of Matthew Paris Matthew Westminster and Hoveden although he pleaseth to mention the severall rankes of Great Men and those in blacke Letters of a greater size and saith That not one Commoner appeares yet Master Seldens Hoveden in that very place so often by the Opponent cited tells him that both Clerus and Populus were there Thirdly The Opponent citeth an instance of Lawes made by Richard the First in his twenty fourth page and hee setteth downe the severall ranks of Great Men and amongst the rest ingeniously mentioneth Milites but it is with a Glosse of his owne that they were Barons that were made Knights when as formerly Barons were mentioned in the generall and therefore how proper this Glosse is let others judge especially seeing that not onely Milites and Milites Gregorij but even Ministri were present in such conventions even in the Saxon times And Master Selden in the former knowne place mentioneth an Observation that Vniversi personae qui de Rege tenent in Capite sicut ceteri Barones debent interesse judicijs curiae Domini Regis cum Baronibus Fourthly He citeth in his twenty fifth page another instance in King Johns time in which after the assent of Earles and Barons the words Et omnium fidelium nostrorum are also annexed but with this conceit of the Opponents that these Fideles were those that adhered to the King against his enemies be it so for then the Commons were present and did assent or they may be saith he some specially summoned as Assistants take that also and then all the true hearted in the Kingdome were specially summoned and were there so as the conclusion will be the same In the fifth place hee citeth a strange President as he calls it of a Writt of Summons in King Johns time in his twenty seventh page wherein Omnes miletes were summoned Cum armis suis and he concludes therefore the same was a Councell of Warr. First Because they were to come armed it s very true and so they did unto the Councills in the ancient Saxon times and so the Knights of the Counties ought to doe in these dayes if they obey the Writte Duos Milites gladijs cinctas c. Secondly He saith That the Knights were not to come to Councill that is his opinion yet the Writt speakes that the Discreti Milites were to come Ad loquendum cum Rege ad negotijs regni Its true saith hee but not Ad tractandum faciendum consentiendum Its true it s not so sayd nor is it excluded and were it so yet the Opponents conclusion will not thence arise That none but the King and those who are of the House of Lords were there present The sixth and last instance mentioned by the Opponent is in his thirtieth page and concerneth Escuage granted to King John who by his Charter granted that in such cases he would summon Arch-Bishops Bishops Abbots Earles and the greater Barons unto such Conventions by speciall Writts and that the Sheriffe shall summon promiscuously all others which hold in Capite and thence hee concludes That none but the Great Lords and the Tenants in Capite whom he calls the lesser Barons were present but no Knights Citizens or Burgesses all which being granted yet in full Parliament the Citizens and Burgesses might be there For Councills were called of such persons as suited to the matter to be debated upon If for matters purely Ecclesiasticall the King and his Councell of Lords and the Church-men made up the Councill If for advice in immergencies the King and such Lords as were next at hand determined the conclusions If for Escuage the King and such as were to pay Escuage made up a Councill to ascertaine the sum which was otherwise uncertaine If for matters that concerned the common liberty all sorts were present as may appeare out of the very Charter of King John noted in my former discourse page 258. and also from an Observation of Cambden concerning Henry the third Ad summum honorem pertinet saith he Ex quo Rex Henricus tertius ex tanta multitudine quae seditiosa ac turbulenta fuit optimos quosque ad Commitia Parliamentaria evocaverit Secondly The Opponent takes that for granted that never will be Viz. That all the Kings Tenants In Capite were of the House of Lords when as himselfe acknowledgeth a difference page 28. Viz. That the Barons are summoned by Writs Sigillatim as all the Members of the House of Lords are but these are by generall summons their number great and hard it will be to understand how or when they came to be excluded from that Society I shall insist no further upon the particulars of this Tractate but demurr upon the whole matter and leave it to judgement upon the premises which might have beene much better reduced to the maine conclusion if the Opponent in the first place had defined the word PARLIAMENT For if it was a Convention without the People and sometimes without the KING as in the Cases formerly mentioned of the Elections of William Rufus and of King Steven And if sometimes a Parliament of Lords onely may be against the King and so without King or People as in the Case betweene Steven and Maud the Empresse and the case likewise concerning King John both which also were formerly mentioned possibly it may be thought as rationall for the Commons in after Ages to hold a Parliament without King or House of Lords and then all the Opponents labour is to little purpose THE CONTINUATION OF AN Historicall Discourse of the Government of ENGLAND THE former times since the Norman entry like a rugged Sea by crosse windes of arbitrary vapours in and about the Crowne and by Forraine ingagements from the holy Chaire made the true face of affaires cloudy and troublesome both for the Writer and the Reader Hence forward for the space of three hundred yeares next ensuing Kings by experience and observation finding themselves unequall to the double chace of absolute Supremacy over the Sturdy Laity and incroaching Clergy you will observe to lay aside their pretentions against the peoples Liberties and more intentively to trench upon the Spiritualty now growne to defie all Government but that of Covetousnesse Nor would these times allow further advantage to Kings in this worke they being either fainted by the tickle Title of the Crowne hovering between the two Houses of Yorke and Lancaster or drawne off to Forraine imployments as matters of greater concernment for the present well being of the Kingdome or for the spreading of the fame of such as desired to be renouned for valiant Men. It will be superfluous to recount the particular atchievements formerly attained by these Ecclesiasticall men the former Treatise hath already sayd what was thought needfull concerning that For the future I shall even premise this That the insuing times being thus blessed with a truce or stricter League between Kings and Commons the errours in
betweene party and party should be determined in a more private way then to trouble the whole Representative of the Kingdome with matters of so meane concernment If then those Councils mentioned by the Author which concerne the Kings Grants and Infeodations and matters of Judicature be taken from the rest of the Presidents brought by him to maintaine the thing aimed at I suppose scarce one stone will be left for a foundation to such a glorying Structure as is pretended in the Title page of that Booke And yet I deny not but where such occasions have befalne the Parliament sitting it hath closed with them as things taken up by the way Fourthly It may be that the Author hath also observed that all the Records of Antiquity passed through if not from the hands of the Clergy onely and they might thinke it sufficient for them to honour their Writings with the great Titles of Men of Dignity in the Church and Common-wealth omitting the Commons as not worthy of mention and yet they might be there then present as it will appeare they were in some of the particular instances ensuing to which we come now in a more punctuall consideration The first of these by his owne words appeare to be a Church-mote or Synod it was in the yeare 673. called by the Arch-Bishop who had no more power to summon a Parliament then the Author himselfe hath And the severall conclusions made therein doe all shew that the people had no worke there as may appeare in the severall relations thereof made by Matthew Westminster and Sir Henry Spelman an Author that he maketh much use of and therefore I shall be bold to make the best use of him that I can likewise in Vindicating the truth of the point in hand For whatever this Councill was it s the lesse materiall seeing the same Author recites a president of King Aâ—thelbert within six yeares after Austins entry into this Island which was long before this Councill which bringeth on the Vann of all the rest of the Opponents instances which King called a Councill styled Commune Concilium tam Cleri quam Populi and in the conclusion of the same a Law is made upon the like occasion Si Rex populum Convocaverit c. in both which its evident that in those times there were Councils holden by the People as well as the Magnates or Optimates His next instance is in the yeare 694. which is of a Councill holden by the Great Men but no mention of the Commons and this he will have to be a Parliament albeit that he might have found both Abbatesses or Women and Presbyters to be Members of that Assembly and for default of better attested the conclusions of the same notwithstanding the Canon Nemo militans Deo c. But I must also minde him that the same Author reciteth a Councill holden by King Ina Suasu omnium Aldermannorum Seniorum Sapientum Regni and is very probable that all the Wise men of the Kingdome were not concluded within the Lordly dignity The third instance can have no better successe unlesse he will have the Pope to be allowed power to call a Parliament or allow the Arch-Bishop power to doe that service by the Popes command for by that authority this what ever it be was called if we give credit to the relation of Sir Henry Spelman who also reciteth another Councell within three leaves foregoing this called by Withered at Barkhamstead unto which the Clergy were summoned Qui cum viris utique militaribus communi omnium assensu has leges decrevere So as it seemeth in those times Souldiers or Knights were in the common Councels as well as other Great Men. In the next place he bringeth in a Councill holden in the yeare 747. which if the Arch-Bishop were then therein President as it s sayd in the presence of the King was no Parliament but a Church-mote and all the conclusions in the same doe testifie no lesse they being every one concerning Ecclesiasticall matters And furthermore before this time the Author out of whom he citeth this Councill mentioneth another Councill holden by Ina the Saxon King in the presence of the Bishops Princes Lords Earles and all the wise old Men and People of the Kingdome all of them concluding of the intermarriage between the Brittons Picts and Saxons which formerly as it seemeth was not allowed And the same King by his Charter mentioned by the same Penman noteth that his endowment of the Monastry of Glastenbury was made not onely in the presence of the Great Men but Cum praesentia populationis and he saith that Omnes confirmaverunt which I doe not mention as a worke necessary to be done by the Parliament yet such an one as was holden expedient as the case then stood Forty yeares after hee meeteth with another Councill which he supposeth to be a Parliament also but was none unlesse he will allow the Popes Legate power to summon a Parliament It was holden in the yeare 787. and had he duely considered the returne made by the Popes Legate of the Acts of that Councill which is also published by the same Author hee might have found that the Legate saith that they were propounded in publike Councill before the King Arch-Bishop and all the Bishops and Abbots of the Kingdome Senators Dukes or Captaines and people of the Land and they all consented to keep the same Then he brings in a Councill holden in the year 793. which he would never have set downe in the list of Parliaments if he had considered how improper it is to construe Provinciale tenuit Concilium for a Parliament and therefore I shall need no further to trouble the Reader therewith The two next are supposed to be but one and the same and it s sayd to be holden Anno 974. before nine Kings fifteene Bishops twenty Dukes c. which for ought appeares may comprehend all England and Scotland and is no Parliament of one Nation but a party of many Nations for some great matter no doubt yet nothing in particular mentioned but the solemne laying the foundation of the Monastry of Saint-Albans What manner of Councill the next was appeareth not and therefore nothing can be concluded therefrom but that it was holden in the yeare 796. That Councill which is next produced was in the yeare 800. and is called in great letters Concilium Provinciale which he cannot Gramatically construe to be a Parliament yet in the Preface it is sayd that there were Viri cujuscunque dignitatis and the King in his Letter to the Pope saith concerning it Visum est cunctis gentis nostrae sapientibus so as it seemeth by this and other examples of this nature that though the Church-motes invented the particular conclusions yet it was left to the Witagen-mote to Judge and conclude them There can be no question but the next three Presidents brought by the Opponent were all of
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
feminine Spirit which they sent over into England to be their Queen and in one Civill Warre shedding more English blood by the English Sword then they could formerly doe by all the men of France were revenged upon England to the full at the English mens own charge For what the English gain by the Sword is commonly lost by discourse A Kingdome is never more befooled then in the Marriage of their King if the Lady be great she is good enough though as Jezabell she will not either reverence her Husband obey her Lord and King nor regard his People And thus was this Kingdome scourged by a marriage for the sinne of the Wise men that building upon a false Foundation advised the King in the breach of Contract with the Earle of Arminiacks Daughter And thus the King also for that hearkning to such Councell he murthered the Duke of Glocester that had been to him a Father yeilded up his Power to his Queen A Masterlesse and proud Woman that made him like a broken Idol without use suffered a Recovery of his Crown and Scepter in the Parliament from his owne Issue to the Line of Yorke then renewing the Warre at his Queens beck lost what he had left of his Kingdome Countrey and Liberty and like the King that forgot the kindnesse of Jehojada lost his life by the hand of his Servant CHAP. XIV Of the Parliament during the Reignes of these Kings THe interest of the Parliament of England is never more Predominant then when Kings want Title or Age The first of these was the Case of Henry the Fourth immediately but of them all in relation to the pretended Law of the Crown but Henry the Sixth had the disadvantage of both whereof in its due place The pretended Law of the Crown of England is to hold by Inheritance with power to dispose of the same in such manner by such means and unto such persons as the King shall please To this it cannot be denied divers Kings had put in their claimes by devising their Crowne in their last Will but the successe must be attributed to some Power under God that must be the Executor when all is done and which must in Cases of Debate concerning Succession determine the matter by a Law best known to the Judge himselfe Not much unlike hereunto is the Case of Henry the Fourth who like a Bud putting up in the place of a fading Leafe dismounts his Predecessor First from the Peoples regard and after from his Throne which being empty some times he pretending the resignation of his Predecessor to him other whiles an obscure Title by descent his Conscience telling him all the while that it was the Sword that wrought the worke But when he comes to plead his Title to Forrain Princes by Protestation laying aside the mention of them all he justifies upon the unanimous consent of the Parliament and the People in his own onely Person And so before all the World confessed the Authority and power of the Parliament of England in disposing of the Crown in speciall Cases as a sufficient barr unto any pretended right that might arise from the House of Mortimar And yet because he never walks safely that hath an Enemy pursuing him still within reach he bethinks himself not sure enough unlesse his next Successors follow the dance upon the same foote to this end an Act of Parliament leades the tune whereby the Crowne is granted or confirmed to Henry the Fourth for life and intailed upon his Sonnes Thomas John and Humphrey by a Petition presented 5. Hen. 4. Thus Henry the Fourth to save his owne stake brought his Posterity into the like capacity with himselfe that they must be Kings or not subsist in the World if the House of Yorke prevailes and so he becomes secured against the House of Yorke treading on his heeles unlesse the Parliament of England shall eat their owne word However for the present the House of Lancaster hath the Crown intailed and the Inheritance is left in the Clouds to be revealed in due time For though this was the first president of this kinde yet was it not the last wherein the Parliament exercised a Power by Grant or Confirmation to direct the Law and Course of the Crown as they pleased The due consideration hereof will make the things that follow lesse strange For the Parliament according to occasion as the Supreame power of this Kingdome exercised Supreame Jurisdiction in order to the safety of the Kingdome as if no King had beene to be found in issuing forth Writs under the great Seale concluding of matters without the Royall assent treating of Peace with Forrain Nations and of other matters and determining their Resolves before discovery made to the King of their Councells making Ordinances and ruling by them 3 H. 6. n. 29. 2 H. 6. n. 27. 8 H. 6. n. 12. referring matters determinable in Parliament to be determined according to their directions Authoritate Parliamenti Confirming Peace made by the King protesting against Peace made without or against their consent making Ambassadours with power to ingage for the Kingdome making Generals of the Army Admiralls at Sea Chancellors Barons and Privy Councellors and giving them instructions 8 H. 4. n. 73. 76. 31. 5 H. 4. n. 57. 31 H. 6. n. 21. and binding them to observance upon Oath 11 H. 4. n. 19.39 Ordering the Person of the King denying his power of Judicature in Parliament and ordering his Houshold and Revenue besides many other particulars Now if such as these things were thus done not by one Parliament which possibly might be overwayed by Factions but by the course of a Series of Parliaments that mightily laboured against Faction and unworthy ends and aimes that man shal determin the same to be unjust or indiscreet should himself first be determined to be very just and exceeding wise Nor was the Parliament partiall in all this but being in a way of Reformation it set upon the work of reforming it selfe Some that are very zealous in the point of Arbitrary and absolute Government of Kings in this Nation and all in other amongst other grounds rest upon this one That an English King hath power to call Parliaments and dissolve them to make and unmake Members as he shal please I do easily grant that Kings have many Occasions and Opportunities to beguile their People yet can they do nothing as Kings but what of right they ought to doe They may call Parliaments but neither as often or seldome as they please if the Statute-Laws of this Realme might take place Nor if they could is that power necessarily and absolutely arising from Supremacy seeing it is well known that such power is betrusted by the Superiour States in other Nations to the Inferiour who dayly attend on publique Affaires and therefore can discern when the generall Conventions are most necessary As touching the dissolving of Parliaments against the wills of
underlings to the great men then they are to their Fethers to were them no longer then they will make them brave Secondly the Person thus agreed upon his intertainment must be accordingly and therefore the manner of taxing in full County and levying the rate of Wages for their maintenance is reformed and settled And lastly their Persons are put under the Protection of the Law in an especiall manner for as their work is full of reflexion so formerly they had met with many sad influences for their labour And therefore a penall Law is made against force to be made upon the Persons of those workmen of State either in their going to that Service or attending thereupon making such Delinquents liable to Fine and Imprisonment and double damages And thus however the times were full of confusions yet a foundation was laid of a more uniforme Government in future times then England hitherto had seen CAHP. XV. Of the Custos or Protector Regni KIngs though they have vast dimensions yet are not infinite nor greater then the bounds of one Kingdome wherein if present they are in all places present if otherwise they are like the Sunn gone down and must rule by reflexion as the Moone in the night In a mixt common wealth they are integrall members and therefore regularly must act Per deputatum when their Persons are absent in another Ligialty and cannot act Per se Partly because their Lustre is somewhat eclipsed by another Horizon and partly because by common intendment they cannot take notice of things done in their absence It hath therefore been the ancient course of Kings of this Nation to constitute Vicegerents in their absence ' giving them severall titles and severall powers according as the necessity of affaires required Sometimes they are called Lord Warden or Lord Keeper of the Kingdome and have therewith the generall power of a King as it was with John Warren Earle of Surry appointed therunto by Edw. the first who had not onely power to command but to grant and this power extended both to England and Scotland And Peter Gaveston though a Forrainer had the like power given him by Edward the second over England to the reproach of the English Nobility which also they revenged afterward Somtimes these Vicegerents are called Lievtenants which seemeth to conferr onely the Kings power in the Militia as a Lievtenant Generall in an army And thus Richard the second made Edmund Duke of Yorke his Lievtenant of the Kingdome of England to oppose the entry of the Duke of Hertford Afterwards called Henry the fourth into England during the Kings absence in Ireland And in the mean while the other part of the Royalty which concerned the revenues of the Crowne was betrusted to the Earle of Wiltshire Sir John Bush Sir James Baggot and Sir Henry Green unto whom men say the King put his Kingdome to farme But more ordinarily the Kings power was delegated unto one under both the titles of Lord Gaurdian of the Kingdome and Lievtenant within the same such was the title of Henry Lacy Earle of Lincolne and of Gilbert De clare Earle of Glocester and of Audomar De valentia Earle of Pembroke all of them at severall times so constituted by Edward the second as by the Patent Roles appeareth So likewise did Edward the third make his Brother John of Eâ—tham twice and the black Prince thrice and Lionell Duke Clarence and his Brother Thomas each of them once in the severall passages of Edward the third beyond the Sea in the third fifth twelfth fourteenth sixteenth nineteenth and thirty third years of his reigne concerning which see the Patent Rolls of those yeares And Henry the fifth gave likewise the same title and authority to the Duke of Bedford upon the Kings voyage into France and afterward that Duke being sent over to second the King in the French Wars the Duke of Glocester obtained the same power and place But Henry the sixth added a further title of Protector and Defendor of the Kingdome and Church of England this was first given to the Duke of Bedford and afterwards he being made Regent of France it was conferred upon the Duke of Glocester And towards the later time of Henry the sixth it was granted by him to Richard Duke of Yorke This title carried along with it a power different from that of a King onely in honor and the Person so adorned may be said to sway the Scepter but not to weare the Crowne And therefore in the minority of Henry the sixth when as the Government was ordered by the Parliament and to that end a Protector was made and he wel guarded with a Privy Councill and they provided with instructions one of them was that in all matters not to be transacted ordinarily but by the Kings expresse consent the Privy Councell should advise with the Prorector but this is not so needfull in regard that it concerneth the power of executing of Lawes which by right of the liberty of the Subject is the known duty of the Scepter in whose hands soever it is holden And therefore I shall passe to the Legislative power wherein its evident that the Protectors power was no whit inferiour to the Kings power For first the Protector Ex officio by advice of the Councell did summon Parliaments by Writs even as the Kings themselves under their owne Teste and if not bear the Royall Assent yet did they direct the same and received Petitions in Parliament to them directed as to Kings and every way supplied the roome of a King in order to the perfecting publishing and inforcing of Law to Execution Secondly the Parliaments holden by Protectors and Lawes therein made are no whit inferiour to those by the King whether for Honour or Power And therefore if a Parliament be-holden by the Lord Warden and sitting the Parliament the King in person shall arrive and be there present neither is the Parliament interrupted thereby nor the power thereof changed at all though the power and place of the Wardenship of the Kingdome doth utterly vanish by the personall accesse of the King because in all Cases where the King is subservient to the Kingdome or the Common-wealth The Lord Warden in his absence is conservient unto him being in his stead and not under him for the very Place supposeth him as not because not present And this was by a Law declaratively published at such time as Henry the fifth was Regent of France and therefore by common presumption was likely to have much occasion of residence in that Kingdome and it holdeth in equall force with all other Lawes of the highest Size which is the rather to be noted because it is though under a Protector obligatory to the King and makes his personall presence no more considerable then the presence of his shadow For the King spent three whole yeares in the French Warres and during that time never saw England where
the People However unequall it may seem yet both that and other advantages were gained by the House of Lords after the seperation was once made as many of the ancient Statutes by them only made do sufficiently hold forth which although in the generall do concern matters of Judicature wherin the Lords originally had the greatest share yet other things also escaped the Commons Vote which in after ages they recovered into their consideration again And the condition of the People in those times did principally conduce hereunto For untill the Norman times were somwhat settled the former ages had ever been uncertain in the changes between War and Peace which maintained the distance between the Lords and their Tenants and the Authority of the one over the other savouring of the more absolute command in War And after that the Sword was turned into the plough-share the distance is established by compact of Tenure by Service under perill of default although in a different degree for the Service of a Knight as more eminent in War so in Peace it raised the minde to regard of publique Peace but the Service of the plough supporting all is underneath all yet still under the common Condition of free men equally as the Knight Peace now had scarcely exceeded its minority before it brought forth the unhappy birth of Ambition Kings would be more absolute and Lords more Lordly the Commons left far behinde seldom come into mention amongst the publique Acts of State and as uselesse set aside this was the lowest ebb that ever the Commonage of England indured which continued till Ambition brought on contention amongst the great men and thence the Barons Warrs wherein the Commons parting asunder some holding for the King who promised them Liberty from their Lords others siding with the Lords who promisied them Liberty from the King they became so minded of their Liberties that in the conclusion they come off upon better advantage for their Liberties then either King or Lords who all were Loosers before their reckoning was fully made These Wars had by experience made the King sensible of the smart of the Lords great Interest with the People and pointed him to the pin upon which the same did hang to take which away a Designe is contrived to advance the value of the Commoners and to levell the Peerage that they both may draw in one equall yoke the Chariot of Prerogative The power of the Commons in publique Councells was of some efficacy but not much Honour for their meetings were tumultuary time brought forth a cure hereof the flowers of the People are by Election sent to the Representative and so the Lords are matched if not over-matched the People lesse admiring the Lords and more regarding themselves This was but a dazle an eclips ensues for Kings having duely eyed the Nature of Tenures between the Lords and Commons look upon it as an out-work or block-house in their way of approach Their next endeavour is therefore to gain the Knighthood of England within the compass of their own Fee and so by priority to have their Service as often as need should require by a trick in Law as well for their own safety in time of War as for their benefit in time of Peace This was a work of a continuing Nature and commended to Successors to accomplish by degrees that the whole Knighthood of England is become no more the Lords till Kings be first served and thus the power of the People is wholly devolved into the Kings Command and the Lords must now stand alone having no other foundation then the affections of the People gained by beneficense of Neighbourhood and ordinary society which commonly ingratiates the inferiour rank of men to those of higher degree especially such of them as affect to be popular Henry the seventh found out this sore and taught his Successors the way to avoid that occasion of jealousy by calling up such considerable men to attend the Court without other wage but fruitlesse hopes or under colour of Honour to be had by Kings from the presence of such great men in their great Traines or of other Service of speciall note to be done onely by men of so high accomplishment And by this meanes Lordship once bringing therewith both Authority and Power unto Kings before Kings grew jealous of their greatness in these later dayes is become a meer jelly and neither able to serve the Interest of Kings if the People should bestir themselves nor their own any longer henceforth the Commons of England are no mean Persons and their representative of such concernment as if Kings will have them to observe him he must serve them with their Liberties and Lawes and every one the publique good of the People No mans work is beneath no mans above it the best Honour of the Kings work is to be Nobilis servitus as Antigonus said to his Son or in plain English supreame Service above all and to the whole I now conclude as I found this Nation a Common-Wealth so I leave it and so may it be for ever and so will it be if we may attain the happinesse of our Fore-Fathers the ancient Saxons Quilibet contentus sorte propria A Table of the Principall Matters conteined in this Book A A Betting of Felony made Felony 299 Administration granted to the next of the Kindred 51 Admirals power from the Parliament 41. formerly under many brought into one 42. once gained jurisdiction to the high water-mark 44. and his Power regulated by Law ibid. over Sea-men Ports and Ships 44 Allegiance according to Law 18. vide Supremacy the nature thereof in general 79. its not natural 79 89. not absolute or indefinite 82. not to the King in his natural capacity 86. it obligeth not the People to serve in forrain War 10â— it is due to the person of the King for the time being 246 279. what it is in time of War and relation thereunto 247. Henry the seventh and Henry the eighth indeavoured to advance it in relation to the Crown but effected it not 204. Appeals in cases Ecclesiastical restrained from Rome and given in the Kings case to the Convocation and in the cases of the People the Archbishop afterwards to the Delegates and were never setled in the Crown 227 233. vide Archbishop Archbishop hath the lawfull power of the Pope in Appeals and Dispensations Licenses and Faculties 233. the Archbishop of York looseth his jurisdiction over the Scottish Bishops 193 Arrays Commission of Array 178 vide War Assent of the King to Acts of Parliament serveth onely to the execution of the Law and not to the making thereof 21 Association of the People for the common safety before the Statute inabling the same 298 B. BAstardy not to be determined by the Ordinary before Summons to the Pretendors of Title to be heard 156 Bench the Kings Bench at Westminster abated in power by the Commissions of Oyer and Terminer and Gaol delivery
