underlings to the great men then they are to their Fethers to were them no longer then they will make them brave Secondly the Person thus agreed upon his intertainment must be accordingly and therefore the manner of taxing in full County and levying the rate of Wages for their maintenance is reformed and settled And lastly their Persons are put under the Protection of the Law in an especiall manner for as their work is full of reflexion so formerly they had met with many sad influences for their labour And therefore a penall Law is made against force to be made upon the Persons of those workmen of State either in their going to that Service or attending thereupon making such Delinquents liable to Fine and Imprisonment and double damages And thus however the times were full of confusions yet a foundation was laid of a more uniforme Government in future times then England hitherto had seen CAHP. XV. Of the Custos or Protector Regni KIngs though they have vast dimensions yet are not infinite nor greater then the bounds of one Kingdome wherein if present they are in all places present if otherwise they are like the Sunn gone down and must rule by reflexion as the Moone in the night In a mixt common wealth they are integrall members and therefore regularly must act Per deputatum when their Persons are absent in another Ligialty and cannot act Per se Partly because their Lustre is somewhat eclipsed by another Horizon and partly because by common intendment they cannot take notice of things done in their absence It hath therefore been the ancient course of Kings of this Nation to constitute Vicegerents in their absence ' giving them severall titles and severall powers according as the necessity of affaires required Sometimes they are called Lord Warden or Lord Keeper of the Kingdome and have therewith the generall power of a King as it was with John Warren Earle of Surry appointed therunto by Edw. the first who had not onely power to command but to grant and this power extended both to England and Scotland And Peter Gaveston though a Forrainer had the like power given him by Edward the second over England to the reproach of the English Nobility which also they revenged afterward Somtimes these Vicegerents are called Lievtenants which seemeth to conferr onely the Kings power in the Militia as a Lievtenant Generall in an army And thus Richard the second made Edmund Duke of Yorke his Lievtenant of the Kingdome of England to oppose the entry of the Duke of Hertford Afterwards called Henry the fourth into England during the Kings absence in Ireland And in the mean while the other part of the Royalty which concerned the revenues of the Crowne was betrusted to the Earle of Wiltshire Sir John Bush Sir James Baggot and Sir Henry Green unto whom men say the King put his Kingdome to farme But more ordinarily the Kings power was delegated unto one under both the titles of Lord Gaurdian of the Kingdome and Lievtenant within the same such was the title of Henry Lacy Earle of Lincolne and of Gilbert De clare Earle of Glocester and of Audomar De valentia Earle of Pembroke all of them at severall times so constituted by Edward the second as by the Patent Roles appeareth So likewise did Edward the third make his Brother John of Eâ—tham twice and the black Prince thrice and Lionell Duke Clarence and his Brother Thomas each of them once in the severall passages of Edward the third beyond the Sea in the third fifth twelfth fourteenth sixteenth nineteenth and thirty third years of his reigne concerning which see the Patent Rolls of those yeares And Henry the fifth gave likewise the same title and authority to the Duke of Bedford upon the Kings voyage into France and afterward that Duke being sent over to second the King in the French Wars the Duke of Glocester obtained the same power and place But Henry the sixth added a further title of Protector and Defendor of the Kingdome and Church of England this was first given to the Duke of Bedford and afterwards he being made Regent of France it was conferred upon the Duke of Glocester And towards the later time of Henry the sixth it was granted by him to Richard Duke of Yorke This title carried along with it a power different from that of a King onely in honor and the Person so adorned may be said to sway the Scepter but not to weare the Crowne And therefore in the minority of Henry the sixth when as the Government was ordered by the Parliament and to that end a Protector was made and he wel guarded with a Privy Councill and they provided with instructions one of them was that in all matters not to be transacted ordinarily but by the Kings expresse consent the Privy Councell should advise with the Prorector but this is not so needfull in regard that it concerneth the power of executing of Lawes which by right of the liberty of the Subject is the known duty of the Scepter in whose hands soever it is holden And therefore I shall passe to the Legislative power wherein its evident that the Protectors power was no whit inferiour to the Kings power For first the Protector Ex officio by advice of the Councell did summon Parliaments by Writs even as the Kings themselves under their owne Teste and if not bear the Royall Assent yet did they direct the same and received Petitions in Parliament to them directed as to Kings and every way supplied the roome of a King in order to the perfecting publishing and inforcing of Law to Execution Secondly the Parliaments holden by Protectors and Lawes therein made are no whit inferiour to those by the King whether for Honour