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
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
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
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
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
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
Government more readily doe appeare the corruptions in natures of men more frequently discover themselves and thereby the body of the Statute-Lawes begin to swell so bigg that I must be inforced to contract my account of them into a narrower compasse and render the same unto the Reader so farr forth onely as they shall concerne the generall streame of Government leaving those of privater regard unto every mans particular consideration as occasion shall lead him For what ever other men please to insist upon this I take for a Maxime That though the Government of a King is declared by his actions yet the Government of a Kingdome is onely manifested by ancient Customes and publique Acts of Parliament And because I have undertaken a generall Survey of the Reignes of thirteene severall Kings and Queenes of this Nation for I shall not exceed the Issue of Henry the eighth and to handle each of them apart will leave the Reader in a Wildernesse of particulars hard to comprehend in the generall summ I shall therefore reduce them all into three heads Viz. Interest of Title Interest of Prerogative and Interest of Religion the last of which swayed much the three Children of Henry the Eighth the second as much in their two Ancestors Viz. Henry the Eighth and Henry the Seventh and the first in the three Henries of Lancaster and three succeeding Kings of the House of Yorke And because Edward the Third and his Grandchilde Richard the Second doe come under none of these Interests I shall consider them joyntly as in way of Exordium to the rest although the course of the later was as different from the former as Lust falls short of a generous Spirit CHAP. I. A summ of the severall Reignes of Edward the Third and Richard the Second SEverall I may well call them because they are the most different in their wayes and ends of any two of that race that ever swayed their Scepter and yet the entrance of the first gave countenance to the conclusion of the last For the Scepter being cast away or lost by Edward the Second it was the Lot of his Son Edward the Third a Youth of fifteen yeares of age to take it up he knowing whose it was and feeling it too heavy for him was willing enough it should returne but being overswayed by Councels drawn from reason of State and pressed thereto by those that resolved not to trust his Father any more he wisely chose to manage it himselfe rather then to adventure it in another hand but that is not all for as its never seene that the Crowne doth thrive after Divorce from the Scepter but like a blasted blossome falls off at the next gale of adversity such was the issue to Edward the Second his Power once gone his Honour followed soon after he had ceased to be King and within a small time did cease to be Edward His Son thus made compleate by his Fathers spoyle had the honour to be the Repairer of the ruines that his Father had made and was a Prince which you might thinke by his story to be seldome at home and by his Lawes seldome abroad nor can it be reconciled without wonder that Providence should at once bestow upon England a couragious People brave Captaines wise Councell and a King that had the endowments of them all Otherwise it had out-reached conceit it selfe that this small Island wasted by the Barons Warrs the people beaten out of heart by all Enemies in the time of the Father should neverthelesse in the time of the Son with honour wade through so many difficulties of mighty Warrs on every side abroad and devouring Pestilence at home and yet lay a platforme of an Epulent wise and peaceable Government for future Generations Yet hee had his failings and misfortunes a great part whereof may be attributed to infirmity of Age which in the first part of his Reigne was too little and in the later part too much True it is that Governours of the Persons of Kings may in some measure supply defects of Non-age but seldome where the Governours are many and never if they be ambitious And it was this Kings fate to miscarry in both for he had in his Youth twelve Governours by constitution and they two supreame by usurpation Viz. The Queen and Mortimer till they were both consumed in the flame which themselves had kindled And this disparity wrought somewhat unsuccessefully in the Kings first Warr For the generosity of his spirit himselfe being young and active minded his Councell to advise him imployment in a Forraine Warr rather then they would adventure its motion at home least it might prove circular which is most dangerous for Government if the Prince be not under command of himselfe This first Warr was with Scotland whose power was inferiour to that of France the King young and the danger neerer and therefore though the last affront was from France that more fresh in memory and more peinant yet the King was advised to give place and speake faire till he had tryed masteries with Scotland and thereby secured his Rere This he wisely hearkened unto and met with such a successefull turne of Providence that like an O Yes before a Proclamation gives warning to Scotland that the Wheele is turned upon them and that there is somewhat more then humane motion in the matter that exasperates the English upon an enterprize so often crossed by Providence hitherto and the King also being but a Souldier in hope as yet to dare against those that had so shamefully foyled his Father and also put himselfe already once to the Retreat And yet there