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
them Church-motes For the first of them which is sayd to be holden in the yeare 816. is called a Synod and both Preists and Deacons were there present which are no Members of Parliament consisting onely of the House of Lords and they all of them did Pariter tractare de necessarijs utilitatibus Ecclesiarum The second of them is called a Synodall Councill holden Anno 822. and yet there were then present Omnium dignitatum optimates which cannot be understood onely of those of the House of Lords because they ought all to be personally present and therefore there is no Optimacy amongst them The last of these three is called Synodale Conciliabulum a petty Synod in great letters and besides there were with the Bishops and Abbots many Wise men and in all these respects it cannot be a Parliament onely of the great Lords The next Councill said to be holden in the yeare 823. cannot also be called properly a Parliament but onely a consultation between two Kings and their Councill to prevent the invasion of the Danes and the attests of the Kings Chapplain and his Scribe doe shew also that they were not all Members of the House of Lords The Councill cited by the Opponent in the next place was holden An 838. being onely in nature of a Councill for Law or Judicature to determine the validity of the Kings Grant made to the Church of Canterbury which is no proper worke for a Parliament unlesse it befall during the fitting of the same The next is but a bare title of a Councill supposed to be holden An. 850. And not worth its room for it neither sheweth whether any thing was concluded nor what the conclusions were The worke of the next Councill alleadged to be holden An. 851. was to confirme the Charter of the Monastry of Croyland and to determine concerning affaires belonging to the Mercinies and if it had beene a Parliament for that people it might be worthy of inquiry how regularly the Arch-Bishop of Canterbury and the Bishop of London and the Ambassadors from the West Saxons could sit amongst them and attest the conclusions therein made as wel as the proper members of that Nation He commeth in the next place to a Councill holden in the yeare 855. which is more likely to be a Parliament then most of them formerly mentioned if the Tithes of all England were therein given to the Church but hereof I have set downe my opinion in the former part of the discourse And though it be true that no Knights and Burgesses are therein mentioned as the Opponent observeth out of the Title yet if the body of the Lawes be duly considered towards the conclusion thereof it will appeare that there was present Fidelium infinita multitudo qui omnes regium Chirographum Laudaverunt Dignitates vero sua nomina subscripserunt And yet the Witagen-motes in these times began to be rare being continually inrerrupted by the invasions of the Danes The three next Councills alleaged to be in the yeares 930. 944. 948. Were doubtlesse of inferiour value as the matters therin concluded were of inferiour regard being such as concerne the passing of the Kings Grants Infeodations and confirmations The Councill mentioned to be in the yeare 965. is supposed to be one and the same with the next foregoing by Sir Henry Spelman which calls it selfe a generall Councill not by reason of the generall confluence of the Lords and Laity but because all the Bishops of England did then meet The Primi and Primates were there who these were is not mentioned but its evident that the King of Scots was there and that both he and diverse that are called Ministri Regis attested the conclusions It will be difficult to make out how these should be Members of the House of Lords and more difficult to shew a reason why in the attesting of the acts of these Councills which the Opponent calls Parliaments we finde so few of the Laity that scarce twelve are mentioned in any one of them and those to descend so low as the Ministri Regis to make up the number Five more of these instances remaine before the comming in of the Normans The first of which was in the yeare 975. and in a time when no Parliament according to the Opponents principles could sit for it was an Inter regnum The two next were onely Synods to determine the difference between the Regulers and the Seculers in the Kings absence by reason that he was under age and they are sayd to be in the yeares 977 and 1009. But it s not within the compasse of my matter to debate their dates The last two were Meetings or Courts for Judicature to determine the crime of Treason which every one knowes is determinable by inferiour Courts before the high Steward or Judges and therefore not so peculiar to a Parliament as to be made an argument of its existence And thus are we at an end of all the instances brought by the Opponent to prove that Parliaments before the Norman times consisted of those whom we now call the House of Lords All which I shall shut up with two other notes taken out of the Book of Councils published by Sir Henry Spelman The first of which concerneth a Grant made by Canutus of an exemption to the Abby of Bury Saint Edmonds in a Councill wherein were present Arch-Bishops Bishops Abbots Dukes Earles Cum quamplurimis gregariis militibus cum populi multitudine copiosa votis regiis unanimiter consentientes The other taken out of the confessors Lawes which tells us that Tithes were granted to the Church A Rege Baronibus populo And thus shall leave these testimonies to debate with one another whiles the Reader may judge as seemeth most equall to himselfe Being thus come to the Norman times and those ensuing I shall more summarily proceed with the particulars concerning them because they were times of force and can give little or no evidence against the customes rightly setled in the Saxon times which I have more particularly insisted upon that the originall constitution of this government may the better appeare Now for the more speedy manifesting of the truth in the particulars following I shall pre-advise the Reader in three particulars First that the Church-motes grew more in power and honor by the aide of the Normans Law refusing the concurrence and personall presence of Kings whom at length they excluded from their Councils with all his Nobles and therefore it is the lesse wonder if we heare but little of the Commons joyning with them Secondly that the Norman way of government grew more Aristocraticall then the Saxon making the Lords the cheif Instruments of keeping Kings above and people underneath thus we meet with much noise of meetings betweene the King and Lords and little concerning the grand meetings of the Kings and the representative of the people although some footsteps wee finde even of them
also For Kings were mistaken in the Lords who meaned nothing lesse then to serve them with the peoples liberties together with their owne which they saw wrapped up in the grosse Thirdly by this meanes the Councils of the King and Lords grew potent not onely for advise in particular occasions but in matters of judicature and declaring of Law ordering of processe in Courts of Plees which in the first framing were the workes of Wise and Learned men but being once setled become part of the liberties of every Free-man And it is not to be doubted but these Councills of Lords did outreach into things two great for them to mannage and kept the Commons out of possession of their right during the present heat of their ruffling condition yet all this while could not take absolute possession of the legislative power I now come to the remainder of the particular instances produced by the Opponent which I shall reduce into severall Categories for the more cleere satisfaction to the Reader with lesse tediousnesse First it cannot be denied but the Councill of Lords gave advise to Kings in cases of particular immergency nor is it incongruous to the course of government even to this day nor meete that the Parliament should be troubled with every such occasion and therefore the giving of advise to William the Conqueror what course he should take to settle the Lawes of England according to the instances in Councills holden An 1060. And 1070. And to gaine favour of the great men according to that in An 1106. and in the manner of endowment of the Abby of Battell as in pag 25. of the Opponents discourse and what to do upon the reading of the Popes Letter according to that in An 1114. And whether the Popes Legate should be admitted as in pag. 18. And how King Steven and Henry shall come to agreement as An 1153. And how to execute Lawes by Judges and Justices Itinerant as An 1176. And touching the manner of ingageing for a voyage by Croisado to Jerusalem An 1189. And to give answer to Embassadors of a forraine Prince pag. 25. And how King John shall conclude peace with the Pope An 1213. Where neverthelesse Math. Paris saith was Turba multa nimis I say all these might well be done by a Councell of Lords and not in any posture of a Parliament albeit that in none of all these doth any thing appeare but that the Commons might be present in every one or many of them all Secondly as touching judicature the Lords had much power therein even in the Saxon times haveing better opportunites for Knowledge and Learning especially joyned with the Clergy then the Commons in those times of deep darknesse wherein even the Clergy wanted not their share as in the first part of the discourse I have already observed Whatsoever then might be done by Judges in ordinary Courts of judicature is inferiour to the regard of the Parliament and therefore the Plea between the Arch-Bishop and Aethelstan concerning Land instanced An 1070. And betweene Lanfranke and Odo An 1071. and betweene the King and Anselme pag 15 16. and the determining of Treason of John afterwards King against his Lord and King Richard pag 23. And the difference concerning the title of a Barony between Mowbray and Scotvile pag 25. And giving of security of good behaviour by William Brawse to King John pag. 26. All these might well be determined onely before the Lords and yet the Parliament might be then sitting or not sitting as the contrary to either doth not appeare and therefore can these forme no demonstrative ground to prove that the Parliament consisted in those times onely of such as we now call the House of Lords A third worke whereby the Opponent would prove the Parliament to consist onely of the House of Lords is because hee findeth many things by them concluded touching the solemnization and the settling of the succession of Kings both which he saith were done by the Lords in Parliament or those of that House and I shall crave leave to conclude the contrary For neither is the election or Solemnization of such election a proper worke of the Parliament according to the Opponents principles nor can they prove such Conventions wherein they were to be Parliaments Not the election of Kings for then may a Parliament be without a King and therefore that instance concerning William Rufus page 16. will faile or the Opponents principles who will have no Parliament without a King The like may also be sayde of the instance concerning King Steven page 18. Much lesse can the solemnization of the election by Coronation be a proper worke for the Parliament Neverthelesse the Opponent doth well know that both the election of a King and the solemnization of such election by Coronation are Spiritlesse motions without the presence of the people and therefore though his instance page 17. concerning the election of Henry the First by the Bishops and Princes may seeme to be restrictive as to them yet it is not such in fact if Matthew Paris may be beleeved who telleth us that in the Conventus omnium was Clerus and Populus universus and might have been noted by the Opponent out of that Learned Antiquary so often by him cited if he had pleased to take notice of such matters A fourth sort of Instances concerneth matters Ecclesiasticall and making of Canons and hereof enough hath been already sayd that such worke was absolutely challenged by the Church-motes as their proper worke and therefore the Instance page 16 17. of the Councill in Henry the firsts time and the Canons made by the Bishops there and that other called by Theobald Arch-Bishop of Canterbury and instanced by the Opponent page 19. I say both these doe faile in the conclusion propounded Fifthly As touching the most proper worke of Parliaments which is the making of Lawes concerning the liberties and benefit of the people the Opponent produceth not one instance concerning the same which doth not conclude contrary to his proposall for as touching those two instances in his thirteenth page Anno 1060. they concerne not the making of Lawes but the reviving of such as had been disused formerly which might well enough be done by private Councell But as to that in his fifteenth page of the Law made by the Conquerour concerning Remigius Bishop of Lincolne although it be true that wee finde not the particular titles of Knights Citizens and Burgesses yet besides the Councill of Arch-Bishops Bishops Abbats and Princes we finde the Common Councill for so the words are Communi Concilio Concilio Archiepiscopus Episcopus Abatus omnium Principum although the Opponent would seeme to wave these words Et Concilio but putting them in a small Character and the rest in a voluminous Letter that the Readers eyes might be filled with them and overlook the other Secondly as to the instance of the Councill at Clarindon in his nineteenth page which he citeth out
now began to honour his Valour above his Fathers But the Tyde is spent the Prince of Chivalry dyes the brave Commanders wasted and the French too fickle to continue subject to the English longer then needs must tack about for another Adventure and make it plaine that France is too bigg to be Garrison'd by England and that it will cost England more to hold it then to have it His Religion was more to the purpose then of any of his Predecessors since the Norman times he reflected upon God in common events more ordinarily then the generall streame of the Clergy did in those dayes He loved if not adored devout men and their prayers and yet intentively disclaimed opinion of merits in the Creature Hee saw the Pope through and through loved him but little feared him lesse and yet lost neither Honour nor Power thereby His cheife policy at home was to be much at home great with his People and they great with him what the Parliament did he accounted well done he never questioned their Power though he was over-reached in questioning their Wisedome For he that shall preferr his owne wisedome above that of the Parliament must needs thinke himselfe extreamly Wise and so much the more to know himselfe to be such But the worst of his fate was to live to his Winter age and after fifty yeares Reigne or more to dye in his minority under the rule of a Woman of none of the best fame after hee had so long enjoyed the honour of greatest note in the Christian World in his dayes Such was not Richard the Second though the onely Son of that famous Cheiftaine the Black Prince of Wales a renouned Son of a renouned Father but as a Plant transplanted into a Savage soyle in degree and disposition wholly degenerate retained a tincture of the light inconstancy of his Mother and the luxuriousnesse of his Great Grandfather Edward the Second and running his course came to his end His entrance however by colour of Inheritance yet was a greater adventure then his Predecessors that came in by election upon the designation of his Father by his last Will say some For this man came in upon many disadvantages both of time and person The times were very troublesome the Kingdome new wrapped up in a double Warr abroad and which is worse flooded with distractions at home contracted partly by his Predecessors weaknesses in his decrepit estate partly by a new interest of Religion sprung up against the Papall Tyranny from the Doctrine of Wickleiff all which required a very wise Man and a brave Commander in both which the King fayled Religion now began to dawne through the foggs of Romish usurpations and superstitions ayded thereto by a Scisme in the triple Crowne that continued forty yeares with much virulency abroad and with as bad influence upon our Myters at home Some of whom were called Clementines others Vrbanists and yet none of them all worthy of eyther of the Names in their proper signification The Laity though lookers on yet were not quiet For though Liberty be a hopefull thing yet its dangerous to them that are not a Law to themselves especially in matter of Opinion for that arraines the rule and layes the way open to licentiousnesse And now that the Liberty from the Keyes began to be taught as a duty of Religion the inferiour sort meet with Doctrines of licentiousnesse upon mistake of the notion and will acknowledge no rule now they must be all at liberty and thus sprang up the insurrection of the Servants and Bond-men against their Lords and Masters under Cade and Strawe that might have brought the Common wealth into a hideous Chaos had not the Lords and Great Men betimes bestirred themselves and the King shewed an extraordinary spirit or rather a kinde of rage that put it selfe forth beyond the ordinary temper of his minde Much of this mischeife was imputed to Wickleiffs Doctrine for it is an ordinary thing to proclaime all evills concurring with the very joynt of Reformation to be the proper fruits thereof but I looke upon it as a fruit of corruption that indeavours to stopp the breath of Reformation in the birth and there is somewhat of a hidden influence from Above in the thing for it was not onely the Cupp of England to be thus troubled but France and other places had their portion sutable The Kings minority rendred him unequall unto these contrary motions he was in his eleventh yeare when he entred the Throne and which was worse his yeares came on faster then his Parts but his worke posted before them all The common helpe of Protectors left him yet more unhappy for they were prepossessed with strong ingagements of particular Interests and so were eyther not wise enough or not good enough for all This brought forth a third inconvenience the change of Protectorship and that change of Affaires and Interests an uncertaine good that brings forth a certaine evill for variety of Instruments and Interests move severall wayes and though the end be one the difference concerning the way many times doth as much hinder the Journey as so many blocks in the way The Protectorship was thrice changed the Kings Unkles had the first essay any one of them was bigg enough for one Kingdome but all of them together were too great to make one Protector The Duke of Lancaster would have done well alone if he had been alone and that work alone but he being somewhat ingaged with the Wickleiffists and so intangled with the Clergy and other restlesse spirits and drawne off by his private ayme at the Crowne of Castile saw this worke too much and so he warily withdrew himselfe leaving the Directory to a Committee of Lords a soveraine Plaister questionlesse where the times are whole but not for these distractions wherein even the Committee it selfe suffered its share Thus the breach is made the wider and for a cure of all the Government is committed into one hand wherein the Earle of Warwick acquitted himselfe well for he was wise enough to observe such as the people most honoured And thus passed over the two first yeares of the Kings Reigne The remainder of the Kings minority was rather in common repute then in true account For the King however young took little more from the Protector then he saw meet to collour his own commands with opinion of Regularity and so his will came to full strength before his wisdome budded Thus lifted up he sets himself above all interests of Parliament Protectors Councellors Unkles wise Men and Law leaving them all to be rules for those below And so long as the Kings desire is thus served he is content to be reputed a Minor and be as it were under protection of others though not under their direction and is content to continue thus untill his two and twentieth year Some might thinke him very moderate had hee been moderate but he forbears suing out his
Livery so long as he may live without care and spend without controll For by this time the humour of his great Grand-father budded in him he pawned his heart to young men of vast desires and some say so inordinately as he prostituted his chastitie unto them And it s no wonder if the Revenues of the Crowne are insufficient for such Masters Thiâ— the people soon felt and feared their own Free-holds for they are bound saith he not to see the Crowne deflowred for want of maintenance it s very true nor to see the Crowne deflowred of its maintenance A Parliament therefore is called in which diverse Lords associate and prepare Physick for the Kings lavish humour which being administred wrought for ten yeares after till it had purged him of his life and the Kingdome of their King It was an Act of Parliament that gave power to fourteen Lords and others to regulate the Profits and Revenues of the Crowne and to doe Justice to the People this was to continue for one whole yeare The Parasites no sooner found the effect hereof to their Cost but the King growes sicke of it and findes an Antidote to over-rule Acts of Parliament by Acts of Privy Councell declares this ill-favoured Commission voide and the Contrivers Advisers and Inforcers Traytors To make it more Majesticall he causeth the Judges to Subscribe this Order and so it becomes Law in repute This foundation thus laid he buildeth in hast an Impeachment of these Commissioners of high Treason and supposing that they would not readily stoope himselfe stoopes lower for he would put his Right to triall by battell which was already his owne by the judgement of the Masters of the Law For so they may be well called seeing they had thus Mastered it In this the King had the worst for he lost his Honour and himselfe God hath a care of common right even amongst Idolaters Then comes the Parliament of Wonders wherein the Kings Party are declared Traytors and the chiefe Judges with their Law judged by another Law The King not medled with thinks it high time to come out of his Minority and assumes the Government of the Kingdome and himselfe to himself being now three and twenty yeares of age old enough to have done well if he had cared for it But resolving to follow the way of his owne will at length it led him to his owne ruine onely for the present two things delayed it Viz. The Authority Wisedome and Moderation of his Unckles especially of the Duke of Lancaster now come out of Spain and the great affection which the King pretended to the Queen who had also gained a good opinion amongst the People The benevolent aspect of the People not for their owne advantage but for the Publick quiet procured many Parlies and interviewes between the King and People and many Lawes for the upholding of the Court and Government although both Warre Lawes Justice and Councells all are faint as all is faint in that man that hath once dismanned himself This he perceives well enough and therefore Peace he must have by any means The Queen dies himselfe being nigh eight and twenty yeares old takes a Creature like a Wife but in truth a Childe of eight yeares old and this is to get Peace with France It s no wonder if now he hunts after unlawfull game and that being ill taken brings all things out of order For abused Marriage never wants woe Civill men are now looked upon as severe Cators and his Unckles especially the Duke of Glocester with a jealous eye which accomplished his death in the conclusion The Dukes of Lancaster and Yorke forsake the Court Favorites step into their roomes The old way of the eleventh yeare is re-assumed Belknap and others are pardoned and made of the Cabinet The Pardon of the Earle of Arundell is adnulled contrary to the advise of the major part and the Arch Bishop the Earles brother is banished The Lords forsake the wilfull King still the Kings jealousie swells The Duke of Hertford is banished or rather by a hidden Providence sent out of the way for a further worke The Duke of Lancaster dies and with him all hope of moderation is gone for he was a wise Prince and the onely Cement that held the joynts of the Kingdome in correspondency And he was ill requited for all his Estate is seised upon The Duke of Hertford and his Party are looked upon by the People as Martyrs in the Common Cause and others as Royalists Extremities hasten on and Prerogative now upon the wing is towering above reach In full Parliament downe goes all the worke of the tenth and eleventh yeares Parliament which had never bin if that Parliament had continued by adjournment The King raiseth a Power which he calleth his Cuard of Cheshire men under the terror of this displaying rod the Parliament Kingdom are brought to Confession Cheshire for this service is made a Principality thus goes Counties up and Kingdoms down The Kings Conscience whispers a sad Message of dethroning and well it might be for he knew he had deserved it Against this danger he intrenches himself in an Act of Parliament That made it Treason To purpose and endeavor to depose the King or levy War against him or to withdraw his Homage hereof being attainted in Parliament And now he thought he was well guarded by Ingagement from the Parliament but he missed the right Conclusion for want of Logique For if the Parliament it self shall depose him it cannot be made a Traytor or attaint it selfe and then hath the King gain'd no more then a fals birth But the King was not thus quiet the sting of guilt still sticks within and for remedy he will unlaw the Law and gets it enacted that all Procurers of the Statute of 10. Richard the Second and the Commission and Procurers of the Kings assent thereto and hinderers of the Kings proceedings are adjudged Traitors All these reach onely the branches the root remains yet and may spring again and therefore in the last place have at the Parliament it self For by the same its further declared That the King is the sole Master of the Propositions for matters to be treated in Parliament and all gainsayers are Traitors Secondly That the King may dissolve the Parliament at his pleasure and all gainsayers are Traitors Thirdly That the Parliament may not proceed against the Kings Justices for offences by them committed in Parliament without the Kings consent and all gainsayers are Traitors These and the like Aphorismes once Voted by the Cheshire men assented unto by the Parliament with the Kings Fiat must passe for currant to the Judges and if by them confirmed or allowed will in the Kings opinion make it a Law for ever That the King and all Parliaments is Dominus fac primum and Dominus fac totum But the Judges remembred the tenth yeare and Belknaps intertainment and so dealt warily their opinion is thus