or Power And therefore if a Parliament be-holden by the Lord Warden and sitting the Parliament the King in person shall arrive and be there present neither is the Parliament interrupted thereby nor the power thereof changed at all though the power and place of the Wardenship of the Kingdome doth utterly vanish by the personall accesse of the King because in all Cases where the King is subservient to the Kingdome or the Common-wealth The Lord Warden in his absence is conservient unto him being in his stead and not under him for the very Place supposeth him as not because not present And this was by a Law declaratively published at such time as Henry the fifth was Regent of France and therefore by common presumption was likely to have much occasion of residence in that Kingdome and it holdeth in equall force with all other Lawes of the highest Size which is the rather to be noted because it is though under a Protector obligatory to the King and makes his personall presence no more considerable then the presence of his shadow For the King spent three whole yeares in the French Warres and during that time never saw England where
neverthelesse in that interim three Parliaments had been holden one by the Duke of Bedford and two by the Duke of Glocester in the last of which this Law was made And in truth if wee looke upon this title of the Kingdomes Guardianship in its bare lineaments without lights and shadows it will appeare little better then a Crown of feathers worne onely for bravery and in nothing adding to the real ability of the governing part of this Nation Neither were the persons of these Magnificoes so wel deserving nor did the Nation expect any such matter from them Edward the first was a wise King and yet in his absence chose Edward the second to hold that place he being then not above fourteen yeares of age afterwards Edward the seconds Queen and the Lords of her party were wise enough in their way and yet they chose Edward the third to be the Custos regni then not fourteen yeares old his Father in the meane time being neither absent from the Kingdome nor deposed but onely dismissed from acting in the adminstration of the Government Edward the third follows the same example he first makes his Brother John of Eltham Custos regni and this he did at two several times once when he was but eleven yeares old afterwards when hee was about fourteene Then he made his Sonne the Black Prince upon severall occasions three times Lord Warden of the Kingdome once he being about nine yeares old and againe when he was eleven yeares old and once when about fourteen yeares old Lastly Edward the third appointed his son Lionell Duke Clarence unto this place of Custos regni when as he was scarce eight years old all which will appeare upon the comparing their ages with the severall Rolls of 25 E 1. and 3 5 12 14 16 19 E 3. If therefore the worke of a Custos regni be such as may be as wel done by the infants of Kings as by the wisest Councellor or most valiant man it is in my opinion manifest that the place is of little other use to this Common-wealth then to serve as attire to a comely Person to make it seeme more faire because it is in fashion nor doth it advance the vallue of a King one graine above what his personall endowments doe deserve Hitherto of the title and power the next consideration will be of the original Fountain from whence it is derived wherein the presidents are cleare and plaine that ordinarily they are the next and immediate ofspring of Kings if they be present whithin the foure seas to be by them enabled by Letters Patents or Commission But whether present or absent the Parliament when it sate did ever peruse their authority and if it saw need changed inlarged or abridged both it and them Thus was the Duke of Glocester made Lord Warden in the time of Henry the fifth he being then in France in the roome of the Duke of Bedford the like also in Henry the sixths time when as the King was young for then the Parliament made the Duke of Bedford Lord Warden and added unto that title the title of Protector Afterward at the Dukes going over into France they committed that Service to the Duke of Glocester if I forget not the nature of the Roll during the Duke of Bedfords absence and with a Salvo of his right Nor unlike hereunto was the course that was taken by the Parliament in these sullen later times of Henry the sixth whereof more hereafter in the next Paragraph Lastly the limitation of this high power and title is different according to the occasion for the Guardianship of the Kingdome by common intendment is to endure no longer then the King is absent from the helme either by voluntary deserting the worke or imployment in forrain parts though united they be under the Government of the same King together with this Nation such as are these parts of France and Ireland and Scotland then under the English fee This is apparent from the nature of that statute of Henry the fifth formerly mentioned for if there was need to provide by that Statute that the Kings Arrivall and Personall Presence should not dissolve the Parliament assembled by the authority of the Custos regni then doth it imply that the personall presence of the King by and upon his Arrivall had otherwise determined the Parliament and that authority whereby it sate But the presidents are more cleare all of them generally running in these or the like words In absentia Regis or Quamdiu Rex fuerit in partibus transmarinis It is also to be granted that the Kings will is many times subjoyned thereunto as if it