did concurr a kinde of necessity of second Causes for the King found the Crowne ingaged and the minds of the Scots so elate as the English mans case was not to live to Fight but to Fight to live and so imbittered against one another by the fierce Warrs under the Barrons that nothing could quench the fire but the withdrawing of the Brands into Forraine action like some angry spirits that spoyle their owne bodyes unlesse they chide or fight it out with others In the first brunt with Scotland the King gained nothing but understanding of the humours of some of his great Lords which once purged out he renues the Warr prevailes and after ten yeares stirr wherein hee became a trained Souldier against the Scots hee wann the Crosse and then goes to play his Prize in France to compleat his Crowne with the Flower De lis Which was the great worke of the rest of his Reigne in which foure parts of five was Victorious the fifth and last was declining like some Gamesters that winn at the first and for want of observation of the turning of the Dice come off loosers at the end For the King being rather satiated then satisfied with Victory and Honour returned home to enjoy what he had leaving his Son the Black Prince to pursue the Warr and to act the Souldiers alone who
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
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
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
he made the penalty of Praemuniri to extend to all Farmores or others in nature of Bailiffs that held any Church maintenance to the use of any alien and unto all Aliens that are Purchasors of such Provisions to any use and unto all Lieges that shall in like manner purchase such Provisions But as touching such as shall accept such provisions he ordained Banishment for their Persons and Forfeiture of their Estate Notwithstanding all this the Romane Horse-leach would not so give over The King grew into displeasure with his Subjects and they with him and with one another they see the Pope still on Horseback and fear that the English Clergy their own Countrey men if not Friends and Abbettors yet are but faint and feigned Enemies to the Popes Cause Nor was it without Cause that their fear was such for as the Pope had two hands to receive so they had two hearts making show of forming blowes at the Pope but then alwayes at a distance or when without the Popes Guard and thus the Lawes begin to stammer and cannot speake so plain English as they were wont The people hereat offended resolve to put the Clergy into the Van and to try their mettle to the full At the last Parliament that Richard the Second did hold both the Lords Temporall and Spirituall are opposed one by one The Lords Temporall like themselves resolve and enter their Resolutions to defend the right of the Crowne in the Cases of Provisors although even amongst these great men all were not equally resolute for Sir William Brian had purchased the Popes Excommunication against some that had committed Burglary and he was committed to the Tower for his labour But the Prelates answer was ambiguous and with modifications which was all one to cry as men use to say Craven yet was the Statute made peremptory according to what was formerly Enacted And though the Prelates cautionary way of proceeding might be a principall reason why the Popes power held so long in England in an usurping way yet Kings also much conduced thereto by seeking too much their Personall ease above the Honour of their Place and the Popes blessings and opinion of his Favour more then their owne good or the Peoples liberty for there was no other balme for a distracted minde then that which dropped from the Popes lips In like manner Richard the Second being already at least in purpose estranged from his People sought to get freinds at Rome to hold by the Spirituall Sword what he was in danger to loose by laying aside the Sword of Justice which is the surest Tenure for Kings to hold by And though the Popedome was now under a Schisme between two Popes Clement and Vrban yet he was so farre won for Vrban that he not onely ingaged himselfe and the Parliament to determine his Election and uphold the same but also Ex abundante did by Implication allow to him an Indefinite Power to grant Provisions and so at once he lost the Die and gained a Stake that like a bubble looked faire but soon vanished away Neverthelesse these two Comrades whiles they were together resolved to make the most of each other that they could and therefore though the Popedome liked not the King yet the Pope had his love so farre as he could deny himselfe for he had already denied his Kingdome And if the Articles exhibited against the King by Henry the Fourth be true the Pope had his Faith also For that he might be rid of his reputed Enemy Arch Bishop Arundell he trusted the Pope with that Complement of making Walden Arch Bishop of Canterbury in Arundells stead which the Pope tooke so kindly as he made it a President for Provisors for the future Nor did the King stick in this one Singular but made it his Custome in passing of Lawes especially such as the King was most devoted unto to put more Confidence in the Popes Amen then in all the Prayers of his Commons with his owne Soit fait to boot The summe then will be that the Prize was now well begun concerning the Popes power in England Edward the Third made a fair blow and drew blood Richard the Second seconded him but both retired the former left the Pope to lick himself whole the later gave him a salve and yet it proved a Gangrene in the conclusion The second means used to bring down the power of the Pope in this Nation was to abate the power or height of the English Clergy for though the times were not so