set down It belongeth to the Parliament to declare Treason yet if I were a Peere and were commanded I should agree So did Thorning under-write and thereunto also consented Rickill and Sir Walter Clopton the last being chief Justice of the Kings Bench the first chief Justice of the Common-Pleas and the second another Judge of the same Bench. The summe in plainer sense is that if they were Peeres they would agree but as Judges they will be silent And thus the Parliament of England by the first of these foure last mentioned conclusions attainted themselves by the second yeilded up their liberties by the third their lives and by the last would have done more or been lesse And to fill up the measure of all they assigned over a right of Legislative Power unto six Lords and three Commons and yet the King not content superadded that it should be Treason for any man to indeavor to repeal any of their determinations The Common-wealth thus underneath the King tramples upon all at once for having espied the shadow of a Crown fleeting from him in Ireland he pursues it leaves the noble Crown of England in the base condition of a Farme subject to strip and waste by mean men and crosses the Irish Seas with an Army This was one of Englands Climactericall years under a disease so desperate that no hope was left but by a desperate Cure by sudden bleeding in the head and cutting off that Member that is a principle of motion in the Body For it was not many moneths ere the winde of affaires changed the King now in Ireland another steps into the Throne the noise hereof makes him return afarr of inraged but the nigher he comes the cooler he growes his conscience revives his courage decayes and leaving his Army his Lordship Kingdome and Libertie behinde as a naked man submits himself to release all homage and fealtie to resigne his Crown and Dignitie his Titles and Authoritie to acknowledge himself unworthy and insufficient to reign to swear never to repent of his Resignation thus if he will have any quiet this wilfull man he must be content for the future neither to will nor desire And poore England must for a time bee contented with a dolefull condition in which the King cannot rule and the Parliament will not and the whole body like a Chäos capable of any form that the next daring spirit shall brood upon it CHAP. II. Of the State of the King and Parliament in relation of it to him and him to it A King in Parliament is like the first-born of Jacob The excellencie of Dignitie and the excellencie of Power but alone unstable as water Examples of both these we have in these two Kings Whereof the first was Crowned by the Parliament and Crowned it the latter also Crowned it but with Thornes and yet the Parliament in all held on that wise way that it neither exceeded its own bounds nor lost its own right I shall enter into the consideration of particulars under these heads First In relation more immediately to the interest of the King Secondly To the interest of the Kingdome in generall The King though higher then all the people by the head and so hath the Prerogative of Honour as the most worthy yet his strength and abilities originally doe rise from beneath otherwise he is but like a Generall without an Army the Title big but aiery and many times his person subject to so much danger that in stead of drawing the eyes of all the people to look upon him with admiration they are drawn to look to him with observation and in this respect he may be said to be lesse his own man and more the Kingdomes then any of the inferiour sort This befell in both these Kings in a speciall manner each entering upon the grand government of a Kingdome before they were able to understand the work or govern themselves and therefore were under power of Protectors for the guard of their Persons and their Education and of the Parliament for Councell and Direction in Cases relating to the Kingdome The chide of a mean man when its Parents are dead is Filus Amici but of a King is Filius Populi to be by them trained up in such manner that he may be Pater populi when he is come to age In the mean time though he be a King yet his Person like a precious Jem must not out of the ring but must be directed by Councell though under some kind of restraint the Councellors all the while no Offenders in such Cases against the Prerogative Royall And therefore though it be true that Kings grow faster then other men and sooner come to full age then they yet Edward the third now in his sixteenth yeare might not passe over Sea into France though it were for restoring of Peace but by direction of the Parliament nor is it meet in such Cases that Kings should stand upon the Prerogative of a Negative Secondly it may likewise be said that his Family is lesse his owne as he is a man then another mans For private Families are no further under the publique Law then in relation to the publique Peace to punish after breach made But the Families of Kings are looked upon by all in relation to the honour and profit of the Publique not onely because the Kings servants have by their nigh attendance upon his Person a more powerfull influence into his actions which may reflect a malevolent aspect upon the whole course of affaires if they be not better ordered that are so nigh him But more especially in regard that the government and order of the Royall Family trencheth deep upon the Honor of the Kingdome and purses of the People who are concerned to see the same accommodated sutable to the State and Port which the Nation would bear forth to the World And therefore for the Parliament to intermeddle in the Kings Family is not forrain nor new Alice Piers was a Familier if not of the Family of Edward the third yet both her selfe and others of that Family were complained of as a grievance Richard the second was once a young man and ever a young King and what Edward the third wanted onely in his youth and in his infirme old age this man ever wanted for he that knew not how to govern himselfe how much lesse could he govern his Family And if in this condition the Parliament become his Stewards to set a yearely Survey and Check upon his Servants and Family in order to good order of the same and Kingdome otherwise men must conclude it did that which was just though Richard the second and those of his minde thinke not so But this is not all Kings have not onely such as serve the outward man but some that serve their Consciences of old time called Confessors in those dayes without name for feare of Superstition yet the thing remaineth still in some well favored Chaplain and
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
therefore safe if not necessary that every eye should be open and Counsells ready for every Occasion A law at length is agreed upon that A Parliament shall be holden once every yeare or more if need be But in thirty yeares the power of this Law is wasted out of minde and the evill reviving revives also the Statute and yet they had thirteen or fourteen Parliaments in thirty yeares space and not above three or but once foure yeares distance of time between any two of them in Succession This was the sense of the Members of the Houses in their meeting but at home they had homely conceits and it s found no lesse difficult to bring them to the meeting then to continue the meeting according to the Law being either loath to adventure their thoughts into the troublesome affaires of the Publique or their Persons to expence and hazard But the Publique must be served and therefore an Act of Parliament is made That all such Members as decline their appearance at the Parliament after Summons made shall be amerced and the Sheriffes likewise that shall neglect return of Summons And the Statute implyeth that it was no Introduction of a new Law but a reviving of former Law now or lately difused or a Custome now out of Custome And to take away all Objection in point of charges and expences another Law was made to establish the assessments and levying of their Wages upon the Lands that anciently were chargeable therewith in whose hands soever the same shall come I shall conclude with this that the Parliament though like a Garment it sometimes covers the goodly feature and proportion of a well composed body yet it keepes the same warme and as a Sheild is first in all dangers and meets with many a knock which the body feels not This is their worke and reward It s true that in the wearing it is felt heavy but it is the easier born if it be duely considered that it is better to be so clothed then to be naked CHAP. III. Of the Privy Councell and condition of the Lords THe later must make way for the former for according to their Personall esteeme in their own Countries such is their Authority at the Board in joynt Councells And it was one point of happinesse in a sad time of Warre that all men looked one way The Lords were much addicted to the Feild and could doe much with Edward the Third who was a brave Leader and more with the People who had bin so long time used to the rough trade of Souldiery that they loved not to be at home about matters of Husbandry wherein they had so little experience And having so fair a Garland in their eye as France it s no wonder if Domestick designes seemed meaner or more dangerous Thus did God doe England a good turn although it was made for the present thereby neither so rich or populous as it might have bin in a time of Peace This French Heate wasted many a tumultuous Spirit and Innobled the Fame of the King and Lords not onely abroade but won them much Honour and Repute of those that remained at home and so by congregating Homogenealls and severing Heterogenealls rendered the body of the People more Univecall which tended much to the settling of the joynts of this distracted Nation A timely birth hereof doubtlesse was the peaceable entry of Richard the Second upon the Throne and quiet sitting there whiles as yet he was but a Childe the Princes of the blood many and they of generous Active and daring Spirits yet doe we not meete with a whisper in Story of any turbulent or aspiring humor in them or the People during those tenderer times of that Kings reigne But after that he came to know more in himselfe then was to be found and to outreare his abilities having some of the Lords ready at his elbow to help him these changed the Kings course although the generall part of that Noble Band kept still their Array and retaining the body of the People in due composure thereby declared themselves to be the Kings Friends though the others were Richards Favorites so as he was fain to stoop to occasion and submit to be a King that would have otherwise beene more or lesse And thus the Lords were become Supporters to the Crown Studds to the Throne and a Reserve to the People against the violent motions of an unbridled minde in their King who seeing them so united and indeavouring to break them into parties to obtain his desire lost both it and himselfe It is a degree of cleanly modesty to impute the miscarriages of unruly Kings to their Councell For however during their minority Councellors are more rightly Officers of State yet when Kings will be their owne Men their Councellors are no other then the breath of the Kings owne breast and by which a King may be more truely discerned then any man by his bosome Friends Edward the Third was a man of a publique Spirit and had a Councell suitable to his aime Richard the Second a man that desired what him pleased would have what he desired and a Councell he had that served him in all for God answers the desires of mens hearts in Judgement as well as in Mercy and a sore judgement it is both to King and People when the corrupt desires of the King are backed by a flattering Councell It must be granted that the Privy Councell of Kings hath been an old ginne of State that at a sudden lift could doe much to the furthering of the present Estate of publique Affaires Neverthelesse through the Riot of Kings their Designes generally tended to make more worke for the Parliament then to dispatch to doe much rather then well like workes for sale rather then for Master-peice and sometimes to undermine yea to outface the Parliament it selfe like some unruly servants that will put away their owne Masters Nor can it otherwise be expected unlesse the Kings elected ones be turned into the Parliaments Committee or that constant annuall Inquisition by Parliament be made into their Actions for occasionall inquiries breed ill blood though no attainder be nor are they easily undertaken whereas constancy in such Cases makes the worst to be resolved but into a matter of common course The naturall and originall power of the Privy Councell is very obscure because there are severall Degrees of them that occasionally have beene used all of whom may deserve the name of Privy Councell in regard of the Parliament which is the most publique Councell of all the rest and alwayes hath a generall interest in all Causes in the Kingdome The first of these is that which was called The Grand Councell of the King which as I thinke was not the House of Lords who are called by Summons and were onely to attend during the Parliament but a body made up of them and other wise men of his owne retinue and of this it seems
there was a constant body framed that were sworn to that service for some in these times were sworne both of the Grand Councell and the Privy Councell and so entered upon Record The second of these Councells was also a great Councell and probably greater then the other but this was called onely upon occasion and consisted of all sorts like a Parliament yet was none An example whereof we have in the Ordinances concerning the Staple which at the first were made by the King Prelates Dukes Earles Lords and great Men of the Kingdome one out of every County Citty and Burrough called together for that end their results were but as in point of triall for sixe moneths space and then were turned into Statute-Law by the Parliament These two are Magna Concilia yet without power further then as for advise because they had no ancient foundation nor constant continuance Another Councell remaineth more private then the other of more continuall use though not so Legally founded and this is called the Kings Privy Councell not taking up a whole House but onely a Chamber or a Table signifying rather communication of Advice then power of Judicature which more properly is in Banco And yet the power of this grew as virile and royall as it would acknowledge no Peere but the Parliament and usurped the representative of it as that had bin of the whole Kingdome The ambition thereof hath ever bin great and in this most notoriously evident that as it had swallowed up the grand Councell of Lords it seldome can endure the mention of a Parliament but when Kings or Affairs are too rugged for their owne touch The platform of their power you may behold in this their Oath 1. That well and lawfully they shall councell the King according to their best care and power and keep well and lawfully his Councels 2. That none of them shall accuse each other of any thing which he had spoken in councell 3. And that their lawfull Power Aid and Councell they shall with their utmost diligence apply to the Kings rights 4. And the Crowne to guard and maintaine save and to keepe off from it where they can without doing wrong 5. And where they shall know of the things belonging to the Crowne or the rights of the King to be concealed intruded upon or substracted they shall reveale the same to the King 6. And they shall enlarge the Crowne so far as lawfully they may and shall not accouncell the King in decreasing the rights of the Crowne so farre as they lawfully may 7. And they shall let for no man neither for love nor hate nor for peace nor strife to doe their utmost as far as they can or doe understand unto every man in every Estate Right and Reason and in Judgement and doing right shall spare none neither for riches nor poverty 8. And shall take of no man without the Kings leave unlesse meat or drinke in their journey 9. And if they be bound by Oath formerly taken so as they cannot performe this without breaking that they shall informe the King and hereafter shall take no such Oathes without the Kings consent first had All which in a shorter summe sounds in effect that they must be faithfull Councellors to the Kings Person and also to his Crowne not to decrease the true Rights but to inlarge them yet all must be done lawfully And secondly that they shall doe right in Judgement to take no Fees nor any other Oath in prejudice of this The first of these concerne the Publique onely at a distance and yet the point of increasing and diminishing of the Crowne in the sixth Section is captious and may sound as if there is a Legall enlarging of the Crowne whereof he that takes the Oath is to judge A matter which onely and properly concerns the Parliament to order and determine or else farewell all liberty of the People of England The second concerneth immediately the King in his politique capacity but trencheth upon all the Laws of the Kingdome in the executive power and all the motions in the whole Kingdome either of Peace or Warre following in the reare either immediately or mediately are under this notion interested into the transaction of the Privy Councell to debate and determine the Kings judgement therein unlesse it will determine alone And how easie a thing it is for such as have power of determining the Action by the Law to slip into the determining of a Law upon the Action and so to rule by Proclamation experience taught succeeding times sufficiently Neverthelesse these times wherein Parliaments were every moment upon the wing and kept this Noble Band in awe by taking them into their Cognisance placing and displacing some or all of them directing and binding them by Oath as they saw occasion of which the Records are full and plentifull I say these times thus constituted added yet further incouragement to them by giving them powers by Statute-Law over and beyond what by ancient Custome they had obtained The King and Councell of Lords had anciently a power of Jurisdiction that hath bin in the first part of this discourse already observed yet it s very probable that it was not any select company of Lords but the whole Association for it s granted by all that they had originally a Principall hand in the jurisdiction And its hard to conceive how any private number should catch such a power if not by usurpation But the manner of acquiring is lesse materiall the principall consideration resteth upon the quality of this Jurisdiction For it is evident that much difference hath bin both concerning the place and manner of exercising this Authority In generall It must be granted that all Pleas Coram Rege were grounded upon Writs first purchased and returnable either in Banco or in Camera or in Cancellaria And no difference at all will be concerning the Jurisdiction in Banco for that was by the Course of the Common Law and the people held it one of their liberties to have one known course of Law for determining matters of right and wrong As touching these Pleas which were holden by Writs returnable in Camera they were properly said to be Coram Rege Consilio whose meeting was in the Councell Chamber in those dayes called the Star-Chamber For other returns of Writs in the Star-Chamber doe not we finde but such as were in Camera nor Prohibitions from thence but under the notion of the Kings Councell and this Camera as I said was the place of the joynt meeting of the Councell as well of those of the Chancery and Benches as of those that attended upon matters of State Now the influence of Society in point of Judicature principally aspected upon some Pleas belonging to the Crowne although even these also properly were determinable in the Kings Bench nor can I observe any rule to bound the powers of these two Judicatories but this that the Councell Table
would pick and chuse and prohibite the Kings Bench as they pleased and to that end would order Originalls out of the Chancery as they thought most meet for it is observed by Fleta that the Kings Bench hath no Jurisdiction of it selfe but by speciall Warrant that is to say by Originall Writs returned thither Neverthelesse it may seeme that such Crimes as are contrary to common honesty or the publique profit or peace in a more exemplary way then ordinary and therefore may be called Crimina laesi Regni or against the State These I say might more properly belong to the subline Judicature of the Councell Table as knowing better how far the publique State was interested or indammaged in such Cases then the other Judges that were experienced onely in ordinary matters of a more private concernment To recite the particular Cases upon record concerning racing of Records Forgeries and other crimes of falshood conspiracies combinations to abate and levell the prices of Commodities Ryots and such like will be superfluous In all which and others of that Cognisance the Sentence exceeded not Fine and Imprisonment or ransome Neither yet were the Common Pleas so rural but the Councel Table could rellish them also and digest them well enough and therefore did not stick to prohibite the Courts of Common Law under colour of a strange maxime That it is neither just nor honest for a man to be sued at the Common Law for a matter depending before the King and his Councell No though the Court of Common Law had the precedency and therefore although the right of Tithes being depending at the Common Law the Arch-Bishop in opposition to the jurisdiction sueth before the Kings Councell and the proceedings at the Law are thereby stayed and no wonder for the Councell Table challenged to hold the ballance of all Courts of Law within their owne Order and so if any doubt concerning the Jurisdiction depended the Councell Table gave the word and all stooped thereto But enough of the Subject matter the manner followes a new form of Processe is taken up that the Common Law and ancient Custome never knew and which grew so noisome to the People that complaints are made thereof as of common greivance and remedies are thereto applyed by the Lawes of these times For whereas by the Grand Charter nothing could be done in Judgement but according to the Lawes of the Land and in affirmance thereof a Law was made in these times that no Accusation nor Attachment nor forejudging of Life or Member nor seisure of Lands Tenements Goods or Chattels should be against the form of the Grand Charter and Law of the Land the course of affaires grew so stale that amongst other innovations a trick of a new kind of triall is brought forth by suggestions upon Articles exhibited against any man before the Councell Table and thereupon issued forth Attachments against the party complained of by meanes whereof and other courses for they could also sequester much vexation arose unto the People Hereunto upon complaints multiplied a remediall Law is made whereby it is Enacted that all such suggests made shall be carried to the Chancellor Treasurer and the Kings Grand Councell and the Informer shall finde surety to prosecute with effect and to incurre the like penalty intended for the Defendant if the Plaintiffes proofes be not compleat and then the Processe of Law shall issue forth and the Defendant shall not be taken against the form of the great Charter that is he shall not be taken untill first the fault appear upon Record by Presentment or by due Processe or by originall Writ according to the Ancient Law of the Kingdome Either therefore the Privy Councell had no power to hold any Pleas at all or else no power of triall The first of these was concluded in open Parliament and the second as good as so for if the first then the second will come on undeniably But suppose all this be given up yet was this Liberty to hold Pleas so qualified that the person could not be touched till the thing did appear by Inquisition and then in a Legal way such proceedings was had upon suggestion made against the City of London in Henry the Thirds time for one of the Judges was first sent into the City to finde the suggestion by a Jury and then the Lord Maior appeared before the Lords and traversed the matter and in a manner appealed or rather demanded to be tryed according to the custome of the City And the like course doe we finde observed in our Law Reports of these times in a Case concerning the price of Wooll by a false Report The foote of the whole account will be this That the work of Judicature of the Privy Councell in these times in Cases of Crimes was to receive Articles and award Inquisitions and after return in nature of a Grand Inquest to recover Traverse and to order triall at the Common Law and upon Verdict returned to Fine and Ransome In other Cases either of right or equity in matters of private property they were determined either by Judges of the Bench or Chancery although possibly the suite was Coram Concilio for that all the said Judges were of the Kings Councell And yet as I dare not affirme so I cannot deny but it might also be possible that some matters especially these of a greater consequence either in their own nature or in regard of the persons whom they concerned were determined by the major Vote of the whole Councell in a prudentiall or rather Arbitrary way But this was Invita minerva and used so rarely as the Path is growne out of view saving some few footsteps here and there remaining which shew that the Grand Councell of Lords had been there CHAP. IV. Of the Chancerie IT is the birth of the Kings Power in Judicature and may deserve the name of the first born For though it had no better Title in these later times then Officium because amongst other of the Kings Escripts it formed Writs remediall for such as had received wrong yet even by that work it was in repute for so much skill in the Law of the Land that by the consent of all it was as well able to advise a remedy as to advise the Complainants where to have it and yet it had one adventage further that it was an Office of remembrance to the King who is a Person of great trust in the Law and gave such credit to all Acts done before him as being entred into the remembrance became of the highest nature of Record against which no Plea did lie Amongst these matters of debt and contract coming into the account this Office taking notice of the Record tooke Cognisance of the thing and for the executing thereof and thus in these and such like Cases granted Judiciall Writs and so found out a way of Judicature to as many Causes as
shall be imprisoned untill he shall satisfie the Defendant of his damages And furthermore shall make Fine and Ransome to the King But because that the Defendant many times held his advantage even to extremity this course lasted not long but a new Law was made which put the power of awarding damages in such cases into the Chancellor to doe according to his discretion And thus the Chancery obtained power to award damages which they never had formerly and the Chancellor a Precedency both in the Chancery and of the Councell in the Court of Starre-Chamber and in many cases in the Exchequer by the first he had a power in matters of meum and tuum by the last in matters Mei and Regis and by the other in matters Mei and Regni A considerable man certainly he was in the motions of Government but how much more if he be made Arch Bishop of Canterbury Cardinall and Legate è Latere or Arch Bishop Lord Treasurer and Legate è Latere as these dayes had divers times seen Extraordinary advancements bestowed upon the Nobility brings Honour to the Throne but if they be not men of noted worth and uprightnesse they make the Scepter stoope by stirring up of envy in the Nobility and indignation from the People For seldome is it seene that Advancements are fed from the Crowne though they be bred from thence but either maintained by new supplies from the Peoples purses or the ruine or decay of some Offices more ancient then themselves or both And such was the condition of the Chancellor he sucked fat from beneath and blood and Spirits from the Grand chiefe Justiciar of England and so reduced that Honourable Potentate unto the Degree of chiefe Justice of the Kings Bench leaving scarcely unto him the name or title of Lord. One thing more remaineth touching the election or nomination of this Great man At the first he was no better then a Register or the Kings remembrancer or Secretary having also the Honour to advise the King in such matters as came within the circuite of the Writings in his custody and questionlesse Eo usque its sutable to all the reason in the World that he should be of the Kings sole Nomination and Election But when it befalls that in stead of advising the King his word is taken to be the rule and a Judicatory power put upon that and unto this is superadded that Honourable trust of keeping and governing the great Seale of the Kingdome with the continuall growing power occasionally conferred upon him by the Parliament He is now become no more the Kings Remembrancer but the Lord Chancellor of England and Supreame Officer of State And it seemes but reasonable that he should hold his place by publique Election as well as the Grand Justiciar whose Plumes he borrowed and other Grand Officers of State did before him For he that will have his Servant to worke for another must give the other that Honour of Electing him thereto nor was this laid aside or forgotten by these times but a claim was put in for the Election or allowance of this principall Officer amongst others the Parliament obtaining a judgement in the case by the Kings Confession and so the thing is left to the judgement of future Ages Viz. Whether a King that can do no man wrong can dissemble the Royall Assent in Parliament or declare himselfe Legally in that manner by Proclamation CHAP. V. Of Admiralls Court. THis is a third Court that maintained the Kings judicatory power in a different way from that which is commonly called the Common law and by many is therefore supposed to advance the Kings Prerogative but upon mistaken grounds It is very true that the way is different from the common rode both in its originall and in the course of proceedings nor could it other be considering the condition of the Nations and the People of the same interested in common traffique The people thus interested as much differed from the other sort of dry men if they may be so called as Sea from Land and are in nature but as march men of severall Nations that must consenter in some third way for the maintenance of commerce for peace sake and to the end that no Nation may be under any other Law then its owne The condition of the Nations in the times when civillized government began to settle amongst them was to be under the Roman Emperours who having setled one Law in the generall grounds throughout all Nations made the Sea likewise to serve under one rule which should float up and downe with it that men might know upon what tearmes they held their owne wheresoever they went and upon what tearmes to part with it for their best advantage in its originall therefore this Law may be called Imperial and likewise in the process because it was directed in one way of triall and by one law which had its first birth from the Imperiall power and probably it had not been for the common benefit of Europe to have been otherwise at other time or by other directories formed Neverthelesse this became no Gemm of Prerogative to the English Crowne for if England did comply with forraine Natives for its owne benefit it being an Iland full of the Sea and in the common rode from the most parts of Europe that border upon the Sea and of delight in Merchandise it is but sutable to it selfe and it did so comply as it saved the maine Stake by voluntary entertaining those Laws without being imposed upon by Imperiall power for the Saxons came into this Kingdome a free People and so for ought yet appeareth to me continueth to this day I say that in those first times they did take into the consideration of Parliament the regulating of the fluctuating motions of Sea-laws nor were they then or after properly imposed by the Kings Edict For though it were granted that Richard the first reduced the Sea-laws in the Isle of Oleron yet that the same should be done without advise of Parliament in his returne from the holy Land is to me a riddle considering what Histories doe hold forth concerning of his returne through Germany nor can that be good evidence to intitle Kings of England to a power to make and alter Laws according to their private pleasure and interest Nor doth that Record mentioned in the Institutes warrant any such matter but rather on the contrary groundeth the complaint upon laws statutes Franchises and Customes Estabilished and that this Estabilishment was by the King and the Councell This Law was of a double nature according to the Law of the Land one part concerning the Pleas of the Crowne and the other between party and party for properly the Kings authority in the Admiralty is but an authority of Judicature according to Laws established which both for processe and sentence are different from the Common Law as much as the two Elements do differ yet not different in