were in him to displace them and place others in his absence yet doe I finde no president of any such nature without the concurrence of the Lords or Parliament and yet that the Parliament hath ordered such things without his consent For when Richard the First passing to the Holy Land had left the Bishop of Ely to execute that place during his absence in remote parts the Lords finding the Bishop unfaithfull in his Charge excluded him both from that place and Kingdome and made the Kings Brother John Lord Warden in his stead But in the Case of the Protectorship which supposeth disability in the Person of the King the same by common intendment is to continue during the Kings disability and therefore in the Case of Henry the Sixth it was determined that the Protectorship doth Ipso Facto cease at the Kings Coronation because thereby the King is supposed able to govern although in later times it hath not so beene holden For Kings have been capable of that Ceremony as soon as of the Title and yet commonly are supposed to be under the rule of necessity of Protectorship till they be fourteen years of age or as the Case may be longer For although Henry the Sixth was once thought ripe when he was eight yeares old yet in the issue he proved scarce ripe for the Crowne at his two and twentieth yeare Neverthelesse the default of Age is not the onely incapacity of Kings they have infirmities as other men yea more dangerous then any other man which though an unpleasant tune it be to harp upon yet it is a Theame that Nations sometimes are inforced to ruminate upon when God will give them Kings in his wrath and those also over to their own lusts in his anger In such Cases therefore this Nation sometimes have fled to the refuge of a Protector and seldome it is that they can determine for how long When Henry the Sixth was above thirty yeares old Richard Duke of Yorke was made Protector and Defendor of the Realme and of the Church It was done if the Record saith true by the King himselfe Autoritate Parliamenti It was further provided by the Parliament that though this was to continue Quamdiu Regi placuerit yet the Duke should hold that place till the Kings Sonne Edward should come
would have been discontented with the proceedings of the Lords in asserting the Prerogative of a King in that matter of the Scedule if he had perceived any such thing in their purposes Add hereunto that the Lords themselves justified the matter of the Scedule in their own proceedings all which tended to inforce the King to govern according to their Councells and otherwise then suited with his good pleasure By force they removed Gaveston from the Kings presence formerly and afterward the Spencers in the same manner So they removed the King from his Throne and not long after out of the World Last of all I shall make use of one or two Concessions which hath passed the Reporters own Penne in this discourse of his for the maintaining that the Legiance of an English man is neither Naturall nor Absolute nor Indefinite nor due to the Naturall Capacity but qualified according unto Rules The first is this English men doe owe to their Kings Legiance according to the Lawes therefore is it not Naturall or Absolute or Indefinite The inference is necessary for the later is boundlesse and naturall the former is limited and by civill constitution If any branch therefore of English Legiance be bounded by Lawes then the Legiance of an English man is circumscribed and not Absolute or Naturall The major Proposition is granted by the Reporter who saith that the Municipall Lawes of the Kingdome hath prescribed the order and form of Legall Legiance fol. 5. b. And therefore if by the Common Law the Service of the Kings Tenant as of his Mannor be limited how can that consist with the absolute Legiance formerly spoken of which bindeth the Tenant being the Kings Subject to an Absolute and Indefinite Service Or if the Statute-Lawes have settled a Rule according to which each Subject ought to goe to Warre in the Kings Service beyond the Sea as the Reporter granteth fol. 7. 8. Then cannot the Legiance be absolute to binde the Subject to goe to War according to the Kings own pleasure Secondly an English Kings Protection of his Subjects is not Naturall Absolute Indefinite nor Originally extendeth unto them in their Naturall Capacity therefore is not the Legiance of an English Subject to his King Naturall Absolute Indefinite nor Originally extendeth to the King in his Naturall Capacity The dependance of these two resteth upon the Reporters owne words who tells us that Protectio trahit Subjectionem Subjectio Protectionem Protection drawes with it Subjection and Subjection drawes with it Protection so as they are Relata and doe prove mutually one anothers Nature fol. 5. a. And in the same Page a few lines preceding he shewes why this Bond between King and Subject is called Legiance because there is a reciprocall and double Bond for as the Subject is bound in Obedience to the King so is the King bound to the Subject in Protection But the King is not Naturally bound to protect the People because this Bond begins not at his Birth but when the Crown settles upon him Thirdly this Protection is not absolute because the King must maintaine the Lawes fol. 5. a. and the Lawes doe not Protect absolutely any man that is a breaker of the Lawes Fourthly this Protection is not Indefinite because it can extend no further then his Power and his Power no further then his Dominions fol. 9. b. The like also may be instanced in continuance of time Lastly the Kings