cleare as to espy the Root of a Pope in Prelacy yet experience had taught them that they were so nigh ingaged that they would not part And therefore first they let these men know that Prelacy was no Essentiall Member to the Government of the Kingdome but as there was a Government established before that ranke was known so there may be the like when it is gone For Edward the Third being troubled with a quarrell between the two Arch Bishops of Canterbury and Yorke concerning Superiority in bearing the Crosse and the important Affaires of Scotland so urging Summoned a Parliament at Yorke which was fain to be delaied and adjourned for want of appearance and more effectuall Summons issued forth but at the day of Adjournment none of the Clergy of the Province of Canterbury would be there and upon this Occasion the Parliament was not onely interrupted in their proceedings but an ill president was made for men to be bold with the Kings Summons in such Cases as liked not them and thereupon a Statute was made to inforce Obedience upon Citizens and Burgesses and such Ecclesiasticks as held per Baroniam Neverthelesse when the matters concerning Provisors began to come upon the Stage which was within two yeares after that Law was made the Clergy found that matter too warme for them and either did not obey the Summons or come to the Parliament or if they came kept aloofe or if not so would not Vote or if that yet order their tongues so as nothing was certainly to be gathered but their doubtfull or rather double minde These Prelates thus discovered the Parliament depended no more upon them further then they saw meet At sixe or seven Parliaments determined matters without their Advice and such as crossed the Principles of these men and therefore in a rationall way might require their Sense above all the rest had they not beene prepossessed with prejudice and parties in the matter Nor did Edward the Third ever after hold their Presence at so high Repute at such meetings and therefore Summoned them or so many of them as he thought meet for the Occasion sometimes more somtimes fewer and at a Parliament in his fourty and seventh yeare he Summoned onely foure Bishops and five Abbots And thus the matter in Fact passed in these times albeit the Clergy still made their claim of Vote and desired the same to be entered upon Record And
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
also left to an indefinite Construction For they are not onely Preachers in publique which might be an Order of Men within the Church Cognisance as things then stood in regard it was permitted to the Church to Authorize Men to preach but also their Factors and Abbettors words that might comprehend any other person whatsoever according to the passion or discretion of the Church-men Thirdly the manner of this Inquisition must be according to the Canon and then the people are at the Church-mens mercy to returne Complaints against whom they please upon such Grounds as they shall thinke meet The Persons that must make this Inquisition by this Law are the Ordinaries or any one of them and for ought appeares the same might be done by Pope Councell generall Nationall Provinciall Diocessan or their Delegates according to the Canon Although the last president that I met with was executed by a Grand Councell of Lords and Prelates in the time of Henry the Second But now the Clergy finding the Laity began to swell against the Canon they thought it high time to get the Civill Sword to joyne in the worke to be as their Hands to apprehend and Goalers to hold in Custody such as they should complain of without any other Legall Conviction although hereby they not onely disclaimed the exercising of their owne power of Imprisoning which they by the Canon formerly claimed to have in such Cases but also acknowledged to receive their power Judicatory in such Cases from the Parliament Thus was this Ordinance levelled as I said but the shot fell short For this Law attained no further perfection then a meere shape and was complained of by the Parliament within few moneths after its first noise that it was made and published without the Commons consent or knowledge and that the Nature thereof was directly contrary to the Liberties of the people and therefore they prayed that it might be repealed and the same was done accordingly although the times have been such as would not suffer the same to come into the publique Booke of Statutes in Print But whether Statute or no Statute they tell the King plainly that they will not further be bound or justified by the Prelates then they or their Ancestours were anciently used to be and besides that they thought somewhat more which they laid up against future times nor was it long ere they discovered it For a Subsidy being offered to the King by the Laity under a Proviso that the Clergy would grant a tenth the Clergy tooke this Articulating of the Commons in snuffe and protested that the Laity should not charge them The Commons hereat begin to bid battell to the Temporalties of the Clergy and had not the King been a fast freind in good earnest unto the Clergy the Laity had won the Feild Thus were these times like the motion of the Ballance unto the Churchmen sometimes up sometimes down getting somewhat which they formerly had not with lesse assurance in what they had CAHP. VII Concerning Trade KINGS hitherto had lived upon the main stocke improving the same to the utmost penny few of them laid up for the future much lesse indevoured to advance the principall for their successors There had now beene ten Kings of this Nation since the Conquest all of them spending what they had or could get from the people in the maintenance of their Patrimony or their own Lusts if any