Arrest although contrary to them made voyde as touching the Process The goods of the Clergy are discharged from Purveyance and their Houses from Quarter The later of these was an Incroachment upon the greater Clergy men For under the Title of Hospitality which the Prelates were obliged to by their great Possessions and Revenues conferred upon them to that end Kings used to quarter Messengers to and from Scotland The Kings Horses Dogs and Haukes c. But the point of Purveyance was an ancient Prerogative belonging to Kings and by no Custome were the goods of any man discharged therefrom till it was by act of grace first confirmed by Edward the first and afterwards by grant of Edward the second yet by reason of the rudenesse of the times did not those acts prevaile to that settlement that was promised till now Edward the third renued the Law nevertheless could not this Law of Edward the third perfect that worke because it was but a bare command till Richard the second made a remediall Law giving thereby the Clergie that were wronged a right of action of trespass against the Purveyors and to recover treble damages whereas formerly they were liable only to a fine to the King which many times was as soone pardoned as asked These condiscentions might have wedded the English Clergy to the English Crowne but that it was coy and expected further gratuities besides they beheld their old Stepdame Rome now in its full Splendor and power and deeply interested in the sway of affaires in this Kingdome and above all the rest the nigh affinity between the Prelate and the Pope was such that they sucked one milke breathed one aire and like the Philosophers twinns lived in each other The later of these was not discerned by those dim sighted times and therefore they could do nothing towards the dissolution of that knot but left it to future times who found no other way then to cut it asunder But Edward the Third and his successor espied the first felt the inconvenience thereof and applyed themselves to such remedy as they found most ready at hand All things that are subject to time are also subject to change which comes comonly slower upon Governments that are less Eclesiastical for Churches continue longer in a growing condition then in their compleat estate like a Christian that seldom endures long after his full ripenesse Thus England it s hitherto above a thousand yeares since the Gospel came to the Saxons and well nigh a thousand yeares since the Pope set his foot amongst us ever approaching nigher the Throne and ascending thereunto but finding it full of a King that would not remove he sits downe in his lapp a heavy burden questionlesse he was considering his claime of jurisdiction his provisions pensions exemptions impositions and such like oppressions and therefore it s no wonder if the King feeling the incumbrance gives a lift at the Popes power by stoping the currant of mony from England Rome-wards To this end the Statute made at Carlile is revived wherby the Clergy are inhibited from conveying treasure beyond the Seas but the Pope knew how to ride and will not so easily forego his saddle The Roman Eagle had made many a faire flight in England and had not yet fully gorged himselfe he grants ten thousand Marks yearly out of taxes layd upon the Church livings in England unto two Cardinals neither of which did nor by the Canon could live in England the treasurership of Yorke also to another Cardinall after that the King had conferred the same else where He proceeds also further to invade the undoubted rights of the Crown by making an election of the B. of Norwich and causing him to be invested Rege renitente the King spent eight yeares in the recovery of his right and was deluded in the conclusion he now sees it bootelesse to stand alwayes upon his defence and receive affronts he resolves therefore to enter the lists and maketh seisure of the Deanery of York which formerly by usurpation the Pope had conferred upon a Cardinall and of all Church livings given by the Pope to aliens Then a Law is made more sharp then those in the eighteenth yeare wherein Provisors of Abbies and Priories are made lyable to a Praemuniri and Provisors of other Ecclesiasticall Livings and Dignities whereby the presentation of the rightfull Patron is disturbed to be fined and imprisoned untill the fine and damages to the party wronged be paide And all such as draw men to plead out of England in cases that belong to the cognisance of the Kings Court and all obtainers of provisions in the Court at Rome these were also subject to a Praemuniri For whiles these things were thus in action the Pope bestirred himselfe notably with Citations Excommunications interdictions and such other birds of prey not only against meane men but Judges Bishops and the Kings Councell as amongst others the case of the Bishop of Ely at the solicitation of some of inferior regard as I remember a Clerke or some such thing yet as these Bull-drivers or summoners to the Romish Court were no late upstarts so were not these times the first that tooke them to task for before the Statuts of Praemuniri we find provision was made against Provisors and that some Statute did precede those in Print which punished a disturber of the Kings Incumbent by a Bull from Rome with perpetuall imprisonment or at the Kings will besides the party wronged was allowed an action for his damages Qui tam pro Domino Rege quam pro seipso sequitur and before that time also bringers of Bulls from Rome were imprisoned although in all these cases aforesaide the liberty of the Persons both of Lords and Praelats was saved And thus all the while King Edward the third kept the field he gave the Pope cuffe for cuffe but retiring himselfe to take his ease he waxing wanton waxed weake and more slowly pursued the vindication of his owne right and his Subjectes liberty The Lawes are layde aside and Rome had further day given to plead and in the mean time execution is staid the double minde is double died and advantage is soon espied above sixty Church livings more are suddainely catched and given to the favorites at Rome the Parliament rings herewith yet the King delayes the remedy and in this Edy of affaires Edward the third dies and Richard the second takes up the place who had witt enough to observe what concerned his owne interest and courage enough to pursue it But neither witt nor courage to over-rule his lusts which in the conclusion over-ruled all rule and brought himselfe to destruction He found the people at his entrance into the Throne irritated with the Popes opressions and vexed at his Grandfathers desidiousnes His Spirit is also stirred within him and himselfe thereby pressed to tread in his Grandfathers former wayes and to outrunne him in his later
thus the Parliament of England tells all the World that they hold themselves compleat without the Clergy and to all intents and purposes sufficient to conclude matters concerning the Church without their Concurrence Thus began the Mewing time of Prelacy and the principall Feather of their wings to fall away having now flourished in England nigh eight hundred years and had future Ages pursued the flight as it was begun these Lordings might have beaten the Aire without making any speedy way or great work saving the noise A third step yet was made further in order to the reducing of the power of the Popedome in England but which stumbled most immediatly upon the greatnes of the Prelates For it was the condition of the Spirituall Powers besides their height of Calling to be set in high Places so as their Title was from Heaven but their Possessions were from men whereby they gained Lordship Authority and Power by way of Appendix to their Spirituall Dignities This Addition however it might please them yet it for a long time ere now had been occasion of such murmur and grudge in the Commons against the Clergy as though it advanced the Clergy for the present yet it treasured up a back reconing for these men and made them lyable to the displeasure of the Laity by seisure of their great places when as otherwayes their Ecclesiasticall Dignities had been beyond their reach And of this these times begin now to speak louder then ever not onely by complaints made in Parliament by the People but also by the Lords and Commons in Parliament to the King that the Kingdome had been now long and too long time governed by the Clergy to the disherison of the Crown and therefore prayed that the principall Offices of the Kingdome might henceforth be executed by the Laity and thus the stir arose between the Lords Temporall and Spirituall each prevayling or loosing ground as they had occasion to lay the way open for them The Duke of Lancaster being still upon the upper ground that as little regarded the Popes Curse as the Clergy loved him But the worst or rather the best is yet behinde Outward Power and Honourable places are but undersetters or props to this Gourd of Prelacy that might prove no lesse prejudiciall by creeping upon the ground then by perking upward For so long as Error abideth in the Commons Truth can have little security amongst Princes although it cannot be denyed but it s a good signe of a clear morning when the Sun rising glorieth upon the top of the Mountains God gives Commission therefore to a Worme to smite this Gourd in the roote and so at once both Prelate and Pope doe wither by undermining This was Wickleife that had the double Honour of Learning in Humane and Divine Mysteries the latter of which had for many yeares passed obscurely as it were in a twilight amongst the meaner sort who had no Indowments to hold it forth amongst the throng of learned or great men of the World And though the newes thereof did sound much of Holynesse and Devotion Theames unmeet to be propounded to an Age scarce Civillized Yet because divers of them were more immediately reflecting upon the Policy of the Church wherein all the greater sort of the Churchmen were much concerned but the Pope above all the rest the accesse of all the matter was made thereby more easie to the Consideration of the great Lords and Princes in the Kingdome who out of principles of State were more deeply ingaged against the Pope then others of their ranke formerly had been Duke John of Gant led the way in this Act and had a party amongst the Nobility that had never red the Canon Law These held forth Wickleife and his Learning to the World and Edward the Third himself savoured it well enough but in his old Age desiring his ease was contented to looke on whiles his Lords Temporall and Spirituall played their Prize yet giving his plaudite rather to his Sonne then his Spirituall Fathers as if led by Principles of Nature rather then Religion This was the blossoming part of the Wickleifists but the principall strength was from beneath where the roots spread and fastned exceedingly especially in the South and Eastern parts of this Kingdome To tell of the Vsurpations of the Clergy the Idolatry of their costly Worship the vanity of their Curses c. was exceeding welcome newes to an oppressed multitude especially where these things were rightly understood The Issue soon manifested it selfe to the World no Parliament passed without reflections at Prelates Rome or some such thing and not onely the persons and practices of these men but even their Lawes and Canons were begun to be had in contempt and their missives sleighted And thus these men pretending Patronage both from Right drawn from Heaven and derived from men faile in their Evidence unlesse the people doe still beleive more then they are able to understand No marvell if Rome be now rouzed and that sort of men that formerly were Wolves in Sheeps clothing become now red and fiery Dragons taking up a new course of Establishing their Power by Persecution This was a way of Power indeed but it s a touchy thing to have to doe with fire least it gets too high It is therefore holden a point of discretion by the Prelates not to meddle with the Lords or the Common People the former were too great the later too many the one sort would not heare the other would not understand The Teachers therefore being the Velites at them they give fire Wickleife their Leader comes on bravely and notwithstanding they all made at him he routes them and in despite of them all comes off fairely and dies in his bed by the course of Nature Then an Ordinance is levelled at the rest of the Teachers This was made of an old Canon the nature whereof was to this purpose That upon complaint of the Bishop the Kings Writt shall be granted to apprehend Preachers of Heresies Errours and matters of Slander tending to Discord and Discention betweene the States of this Realme with their Factors and Abbettors and to imprison them till they be acquitted according to the Law of the Church This Law for such it yet appears gives occasion to consider of these particulers Viz. The Crime the Delinquents the manner of Inquisition and the penalty For the first not to trouble my way with Debate about the right of liberty of Preaching the matter in Fact was that men did publiquely Preach without Authority matters of Theology tending as it s said to sow discord and dissention so as they are under consideration censure of the Church-Men and Canon Law in one regard and of the Lawes of the Kingdome and Civill Magistrate as disturbers of the Peace on the other side and thus the Subjects liberty is cast into a mysterious cloudy and doubtfull posture by matters of Opinion Secondly the Persons Delinquent are
from an English man is due to England and Faith to the King which I suppose must be intended to be in order to that Allegiance because by the former Plea England had them both and the King was wholly left out of the Case Neverthelesse I rather thinke that the present Point in controversie will receive little light herefrom on either part We are now come to the fourth Property of English Legiance that it is due to the Kings Naturall Capacity and not to his Politique Capacity or due to the Office of a King in regard of the Person of the man and not to the Person in regard of the Office fol. 20. And because this is of no small importance neither easily understood nor granted Therefore he backeth his Opinion by many reasons First he saith that the King sweareth to his Subjects in his Naturall Capacity therefore the Subjects swear to him in his Naturall Capacity This reason was intended to be taken from Relatives and then it should have been thus A King doth sweare to his Subjects in their Naturall Capacity therefore Subjects sweare to a King in his Naturall Capacity but it being otherwise it is mistaken and proves not the Point Yet if we should take the Reporter in sano Sensu there is no question but the Oath is made to the Naturall Capacity yet not Terminative more then the Oath of the Tenant to his Lord which this Author pleaseth to couple with the mutuall dependence between King and Subject fol. 4. b. 5. a. Nor doth the Oath of an English man binde him to the Obedience of all or any Commands which the King shall give in relation onely to his Naturall Capacity or in opposition to his Politick Capacity Nor will the Reporter himself allow that the Politique Capacity of the King can be separate from his Naturall Capacity fol. 10. And yet it is evident that a King may in his Naturall Capacity command that of which in his Politique Capacity cannot give allowance The second reason of this Opinion is taken from the nature of Treason which saith the Reporter is committed against the Naturall Person of the King and this is against due Legiance according to the form of Indictments in that Case provided This is not demonstrative because that crime which is done against the Naturall person of a man may as well extend to it in relation to his Place or Office and so may Treason be plotted against the Naturall Person of a King as he is King neither is their any other difference between the murther of a King and a private Man but onely in regard of the Place and Office of a King which makes the murther of him Treason for which cause all Indictments that doe conclude Contra Legiantiae debitum doe as well also conclude Contra Coronam Dignitatem c. The third reason is this A body politique can neither make nor take Homage 33. H. 8. Bro. tit Fealty Therefore cannot the King in his Politique Capacity take Legiance The first must be granted onely sub modo for though it cannot take Homage immediately yet by the means of the Naturall Capacity it may take such service and therefore that Rule holds onely where the Body Politique is not aggregate and not one person in severall Capacities for the Tenant that performes his service to his Lord performs the same to his Lord in his Naturall Capacity but it is in relation to his Politique Capacity as he is his Lord For Lord and Tenant King and Subject are but Notions and neither can give nor take service but that man that is Lord or Tenant or King or Subject may even as the power of Protection is in a King not as he is a Man but as a King The fourth reason is this The Kings naturall Person hath right in the Crowne by Inheritance therefore also in the Legiance of the Subject This is the strength as nigh as I can collect of that which is set down as a sixth reason but I make it the fourth because the third as I conceive is but an illustration of the second and the fifth is upon a supposall of a Fides ficta whereas that Faith of an English Subject which is according to Law is the truer of the twaine But to the substance of this fourth reason If the first be granted yet the Reporter cannot attain his conclusion for the King may in his Naturall Capacity have right to the Crowne by Inheritance and yet not right in the Legiance of his Subjects otherwise then in right of the Crowne As in the Case of Lord and Tenant the Lord may inherite the Lordship in his naturall Capacity but the Service is due to him as Lord and not as by Inheritance in the Service in the abstract And though it be granted that the Legiance to a King is of a higher strain then that of a Tenant to his Lord fol. 4. b. 5. a. Yet doth the Reporter bring nothing to light to prove them to be of a different Nature in this regard The fifth and last reason that commeth to consideration is from a Testimony of the Parliament for it is said That this damnable Tenet of Legiance to the King in his Politique Capacity is condemned by two Parliaments But in truth I can finde but one under that Title that mentioneth this Opinion and that is called Exilium Hugonis which in summe is nothing else but Articles containing an enumeration of the particular offences of the two Spencers against the State and the Sentence thereupon The offences are for compassing to draw the King by rigor to govern according to their wills for withdrawing him from hearkning to the advice of his Lords for hindering of Justice and Oppression and as a means hereunto They caused a Bill or Scedule to be published containing that Homage and Legiance is due to the King rather in relation to the Crowne then absolutely to his Person because no Legiance is due to him before the Crowne be vested upon him That if the King doe not govern according to Law the Leiges in such case are bound by their Oath to the Crown to remove him either by Law or Rigor This is the substance of the Charge and upon this exhibited in the Lords House the Lords super totam materiam banish them before their Case is heard or themselves had made any appearance thereto So as to the matter of this Scedule which contains an Opinion suitable to the Point in hand with some additionall aggravations the Parliament determineth nothing at all but as to the publishing of the same to the intent to gather a party whereby they did get power to act other enormities mentioned in the Charge and in relation to these enormities the Lords proceeded to Sentence of banishment all which was done in the presence of the King and by his disconsent as may appear by his discontent thereat as all Historians of those Affaires witnesse and it is not probable that the King
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
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
Henry the Third of whom they who listed might be perswaded but few beleived the thing nor did himself but thence takes his flight up to a Jus Divinum or some hidden Fate that called him to the worke but even there his wings failed him and so he falls flat upon the Peoples Election De bene esse Some of these or all together might make Title enough for a great man that resolved to hold by hooke what he had got by crooke and therefore trussing them up all together he enters his claime to the Crown As comming from the blood Royall from King Henry and through the Right that God his grace hath sent me with the help of my Kinne and Freinds to recover the same which was in point to be undone for want of good Governance and due Justice The extract of all is that he was chosen by the People and Parliament then sitting And allbeit that by the Resignation of Richard the Second the Parliament might seem in strict construction of Law to be expired together with the Kings power who called them together yet did not that Parliament so apprehend the matter but proceeded not onely to definitive Sentence of Deposing him but declared themselves by their Commissaries to be the three States and Representative of the People of England maintaining thereby their subsistency by the Consistence of the Members together although their Cheif was for the present like a head in a trance till they had chosen Henry the Fourth to succeed in the Throne by this means preventing the conceit of discontinuance in the very Bud of the Notion Much like his entry was his continuance a continuall tide of Forraine and Domesticke Warre and Conspiracy enough to exercise his great Courage although he was more Wise then Warlike being loath to take up Armes for well he knew that a sick Title never sleeps but in a Bed of Peace and more loth to lay them down for besides Victory whereby he gained upon his Enemies in time of Warre he knew how to make advantage of them in time of Peace to secure his Freinds to keep others in awe to inforce such Lawes as stood with reason of State and the present posture of Affaires and where Lawes failed to fill up the period with Dictates of his owne will And upon this Account the Product was a government full of Ulcers of Blood-shed without regard of Persons whether of the Lay or Religious Order without Legall triall or priviledge of Clerke So was Arch Bishop Walden Dethroned Arch Bishop Scroope put to death and Dukes were dismounted without Conviction or Imputation saving of the Kings displeasure Taxes multiplied although begotten they were upon the Parliament like some monstrous Births shewne to the World to let it know what could be done but concealed by Historians to let it know what may not be done Yea the priviledges of Parliament invaded in point of Election A thing that none of his Predecessors ever Exemplyfied to him nor none of his Successors ever Imitated him in nor had he purposed it but that he was loath the People should know more of the Government then needs must To keep off Forrain troubles he made Peace with France for longer time then he lived yet was ever infested with the Sword of Saint Paul in behalf of Richard the Seconds Queene and with the Factions betweene the Houses of Orleance and Burgundy in which he had interested himselfe to preserve the Forraine Neighbour-hood in Parties one against another that himselfe might attend his owne Security at home He would have moved the Scots but they were already under English Banners nor could he reach so farre having so many Enemies even in his owne bosome The Welsh were big with Antiquity and Mountains of Defence they beginne to bethinke themselves of their Ancient Principality hold the Kings Armes at hard Duty till by Lawes enacted in Parliament they lost their Liberties of bearing Office Ministeriall or of Judicature of holding Castle of Convention without the Kings Licence yea of Purchase and so by degrees were brought downe from the height of a Free Principality to be starved in their Power and inferiour to a Free People And thus the Welsh on the one side the discontented Lords on the other and Mortimars Title in all so busied the King as though he lopped off the tops as they sprang up yet they sprang forth as they were lopped nor was it the Kings lot all this while to finde out the Root of All or to strike at that Lastly when time had made all troublers weary yet he stil sits upon thornes he was jealous of his Subjects jealous of his Son yea jealous of himself It being ever the first and last of his thoughts how to keep his Crowne For the most part of his Reigne he was troubled with the walking Ghosts of Richard the second ever and anon he was alive he was here he was there and so the Peoples mindes were alwayes kept at random but when all these Spirits are conjured downe Richard the seconds Ghoste is yet within Henries owne breast So ruled Henry the fourth an unhappy confident man that durst undertake more then he would did more then he ought was successfull in what he did yet never attained his end to be sure of his Crowne and quiet of minde For a plaister to this sore he turned somewhat towards Religion but shewed it more in Zeale to Church-men then workes of Piety and therefore may be thought to regard them rather as his best freinds in right of Arch Bishop Arundell then as in relation to Religion yet as if he overlooked that he desires their prayers becomes a strict observer of superstitious rights is fiery Zealous against the Lollards intends a journey into the holy Land and Warr against the Infidels the common Physick of guilty Kings in those dayes Breifly he did will to do any thing but undoe what he had done and had done more had his journey to the holy Land succeeded but whither hastned or delayed by a prophesie of the ending of his dayes falls not within my Penn to censure entring upon the worke he died in the beginning of his purposes in the midst of his feares never came to the holy Land and yet yeilded up his last breath in Jerusalem THe Parliament was then sitting and was witnesse of the death of Henry the fourth as it had beene of his entrance upon the Throne as if purposed to see to the cours of the Crowne in the doubtfull currant betweene the two Houses of Lancaster and Yorke and to maintaine their own honor in directing the Scepter according to their warranty upon a late intaile by act of Parliament yet did not all rest upon this for the Heire of Henry the fourth was a man every inch of him and meant not to Moote upon the point His Father died a King and he his Heire had the Crowne and was resolved to hold it A rough young man he
had beene formerly and bold enough to outface small doubts in point of succession for he could for a need outface common civility it selfe This might have lien in his way for he that cannot govern himselfe can much lesse govern a Kingdome Yet a hidden Providence concluded quite contrary and rendred him a cleare testimony of a strange change by the annointing oyle like that of Saul that forthwith had the Spirit of another man So though not hammered thereto by affliction as was Edward the first yet was he his parallell in Government and superiour in successe Being seated in the Throne all men thought it dangerous to abide the adventure of the turne of this Kings Spirit The Clergy had but yesterday tryed the Mastery with the Laity and gained it but by one Vote there was no dealing with the Clergy while Arch Bishop Arundell lived nor with him whiles Henry the fourth lived or his merits were in memory but now they both are dead the Clergy and the Laity are upon even ground this might make the Clergy now not over confident The Lords looked on the King as a man like enough to strike him that stands next The wise men saw he would be doing all men were tired with intestine quarrells and jumped in one that he that would be in action should act abroad where he might get renowne and a purchase big enough for his Spirit Scotland was a Kingdome yet incompetent to the Kings appetite France was the fairer marke and better game and though too big for the English gripe yet the Eagle stooped and sped himselfe so well as within six yeares he fastned upon the Sword and Scepter and a daughter of France and might have seised the Crowne but chose to suffer a blurr to lye upon his title derived from Edward the third rather then to incurr the Censure of Arrogancy over a stooping enemy or to Pluck the fruit from the tree before it was fully ripe which in time would fall into his lap by a better Law then that of the Sword otherwise it might be well conceited that he that hath both right and Power and will not seise disclaimes Besides the King was as well Inheritor to his Fathers Fate as Crowne still he had successe but the end was so farr distant that he died in the way thereto The brave Dauphine of France maintaining Warr after his Father the French King had yeilded up the Bucklers to Henry the fifth till Henry the fifth died and the English did foregoe what they had formerly gotten in France by the Sword of that great Commander Nor did the English gaine any thing in the conclusion of this Warr but an honorable windy repute of being one of the five cheif Nations of Christendome if honor it be to be reputed amongst the Nations a Conquerer of France the cheif Leader unto the dethroning of three Popes at once the election of Pope Martin and of giving a cure to that deadly wound of the Popedome which had spent the bloud of two hundred thousand mens lives lost in that quarrell These forraine ingagements made the King lesse solicitous of point of Prerogative at home and the rather because he knew the way to conquer his private enemies armes and his Subjects hearts without losse of honor in the one or reverence in the other He loved justice above the ranke of his Predecessors and in some respects above himselfe for he advanced Gascoigne for doing justice though to the Kings owne shame He liked not to intrude himselfe into elections and therefore though requested by the Monks of Canterbury he would not nominate a Successor to Arch Bishop Arundell but left the whole worke to them In the authority of his place he was moderate and where his Predecessors did matters without the Lords consent when he made his Uncle the Marquis of Dorcet Duke of Exceter and had given him a pention to maintaine that honor he asked the Lords consent thereto To the Clergy he was more then just if not indulgent led thereto by his Fathers example as being wrapped up in the same Interest as I conceive rather then out of any liking of their wayes now growing more bold upon usurpation then in former times Or it may be that having prevailed in that work in France which to any rationall man must needs appear above the power of the King and all the Realm of England he looked upon it as more then humane and himself as an instrument of Miracles and was stirred up in his zeal to God according to his understanding in those darke times to give the Clergy scope and to pleasure them with their liberty of the Canon Law that began now to thunder with fire and terror in such manner that neither greatnesse nor multitude could withstand the dint as was evidenced in that Penance inflicted upon the Lord Strange and his Lady in Case of bloodshed in Holy Ground and their hot pursuit of the Lord Cobham unto a death of a new Nature for somewhat done which was sometimes called Treason and sometimes Heresie And thus became Henry the Fifth baptized in the flames of the Lollards as his Father had sadly rendered up his Spirit in the same I say in this he is to be looked upon as one misled for want of light rather then in opposition against the light For in his last Will wherein men are wont to be more serious and sincere amongst his private regards he forgets not to reflect upon Religion to this purpose We further bequeath saith he to the redundant Mercy of the most excellent Saviour the Faith Hope and Charity the Vertue Prosperity and Peace of the Kings our Successours and of our Kingdome of England that God for his Goodnesse sake would Protect Visite and Defend them from Divisions Dissensions and from all manner of deceitfulnesse of Heretiques And thus Piety Justice and Moderation of Henry the Fifth Adorned and Crowned the honour of his Courage and Greatnesse with that honourable Title of Prince of Preists and had he been blessed with a clearer light he might as well under God have obtained the Title of Prince of Princes wanting nothing that might have rendered him a president of Fame BUt the time is now come that the Tide of Englands Glory must turn and the sudden Conquest in France by Henry the Fifth not unlike the Macedonian Monarchy must disgorge it selfe of what it had hastily devoured but never could digest Three things concurred hereunto one dangerous the other two fatall to the flourishing condition of any Nation First the King is a Minor in the least degree that ever any Prince sate on English Throne He entered thereinto neither knowing what he did nor where he was and some say he sate therein in his Mothers lap for his life had been more in the wombe then abroade A sad presage of what followed for many men thinke that he was in a lap all his dayes Nor are the cheife men to be