Protection extendeth not Originally to the Naturall Capacity but to the Politique Capacity therefore till a Forrainer commeth within the Kings Legiance he commeth not within his Protection And the usuall words of a Writ of Protection shewes that the party Protected must be in Obsequio nostro fol. 8. a. The summe then is that as Protection of an English King so neither is Legiance or Subjection of an English man Naturall Absolute Indefinite or terminated in the Naturall Capacity of the King And to make a full Period to the Point and make the same more cleare I shall instance in one President that these times of Edward the Third produced The former English Kings had Title to many Teritories in France but Edward the Third had Title to all the Kingdome And being possibly not so sensible of what he had in possession as of what he had not He enters France in such a way and with that successe that in a little time he gaines the highest Seate therein and so brought much Honour to the English Nation and more then stood with the safety of the Kingdome For in the union of two Kingdoms its dangerous for the smaller least it be swallowed up by the greater This was foreseen by the English who knew England did bear but a small proportion to France and complained of that inconvenience and thereupon a Law was made that the People of England should not be subject to the King or his Heires as Kings of France which manifestly importeth that an English King may put himselfe in such a Posture in which Legiance is not due to him and that this Posture is not onely in Case of Opposition but of diversity when he is King of another Nation and doth not de facto for that Time and Place rule as an English King which if so I suppose this notion of Naturall Absolute and Indefinite Legiance to the King in his Naturall Capacity is out of this Kingdome if not out of the World and then the foot of the whole Account will be that the Legiance of an English man is Originally according to the Lawes The summe of all being comprehended in the joynt safety of the People of England CAHP. IX Of Courts for Causes criminall with their Lawes THe great growth of Courts founded upon Prerogative derogated much in these times from the ancient Courts that formerly had attained the Soveraignty over the People and in the hearts of them all This was a hard Lesson for them to learn but especially of the Kings Bench that was wont to learn of none and yet must be content to part with many of their Plumes to deck the Chancellor much of their work to busie the Prerogative Courts holden Coram Rege and more to those holden Coram Populo I mean The Courts of Oier and Terminer Goale delivery and Juâ—tices of Peace Those of Oier and Terminer were now grown very common but lesse esteemed as being by men of mean regard nominated for the most part by the party that sued out the Commission which for the most part was done in behalfe of those that were in danger and meaned not to be justified by Works but by Grace These escapes though small in the particulars yet in the full summe made the matter so foul as it became a common greivance and a Rule thereupon set by the Parliament for the regulating both of the Judges of such Court and the Causes The Commissions for Goale delivery likewise grew more mean and ordinary The chief sort of men in
his ends Thus in one Parliament for he could hold no more he gave such content as even to wonderment he could as soone finde an army in the feild to fight for him as the most meritorious of his Predecessors His ill title made him very jealous and thereby tought his best freinds to keep at a distance after which time few escaped that came within his reach and so he served Gods judgement against his adjutants though he understeod it not Amongst the rest the Duke of Buckingham his great Associate both in the Butchery of the two young Princes and usurpation of the Royall Scepter he lived till he had laid the Foundation of better times in the Person of Henry the seventh and then received his reward But an ill Conscience must be continually fed or it will eat up its owne wombe The Kings minde delivered from feare of the Sonnes of Edward the Fourth now dead torments himselfe with thoughts of his Daughter alive ashamed he is of Butchery of a Girle he chooseth a conceit of Basterdizing the Children of Elizabeth Graye that calleth her self Queen of England but this proved too hard to concoct soon after that he goes a contrary way The Lady Elizabeth Graye is now undoubted Wife of Edward the Fourth and her eldest Daughter as undoubted Heire to the Crown And so the King will now be contented to adventure himself into an incestuous Marriage with her if his own Queen were not in the way onely to secure the Peace of the Kingdome which he good King was bound in Conscience to maintain though with the perill of his owne Soule and in this zeale of his Conscience his Queen soon went out of the way and so Love is made to the young Lady But Henry Earle of Richmond was there before and the Lady warily declined the choice till the golden Apple was won which was not long after accomplished the King loosing both the Lady his Crowne and owne life together put an end to much wickednesse and had the end thereof in Bosworth-Feild CHAP. XXIV Of the Government in relation to the Parliament THe seasons now in Tract were of short continuance lives passed away more speedily then years and it may seem uselesse to inquire what is the nature of the Government in such a time when as the greatest work was to maintain life and soul together and