overplus was either gained by or saved from the game their Executors might be the better for it their Heires were not but Edward the third had a new game to play he must gaine his right by his Sword or he must loose it his Spirit was too big to sit still and bear blows and yet pre-advising himselfe about the poverty of the people and that their patience would be spent soone after their supplies if they continually saw much going out and nothing comming in he had a rule upon his private expences a good glosse upon the publique and a platforme for the augmenting of the treasure of the Kingdome as well for the benefit of the people as of the Crowne In order to the first it is considerable that the Royal family was great and numerous above all his predecessors that besides the King and Queene who were of a gallant and accomplisht deportment they had a son a Prince of as great renoune as ever Prince had and he also family sutable to his generosity that they had other children every on like their Father both for Warr and Peace and that for the maintenance of all these the expences must be in reason larger then formerly they were wont to be neverthelesse because purveyance for the King had already swelled so big that all other oppressions seemed to be swallowed up into that one the King to moderate the rigor thereof made nigh twenty Statutes first excluding all servants at wages and Horses and Dogs which were put to board with the Sheriffs then reducing the purveyance only to the families of himselfe his wife and children then to the families of himselfe the Queen and Prince and in the levy hereof some mens estates were absolutely priviledged and some kind of goods as sheep before shearing and trees about the dwelling house Nor is the settling of the manner lesse considerable It must be levied by authority in writing under the seale and it must not be taken against the owners will or upon malice nor must be spared for reward the price must be the same with the true Market price the measure according to the common measure stricked and the payment must be immediatly if the price be under twenty Shillings if above it must be made in a quarter of a year and no man must charge more carrige then is necessary and thus was this wild Ivie of purveyance that like some kinds of plants spreads over all by rooting up and cutting downe brought into some kind of fashion that if did no good it might do the lesse hurt unto the People Secondly although it be true that Edward the third was a King of many taxes above all his predecessors yet cannot this be imputed as a blot to the honour of the Law or liberty of the people for the King was not so unwise as either to desire it without evident cause or to spend it in secret or upon his owne private interests nor so weak and irresolved as not to imploy himselfe and his Souldiers to the utmost to bring to passe his pretentions nor so unhappy as to faile of the desirable issue of what he took in hand so as though the people parted with much money yet the Kingdome gained much honour and renoune and becomming a terror to their neighboures injoyed what they had in fuller security and so were no loosers by the bargaine in the conclusion Secondly although they parted with much yet nothing to Prerogative but in a Parliamentary way and so it was not taken but given Thirdly though
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
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
therefore Edward the Fourth now in Armes though he found it a hard Notion to maintain the Peoples Liberty where no man is free from the Souldier yet he inclined thereto we reade of multitude of Taxations of all sorts and of benevolences the worst of all those sorts for Souldiers must have money or if not they will have it but the King would not force things so far as his power could reach he will have money but it shall be by Order of the Parliament He might have pretended much upon the Commission of Array yet did it not but chose rather to be Lord of the Seas and because it was too great a Farm for his private purse he prayes aid of the Parliament by the way of Tonnage and Poundage which was in demand nine yeares before the Parliament granted it and when it was granted it was with such restrictions that it is evident the King preferred the right of the Parliament therein above his private Honour Secondly Titles of Honour are but windy Notions and every one knowes what claim is made by Kings to have the sole interest in conferring the same this Edward the Fourth neglected so far as he interested the Parliament both in the in the conferring of them and resuming of the same Thirdly the course of Trade was now more especially looked to not by the King and Privy Councell but by the Parliament and because it was much decayed partly by reason of the ill Government thereof and partly by the excessive lavishnesse of these times many Lawes are made for remedy of both And first the Staple was settled sometimes at Callis alone sometimes at it and Middleburrough and by this means England gained Trade from both Nations but the principall thanks is to be given to the interest between the King and the House of Burgundy Then course is taken for the bringing of the Staple Commodities onely to those places and the return to be made in money and not commodity by exchange Then for the well making of Staple Manufactures and restraining Importation of Forrain Manufactures of such kinds Then against transporting of English Coyn and Importing of Forrain Coyn other then Bullion And as touching the second greivance it seems gallantry or vanity of Apparrel was a sore disease of these times which were become times of Fashions and wherein the King led the way by his own example