. 3. c. 5. Miror Just cap. 5. Sect. 1. 51 H. 3. petit cleri Artic. 16. 50 E. 3. n. 158. 6 Rich. 2. n. 57. 14 Rich. 2. n. 24. Instit 3. cap. 70. 6 Ed. 3. coram Rege Rot. 130. Porff 25 E. 3. c. 8. pro clero â—8 E. 3. cap. 2. â—5 E. 3. St. 2. 9 Rich. 2. c. 4. Bro. quar imp 85. 8 E. 3. 8. 18 E. 3. cap. 1. 14 E. 3. cap. 2. 25 E. 3. c. 6. 44 E. 3. fol. 35 36. Per Thorpe 7 H. 4. fol. 41. Per Gascoigne 31 E. 3. c. 11. West 2. cap. 19. 5 E. 3. c. 5. 1 Rich. 2. c. 15 14 E. 3. Stat. 3. cap. 1. Westm 1. cap. 1. Stat. de prisis 1 Rich. 2. c. 3. 4 E. 3. cap. 6. 5 E. 3. cap. 3. Rot. Parl. 10. E. 3. Arch. Reg. 18 E. 3. tit 38. Fox 388 25 E. 3. Stat. 5. cap 22. Fox Sect. 1. 27 E. 3. c. 1. Antiq. Brit. Eccles 247. 21 E. 3. fol. 40 38 E. 3. cap. 1. Rot. Parl. 51. E.