when all is done little else is done For though the Title of the House of Yorke was never so clear against that of Lancaster yet it had been so long darkned with a continuall Succession of Kings of the Red-Rose that either by their merit had gained a Throne in the Peoples hearts or by their facility had yeilded their Throne up to the Peoples will as it proved not easie to Convince them that liked well their present Lot and were doubtfull of change or to make them tender of the right of Edward the Fourth above their own quiet Above threescore years now had England made triall of the Government of the Lancastrian Princes and thereof about thirty years experience had they of Henry the Sixth they saw he was a gentle Prince On the other side Edward the Fourth newly sprung up out of a Root watered with blood himself also a Man for the Feild This might well put the minds of the People to a stand what to think of this Man whose nature and ends are so doubtfull and brought nothing to commend him to the good wills of the People but his bare Title which the common sort usually judge of according as they see it prosper more or lesse Add hereunto that Divine Providence did not so clearly nor suddenly determine his secret purpose concerning this change by any constant successe to either part by means whereof the one half of Edward the Fourths reign was spent while as yet Henry the Sixth was in veiw and the minds of men left unassured neither trusting much to Edward the Fourth nor he to them and after that Henry the Sixth was gone out of the way Edward the Fourth could not readily change his posture used Arguments of force and power and for the most part looked like a Man in Armes with his hand on his sword ready to draw upon the next man that stands in his way Thus are the People partly driven and partly drawn into an Oath of Allegiance unto Edward the Fourth under perill of Attainder and the Parliament assured unto him once more For immediately upon the departure of Edward the Fourth beyond Sea after tenne yeares of his Reign the Parliament never staying for the issue of Providence declared the Throne void of Edward the Fourth and Henry the Sixth King The Judges likewise of the Courts at Westminster determined the same thing as may appear by the Law Reports of those times in Print wherein Re-attachments were often granted by them upon discontinuance of processe by this Demise of Edward the Fourth And thus Henry the Sixth is once more King for six moneths Viz. from October to Aprill at which time the ballance turns Edward the Fourth returns gets into the Throne Henry the Sixth is again Dethroned all things are as they were and all confirmed by Act of Parliament For that Body is ever wise enough to side with power rather then to spend much time upon fruitless Orders and Votes that will peirce no Armour and therefore like the times must needs be subject to fits of distemper at the comming in of every Tide and did build and pull down Enact and disenact turn and return the English Crown from Yorke to Lancaster and back again and in conclusion for some time did do little but undo Nor can they be justly censured herein for Councells of men are not ordained to hinder Divine Providence or over-rule Fate but to foresee and close with occasions in the most advantageous way for the Publique good and when both winds and Currents are uncertain to ride at flote till they can discern the most commodious Haven to Winter in To impute therefore fault unto the Parliament in such Cases for want of Uniformity and Immutability of Councells is somewhat like the Notion that Batchelours conceit of Wives they would have but they do not know what other then an Idea of their own Fancy Now if it be inquired which course prevailed in order either to the Kings Royalty or the Peoples Liberty I shall answer neither of these but the House of Yorke prevailed to hold the Crown and might have advanced the Authority thereof had they not falne out amongst themselves for the spoyle and Edward the Fourth was not altogether disposed thereto The successe that he had in the Feild and his Souldiery made him look big like a King of the greater size but Kings sleep not securely upon such pillowes when the Militia is on hors-back it is as ready to be a Guard upon the King as for him and when it is most sober not so easily governed as a Common-wealth And
he made the penalty of Praemuniri to extend to all Farmores or others in nature of Bailiffs that held any Church maintenance to the use of any alien and unto all Aliens that are Purchasors of such Provisions to any use and unto all Lieges that shall in like manner purchase such Provisions But as touching such as shall accept such provisions he ordained Banishment for their Persons and Forfeiture of their Estate Notwithstanding all this the Romane Horse-leach would not so give over The King grew into displeasure with his Subjects and they with him and with one another they see the Pope still on Horseback and fear that the English Clergy their own Countrey men if not Friends and Abbettors yet are but faint and feigned Enemies to the Popes Cause Nor was it without Cause that their fear was such for as the Pope had two hands to receive so they had two hearts making show of forming blowes at the Pope but then alwayes at a distance or when without the Popes Guard and thus the Lawes begin to stammer and cannot speake so plain English as they were wont The people hereat offended resolve to put the Clergy into the Van and to try their mettle to the full At the last Parliament that Richard