blamed herein for its a certain Truth that its much better that Election of a King should be grounded upon a rule that is known though it be by discent of Inheritance then upon none at all For if a Childe should succeed or a Lunaticke yet where the Principle of Government resteth upon the Representative of the People there is the lesse cause of complaint the Government being still the same both for Wisedome Strength and Uniformity though it may be the Nation not so active and brave For a Common-wealth can admit of no Minority though a Monarchy by descent may Secondly this deficiency in Nature might have been supplied but that these times were unhappy in the great power of the Lords to please whom the Government is parcelled out into two shares One is made Protectour of the Kings Person the other Protectour of the Kingdome too many by one For let their Persons be never so eminent for Abilities if they be not as eminent for Humility and selfe-Command their hearts will soon over-rule their heads into a Faction And therefore though the Earle of Warwicke was a wise man and the Duke of Glocester a wise man yet the Earle of Warwicke with the Duke of Glocester were not wise On the other side the Protectorship of the Kings Person being in the Duke of Exceter and that of the Realm in the Duke of Glocester things succeeded passing well for they both had one publique aime and the Duke of Exceter could comply with the Spirit of the Duke of Glocester who otherwise was not so pliant But after five years the Duke of Exceter dying and the government of the Kings Person devolving to the Earle of Warwicke who sided with the proud Cardinall of Winchester against the Duke of Glocester and so not onely consumed the rest of the Kings Nonage in a restlesse disturbance of Affaires but also dispoyled Henry the Sixth of the spirit of a King for the future and so the Kingdome of a King For it was not the condition of Henry the Sixth to be indowed with a spirit of such height but might well have been led by advice and needed not the Earle of Warwicke rugged brow to overlooke him who was not content to have the King onely attendant upon his advice but must likewise have him under his rod to be corrected for his faults and that by a Commission under the Kings owne hand and seale dated in the eleventh yeare of the Kings Reigne and so under colour of Curbing he killed that spirit in the King which otherwise doubt lesse had both spirit and pride enough to act himself above his due height and could not have been so long a Childe and so little a Man as he was It is very true that Henry the Fifth by Will seemed to countenance his Brothers and it cannot be denied but the Duke of Glocester was of such noble parts that they could hardly dilate in any work inferiour to the government of a Kingdome Neverthelesse to yeild much to the will of a diseased King in such Cases is as ill a President as the making of a King by Adoption and it had been better for the People to have adhered to the Duke of Glocester alone then by joyning him with another bring into president such a luxurient Complement of State as a Protectorship of a Kingdome which is of such little use to a Common-wealth and of so bitter Fruit to the Party as must needs bring repentance when it is too late For he that can manage the Protectorship of a Realme without anger of good men or envy of bad men is fitting to live onely with Angels and too good for the World Nor did the Duke of Glocester meet with better measure how wise soever he was and truely devoted to the good of the Realme For after foure and twenty years government so wisely and faithfully carried on by him that Justice it self could not touch his Person unjustice did and he received this reward from his Nephew Henry the Sixth that he died in the darke because the Cause durst not indure the light Now is Henry the Sixth perswaded that he is of full age he had laid aside his Guardian the Duke of Glocester but forgetting to sue out his Livery he betakes himself from the Grace of God into the warm Sunne as the Proverb is changing the advice of a faithfull experienced wise Councellour for the government of an Imperious Woman his Queen who allowed him no more of a King then the very Name and that also she abused to outface the World and after she had removed the Duke of Glocester out of the way undertook the sway of the Kingdome in her own Person being a Forrainer neither knowing nor caring for other Law then the will of a Woman Thus the glory of the House of Lancaster goes down and now a Star of the House of Yorke appears in the rising and the People looke to it The Queene hereat becomes a Souldier and begins the Civill Warres between the two Houses wherein her English party growing wise and weary she prayes aide of Ireland a Nation that like unto Crowes ever wait to prey upon the infirmities of England The Warres continue about sixteen yeares by fits wherin the first losse fell to the English party the pretentions being yet onely for good Government Then the Feild is quiet for about foure yeares after which the clamor of ill Government revives and together therewith a claime to the Crown by the House of Yorke is avouched thereupon the Warres grew hot for about foure yeares more and then an ebbe of as long quiet ensues The Tide at last returnes and in two yeares Warre ends the quarrell with the death of fourescore Princes of the blood Royall and of this good man but unhappy King Unhappy King I say that to purchase his Kingdomes Freedome from a Forraine Warre sold himselfe to a Woman and yet lost his bargaine and left it to Observation That a Conscientious man that marries for by-regards never thrives For France espied their advantage they had maintained Warre with England from the death of Henry the Fifth with various successe The Duke of Bedford being Regent for the English for the space of fourteen yeares mightily sustained the fainting condition of the English affaires in those parts and having Crowned his Master Henry the Sixth in Paris in the ninth yeare died leaving behinde him an Honourable Witnesse even from his Enemies That he was a brave Commander a true Patriot and a faithfull Servant to his Lord and Brother Henry the Fifth and to his Sonne Henry the Sixth But now the Duke of Bedford is dead and though France had concluded a Peace with the English yet they could not forget the smart of their Rod but concluded their Peace upon a Marriage to be had with a Woman of their own blood and interest and what they could not effect by Armes in their own Feild they did upon English ground by a
the Houses its true that sad Presidents have beene of later times in that kinde and so for want of due attendance Parliaments have been inforced to adjourn to prevent a worse inconvenience but these are infirmities better buried in silence then produced as Arguments of power seeing its evident that Kings themselves were no greater gainers thereby then an Angry man is by his passions It is true also that Kings may make Lords and Corporations that may send their Burgesses to the Parliament and thus the King may make as many as he will as the Pope did with the Bishops in the Councill of Trent yet cannot he unmake them when he pleases nor take the Members from the Parliament without attainder and forfeiture according to the knowne Law Neither can all these Instances prove that the Kings of England have the sole and supreame Power over the Parliament Nor did the Parliament in these times allow of any such Authority and therefore proceeded for the reforming of themselves by themselves in many particulars as the Statutes do hold forth And first in the point of Elections for an error in that is like an error in the first Concoction that spoiles the whole Nutriment they ordained that the Election of Knights shall be at the next County Court after the Writ delivered to the Sheriffe That in full Court betweene the houres of eight and nine in the morning Proclamation shall be made of the day and place of the Parliament That the Suters duely summoned and others there Present shall then proceed to the Election notwithstanding any Prayer or Commandement to the contrary That the names of the Persons elected whether present or absent they be shall be returned by Indenture betweene the Sheriffe and the Elizors and that a Clause to that end shall be added to the Writ of Summons This was enough to make the Sheriffe understand but not to obey till a penalty of one hundred pound is by other Lawes imposed upon him and a yeares imprisonment without Baile or Mainprise besides damages for false return in such Cases and the party so unduely returned Fined and deprived of all the wages for his service Thus the manner of Election is reduced but the Persons are more considerable For hitherto any man of English blood promiscuously had right to give or receive a Vote although his residency were over the wide World But the Parliament in the time of Henry the Fifth reduced these also whether they were such as did chuse or were chosen unto their proper Counties or else rendered them uncapable to Vote or serve for any County And the like Order was made for the Burroughs Viz. That no Person must serve for any City or Burrough nor give Vote in Electing such as shall serve for that Towne unlesse they be both Free and Resiants within that City or Burrough A Law no lesse wholsome then seasonable For the times of Henry the Fourth had taught men to know by experience That a King that hath Souldiers scattered over the Kingdome can easily sway the County-Courts and make Parliaments for their owne tooth Yet this was not enough For all Elizors though of the meanest sort yet are still able to doe as much hurt with their Vote as those of the best sort both for wisedome and publique minde can doe good by theirs This made Elections much subject to parties and confusions and rendered the Parliament much lesse considerable A remedy hereunto is provided in the minority of Henry the Sixth Viz. That no man should give his Vote in Elections in the County unlesse he hath forty shillings yearely in Free Lands or Tenements and this is to be testified upon Oath of the Party And more plainly it is ordered within two yeares after that each Elizor shall have Frank Tenement of that vallue within the same County And thus the Freemen yeilded up their liberty of Election to the Free-holders possibly not knowing what they did Neverthelesse the Parliament well knew what they did this change was no lesse good then great For first these times were no times for any great measure of Civility The Preface of the Statute shewes that the meanest held himself as good a man as the greatest in the Countrey and this tended to parties tumults and bloodshed Secondly where the multitude prevaile the meaner sort are upon the upper hand and these generally ignorant cannot judge of Persons nor Times but being for the most part led by Faction or Affection rather then by right Understanding make their Elections and thereby the Generall Councell of this Nation lesse generous and noble Thirdly there is no lesse equity in the change then policy for what can be more reasonable then that those men onely should have their Votes in Election of the Common Councell of the Kingdome whose Estates are chargeable with the publique Taxes and Assessements and with the wages of those persons that are chosen for the publique Service But above all the rest this advancing of the Free-holders in this manner of Election was beneficiall to the Free-men of England although perchance they considered not thereof and this will more clearly appeare in the consideration of these three particulars First it abated the power of the Lords and great men who held the inferiour sort at their Devotion and much of what they had by their Vote Secondly it rendered the body of the people more brave for the advancing of the Free-holder above the Free-man raiseth the spirit of the meaner sort to publique regards and under a kinde of Ambition to aspire unto the degree of a Free-holder that they may be some what in the Common-wealth and thus leaving the meanest rank sifted to the very branne they become lesse considerable and more subject to Coercive power whiles in the mean time the Free-holder now advanced unto the degree of a Yeoman becomes no lesse carefull to maintain correspondency with the Lawes then he was industrious in the attaining of his degree Thirdly by this means now the Law makes a separation of the inferiour Clergy and Cloystered people from this service wherein they might serve particular ends much but Rome much more For nothing appeareth but that these dead Persons in Law were neverthelesse Fsee-men in Fact and lost not the liberty of their Birth-right by entering into Religion to become thereby either Bond or no Free-Members of the people of England Lastly as a binding plaister above the rest First a Negative Law is made that the Persons elected in the County must not be of the degree of a Yeoman but of the most noted Knights Esquires or Gentlemen of the Countrey which tacitely implies that it was too common to advance those of the meaner sort whether by reason of the former wasting times Knights and Esquires were grown scant in number or by reason of their rudenesse in account Or it may be the Yeomanry grew now to feel their strength and meant not to be further
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
perpetuall and so gave a restraint unto the power of the King and Councell But where no Positive restraint was made by any Statute the King and Councell seemed to have the sole power left unto them to open and shut the passes of Trade as they pleased For whereas the Commodity of Butter and Cheese was made Staple the King and Councell had power to stop the sale thereof notwithstanding that the Law gave full liberty to the Subjects to bring all their Staple Commodities to the Staple Neverthelesse this power in the King is not Primitive but derived from the Parliament for they had power over the Kings Licences and Restraints in such Cases as by the severall Statutes doe appeare A third power given to the Privy Councell was a power of Summons and Processe against Delinquents in Cases of Riots Extortions Oppressions and greivous Offences the Summons to be by Privy Seale the Process Proclamations and for Non-appearance Forfeiture if the Delinquent be of the Degree of a Lord if of inferiour ranke then a Fine or Outlary At the first view the Statute hath an ill-favoured aspect as if it raised up a new Court of Judicature but the time is to be considered with the occasion for it was made for the securing of the Peace in a turbulent time And besides the Law carrieth along with it two Restrictions which puts the right of Cognisance in the Privy Councell to the question First it saveth the Jurisdiction of other Courts and provideth further That no matter determinable by the Law of this Realme shall be by this Act determined in other forme then after the course of the same Law in the Kings Court having determination of the same which implieth that some kindes of Riots and Extortions are of so high a nature that though determinable in the Kings Court yet are they to be determined before the Lords In the next place this Law provideth that such offences as are determinable by the Law of the Realme that is by Jury shall still be so tried Secondly if Conviction be upon Confession or by Certificate in case where by reason of Parties and partakings Inquisition by Jury can not be had there the Lords shall immediately determine the same Lastly if the Certificate be traversed then the same shall be tried in the Kings Bench. But there is another Restriction that undoeth all in effect in point of right because what this Law setleth therein it setleth but for seven yeares and leaveth the Privy Councell to the limits of the Common Law for the future In the mean time the Privy Councell may be thought terrible and very high both by this Law and the greatnesse of the Lords Kings Unkles and Kings Brothers are Subjects indeed but of so high a Degree that if a little goodnesse of Nature or publique Spirit shine in them they soon become the Objects of Admiration from the Vulgar and gain more from them by their vicinity then the King can doe at a distance For the Commons of England by the fair demeanour of popular great men are soon won out of their very cloathes and are never more in danger to part with their liberties then when the Heaven is faire above their heads and the Nobility serve the King and flatter them Neverthelesse as I said the season must also be considered of this power thus by this Law contracted for what the Lords gained not by their Popularity the Queen did with her power who now mindfull of her contemned beauty and opposition from the Duke of Glocester against her marriage removes him out of the way gets the reines of Government into her hand and like a Woman drives on in full careere The Duke of Yorke and other Lords not liking this gallop indeavour to stop her pace but are all overborn the Duke taken prisoner and doubtlesse had pledged the Duke of Glocester but that the Heire apparent of the House of Yorke steps in to rescue and new troubles arise in Gascoigne to put an end to which the Queenes party gaines and takes the Duke of Yorkes word for his good behaviour gets this Law to passe expecting hereby if not a full settlement at Home yet at least a respite to prevent dangers from abroad during the present exigency And thus upon the whole matter the Lords and Privy Councell are mounted up by the Commons to their own mischeif CAHP. XVII Of the Clergie and Church-government during these times IT was no new thing in the World for Princes of a wounded Title to goe to the Church-men for a plaister and they are ready enough to sing a Requiem so as they may be the gainers The Princes therefore of the House of Lancaster had offended against common sense if they had not done the like themselves being not onely guilty in their Title but also by a secret Providence drawn into one interest together with the Church-men to support each other For Henry the Fourth and Arch-bishop Arundell meeting together under one condition of Banishment become Consorts in sufferings and Consorts in Honour for Society begotten in trouble is nourished in Prosperity by remembrance of mutuall kindnesses in a necessitous Estate which commonly are the more hearty and more sensible by how much other Contentments are more scant But the Arch-bishop had yet a further advantage upon the heart of Henry the Fourth though he was no man of power yet he was of great Interest exceedingly beloved of the English Clergy and the more for his Banishment sake Now whatsoever he is or hath is the Kings and the King is his the sweet influence of the Arch-Bishop and the Clergy enters into his very Soule they are his dearly beloved for the great Naturall Love as he sayes to the World they beare to him what he could he got what he got he gave to the Church Thus the Family of Lancaster becomming a mighty support unto the Clergy Romane as it was they also became as stout maintainers of the crackt Title of that younger House So was fulfilled the old Prophecy of the Oyle given to Henry the first Duke of Lancaster wherewith Henry the Fourth was anointed That Kings anointed with that Oyle should be the Champions of the Church Now for the more particular clearing of this we are to consider the Church absolutely or in relation to the Politicall Government of the People Concerning the later many things did befall that were of a different peice to the rest in regard that the Lords for the most part were for the Clergy and they for themselves but the Commons began to be so well savoured with Wicklâ—â—fs way that they begin to bid defiance to the Clergies self-ends and aimes and because they could not reach their heads they drive home blowes at their legs A Parliament is called and because the King had heard somewhat feared that the People were more learned then was meete for his purpose and that the Parliament should be too wise he therefore will
have a Parliament wherein the People should have no more Religion then to beleive nor Learning then to understand his sense nor wisedome then to take heed of a Negative Vote But it befell otherwise for though it was called the Lack-learning Parliament yet had it well enough to discern the Clergies inside and Resolution enough to enter a second claime against the Clergies Temporalties and taught the King a Lesson That the least understanding Parliaments are not the best for his purpose For though the wisest Parliaments have the strongest sight and can see further then the King would have them yet they have also so much wisedome as to look to their own skins and commonly are not so venterous as to tell all the World what they know or to act too much of that which they doe understand But this Parliament whether wise or unwise spake loud of the Clergies superfluous Riches and the Kings wants are parallel'd therewith and that the Church-men may well spare enough to maintaine fifteen Earles fifteen hundred Knights six thousand two hundred Esquires and one hundred Hospitalls more then were in his Kingdome This was a strong temptation to a needy and couragious Prince but the Arch-Bishop was at his elbow the King tells the Commons that the Norman and French Cells were in his Predecessors time seized under this colour yet the Crowne was not the richer thereby he therefore resolves rather to add to then diminish any thing from the maintenance of the Clergy Thus as the King said he did though he made bold with the Keyes of Saint Peter for he could distinguish between his owne Clergy and the Romane The People are herewith put to silence yet harbour sad conceits of the Clergy against a future time which like a hidden fire are not onely preserved but increased by continuall occasions and more principally from the zeal of the Clergy now growing fiery hot against the Lollards For that not onely the People but the Nobles yea some of the Royall blood were not altogether estranged from this new old way whether it was sucked from their Grand-Father Duke John or from a Popular strain of which that House of Lancaster had much experience I determine not These were the Dukes of Bedford and Glocester Bedford was first at the Helme of Affaires at home whiles the King acted the Souldiers part in France as ill conceited of by the Clergy as they sleighted by him At a Convocation once assembled against the Lollards the Duke sent unto their Assembly his Dwarfe as a great Lollard though he was a little Man and he returned as he went even as Catholique as any of them all Non tam dispectus à Clero quam ipse Clerum despiciens atque eludens This and some other sleights the Clergy liked not they therefore finde a way to send him into France to be a Reserve to his Brother And in his roome steps forth Humphrey Duke of Glocester that was no lesse coole for the Romane way then he Henry the Fifth was not more hearty in Romes behalf for although he was loath to interrupt his Conquest abroad with contests at home yet he liked not of advancements from Rome insomuch as perceiving the Bishop of Winchester to aspire to a Cardinals Hat he said that he would as well lay aside his own Crowne as allow the Bishop to take the Hat Nor was he much trusted by the Clergy who were willing he should rather ingage in the Wars with France then minde the Proposalls of the Commons concerning the Clergies Temporalties which also was renued in the Parliament in his dayes Above all as the Lancastrian House loved to looke to its own so especially in relation to Rome they were the more jealous by how much it pretended upon them for its favour done to their House And therefore Henry the Fourth the most obleiged of all the rest looked to the Provisors more strictly then his Predecessors had and not only confirmed all the Statutes concerning the same already made but had also provided against Provisors of any annuall Office or Profit or of Bulls of Exemption from payment of Tythes or from Obedience Regular or Ordinary and made them all punishable within the Statute and further made all Licenses and Pardons contrary thereto granted by the King void against the Incumbent and gave damages to the Incumbent in such vexations for the former Lawes had saved the right to the true Patron both against Pope and King And thus the English Kings were Servants to the Church of England at the charges of Rome whiles the Popedome being now under a wasting and devouring Scisme was unable to help it selfe and so continued untill the time of Henry the Sixth at which time the Clergy of England got it selfe under the power and shadow of a Protector a kinde of Creature made up by a Pope and a King This was the Bishop of Winchester so great a Man both for Birth parts of Nature Riches Spirit and Place as none before him ever the like for he was both Cardinall Legate and Chancellour of England and had gotten to his aide the Bishop of Bathe to be Lord Treasurer of England Now comes the matter concerning Provisors once more to be revived First more craftily by collogueing with the Nobility who now had the sway in the Kings minority but they would none An answer is given by the King that he was too young to make alteration in matters of so high Concernment yet he promised moderation The Clergy are put to silence herewith and so continue till the King was six yeares elder and then with Money in one hand and a Petition in the other they renue their Suit but in a more subtill way For they would not pretend Roâ—e but the English Churches liberties they would not move against the Statutes of Praemuniri but to have them explained it was not much they complained of for it was but that one word Otherwhere which say they the Judges of the Common Law expound too largely not onely against the Jurisdiction of the Holy Sea but against the Jurisdiction of the English Prelacy which they never intended in the passing of those Lawes Their Conclusion is therefore a Prayer That the King will please to allow the Jurisdiction of their Ecclesiasticall Courts and that Prohibitions in such Cases may be stopped But the King either perceiving that the Authority of English Prelacy was wholly dependent on the Sea of Rome and acted either under the shadow Legatine or at the best sought an Independent power of their own Or else the King doubting that the calling of one word of that Statute into question that had continued so long might indanger the whole Law into uncertainty declined the matter saving in the moderation of Prohibitions Thus the English Clergy are put to a retreat from their reserve at Rome all which they now well saw yet it was hard to wean them The Cardinall of Winchester was a
presumption and complaint of credit after it is entered is sufficient Record to ground proceedings in this Case to attache the Party to answer But by this Law a Triall is introduced that neither resteth upon any peremptory accusation or proofe of witnesse but meerly upon Inquisition upon the Oath and Conscience of the Party suspected which in the later dayes hath been called the triall upon the Oath Ex Officio for such was the triall allowed by the Canon in these times as appeares in the Constitutions of Otho and the Decrees of the Arch-Bishop Boniface by whom it was indeavoured to be obtruded upon the Laity about the times of Henry the Third or Edward the First but even the Clergy then withstood it as Lindwood confesseth And Otho in his very Constitution doth hold this forth by that Clause of his Nonobstante obtenta consuetudine Secondly this Law doth indeavour to introduce a new Judge with a power to Fine and Imprison according to discretion and a Prison allowed to him as his own peculier and yet the Writ De cautione admittenda still held its power to regulate that discretion as formerly it had done which by the way may render the power of this Law suspitious Thirdly the Clergy are not content to have the Estates and Liberties of the bodies of the People at their discretion but they must also have their lives although no Free-mans life could by the Fundamentall Lawes of this Kingdome come to question but by the judgement of his Peeres nor could the Clergy by their owne Canons interesse sanguine Viz. They cannot put any man to death but by this Law they may send any man to death by a Sentence as sure as death Tradatur potestati seculari And such a death not as the Civill Magistrate is wont to execute by a speedy parting of the Soul from the Body by losse of blood stop of breath or such like but the Clergy must have blood flesh bones and life and all even to the edge of nonentity it self or they are not satisfied And thus the Writ De comburendo Haeretico entered into the World True it is that some sparks of this fire are found in former times and Bracton toucheth upon such a Law in Case of a Clerk convict for Apostacy Primo degradetur post per manum Laicalem Comburatur which was indeed the Canon and that by his own Confession for it is grounded upon one Secundum quod accidit in the Synod at Oxford under Arch-Bishop Becket but that Case concerneth a Clerk who by his Profession hath put himselfe under the Law of the Canon and it was onely in Case of Apostacy himself being turned Jew and this also done upon a sudden pang of zeale and power of an Arch-Bishop that would know no Peere nor doe we finde any second to this President by the space of two hundred yeares next ensuing neither doth the Decree of Arch-Bishop Peckham who was not long after Becket treating about Apostacy in Lay-men mention any other punishment then that they are to be reclaimed Per censuras Ecclesiasticas nor yet that of Arch-Bishop Arundell amongst the Constitutions at Oxford not long before this Statute who treating about the crime of Heresie he layes the Penalty upon the forfeiture of goods with a Praesertim as if it were the Grand punishment And Lindwood in his glosse upon that place setting down the Censures against Heresie Hodie sunt saith he damnandi ad mortem as if it were otherwise but as yesterday Fourthly the next indeavour is to bring the Cognifance of all wholly to the Ecclesiasticall Court without further appeale for so the words concerning Conviction of Heresie are Whereupon credence shall be given to the Diocessan of the same place or his Ordinary in that behalfe These changes I say were indeavoured to be brought upon the Government of this Kingdome and yet the Law for all this suffered no change nor did the House of Commons however the name is thrust into the English Ordinary Print ever yeild unto the passing of the same but in the Parliament next ensuing complained thereof and protested they would not be bound by such Lawes whereto the House of Commons had not given their consent and this dashed the Law quite out of countenance although it holds the place still amongst the number for within foure yeares after the Clergy bring in another Bill of the same nature in generall though varying in some particulars but the same was again rejected All the strength therefore of this Law resteth upon the King and House of Lords ingaged by the Clergy to whom they trusted for their Religion for Book-learning was with them of small account and no lesse by the King who knew no better way to give them content that gave him so much as to set the Crowne upon his head nor to discharge his Royall word passed by the Earles of Northumberland and Westmerland in his behalf unto the Convocation Viz. That they were sent to declare the Kings good will to the Clergy and Church Liberties and that he was resolved to defend all the Liberties of the Church by his Kingly Power and to punish Hereticks and the Churches Enemies in such manner as the Clergy should thinke meete and therefore desired their dayly Prayers for his owne and the Kingdomes safety And yet for all this the People were not of this minde no small part of the Kingdome being overspread with these Opinions After Henry the Fourth comes Henry the Fifth and he also makes another assay the former opinions then knowne onely by the generall name of Heresie are now baptized by the new name of Lollardry and grown so overspreading that all the troubles of these times are still imputed to them It was indeed the Devills old and common trick thus to inrage earthly powers against these men although he be hereby but an instrument in the hand of the Cheif Builder that in laying a sure foundation doth as well ramme downe as raise up for the malice of these men made the People of God to multiply Henry the Fifth also published a Law to this same That all Persons in place of Government shall sweare to use their diligence to destroy all Heresies and Errors called Lollardries That all Lollards convict by the Clergy left to the seculer power according to the Lawes of Holy Church shall forfeit their Lands and Tenements to their Lords And the King to have the yeare and day and waste and all his Goods and Chattels If the Lord be the Ordinary the King shall have all No forfeiture to be till the Delinquent be dead They shall be found by Indictment before the Justices of the Peace This Indictment being found shall be sent to the Ordinary with the Prisoner The Indictment shall not be for Evidence but onely for Information These are the Principall things contained in this Law which by the manner of the Composure seemeth to be of an