for he desired to be brave and that he might be more brave he passed Lawes that the People should be lesse brave assessing a sort of Apparrell for every degree and therein stooped so low as to define the fashions of their very shooes Fourthly the Parliament retained their ancient right of reducing the course of Judicature for whereas Sheriffs had hitherto holden their course of triall of the meaner sort of Fellonies and Trespasses and Offences determinable onely by Imprisonment or Fines and Amerciaments whereby mens Estates did lie under the continuall pillage of these covetous and extorting Officers It was established by the Parliament that these men should have for the future onely power of inquiry and to certifie at the next Sessions and there the Triall to be and Fines and Amerciaments to be set taxed and estreated unto the Exchequor and from thence to be levied and thereof the Sheriff to give account this was a great security to the Peoples estates but gave them not a full remedy for though the Triall was now more fair yet these Officers were Judges of suspition and had still power upon suspition to imprison their persons and seize their Estates under colour to save them for the King in case Conviction followed For remedy hereof the Justices of the Peace have now power given them to Bail in Cases of light Suspition and it is further declared that no mans Estate shall be first seized till Conviction and Attainder first be had And because Estheators grew no lesse burdensome in their way it was therefore Ordered that no man shall be allowed in such Office unlesse he hath Lands to the vallue of twenty pounds per annum and that he shall be responsable for such wrong done by himself or by his Deputy and Farmer Thus Edward the Fourth quitted himself like a King in many regards but soon ran himself out of breath gave his Lamp to his Sonne that was too weake to hold it a Third snatches it away and for two yeares carrying it exceeding well yeilded up all incroached Royalty to the People and his Crown and Life to his Successor CHAP. XXV The Condition of the Clergy IF any gains were had in these uncertain times the Church-men might seem to have them having now this advantage that the Commonalty was distracted with uncertain Interests of the Succession of the Crown And themselves onely united under the Popedome now freed from all Schisme and the Popedome mannaged by Sixtus the Fourth who had the hap to be accounted more vertuous then any of his Predecessors had been and to have all the Christian Princes wholly at his Devotion And lastly both the Clergy and the Kings were now joyntly ingaged against the rising power of Religion then called Heresie in order whereunto the Clergy leading the way had the applause of them that followed upon an implicite Faith that whatsoever was done was exceeding well done Nor was it wisdome for Kings that sate loose in their Thrones to stumble the good Opinions of so considerable party towards them And therefore Edward the Fourth in his first entrance granted to the Clergy that which could never be by them obtained from any of the foregoing Kings Viz. Free liberty of Process in all Cases Ecclesiasticall and in Tythes of Wood above twenty yeares growth and in Case they were troubled upon the Statutes of Provisors they should have their remedy in the Chancery against those Judges and their proceedings in such Cases to be there Cancelled This was done by Charter and was sufficient to shew what the desire of the Clergy and the intention of the King was Viz. At once to favour the Church and under colour of favour done to the Clergy â—o cancell both Common and Statute Lawes of the Kingdome by the power of the Chancellors Decree neverthelesse all this was but the Kings breath the policie changed never a whit the more For the Common Law held on its course not onely in Cases depending before the holy Chair but also even before the Bishop of the Diocess at home so as neither the King was concluded from his Suit nor the party endammaged from his Action by any such Charter And so far was the Judges of the Common Law from being bound by the Chancery in such Cases that they professed they would not delay to grant the Habeas Corpus to deliver any Prisoner by Decree of the Chancellor in any Case triable at the Common Law Much lesse did the Parliament favour these men so far as to give them
concerned or not concerned what they conclude they must maintain Vi Clavibus although in right his Prerogative is above theirs Now by the Statute the Kings Vote is asserted and a Negative Vote restored and himself made as well Head of the Convocation as the Church nothing can passe there without his Concurrence nor come to the Consideration of the Parliament without his pleasure and thus the King hath a double Vote in every Church Ordinance One as in the Parliament to passe the same as an Act of Parliament of which I conceive the Opinion of that Honourable Judge is to be understood the other as a Member of the Convocation to passe their advices to the Parliament and therefore he might either sit in person amongst them or by his Vicar as Henry the Eighth did by the Lord Cromwell By the First the whole Kingdome was ingaged By the Second the Convocation onely and that as a Court onely and not the representative of the Clergy because as they had a Spirituall relation so also they had the Common right of Free-men and therefore could not be bound without the Common consent of the Free-men Thirdly as their power of Convention and power in Vote so their Originall right of Law making suffered a change formerly they depended wholly upon a Divine right which some settled Originally in the Pope others in the Prelacy and some in the Clergy But now they sit by