the Second did hold both the Lords Temporall and Spirituall are opposed one by one The Lords Temporall like themselves resolve and enter their Resolutions to defend the right of the Crowne in the Cases of Provisors although even amongst these great men all were not equally resolute for Sir William Brian had purchased the Popes Excommunication against some that had committed Burglary and he was committed to the Tower for his labour But the Prelates answer was ambiguous and with modifications which was all one to cry as men use to say Craven yet was the Statute made peremptory according to what was formerly Enacted And though the Prelates cautionary way of proceeding might be a principall reason why the Popes power held so long in England in an usurping way yet Kings also much conduced thereto by seeking too much their Personall ease above the Honour of their Place and the Popes blessings and opinion of his Favour more then their owne good or the Peoples liberty for there was no other balme for a distracted minde then that which dropped from the Popes lips In like manner Richard the Second being already at least in purpose estranged from his People sought to get freinds at Rome to hold by the Spirituall Sword what he was in danger to loose by laying aside the Sword of Justice which is the surest Tenure for Kings to hold by And though the Popedome was now under a Schisme between two Popes Clement and Vrban yet he was so farre won for Vrban that he not onely ingaged himselfe and the Parliament to determine his Election and uphold the same but also Ex abundante did by Implication allow to him an Indefinite Power to grant Provisions and so at once he lost the Die and gained a Stake that like a bubble looked faire but soon vanished away Neverthelesse these two Comrades whiles they were together resolved to make the most of each other that they could and therefore though the Popedome liked not the King yet the Pope had his love so farre as he could deny himselfe for he had already denied his Kingdome And if the Articles exhibited against the King by Henry the Fourth be true the Pope had his Faith also For that he might be rid of his reputed Enemy Arch Bishop Arundell he trusted the Pope with that Complement of making Walden Arch Bishop of Canterbury in Arundells stead which the Pope tooke so kindly as he made it a President for Provisors for the future Nor did the King stick in this one Singular but made it his Custome in passing of Lawes especially such as the King was most devoted unto to put more Confidence in the Popes Amen then in all the Prayers of his Commons with his owne Soit fait to boot The summe then will be that the Prize was now well begun concerning the Popes power in England Edward the Third made a fair blow and drew blood Richard the Second seconded him but both retired the former left the Pope to lick himself whole the later gave him a salve and yet it proved a Gangrene in the conclusion The second means used to bring down the power of the Pope in this Nation was to abate the power or height of the English Clergy for though the times were not so cleare as to espy the Root of a Pope in Prelacy yet experience had taught them that they were so nigh ingaged that they would not part And therefore first they let these men know that Prelacy was no Essentiall Member to the Government of the Kingdome but as there was a Government established before that ranke was known so there may be the like when it is gone For Edward the Third being troubled with a quarrell between the two Arch Bishops of Canterbury and Yorke concerning Superiority in bearing the Crosse and the important Affaires of Scotland so urging Summoned a Parliament at Yorke which was fain to be delaied and adjourned for want of appearance and more effectuall Summons issued forth but at the day of Adjournment none of the Clergy of the Province of Canterbury would be there and upon this Occasion the Parliament was not onely interrupted in their proceedings but an ill president was made for men to be bold with the Kings Summons in such Cases as liked not them and thereupon a Statute was made to inforce Obedience upon Citizens and Burgesses and such Ecclesiasticks as held per Baroniam Neverthelesse when the matters concerning Provisors began to come upon the Stage which was within two yeares after that Law was made the Clergy found that matter too warme for them and either did not obey the Summons or come to the Parliament or if they came kept aloofe or if not so would not Vote or if that yet order their tongues so as nothing was certainly to be gathered but their doubtfull or rather double minde These Prelates thus discovered the Parliament depended no more upon them further then they saw meet At sixe or seven Parliaments determined matters without their Advice and such as crossed the Principles of these men and therefore in a rationall way might require their Sense above all the rest had they not beene prepossessed with prejudice and parties in the matter Nor did Edward the Third ever after hold their Presence at so high Repute at such meetings and therefore Summoned them or so many of them as he thought meet for the Occasion sometimes more somtimes fewer and at a Parliament in his fourty and seventh yeare he Summoned onely foure Bishops and five Abbots And thus the matter in Fact passed in these times albeit the Clergy still made their claim of Vote and desired the same to be entered upon Record And
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
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