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
more of that now they devise a way to spoile and prey for themselves and yet neither to rob nor break house To this end they would scatter little Scrolls in writing requiring the party that they intended to prey upon to leave so much Money upon such a day at such a place and this was Sub paena of burning the parties house and goods which many times did insue upon default made this practise was at once made Treason to prevent the grouth of such an evill And the like was done with Robberies and Manslaughters contrary to the Kings Truce and Safeconduct As many or more new Fellonies were also now created One was the cutting out of mens tongues and plucking out of eyes a strange cruelty and that shewed the extreame savagenesse of those times so much the more intollerable by how much the poore tortured creature could hardly be either eye or eare witnesse of the truth of his own wrong A second Fellony was the customary carrying of Wooll or Wool-fells out of the Realme to other places except Callis Another Fellony concerneth Souldiers which I refer over to the next Chapter The last was Servants plundering their Masters Goods and absenting themselves if upon Proclamation made they appeare not this was also made Fellony In the next place as touching forcible entries and riots the remedies so often inculcated and new dressed shew plainly the nature of the times These kind of crimes commonly are as the light Skirmishes in the beginning of a War and follow in the conclusion also as the faintings of a battell fought till both sides be weary I shall not enter into each particular Statute diverse of them being little other then as asseverations annexed to a sentence to add credit and stirr up minding in men that otherwise would soone forget what is sayd or done The remedies formerly propounded are now refined and made more effectuall First in regard of speed which is as necessary in these forces as the stopping of the breaches of waters in the first Act and therefore one Justice of the Peace may proceed upon a holder by force or breaker of the Peace with a Continuando but Riots are looked upon as more dangerous and the first opposition had need be more stiffe least being uneffectuall aggravates the violence and therefore it s required that two Justices and the Sheriffe should joyne in the worke to carry one the worke with more Authority and Power And what they cannot do in the punitive part they must certifie to the King and his Councel or to the Kings Bench if traverse be made So as though the Power of the County be annexed to the Sheriffe Jure ordinario to maintaine the peace yet the Parliament did delegate the same upon Justices as it thought most expedient To maintaine and recover the Peace when it s broken shewes more Power but to prevent the breach shewes more Wisdome and therefore to all the rest the Wisdome of these times provided carefully First for Guards and Watches according to the Statute at Wint and committed the care thereof to the Justices of the Peace And secondly against the gendring of partyes for its commonly seene that such as are admired for excellecies of Person are so far adolized of some as that their gestures actions and opinions are observed tokens of favour though never so small are desired from such and the Idoll likes it well gives Points Ribbons it may be Hats and with these men are soon gained to be Servants in the fashion and not long after to be servants in Action be it War or Treason or any other way This manner of cheat the former times had been too well acquainted with Knights and Esquires are not feared in times where the word Lord carries the wonderment away their offences against the Statutes of Liveries are all great though in themselves never so small and therefore are sure of Fine and Ransome and it s well if they escape a yeares Imprisonment without baile or mainprize Lords may weare the Kings Livery but may give none Knights and Esquires may weare the Kings Livery in their attendance upon his Person but not in the Countrey The King and Prince may give Liveries to Lords and meniall Servants The summe is that Liveries may be given by the more publique Persons for State not to make parties and Men may weare Liveries in token of Service in Peace and not in Armes One thing must be added to all which may concern triall in all Viz. A Law was now made that Noble Ladies shall be tried by their Peeres a Law now of the first stamp and strange it is that it never came before now into the breast of the Law but that it came now it is not strange no meaner Person then the Dutches of Glocester is first charged with Treason when that could not appear then for Necromancy very fitly that she might be tried by the Ecclesiasticall way of witnesses She is found guilty and a Sentence of Penance and imprisonment or banishment passed thereupon after such a wilde way as both Nobles and Commons passed this Law for the Vindication of that Noble Sexe from such hudling trialls for the future CHAP. XXII Of the Militia during these times THe Title of Henry the Fourth to the Crown was maintained principally by his Tenures which the Courtiers call Knight-Service but the Common People force of Armes and that which destroyed many a man was the principall means of his subsistence Otherwise its clear that his Title was staring naught nor could he outface Mortimars Title without a naked Sword which he used warily for he had Enemies enough to keep his Sword in hand and Freinds enough to keep it from striking at randome for coming in by the Peoples favour he was obleiged to be rather remisse then rigorous yet his manner of comming was by the Sword and that occasioneth men much to debate about his absolute power in the Militia as supposing that what power he had other Kings may De jure challenge the same and let that be taken for granted though it will not necessarily follow in true reasoning And let it also be taken for good that Henry the Fourth entered the Throne by his Sword yet is there not any Monument in Story or Antiquity that favoureth any absolute right in him over the Militia but the current is I think somwhat clear against it First because Henry the Fourth De Jure could not compell men to serve beyond the Seas but raised them by contract and therefore by Act of Parliament he did confirme the Statute 1 Ed. 3. Stat. 2. cap. 5. which Statute was purposely made to that end And the same also is countenanced by another Statute made in these times whereof we now Treat by the words whereof appeareth that the Souldiers for the Forrain Service were levied by Contract between them and the Captain who undertooke to Levy them by
wage so as none were then compelled to enter into Service by imprest or absolute command nor is there any authority amongst all those cited in Calvins Case that doth mention any such thing but contrarily that Opinion of Thirning is expresse That the King cannot send men beyond Seas to Warres without wages and therefore no man is bound to any such Service by any absolute Legiance as the Reporter would understand the point but if he receiveth wages thereto he by that Contract binds himselfe Secondly it seemeth also to be granted that such as went voluntarily in the Kings Service ever had the Kings pay after they were out of their Counties if the King ruled by his Lawes for by the Statute formerly mentioned the King did likewise confirm the Statute of 18 Ed. 3. Stat. 2. cap. 7. which is expresse in that point and the matter in Fact also is evident upon the Records Thirdly touching the Arming of those that were thus Levied as their was a certain Law by which all men were Assessed to certain Armes either by the Service and Tenure of their Lands or by Parliament for such as were not bound to finde sufficient Armes by their Tenure according as is contained in the Statute 25 Ed. 3. Stat. 5 cap. 8. So did Henry the Fourth by the Statute formerly mentioned to be made in his time Confirm that Law of Edward the Third In the Argument of Calvins Case it is much insisted upon to prove the Legiance of an English man to the King to be absolute because he hath power to send men to Warre at his pleasure and he hath onely power to make Warre and if so then hath he absolute power in the Militia As touching the power of sending men to Warre hath been already spoken but as touching the power to make Warre there is no doubt but where a King hath made a League with another King he onely can break that League and so make Warre and that Opinion of Brian must be agreed for good in that sense But if a League be made by Act of Parliament or if the King will have Warre and the Parliament will make a League without him no authority doth in such case avouch that it is the right of the King or that he hath a Legall Power to break that League as he pleaseth Neither in the next place hath the King any right or Legall power to make War with his own Subjects as he pleaseth but is bound to maintain the Peace not onely by his Oath at his Coronation but also by the Lawes whereto he is bound if he will reign in right of an English King For every man knoweth that the grounds of the Statutes of wearing of Liveries was for the maintaining of the Publique Peace And Henry the Fourth amongst other provisions made against that trick hath this That the King shall give onely his Honourable Livery to his Lords Temporall whom shall please him and to his Knights and Esquires meniall and to his Knights and Esquires which be of his retinue and take of him their yearely Fee for Terme of Life and that no Yeoman shall take or weare any Livery of the King nor of none other Lord. And another Law was made within one yeare ensuing confirming the former and providing the Prince may give Liveries to such Lords as he pleases and to his meniall Gentlemen and that they may weare the same as in the Kings Case By both which the King and Prince are both in one Case as touching the power of giving Liveries if the one hath absolute power then hath the other the like If one be under the Directory of Law in that point then is also the other For it is clear that the King is intended by the Statute to be bound from giving Liveries and the people from wearing them otherwise then in especiall Cases and then the Conclusion will be that if the King may not give Liveries to prejudice of the Peace then may he much lesse break the Peace at his pleasure or Levy Men Armes and Warre when he shall think most meet Take then away from the King absolute Power to compell men to take up Armes otherwise then in case of Forrain Invasion power to compell men to goe out of their Counties to War power to charge men for maintenance of the wars power to make them find Armes at his pleasure and lastly power to break the Peace or doe ought that may tend thereto Certainly the power of the Militia that remaineth though never so surely setled in the Kings hand can never bite this Nation Nor can the noise of the Commission of Array Intitle the King unto any such vast power as is pretended For though it be granted that the Commission of Array was amended by the Parliament in these times and secondly that being so amended it was to serve for a President or Rule for the future yet will it not follow that Henry the Fourth had or any Successours of his hath any power of Array originally from themselves absolutely in themselves or determinatively to such ends as he or they shall thinke meete First as touching the amendment of the Commission it was done upon complaint made by the Commons as a greivance that such Commissions had issued forth as had been greivous hurtfull and dangerous And the King agrees to the amendments upon advice had with the Lords and Judges and if it be true that the amendments were in the materiall Clauses as it is granted then it seemeth that formerly a greater power was exercised then by Law ought to have been and then hath not the King an absolute power of Array for the just power of a King can be no greivance to the Subject Secondly if the Commission of Array thus mended was to serve as a rule of Array for the future then there is a rule beyond which Henry the Fourth and his Successors may not goe and then it will also follow that the power of Array is not Originally nor absolutely in the King but from and under the Rule and Law of the Parliament which rule was not made by the Kings own directions but as we are told beyond expectation alterations were made in materiall parts of the Commission and the powers in execution there whereof no complaint of greivance had been made The issue then is if the King had an Universall Power in the Array the Parliament likewise had a generall Liberty without any restriction to correct that power Lastly suppose that this power of the Parliament is executed and concluded by the Commission thus amended and that thereby the Kings Power is established yet can it not be concluded that this Power is Originally or absolutely in the King It s not absolutely in him because it is limited in these particulars First it s not continuall because its onely in case of eminent danger Secondly It s not generall upon all occasions but onely in case of a
Forrain and sudden invasion and attempts Thirdly the powers are not undefined but circumscribed 1. To Array such as are Armed so as they cannot assesse Armes upon such 2. To compell those of able Bodies and Estates to be Armed and those of able Estates and not able bodies to Arme such as are of able Bodies and not Estates but this must be Juxta facultates and salvo Statu 3. Whereas they straine themselves to make the Statute of Henry the Fourth and the Commission of Array to consist with the Statutes of 13 E. 1. 1 E. 3. and 25 E. 3. thereby they affirm so many more restrictions unto this power of Array as those Statutes are remediall in particular cases yet doe I not agree to their Glosses but leave them to the debate already published concerning the same Secondly as this power was not absolutely in the King so was it not originally from themselves because they had not the Legislative Power concerning the same but the same was ever and yet is in the Parliament hereof I shall note onely three particular instances First the Militia is a Posture that extendeth as well to Sea as Land That which concerneth the Sea is the Law of Marque and Reprisall granted to such of the People of this Nation as are pillaged by Sea by such as have the Kings Conduct or publique Truce And by this Law the Party pillaged had to recompence himself upon that man that had pillaged him or upon any other Subject of that Nation in case upon request made of the Magistrate in that Nation satisfaction be not given him for his wrong it was a Law made by the Parliament whereby the Chancellor had power to grant such Letters or Commission upon complaint to him made This was grounded upon the Statute of Magna Charta concerning Free Trade which had been prejudiced by the rigour of the Conservators of the Truce against the Kings Subjects although what was by them done was done in their own defence And by which means the Forrainers were become bold to transgress and the English fearfull in their own Charge and many laid aside their Trade by Sea and thereby the strength of the Kingdome was much impaired Nor is the Equity of this Law to be questioned for if the Magistrate upon complaint made grants not releif the offence becomes Publique and the Nation chargeable in nature of an Accessory after the Fact and so the next man liable to give satisfaction and to seek for releif at home The King then hath a power to grant Letters of Marque by Sea or Land and this power is granted by Parliament and this power is a limited power onely in particular cases in regard that many times these prove in nature of the first light skirmishes of a generall War Two other Instances yet remain concerning the Order and Government of the Souldiers in the Army the one concerning the Souldiers Pay Viz. That Captains shall not abate the Souldiers Wages but for their Cloathing under peril of Fine to the King The other concerning the Souldiers service That they shall not depart from their Colours without leave before the time of their Service be expired unlesse in case of sicknesse or other good cause testified and allowed by the Captain and such as shall doe otherwise shall suffer as Fellons Which Lawes could not have holden in force had they not been made by Parliament in respect that the Penalties concern the Estates and Lives of Men which are not to be invaded but by the Law of the Land so as both Captains and Souldiers as touching the Legislative power are not under the King in his Personall Capacity but under the Law of the Parliament Lastly as the rule of War was under the Legislative power of the Parliament so was the rule of Peace for whiles Henry the Sixth was in France which was in his tenth yeare from Saint Georges day till February following The Scots propound tearmes of Peace to the Duke of Glocester he being then Custos Regni which he referred to the Order of the Parliament by whom it was determined and the Peace concluded in the absence of the King and was holden as good and effectuall by both Kingdomes as if the King had been personally present in his full capacity CHAP. XXIII A Survey of the Reignes of Edward the Fourth Edward the Fifth and Richard the Third THe reign of Henry the Sixth was for the most part in the former parts of it like fire buried up in the ashes and in the later parts breaking out into a flame In the heat wherof the Duke of York after Fealty given by him to Henry the Sixth and dispensation gotten from the Pope to break his Faith lost his life and left his Sonne the Mark-grave to pursue his Title to the Crown which he claimed by Inheritance but more especially by Act of Parliament made upon the agreement between Henry the Sixth and his Father This was Edward the Fourth who neverthelesse reserved himself to the Election of the Lords and was by them received and commended to the Commons in the Feild by which meanes he gaining the Possession had also incouragement to maintain the same yet never held himself a King of full age so long as Henry the Sixth lived which was the one half of his reigne Nor did he though he held many Parliaments scarce reach higher then at reforming of Trade which was a Theame well pleasing to the People next unto their Peace which also the King carefully regarded For although he had been a Souldier of good experience and therewith successfull yet as one loath to trust too far either the constancy of the People of his own dominion or the fortune of War with his neighbouring Princes he did much by brave countenance and discourse and yet gain'd repute to the English for valour after the dishonorable times of Henry the sixth He had much to do with a wise King of France that knew how to lay out three or foure calme words at any time to save the adventure of his Peoples blood and make a shew of Mony to purchase the peaceable holding of that which was his only by force untill the winde proved more faire to bring all that continent under one head In his Government at home he met with many crosse gales occasioned principally by his owne rashnesse and neglect of the Earl of Warwicks approved freindship which he had turned into professed enmity And so weakned his own cause thereby that he was once under Water his Kingdome disposed of by a new intaile upon the Heires of Duke Clarence and so the Earle of Warwick remained constant to the House of York though this particular King was set aside Nor did he in all this gaine any thing but a Wife who though his subject and none of the greatest family neither brought any interest unto her Lord and Husband amongst forraine Princes brought neverthelesse a Pearle which was
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
them and therefore was not so crafty as his Father in preventing occasions yet more dexterious in giving them the rout For he could mannage his hand and foote better then his Father strike down-right blowes and rather then he would faile of his ends would make one as many times he did Another advantage he had of his Father for considering the times he was a learned King which made his Actions carry more Majesty and like a well feathered Arrow from a strong hand drive through the winde stedily to the marke when as his Father like a weak Archer must raise his compasse and crave aid of the winde to help him to be right in the end It s affirmed by some that Henry the Eight was courteous and debonaire if so he must thanke his Education but it may be rather supposed that upon occasion he used the Art of Insinuation which he might learn both from the Father side and Mother side but he neither practised it much nor did he rely upon that skill for his resolution led him to cut the knot that he could not unty His learning led him most to Divinity and therein shewed him light enough to see much into the Mystery of iniquity which he did explain to the World passing well but as touching Devotion he left that to the care of the Church-men He was very well accommodated with money First from the full Coffers left by his Father much whereof he spent in pastimes and gallantry as he was Heire to Edward the Fourth and much also in his Devotion to the Pope as he was Heire to Henry the Seventh in liew of all which he was rewarded with a Title Defender of the Faith and so much ill gotten was much ill spent But a better supply he had when Rome and he parted asunder and the Current of the riches of the Clergy was stopped from running at waste and returned into the Kings own Treasury and so might have died the richest Prince in the World but that he wanted the main Clause in the Conveyance To have and to hold The wisdome of God so ordered it for these felicities were too great and many for any moderate spirit to bear gently much more for the Kings Spirit that was ever on the Pinacle and grown to that height that like an embossed Stagge none must cope with him he must run and out-run all none must crosse him under extream perill no good is to be done but by following afar of nor is it a full wonder if in this his heat he knowes neither faithfull Servant Councellour nor Wife but strikes at all that stands in his way Neverthelesse in his coole temper and when he was intangled with some perplexed occasion he could use the advantage of good Councell and the wits of others that were more crafty then himself wherein it was his good hap to have some ever nigh him that were for his turn and unto them committed much that himself might be at ease to hear good newes of successefull dispatches In his youth he was served by the wise Councellors trained up by his Father and he then willing enough for his pleasure was contented by their advice to serve his People for a time that they might be his servants for ever The two great Conduit Pipes of this Treasury which he had from his Father he cut off at his Peoples request as if he loved his People above all his riches and after that he laid aside his pleasures and youthfull company to apply himself more closely to the Affairs of his Kingdome as if he loved that above all pleasure which neverthelesse stuck to him so long as he lived and swayed too much in the greatest Affairs of his Government Thus the first heat of his course was run well so long as the Privy Councell continued moderately poysed But no sooner began one of them to put up beyond his place and to bid adue to the advice of all the rest but he gets the uppermost seat in the Kings Head makes a foot-stoole of the Kings Heart and then it s two to one that the People in such cases must bear the greater burden for who ever first said it he said most true That Prerogative in the hand of a King is a Scepter of Gold but in the hand of a Subject it is a rod of Iron The reigne of this King Henry the Eighth serve us with much experience of this kinde for if the consideration of the Affairs of this Government should be divided the same would be double the one under the Regiment of Cardinall Woolsy the other of the King by Cromwell Cranmer Gardner and others interchangeably I call that of Woolsy a Regiment for he was in nature or condition of a Pro Rex during the Kings Juvenility This Temporizer thus super-induced upon a Cardinall raised from mean Degree to be Legate è Latere courted by Forrain Princes flattered by the Emperour with Titles of Sonne and Cousin made him lead a dance that the King however active he was is put to his Carreere to hold him company which the King perceiving tripped up his heels and left the Arch-Bishop the Chancellour the Cardinall the Legate and many more with him lying on the ground No pride like to that of the Clergy whose parts are more sublime and apprehensions clear If God addeth not a Superiour work to rule over all A litle Honour will blow up all with a powder The King having thus matched the Cardinall forgot his former naturall pace and once in a heat could coole no more till Death cooled him He knew by experience that the Cardinall could over-awe the People why should not the King doe as much if the Lords stooped to the Cardinall why not much rather to the King The Cardinall pulled down reared up turned square to round why should he be lesse then his Subjects Such conceits as these soon wounde up the Kings minde to that height that its death to him to stoop one inch lower to more moderate advice though he loved their persons never so well but all must be content with the weight of his Arme though it were no small one and yet in point of Religion Affaires tended to a kinde of Reformation all this while CHAP. XXVII Of the State of the Crowne THat the Crowne of England now abounded more in Flowers then Crosses the face of Story doth hold forth to ordinary Observation and yet few are satisfied either in the true nature of the particular advantages or in the manner how they were obtained or in their continuance I must therefore make a little stop upon them because in the true discerning of them the discovery of the nature of the Government in later dayes doth much depend Hitherto the Crown came short of absolute Power over the people upon two grounds in observation one relating to the Clergy the other to the Laity The Church-men were heretofore under a Forrain power and a Forrain Law against which Kings
Councels and unto that had also a binding Power in making Lawes Decrees and Decretalls out of his own breast but this was gotten by plunder he never had any right to headship of the Church nor to any such Power in right of such preferment nor was this given to the King as head of the Church but with such limitations and qualifications that its evident it never was in the Crowne or rightly belonging thereto First nigh three yeares after this recognition by the Clergy in their Convocation it is urged upon them and they passe their promise In verbo sacerdotii And lastly it is confirmed by Act of Parliament that they shall never make publish or execute any new Canon or constitution provinciall or other unlesse the Kings Assent and License be first had thereto and the offences against this Law made punishable by fine and imprisonment So as the Clergy are now holden under a double bond one the honor of their Preisthood which binds their Wills and Consciences the other the Act of Parliament which bindes their Powers so as they now neither will nor can start Neverthelesse there is nothing in this Law nor in the future practise of this King that doth either give or assert any power to the King and Convocation to binde or conclude the Clergy or the People without an Act of Parliament concurring and inforcing the same And yet what is already done is more then any of the Kings Predecessors ever had in their possession A second Prerogative was a definitive power in point of doctrine and worship For it is enacted that all Determinations Declarations Decrees Definitions Resolutions and Ordinances according to Gods word and Christs Gospell by the Kings advise and confirmation by Letters Patents under the great Seale at any time hereafter made and published by the Arch-Bishops Bishops and Doctors now appointed by the King or the whole Clergy of England in matters of the Christian faith and lawfull rights and ceremonies of the same shall be by the People fully beleeved and obeyed under penalties therein comprized Provided that nothing be done contrary to the Lawes and Statutes of this Realme A Law of a new birth and not an old Law newly revived or restored This the present occasion and the naturall constitution of the Law do fully manifest The occasion was the present Perplexity of the People for in stead of the Statute Ex officio which was now taken away the six articles commonly called the six stringed whip was gotten into power by a more legall and effectuall originall The Parliament had heard the cries of the People concerning this and having two things to eye at once one to provide for the Peoples liberty and further security against forrain pretentions the other which was more difficult for the liberties of the consciences of multitudes of men of severall opinions which could not agree in one judgement and by discord might make way for the Romish party to recover its first ground and finding it impossible for them to hunt both games at once partly because themselves were divided in opinion and the bone once cast amongst them might put their own co-existence to the question and partly because the worke would be long require much debate and retard all other affaires of the Common-wealth which were now both many and weighty In this troubled wave they therefore wisely determine to hold on their course in that worke which was most properly theirs and lay before them And as touching this matter concerning doctrine they agreed in that wherein they could agree Viz. To refer the matter to the King and Persons of skill in that mistery of Religion to settle the same for the present till the Parliament had better leisure the People more light and the mindes of the People more perswaded of the way Thus the Estates and Consciences of the People for the present must indure In deposito of the King and other Persons that a kind of Interim might be composed and the Church for the present might enjoy a kind of twilight rather then lye under continuall darknesse and by waiting for the Sun rising be in a better preparation thereunto For the words of the Statute are that all must be done without any partiall respect or affection to the Papisticall sort or any other sect or sects whatsoever Unto this agreement both parties were inclined by diverse regards For the Romanists though having the possession yet being doubtfull of their strength to hold the same if it came to the push of the Pike in regard that the House of Commons wanted faith as the Bishop of Rochester was pleased to say in the House of Lords and that liberty of conscience was then a pleasing Theame as wel as libertie of Estates to all the People These men might therefore trust the King with their interests having had long experience of his Principles And therefore as supream Head they held him most meete to have the care of this matter for still this title brings on the Vann of all these Acts of Parliament On the other side that party that stood for reformation though they began to put up head yet not assured of their owne Power and being so exceedingly oppressed with the six Articles as they could not expect a worse condition but in probabililty might finde a better they therefore also cast themselves upon the King who had already been well baited by the German Princes and Divines and the outcries of his owne People and possibly might entertain some prejudice at length at that manner of woship that had its originall from that Arch enemy of his Head-ship of the Church of England Nor did the issue fall out altogether unsutable to these expectations For the King did somewhat to unsettle what was already done and abated in some measure the flame and heat of the Statute although nothing was established in the opposite thereto but the whole rested much upon the disposition of a King subject to change As touching the constitution of this Law that also shewes that this was not derived from the ancient right of the Crowne now restored but by the positive concession of the People in their representative in regard it is not absolute but qualified and limited diversly First this power is given to this King not to his successors for they are left out of the act so as they trusted not the King but Henry the eighth and what they did was for his owne sake Secondly they trusted the King but he must be advised by Councell of men of Skill Thirdly they must not respect any sect or those of the Papisticall sort Fourthly all must be according to Gods Word and Christs Gospel And Lastly nothing must be done contrary to the Laws and Statutes of this Realm And thus though they trusted much yet not all nor over long For it was but a temporary Law and during the present condition of affaires Nor did the King or People