a derivative power from the Act of Parliament from which as from their Head they receive life and power Fourthly they suffered some change in the very work of their Convention for though formerly they claimed power to meddle onely with Ecclesiasticall matters yet that Notion was ambiguous and they could many times explicate it more largely then naturally It is not to be denied but the matters concerning the Service and Worship of God are of Spirituall consideration but that such should be so strictly deemed to lie in the way of Church-men onely is to bring all Spirits within the Verge of Ecclesiasticall Jurisdiction and to leave the Civill power to rule onely dead Carkases much lesse can any other thing which by prescription hath not been of Ecclesiasticall Cognisance be called Spirituall But to come to particulars because generalls edifie not The Convocation claimed formerly power as Originally from it self to impose rules for government upon Church-men and Church-Officers and upon the Laity so far as extended to their Service of God And also to charge the Estates of the Clergy and concerning Matrimoniall and Testamentary Causes They claimed also a power to determine Doctrine and Heresies Yet De Facto divers of these they never acted in that right wherein they claimed to hold Cognisance First as touching the charging of the Estates of the Clergy If it was for the Kings Service they were ever summoned by the Kings Writt yet was not their Act binding immediately upon the passing of the Vote till the Parliament confirmed the same and therefore the old form of granting of Dismes was Per Clerum Communitatem as by the pleading in the Abbot of Walthams Case appears for without their concurrence they had no power to charge any Free-man nor to levy the same but by their Church Censures which would stand them in no stead And in this the Convocation suffered no alteration either in right or power by the change thus wrought by Henry the Eighth Secondly as touching imposing Lawes upon the Laity in points of Worship and Doctrine its evident though they claimed such power they had it not for when all is done they were contented at length to get the Support of the Statute-Lawes of this Kingdome as may appear in the particular Lawes concerning the Lords Day and proceedings against Heretiques setling the Popedome in the time of the great Scisme c. But now all Title of claim is quite taken from them and all is left in the Supream Legislative power of this Nation as formerly hath been already manifested Thirdly as touching Matrimoniall causes their former power of making Lawes concerning them and Testamentary causes is now absolutely taken away onely concerning Matrimoniall matters they had so much of the Judicatory power concerning the same put upon them as might well serve the Kings own turn and that was for determining the matter between himself and the Lady Katharine Dowager depending before Arch-bishop Cranmer For the King supposed the Pope a party and therefore meaned not that he should be his Judge And thus though the Clergy had acknowledged the King to be their Supream Head yet in this he was content to acknowledge their Supremacy above him to judge between himself and his Queen and in other matters concerning himself So as upon the whole matter the Convocation were gainers in some things in other things they were onely loosers of that which was none of their owne CHAP. XXX Of the power of the Clergy in their Ordinary Jurisdiction THose Spirits are truely degenerate that being sensible of misery cannot stir up desires of change although the way thereto lies open before them and this shewes the nature of the Romish yoke that it lay upon the Spirits of Men did intoxicate and make them drunk with their condition otherwise the Usurpations Oppressions Extortions and Incroachments of the Popedome upon the Bishops Sphear and the People under their charge could never have provoked such complaynings amongst all sorts in severall Ages from time to time And now that Henry the Eighth undertakes to set them free so as they would acknowledge his Supremacy they all are struck dumb till a Premuniri taught them to speak and so were scared into a better condition then they would have had and into a more absolute Estate of Jurisdiction then they received from their Predecessors The Pope had now usurped a power supra ordinary over all Appeals gained the definitive Sentence to the Roman See and had holden this power by the space of foure hundred years and the King finding the root of all the mischeif to his Crown from abroad springing from that Principle meaned not to dispute the point with the Casuists but by one Statute took away all Appeals to Rome and determined Appeals from the Bishops Court in the Arch-Bishops Court and the Appeals from the Arch-Bishops Commissary in the Court of Audience So as though in the Kings own Case the Convocation had the last blow yet in matters concerning the Subjects the Arch-Bishop was either more worthy or more willing with that trust For though the Convocation might have as well determined all as well as the Pope yet for dispatch sake of a multitude of Appeals now depending at Rome and to prevent long attendance on the Convocation that now had much to doe in matters of more publick nature the utmost Appeal in such Cases is made Provinciall This whether priviledge or prejudice the Ecclesiasticall Causes gained above the Civill whose definitive Sentence was reserved to the
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
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
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
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
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