rest upon this Law for within three yeares following another Law is made to confirme what was then already done by the King and a larger power granted to the King to change and alter as to his Wisdome shall seeme convenient Thus the Kings injunctions already set forth were established all opposall to them inhibited and the King hath a power of Lawing and Unlawing in Christs Kingdome and to stab an Act of Parliament in matters of highest concernment And the reason is the King will have it so and who dares gain-say it as Cranmer said the King loves his Queene well but his own opinion better for new things meeting with new love if it be once interrupted in the first heat turnes into a displeasure as hot as the first love nor had either party great cause to boast in their gainings for none of them all had any security but such as kept close to a good conscience All this though much more then any of his Predecessors ever attained was neverthelesse not enough till his Title was as compleat The Pope had fashioned him one now above twenty yeares old for his service done against Luther and others of that way and sent it to him as a Trophee of the victory this was Defender of the faith which the King then took kindly but laid it up till he thought he had deserved it better and therefore now he presents it to the Parliament who by a Statute annexed it to the Crown of England for ever now made triple by the Royallizing of that of Ireland amongst the rest A third Prerogative concerned the Kings Power in temporall matters and now must England look to it selfe for never had English King the like advantage over his people as this man had His Title out-faced all question Left rich by his Father trained up in the highest way of Prerogative absolute Lord of the English Clergy and of their Interest in the People of a vast spirit able to match both the Emperour and French abroad and yet more busie at home then all his Predecessors A King that feared nothing but the falling of the Heavens the People contrarily weary of civill Wars enamored with the first tastes of Peace and Pleasure whiles as yet it was but in the blushing child-hood overawed by a strange Giant a King with a Pope in his belly having the temporall Sword in his Hand the spirituall Sword at his command Of a mercilesse savage nature but a word and a blow without regard even of his bosome companions what can then the naked relation of a Subject do with such an one if providence steps not in and stops not the Lions mouth all wil be soon swallowed up into the hungry maw of Prerogative To set all on work comes Steven Gardiner from his Embassage to the Emperor sad apprehensions are scattered that the motions abroad are exceeding violent and sudden that the Emperor and French King are fast in nothing but in change according to occasion that like the Eagle they make many points before they stoop to the prey That if the motions at home do wait upon debates of Parliament things must needs come short in execution and the affaires of this Nation extreamly suffer A dangerous thing it is that the King should be at disadvantage either with the Emperour or French King for want of power in these cases of suddaine exegencies and for some small time during the juncture of these importent affaires that seeing likewise at home the point concerning Religion is comming to the Test the mindes of men are at a gaze their affections and passions are on their tiptoes It s reason the King should steare with a shorter Rudder that this care might meete with every turne of providence which otherwise might suddainly blow up the Peace and good Government of this Nation These and the like represented a faire face to that which followed and made way for the King without shame to ask what no King before him suffered ever to enter into conceit I meane a Legislative power to this effect That Proclamations made by the greater part of the King for the time being and his Councell whose names hereafter follow with such penalties as by them shall be thought meet shall be of equall force to an Act of Parliament provided it shall not extend to forfeiture of Estates or Priviledges nor to losse of Life but in cases particularly mentioned in the Law provided no Proclamation shall crosse any Statute or lawfull or laudable Custome of this Realme All which at length comes to be demanded by a formall Bill with as ill favored a preface as the matter it self which was much worse ere it was well licked in the House of Commons and when all was done proved a Bare still Whatever it was it passed in manner above said neither much to the desire of the Commons that so much was given nor to the good liking of the King that there was no more For in stead of a Legislative power which he grasped at for himself he received it in common with his Councell and so becomes ingaged neither to alter nor destroy that Brother-hood if he intended to reape any fruit of this Law leaving the point in doubt whither his gaine or losse was the greater For this Law thus made for this King these Councellors and these times and occasions can be no president to the future unlesse to informe Kings that the Parliament hath a power to give more Authority and prerogative to Kings then they or the Crowne have by common right and to give it with such limitations and qualifications as seemeth good to them And secondly that even Henry the eighth acknowledged that the Legislative power was not in the Crown nor was the Crowne capable thereof otherwise then it was conferred by the Parliament Onely Steven Gardiner might glory in this atcheivement having for the present obtained much of his ends by perswading the King that forrain Princes estranged from him not so much for his departure from the Pope as for some apprehensions they had of his departure from that way of Religion and Worship which they apprehend every Christian ought to maintaine And therefore if he meaned to gaine better correspondency amongst these Princes he must ingage more resolvedly to the fundamentalls of the Worship though he shook of some sleighter ceremonies with the Romish supremacy for he knew that they were willing enough with the later though the other could not go downe with them thus did forraine correspondency float above when as the Church as then it stood was underneath and gave the tincture to every wave And it was holden more safe by the Romish party to trust the King thus attempered with the legislative power in the Church matters then the rough Parliament whose Course steered quite wide from the Roman shore as if they never meant to look that way any more though Cranmer and the cheif Officers of State and of the Houshold
Martyrs more particularly set forth and no Act of Parliament positive in the point But the time is now come when nighest reformation that the thing is settled more to the prejudice of reformation then all the endeavoures foregoing like to the darknesse of the night that is at the Superlative degree when nighest break of Day A Statute is now made that indeed quite blotted out the very name of the Statute of Henry the fourth De haeretico comburendo but made compleat that Statute of 5 Rich. 2. and the other of 2 Hen. 5. both which were formerly neither good in Law nor effectuall otherwise then by Power and gave more settlement to the Ordinaries proceedings in such Cases For the Delinquent might be convict before the Ordinary by Witnesses or might be indicted at the Common Law and the indictment certified to the Ordinary as Evidence yet did the Parliament carve them out their work and in expresse words declared That opinions against the Authority and Laws of the Bishop of Rome were not Heresie and by the same reason might have done more of that kind but that was enough to tell all the World that the Parliament could define what was not Heresie although they did not then determine what was Heresie And thus the judgment of the Romane Church is called into question in one of their fundamentals and the Clergy left in a Muse concerning the rule upon which they were to proceed against this Crime The Parliament within six yeares after undertakes though somewhat unhappily to determine and define certain points of Controversie which had some relation to the Worship of God and the publique Peace and declared the contrary to these determinations to be Heresie and the punishment to be Death and Forfeiture and the triall to be before Commissioners by Jury or testimony of two Witnesses or by examination in the Ecclesiasticall Court or inquisition in the Leete or Sessions of the Peace Upon the whole matter therefore the Ordinary had a particular Power to determine Heresie but the Parliament determined such Heresies as were punishable with Death and Forfeiture by enumeration in the six Articles This was the Clergies Primmer wherin they imployed their study as making most for their designe and laid aside thoughts of all other Heresies as drie Notions or old fashions laid aside and not worthy the setting forth to common sale Secondly the Lesson concerning Marriage was no lesse difficult for the Clergy to take out They were put by their former Authority derived from abroad and their ancient rule of the Canon Law with the Kings leave they do what they do and where they doubt they take his Commission so did the Arch-Bishop of Durham in the Case betweene John and Jane Fisher in the Kings Case the determining part is put to the Parliaments Conclusion and for a rule in other Cases some persons are enabled to Marry which formerly were not Viz Masters of the Chancery and Doctors of the Civill Law and some forbidden Marriage as all Preists by the Statute of the six Articles And unto the rest concerning degrees of Consanguinity or Affinity a particular enumeration is appointed to be observed within which Marriage is declared unlawfull all other further off are made lawfull In all which regards the Cognisance of Matrimoniall Causes is theirs onely by leave Thirdly Residency and Nonresidency was a Theame formerly learned from the Canon Law in which as also in the thing it self the Clergy were the onely skilfull men The rule of the Canon Law was strict enough considering the times but it was not steel to the back The Parliament now undertakes the cause and though it gave in some respects more liberty then the Canon yet stood it better to its tackling and kept a stricter hand upon the reines then was formerly used and by giving a generall rule for Dispensation took away all arbitrary Dispensations and Licences which were formerly granted beyond all rule but that of Silver or Gold and made all practises contrary to the rule damageable to the party Thus far concerning the matters in Cognisance now touching the Power of the Keyes English Prelacy having laid aside the pretentions of Rome they put the World to a gaze to see which way they would go In the inocent infancy of Prelacy it was led by the hand by the Presbytery and would doe nothing without them afterwards having gained some degree of heighth and strength they entred themselves to be Chariot Horses to the Roman Sun till they had set all on fire now unharnest it is expected they should returne to their former wits neverthelesse forgetting their ancient yokefellowes the rurall Presbyters they stable with the King use his name sometimes but more often their owne serving him with Supremacy as he them with Authority beyond their Spheare they raise him above Parliament he them above Councills so as they do what they list let the Plebeian Presbyter wil or nill they are the onely numerall Figures and the other but Ciphers to make them Omnibus numeris absoluti Neverthelesse the Canon still remaines the same Episcopi se debent scire Presbyteros non Dominos nec debent in clerum dominari Episcopus se sedente non permittat Presbyterum stare Episcopi noverint se magis consuetudine quam dispensatione Presbyteris majores Kings may make them Lords but as Bishops they hold their former rank assigned by the Canon as Lords the King never gave them the keyes and as Bishops the Canon did not yet as under the joynt Title of Lord Bishops they hold themselves priviledged to get what power they can two things they reach at Viz. The absolute power of Imprisonment and of Excommunication in all causes Ecclesiasticall The common Law would never yeeld this some Statutes in some cases did pretend First as touching Imprisonment the Statute of Henry the fourth concerning Heresie doth lispe some such Power of what force the same Statute is hath been already observed in case of incontinency of Church-men it is more directly given them by a Statute in Henry the sevenths time before which time the Statute it self doth initimate that an Action did lye against them for such imprisonment which Law also was made uselesse by another in Henry the eighths time who gave away to Statutes for the punishing them at the common Law First with Death which continued for some Months and that being found too heavy it was punished by another Law with Forfeiture and Imprisonment And the same King likewise gave way to a law for the like punishment in case of Heresie By that Law that revoked the Statute of Henry the fourth formerly mentioned although till triall the same was bailable And thus continued till the time of Edward the sixth But as touching Excommunication it was to no purpose for them to struggle the common Law would never permit them to hold possession quietly but did examine their Authority
granted prohibition enjoyned the Ordinary to grant absolution where it saw cause neverthelesse in some cases Henry the Eighth gives way to some Statutes to allow them this power as in the levying of Tenths In the next place the Prelacy had not this Ecclesiasticall jurisdiction in themselves so as to grant it to others but the Parliament did dispose thereof not only to Bishops but to Chancellors Vicars generall Commissaries being Doctors of the Law and not within holy Orders and limiting their jurisdiction in cases concerning the Papall jurisdiction and their manner of sending their processe and Citations to draw men from their proper Diocesse and also their inordinate Fees in cases Testamentary The Prelates therefore might possibly make great claim hereof for generally they were still of the old stamp loved to have all by Divine right and lived they cared not by what wrong But the Laity inclining too much to the new Religion as then it was termed refused to yeeld one foot unto their pretentions And so like two Horses tied together by their Bits indeavor after severall courses ever and anon kicking one at another yet still bestrode by a King that was joynted for the purpose and so good a horse-man that neither of them could unhorse him till Death laid him on the ground And thus was the Romane Eagle deplumed every Bird had its own feathers the great men the Honours and Priviledges the meaner men the profits and so an end to Annates Legatine levies Peterpence Mortuaries Monestries and all that retinue the vast expences by Bulls and Appeales to Rome to all the cares expences and toile in attendance on the Romane Chaire The beginning of all the happinesse of England CHAP. XXXI Of Judicature THese two Kings were men of towreing Spirits liked not to see others upon the wing in which regard it was dangerous to be great and more safe not to be worthy of regard Especially in the times of Henry the eighth whose motion was more eager and there was no comming nigh to him but for such as were of his own traine and would follow as fast as he would lead and therefore generally the Commons had more cause to praise the King for his Justice then the Nobility had Both the Kings loved the aire of profit passing well but the later was not so well breathed and therefore had more to do with Courts which had the face of Justice But behinde were for the Kings Revenue Such were the Court of Requests of meane originall meane education yet by continuance attained to a high growth The Court of Tenths and first fruits The Court of Surveyors The Court of the Lord Steward of the houshold The Court of Commission before the Admirall The Court of Wards The Court of the President of the North The Prerogative Court The Court of Delegates The Court of Commission of Review Others of more private regard and that which might have given the name to all the rest the Court of Augmentation Besides these there were some in Wales but that which concerned more the matter of Judicature was the losse of that grand liberty of that Countrey formerly a province belonging to this Nation and now by Henry the eighth incorporated into the same and made a Member thereof and brought under the same fundamentall Law a work that had now been long a doing and from the time of Edward the third brought on to perfection by degrees First by annexing the Tenure of the Marches to the Crowne Then upon occasion of their rebellion by losse of many of their wonted liberties Afterwards Henry the eighth defaced the bounds of diverse the ancient Counties and setled them a new and the bounds of the Marches also and appointed Plees in Courts of Judicature to be holden in the English tongue And last of all reunited them again to the English Nation giving them vote in Parliament as other parcell of the English Dominions had True it is that from their first submission even unto Edward the first they were summoned unto Parliament and had vote there but onely in order to the Interests of their own Countrey now and henceforth they possesse one and the same vote as English men Secondly as Courts and Judicatories multiplied so some also of those that were ancient enlarged their Jurisdiction especially such of them as most nighly related to Prerogative amomgst others the privy Councell leads the way Who now began to have too much to do in a double capacity one at the Councell Table the other in the Star Chamber For now their Power began to be diversly considered In their first capacity they had too much of the Affaires of the Common Pleas in the later they had too much of the Crown Pleas both of them serving rather to scare men from doing wrong then to do any man right And therefore though some men might seeme to have some recompence yet the greatest gain fell to the King and his Courtiers and thus became Majesty or State or Prerogative to be more feared then beloved What the Power of the Councell was formerly hath already beene manifested that which both these Kings conspired in and whereby they gained more Power over the People then all their Predecessors was this that other Kings stood too much upon their own leggs these leaned much upon the Lords and gained the Lords to stick close to them and in this they had both the Kings Love and the Peoples Leave who now disjoynted upon severall Interests especially that of Religion must be contented to let go that which they had no heart to hold And thus they obtained a judicatory Power over the people like that of great men whose Censures are commonly above capacity and not like to that of the Peers This was begun in Henry the sevenths time who taking occasion to complain of corruption and neglect in ordinary Trialls of the Common Law gets the People to yeild to the Councell or some of them a Power of Oier and Terminer by examination upon Bill or information in matters concerning Maintenance Liveries Retainders Embraceries corruption in Sheriffs and Juries Riots and unlawfull Assemblies Crimes all of them of the same Blood with rebellion which the King as much hated as the thought of his Title to the Crowne and therefore would have it feared as much as the punishment by such a mighty Power and a Triall of a dreadfull Nature could effect A Triall I say wherein both the guilty and the guiltlesse adventure their whole Estates against the edge of the arbitrary wills of great men of unknown Interests in an unknown way at unknown places having no other assurance how or when to come off but a Proclamation to tell the People that the King above all things delighted in Justice A bitter pill this was for the People to swallow yet it was so artificially composed that at the first taste it gave a prety rellish the King delights in Justice the
Chancellor hath his Conscience the Arch-Bishop brings Religion the Judges bring Law so as its probable nothing will be done but according to Justice Conscience Religion and Law a very faire mixture but that there was a Treasurer in the Case yet the successe answered not expectation the Persons offended were many times inferiour and their estates not great the Offenders more meane and of desperate fortunes for great men were too wise to try this new way or to tast of their entertainment Therefore within nine yeares the Judges of Assize are betrusted with all and that Court so continued for as many yeares more and then the King marked out one Crime amongst the rest for his owne tooth belonging to the great men onely for they onely are able to commit the Crime and to give recompence sutable to the Kings Appetite It is giving of Liveries and Retainders a sore evill in the eyes of a jealous King tending to draw the inferiour sort to honour and admire and be of the suit of those of the greater sort and then beware the Crown These therefore must be tried before the King himself and his Councell that he may know whom he is to feare and of whom to take heed And herewith is a strange power given to summon upon a meere Suspition To proceed without information To examine the Defendant upon Oath and make him his own Accuser To punish according to discretion by fine and Imprisonment and thus the King and his Councell have gotten a power under colour of Liveries and Retainders to bring the whole Kingdome to be of their Livery or else they can suspect whom they please apprehend whom they suspect put him presently to the rack of confession and so into prison till he hath satisfied both displeasure and jealousie and covetousnesse it self Never was England before now in so low a degree of thraldome bound under a double knot of self-accusing and arbitrary Censure and this out-reached not onely in matters meerly civill tending to the common Peace but was intruded also into matters Ecclesiasticall in order to the Peace of the Church All bound unto the good behaviour both in Body and Soul under perill of losse of all that a man hath deare to him in this World The plot of all this was first laid by Henry the seventh and was followed by Henry the eighth who put that into practise which his Father had in designe being led thereto by such a skilfull Guid as Cardinall Woolsie was who though of meane Birth yet of a Spirit above a King and equall to the Popedome strained the string of Prerogative to its utmost heighth and then taught the King to play thereon which he did after his blunt manner till his dying day And thus though the Clergy are brought a Peg lower and the Nobility advanced higher yet was it the pollicy of these Kings to make them all of their own Livery and Retaindership to keep them in an upper region looking on the poore Commons at a distance far below and well it was for the Commons thus to be till the influence of these blazing Stars grew cooler CHAP. XXXII Of the Militia IT may fall within the verge of opinion that the guilty Title of Henry the seventh to the Crowne of England galled his minde with jealousie the greatest part of his Reigne Whether it were that he had not declared himself so fully upon his Title by his Wife or that as yet he feared some unknown Plantagenet would arise and put his Crown to the question This made him skilfull in the point of Fortification wherein he likewise spent the greatest part of his Reigne not so much by force of Armes for he cared not much for that noise well knowing that Peace is the safer condition for a King that comes in by power but principally by way of gaining Concessions and acknowledgment from the Subjects a Musick that he much delighted to heare well knowing it would conclude those amongst them that knew too much and instruct them that knew too little and so in time he should passe for currant amongst them all It was no hard matter for the King to accomplish this the greater part of the Kingdome being pre-ingaged unto his Title and of them many depending upon him for livelyhood if he failed they must look to loose all But the present occasion urged more importantly the Title to the Crown was already put to the question by the pretentions of one that named himself Duke of Yorke And it s now high time for the Law to declare it self to direct the People in such a Case What shall the People do where Might overcomes Right or if dayes come like those of Henry the sixth wherein the Subjects should be between two millstones of one King in Title and another King in possession for whom must they take up Armes if for Edward the fourth then are they Traitors to Henry the sixth if for Henry the sixth then are they Traitors to Edward the fourth and so now if for Henry the seventh then they may be Traitors to the Duke of Yorke if for the Duke of Yorke then are they Traitors to Henry the seventh For though the Duke of Yorke was said to be but a contrivance of the House of Burgundy yet a great part both of the great men and others were of another opinion and the King himself was not very certaine of his condition for the space of six years thereby This puts the Title of allegiance and that power of the Militia to the touch at length both King and Parliament come to one Conclusion consisting of three particulars First that the King for the time being whether by right or wrong ought to have the Subjects Allegiance like to that of the wise Councellor of that brave King of Israell Whom the Lord and his People and all the men of Israell chuse his will I be And this is not onely declared by the expresse words in the Preface of the Law but also by the Kings own practise for he discharged such as aided him against Richard the third then King by pardon by Parliament but such as aided him being King by declaration of the Law Secondly that this Allegiance draweth therewith ingagement for the defence of that King and Kingdome Thirdly that the discharge of this Service whereto the Subjects are bound by allegiance ought not to be imputed unto them as Treason Nor shall any person be impeached or attainted therefore the first and the last of these need no dispute The second is more worthy of consideration in the particular words set downe in the Statute Viz. That the Subjects are to serve their Prince in his Warres for the defence of him and the Land against every rebellion Power and Might reared against him and with him to enter and abide in Service in Battell Wherein two things are to be considered the Service and the time or occasion The Service is to serve the Prince
as were taking of women into captivity unlawfull huntings with disguises malicious breaking of the Dikes and Bankes in Marshland Servants embezzelling their Masters Goods to the value of forty shillings or upward which besides that of Heresie whereof formerly though of a new stamp yet of so good a constitution that they remaine unto this day under the same brand But let the Lawes be never so severe if they have not free liberty to walk at large they are soone ghostlesse and therefore these two Kings especially the later gained that Honour above their Predecessors that they gave the Law a free and full scope over all persons but themselves and their Assignees and in all places First Concerning places every one knowes the Notion but few considered the extent of Sanctuary ground in England that could sanctifie any Crime or Criminall person in such manner that though the eye of Justice could see yet the hand of Justice could never reach them till Henry the eight plundered them of all their sanctity and made all places common so as no Treason could hide it self but where the Act of Parliament did appoint and turned their names from Sanctuaries to priviledged places The sanctity of the person was yet more mischivious and hard to be reformed it had been often attempted before these times with little successe Henry the seventh gained some ground herein beyond his Ancestors the Delinquent might have his Clergy once but not the second time though he fled to the hornes of the Alter and was ever after known by a brand in the hand Thus far did Henry the seventh go and would have done more even as far as unto those in holy orders But Henry the eighth comming on in point of Treason made all persons common without respect of their orders or profession Death makes an equall end of all In cases of Murther Robbery Burnings of Houses Fellonies done in holy ground high Way or Dwelling House refusall of triall peremptory challenge of above twenty of the pannell Servants imbezzelling their Masters Goods in value forty shillings or upwards in all these Cases no Clergy could be allowed but to persons in holy Orders and those also to be perpetually Imprisoned in the Ordinaries Prison and yet this exception held not long in force but these men also were equally wrapped up in the same course to have their Clergy and indure the brand even as other men Two difficulties yet remaine which hindred the execution of the Lawes against Treason One concerning the place the other the person The place many times of the plotting and beginning of the Treason befalleth to be without the walk of the Kings Writ in which case by the Common Law it cannot be inquired or tried or it may be that the men of the place be generally disaffected and then no hope of finding out the matter In such cases therefore it is provided that be the Crime wheresoever the Delinquent will it shall neverthelesse be inquired and tried where the King will The Person of the Delinquent also many times changed its condition it might be sober at the time of the Delinquency and afterwards upon discovery prove lunatick and thereby avoide the Triall this whether in jest or earnest by a Statute is made all one and it is ordained that in case the fact be confessed by the Delinquent before the Lords of the Councell at such time as the party accused was of sound minde and the same be attested under the hands of foure of those Lords the same shall be a good ground to proceed to inquisition before Commissioners and the same being found to try the Delinquent without answer or appearence saving unto Barons their Triall by their Peeres And thus however in their Fits the Will of the Persons of these Kings was too hardy for the Kings to mannage according to rule yet the Law still in Title kept the saddle held the Reines and remaineth the cheife Arbitrator unto every man CHAP. XXXIV Of the generall Government of Edward the sixth Queene Mary and Queene Elizabeth WEE are at length come within sight of the shore where finding the Currents various and swift and the Waves rough I shall first make my course through them severally and then shall bring up the generall account of the Reignes of one King and three Governours The King was a Youth of about ten yeares old yet was older then he seemed by eleven yeares for he had all the Amunition of a wise King and in one respect beyond all his Predecessors that made him King indeed By the grace of God He was the onely Son of Henry the Eighth yet that was not all his title he being the first President in the point of a young Son and two elder Daughters by severall venters the eldest of whom was now thirty yeares old able enough to settle the Government of a distracted Nation and the Son so young as by an Act of Parliament he was disabled to settle any Government at all till he should passe the fifteenth yeare of his Reigne But the thing was settled in the life time of his Father whose last Will though it speake the choise yet the Parliament made the election and declared it The condition of this Kings Person was every way tender borne and sustained by extraordinary meanes which could never make his dayes many or Reigne long His spirit was soft and tractable a dangerous temper in an ill aire but being fixed by a higher principle then nature yeelded him and the same beautified with excellent indowments of nature and Arts and Tongues he outwent all the Kings in his time of the Christian World His Predecessors provided Apparell and Victuall to this Nation but he Education and thereby fitted it to overcome a firy tryall which soon followed his departure The modell of his Government was as tender as himselfe scarce induring to see his Funerall ready for every change subject to tumults and Rebellions an old trick that ever attends the beginning of Reformation like the winde the Sun rising The diversity of Interests in the Great Men especially in point of Religion for the most part first set these into motion for some of them had been so long maintained by the Romish Law that they could never endure the Gospell and yet the different Interests in matters of State made the greater noise All was under a Protector fitly composed to the Kings minde but ill matched with rugged humorous aspiring mindes whereof one that should have been the Protectors great Freind became his fatall Enemy and though he were his Brother to prejudice his Interest pawned his owne blood The other which was the Duke of Northumberland had his will but missed his end for having removed the Protector out of the way and gotten the cheife power about the King yet could he not hold long what he had gotten for the King himselfe after sixteen moneths decaying went into another World and
occasion of the Death of Pope Julio is to be seen Lastly she was no good Queen not onely because she gave up the Peoples Liberties in Ecclesiasticall matters to the forrain Jurisdiction of Rome but undertook too much therein by far upon her own account and in Civil Affairs though De jure She was not inferior to any of her Progenitors yet She would have it declared by the Parliament as if the consideration of her Sex or birth had made som hesitation in her minde and when she had made all clear she commending her self thereby to the Prince of Spain with her self indangered likewise that trust of the Nation which she had received and cast such a shadow upon her own Supremacy as in many things it is hard to be discerned Lastly In her whole course uneven sometimes appearing like the eldest Daughter of Henry the Eighth at other times like a Fem covert led by the will of her Lord and Husband that wanting Supremacy himself rendred her thereby beneath her self For First She married by Act of Parliament as if She were not at her own disposing professing as much in her speech to the Londoners upon the Kentish rebellion so a difference was made between the two Sisters the marriage of the one being by advice of Parliament and the abstinence of the other against the same Nor is the same altogether irrationall for by the one the Government of the Nation is indangered and by the other otherwise Secondly By her marriage She became doubly married one way relating to her Person unto her King the other relatintog her trust unto her Councell For where a Forraine mighty King is so nigh the Helme its dangerous to trust the same to his Wife without the joynt concurrence of the Lords The matter in fact declared no less for many times She had steered quite wide had not the Lords been more stiff to their principles then She. The first yeare of her marriage was Hony-moon with her She thought nothing too dear for the King and that her self was but meanly married unless her Husband were as compleat a King in her Nation as any of her Predecessors although contrarily the higher he was advanced the meaner She became Thirdly By her marriage She adventured her Title of Supremacy of jurisdiction For Phillip as King had the Honour stile and Kingly name and so had the precedency he had to do also with the jurisdiction for by the Articles of the marriage he was to aid the Queen in her administration of the Kingdome and maintenance of the Lawes Writs and Commissions passed under his name He also sate in Parliament voted therein and joyned in the Royall Assent Lastly Joyned in the publication and execution of all Lawes To him also was Allegiance due and therefore the Crime of Treason was equally against his as the Queens Crown and Dignity saving that it was reserved to be as against him onely during the time of Coverture and yet had the Queen left issue by him it would have been a hard adventure for the Lawers to have given their opinion in that case seeing the King had been Guardian to his Children during their minority Lastly The whole power and jurisdiction resting in them both joyntly could not inable them to make or dissolve Courts at will nor conclude orders and directions in cases of Plea and conveyance nor process concerning the same I shall sum up all in this on econclusion if neither of these three had an absolute Legislative power either in matters concerning the Church or Common-Wealth if no absolute jurisdiction in case either of Life Member or Estate If they neither can create unite or alter any Court either concerning the Triall and determining the Estates of the People or their own Revenue If not alter or make any new process in Courts of Law If not order common assurances of Lands or Estates And Lastly If they have no power in determining the last appeal and definitive sentence in matters of controversy but all must rest upon the sentence by Parliament there must certainly be found out a further sense of that grand Title of Supremacy of jurisdiction power superiority pre-eminence and Authority then by the common vogue hath bin made The Title of supremacy was first formed in the behalf of Henry the eighths Claime in matters Ecclesiasticall which by the Statute is explained under these words of power To visit correct repress redress Offences and Enormities This Power and no other did Queen Elizabeth claime witness the words of the Statute in her own time But in the framing of the Oath of Supremacy in her time not only in causes Ecclesiastical but temporal which never came within the Statutes and publique Acts in Henry the sevenths time are inserted and if any thing more was intended it must come under the word Things which also was inserted in the said Oath and yet if the words of the Statute of Queen Elizabeth formerly mentioned be credited the word Things ought to comprehend no more then the word Causes and then the Power of Queen Elizabeth in the Common-Wealth will be comprehended in these words of Supremacy to visit correct repress redress Offences and Enormities for the Supremacy in the Church and Common-Wealth is the same in Measure and what more then this I cannot understand out of any publique Act of this Nation Now in regard Offences and Enormities are properly against Lawes the power to visit and correct must also be regulated according to Laws either of War or Peace nor do these five words Jurisdiction Power Superiority Pre-eminence and Authority contain any more Supremacy or other sense for two of them speakes only the rank or degree of the Queen in government Viz. Superiority and Pre-eminence belongeth only to her and not to any other Forrain power And two other words do note her Right and Title thereto by Power and Authority committed to her And the other word denotates the thing wherein She hath Superiority and power Viz. In jurisdiction the nature of which word Vlpian speaking of the nature of a mixt government explaineth thus Quando servata dictione juris judiciorum fit animadversio so as this supreame Authority in jurisdiction is no other then supream power to visit correct redress Offences or determine matters in doubt by deputing fit persons to that end and purpose according to the Law and this is all the Supremacy that appeareth to me belonging to the Crown in these times CHAP. XXXVI Of the Power of the Parliament during these times WHen the Throne is full of a King and he as full of opinion of his own sufficiency and Power a Parliament is looked upon as an old fashion out of fashion and serve for little other then for present shift when Kings have run themselves over Head and Eares A condition that those of that high degree are extremly subject unto but where the Crown is too heavy for the wearer by reason of infirmity the
eighth to lead the way chose rather to pursue a Rule then to make one and soon determined the point viz. That the Crown of England with all the Priviledges thereof equally belong to a Woman in possession as to a Man or Childe A bold Adventure I say it was but that Henry the eighth was a bold Leader and yet the bolder it was if the consequence be considered for Queen Mary as a Woman brought in one new President but in her Marriage a worse for she aimed not onely at a forrain blood but at a Prince in Power and Majesty exceeding her own and thereby seeking advancement both to her self and her Realm indangered both The matter was long in debate between the Spanish and English and now had busied their wits above ten years at length a Supremacy is formed sutable to the Lord and Husband of Queen Mary that could not be content to be one inch lower then her self Philip had the name of a King and precedency and in many cases not without the Allegiance of the English Their offences against his person equally Treason with those against the Queens own person and Indictments run Contra pacem coronam D. Regis Reginae That in some cases he participated in the Regal Power may appear in that by the Articles he was to aid the Queen in the Administration of the Kingdom he joyned with the Queen in the royall Assent and in Commissions Letters Patents and in Writs of Summons of Parliament as well as others yet in the words the Crown is reserved onely to the Queen and she must reign as sole Queen Now if the King had broken this Agreement either the Parliament must over-rule the whole or all that is done must be undone and England must bear the burthen A Queen Regent is doubtless a dangerous condition for England above that of an Infant King unless she be married onely to her People This was observed by Queen Elizabeth who therefore kept her self unmarried nor did the People otherwise desire her Marriage then in relation to Posterity Few of them liking any one of their own Nation so well as to prefer him so highly above themselves and fewer any Forrainer This was soon espied by forrain Princes and the Queen her self perceiving that she was like to receive prejudice hereby in her interest amongst them signified by her Embassadours that she never meaned to stoop so low as to match with any of her Subjects but intended to make her choise of some forrain Prince who neither by Power or Riches should be able to prejudice the interest of any of her neighbouring Princes A pretty Complement this was to gain expectation from those abroad and better correspondency thereunto Upon this ground divers Princes conceived hopes of more interest then by triall they could finde And the Arch-duke of Austria began a Treaty which seemingly was entertained by her but her Proposals were such as silenced all those of the Austrian Interest for ever after viz. 1. That the Romish Religion should never be admitted into England 2. That no man that she married should ever wear the Title of King 3. That no Forrainer should ever intermeddle in the Rule and Government of the Church or Common-wealth nor in the Ministry of the Church 4. That if he survived the Queen he should never challenge any Title or Interest in the Government or any Possession in England 5. She would never marry any one that she might not first see So as either she aimed at some inferior Prince that durst not look so high or else she did but make semblance till she was nigh fourty years old and in all declared that she liked not her Sister Maries choise To these two Powers of Determining and Distributing I shall add a third of Deputing which the Parliament exercised as formerly it had done Henry the eighth had in Ecclesiastical matters exercised a Power beyond the reach of Law and yet by Parliament had provided positive Laws by which the same ought to have been ordered these were also confirmed in Edward the sixths time with some Additionals By these particular Commissioners were appointed for the making of Ecclesiastical Constitutions and the King himself had a power Episcofactory without Conge deslire They likewise limited the power of Ecclesiastical Courts altered their Process reformed their Censures even that grand Censure of Excommunication it self The like or much more may be said of their deputing power in Civil Affairs as well inlarging the Kings power as in abridging the same for whereas some of the Successors of Henry the 8. had power by vertue of his Letters Patents after 24 years of age to annull any Act of Parliament by them made before that Age. In the time of Edward the sixth notwithstanding the Proviso in that Law and although Edward the sixth was not then twelve years old yet the Parliament repealed all and restored to Edward the sixth onely that power for the time to come but not to any of his Successors and whereas Henry 8. had gained to himself his Successors a Legislative Power by Proclamation the Parliament in Edward the sixths time took the fame quite away and reduced Proclamations into their former sober posture The like may be observed of the power of the Parliament in ordering the Lives Members and Estates of the People in matters criminal and in making and altering Courts of Justice and bounding their power altering their Process abridging their Terms for Judicature reforming Errors in pleading amending common Conveyances and Assurance as in passing Fines with Proclamations their course in the County Palatine Limitations of Prescription fraudulent Deeds Recoveries by Collusion c. in all which the Crown had no power but in and by the Parliament Many particulars more might be added if the matter so required for the Statutes are more full in these later Times then formerly and may soon lead us beyond a just Period in so clear a matter CHAP. XXXVII Of Jurisdiction Ecclesiastical in these last Times IN the general and in relation to the forrain Jurisdiction of Rome it was like a Childe in an Ague under Fits of Heat and Cold but in it self under the Prelacy still growing in stature though not in strength Edward the sixth came in like a storm that tore up Episcopacy by the Roots yet a Top-Root remained intire with the stock bearing shew of a kinde of Divinity that though bared of the old Soile of the Papacy yet transplanted into the new Mould of Royalty soon conveyed a new life which made the stock still flourish and grow into a better condition then formerly it had Their Legislative power in matters concerning their own interest though in outward view seeming their own yet was doubly disturbed from the Pope and the King who though many times opposed one another yet evermore were both of them in opposition to the Church with the greater bitterness by their
Justice of Queen Elizabeth to grant Commissions of Array Secundum formam Statutorum and do hurt to no man its true her Commissions of Lord Lievtenancy wanted that limitation in words yet they carried the sense for if the Crown were bound by the Law the Lord Leivtenants were much rather but the danger arose after the death of Queen Elizabeth for when King James came to the Crown under colour of pleasing the People and easing them of a burthen he pleased himself more and made the yoke upon the People much more heavy in the conclusion for where no declared Law is there the discretion of them that have the care lying upon them must be the rule thus came the Scottish blood to have pretentions to a greater Prerogative then all their Predecessors had upon this supposal that the Statute of Queen Mary took away all former Lawes of that kinde and then the taking away of the Statute of Q. Mary takes away all declared Law as to that point But more truly it may be inferred that if all Statute-Laws be taken away then the rule of Tenures at the Common Law must remain in force and no other Nevertheless this Statute of Queen Mary though in force for the present was not a generall rule for Armes in all places of this Nation for the Marches of Scotland were a peculier jurisdiction as to this point They stood in more constant need of Armes then any other part of this Nation in regard of their uncertain condition in relation to their Neighbouring jurisdiction and therfore were the Farmes of these parts generally contracted for upon a speciall reservation of Armes for each particular which being now decaied are again reduced by Queen Elizabeth to their ancient condition in the time of Henry the eighth A second thing which may come under this generall consideration of arming is the arming of places by making of Forts and Castles which was not in the immediate determinate will of the Crown to order as it pleased for though they may seem to be meanes of Peace and present safety yet they are Symptomes of Warr and in the best times are looked upon with a jealous eye especially such as are not bordering upon the Coasts Because that Prince that buildeth Castles within the Land is supposed to feare the Neighbourhood This was more especially regarded in the dayes of Phillip and Mary For when that marriage was to be solemnized it was one of the Articles to provide for the safety of such Forts and Castles as then were maintained to the end they might be preserved free from usurpation for the Use Profit Strength and Defence of the Realme onely by the naturall borne of the same And afterwards when occasion was offered for the building of more of that nature a new power is given to King Phillip and Queen Mary to re-edifie or make Forts and Castles which must be executed by Commission to the Legies for ten years and only within the Counties bordering upon Scotland and these perticularly named in the Statute so as the Crown had not power to build in all places nor to any end they pleased nor to place therein or betrust the same to whom it would Nor yet had Edward the sixth that absolute power although not ingaged in forrain interests as his sister Mary was and therefore whereas Castellanes had been made for life by Patent and so the absolute power of the Crown was barred in the free disposal of the same during such time The Parliament gave the King power to remove such as were not liked or thought faithfull to the publique interest although they gave no cause of Seisure by any disloyal act The like also may be observed of the Ships and Ordnance for they also do belong to the State as the Jewels of the Crown and therefore upon the Marriage of Queen Mary they also are by Articles preserved and saved for the use profit strength and defence of the Realm by the natural born of the same Thirdly as touching the ordering of the Souldiery the matter is not much to be insisted upon for little doubt is to be made but that power that raiseth them also ordereth them to the same ends that they are raised and therefore as the sole power of the Crown doth not the one so neither doth it the other but in cases formerly mentioned and yet in no case though the War b be never so absolutely defensive and the Souldiers raised by the Kings own and onely power yet hath not the King absolute Authority and arbitrary power in the ordering of them when they are raised but he must so behave himself to them as to Free-men according to Laws made by themselves in their Representative in Parliament and therefore are particular Laws made to that end against undue levying and discharging of Souldiers and Defaults in paying of them as also against the Souldiers departing from their Service without Licence or wasting their Arms and such as wilfully absent themselves from Musters as also for the preserving the Castles Forts Ships and Munition for War from being with-holden from their due use or from burning or destroying Lastly as touching the charge of the War and pay of the Souldies It s evident that in all offensive Wars the Souldier was paid by the Crown although they might be said in some manner to be in order to the Defence and Safety of the Nation nevertheless where the same was so apparent to the people it was the common course in these Times to have often Parliaments and often Subsidies which were no less in a good measure satisfactory to the Crown for the Charges of the War then Testimonies of the Peoples good Acceptance of the Government of Affairs and so accepted at their hands The particular Records will warrant all this For of all the Wars in these Times that of 88. excepted not any of them were ever managed at the Peoples charge by Contribution but by Retribution So happy were these Times wherein the People looking upon the Crown as under a kinde of infirmity of Childhood or Womanhood did therefore bear a kinde of compassionate regard thereunto without jealousie at Prerogative could condiscend and allow the Crown its full Grains and somewhat more yea more then was meet for some other Princes to desire or the People to give up and yet more happy were they wherein the Crown knew no interest but in dependence upon the People good and so understanding were rightly understood CHAP. XXXIX Of the Peace IT is but little that can be said of Peace in these Times wherein so little freedom was found from forrain pretentions and intestine irregularities or both and yet the People were never more resolved against the former nor secure against the later and had God to Friend in all But most apparently was this observable in the Times of Queen Elizabeth whose Government took up four parts of five of these Times whereof we
upon them but if too close girt they will break all or cast their load or dy And therfore Q. Elizabeth gained much to the Crown by faire carriage good words and cleanly conveyance which was not soon discoverd nor easily parted with But Henry the eighth by heighth of Spirit and great noise and therefore was no sooner off the stage but what was gotten by the snatch was lost by the catch and things soon returned into their ancient posture again The first Government of the People before their departure out of Germany was in the two States of Lords and Commons The Clergy came not into pomp and power till Austins time and soon came to the heighth of a third state appendent to the former and so continued till Henry the eighths time then they began to decay in power and in Queen Elizabeths time utterly lost the same and so they can no longer be called a State although they still keep state The two States of Lords and Commons in their transmigration being then in the nature of an army of Souldiers had a Generall by their Election under whom after they had obtained a Peaceable setling they named anew by the name of Konning or the Wise man for then was Wisdome more necessary then Valour But after the Clergy had won the day and this Konning had submitted himself and his people to their Ghostly Father they baptized him by a new name of Rex and so he is stiled in all written Monuments which we owe only to Ecclesiasticks although the vulgar held their appellation still which by contraction or rather corruption did at length arive into the word King a notion which as often changeth the sense as the aire some making the person all in all others some in all and some nothing at al but a complement of State The Clergy gave him his Title in the first sense and are willing he should have a power over the Estates in order to their designe which then was to rule the King and by him all his People he doing what be listeth with them and the Clergy the like with him The Saxons take the word in the second sense for though they had put upon the Common-Wealth one Head and on that Head one Crown yet unto that Head did belong many eyes and many braines and nothing being done but by the common sense a power is left to him much like to that of the outward Members Executory In time of War how unruly soever the humors be yet must the Law be his rule he cannot ingage the People either to make continue or determin any offensive War without their consent nor compell them to arme themselves nor command them out of their Counties for War nor impose Military charge upon them against their free consent or contrary to the known Law In calmer times much rather he can neither make new Law nor alter the old form new Judicatories Writs Process Judgments or new executions nor inable or disable any conveyances of Estates He may seem possessed of more power in Church government yet De jure can neither make nor alter Doctrine or Worship or Government in the Church nor grant dispensations or Licences Ecclesiastical nor Commissions of jurisdiction other then according to the Law And as a close to all by one oath taken at the Coronation he not onely giveth to the People security of the Peace and good behaviour but beareth witness that he oweth Allegiance both to the Law and the people different from that of the Peoples in this that the Kings Allegiance is due to the Law that is originally from the Peoples Election but the peoples to the King under a Law of their own framing This leadeth on the consideration of a higher degree of power then that of Kings For though Law as touching morallity in the generall be of Heavenly birth yet the positive Lawes arising from common Prudence concerning the Honour Peace and profit of every Nation are formed by humane constitution and are therefore called Honesta or justa because by common vote they are so esteemed and not because any one man supposeth them to be such The words of the Summons to the Parliament doth hold for this Quae de communi consilio ordinari contigerint and the words in the Coronation Oath Quos vulgus elegerit do speak no less whether they be taken in the Preterperfect tence or Future tence the conclusion will be the same True it is that in all Kings are supposed as present yet is not that valuable in the point of Councell which is the foundation of the positive Law For as the best things under Heaven are subject to infirmity so Kings either short or beyond in Age or Wit or possibly given over to their lusts or sick or absent in all which the name of a King adds little more to the Law then a sound yet all the while the Government is maintained with as much Honour and Power as under the most wise and well disposed King that ever blessed the Throne This is done in the convention of States which in the first times consisted rather of Individuals rather then Specificalls The great men doubtless did many things even before they saw the English shore that Tacitus noteth yet in the publike convention of all did nothing alone til of one House they became two The particular time of the seperation is uncertain and the occasion more It may be the great Lords thought the mysteries of State too sacred to be debated before the vulgar least they should grow into curiosity Possibly also might the Commons in their debates wish the great men absent that themselves might more freely vote without angering their great Lords Nevertheless the Royall assent is ever given in the joynt convention of all but how a double negative should rest in the House of Lords one originally in themselves the other in the sole Person of the King when as in no case is any negative found upon Record but a modest waving to answer of such things as the King likes not is to me a mystery if it be not cleared by usurpation For it is beyond reach why that which is once by the representative of the People determined to be Honestum should de dis-determined by one or a few whose Councells are for the most part but Notionary and grounded upon private inconveniences and not upon experimentalls of most publique concernment or that the vent or Soit fait which formerly held the roome onely of a Manifesto of the regall will to execute the Law then made as his Coronation Oath to execute all Lawes formerly established should now be taken to be a determination of the justnesse or honesty of the thing When as this Royall assent is many times given by a King that knowes no difference between good and evill and is never competent Judge in matters that in his opinion do fall into contradistinction between his own private interest and the benefit of
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