at a distance and after long delay But Edward the Third sums up all into one breif and brings a compleate modell thereof into the World for future Ages to accomplish as occasion should lead the way The cours was now established to have Justices settled in every County there to be resident and attending that Service First they were named Guardians or Wardens of the Peace but within a few yeares altered their Title to Justices First they were chosen out of the good and lawfull men of each County After that they were two or three chosen out of the worthiest men and these were to be joyned with Lawyers Then was one Lord and three or foure in each County of the most worthy men adjoyned with Lawyers Afterward in Richard the Seconds time the number of Justices in each County might attain to the number of six and no Steward of any Lord to be admitted into the Commission but within half a yeare all is at large so be it that the choise be out of the most sufficient Knights Esquires and Gentlemen of the County Again within two yeares the number in each County is set at eight yet in all these the Judges and Serjeants were not reckoned so as the work then seemeth not so much as now a dayes although it was much of the same kinde and yet it grew up into that greatnesse which it had by degrees Before they were settled by Edward the Third there were Custodes pacis which might be those whom we now a dayes call the High-Constable of the Hundred whose work was purely Ministeriall Afterward about the second yeare of Edward the Third the Guardians of the Peace had power of Oier and Terminer in matters of riding Armed upon the Statute 2. Ed. 3. After that they have power of inquiry by Indictment in certain Cases within foure yeares after they have power of Oier and Terminer in Cases of false Jurors and maintenance and about tenne years after that they obtained like power in matters of Fellony and Trespasse The way of Commissions in case of life and member thus opened another occasion of Commission offers it self for a determinative power in case of offences against the Statute of Labourers and the Cognisance hereof is soon settled upon Commissioners in the Counties specially chosen for that Service which questionlesse as the times then stood was as commendable work as it was necessary For Souldiers were so many that Labourers were very few and those that once are accustomed to Armes thinke ever after meanly of the handycraft nor will they ever stoop thereto after their Spirits are once elivated by Mastery of Adventures And secondly those few Labourers that remained of the Sword Plague and other disasters of these wasting times understood their advantage and set a value upon their labours far above their merit apprehending that men would rather part with too much of a little then to let their work lie still that must bring them in all they have but these Commissioners lasted not long though the worke did The Justices of Peace are looked upon as meet for that service and its a vain thing to multiply Commissions where the work may be done by one that before this time had obtained an additionall Cognisance of all Causes of Riots Batteries wandering dangerous Persons and offences in Weights and Measures and in Purveiance To them I say all this work concerning Labourers is also committed by the Parliament and herewith a way was laid open for Crimes of greatest regard under Fellony to be determined by triall in the Countrey according to the course of Common Law The issue of all which was not only ease to the People but a great escape from the rigor of the Councel-Table in the Star-Chamber and the Kings-Bench at Westminster on the one side and also from the gripe of the Clergy on the other who hitherto held the Cognisance of the Markets in Weights and Measures to themselves This modell so pleased all men that Richard the Second that was pleased with nothing but his owne pleasure gave unto the Justices of Peace yet further power to execute the Statute at Northampton against riotous ridings and to settle the wages of Labourers and Servants to punish unlawfull Huntings by the meaner sort of people and regrators of Wooll fals Weights in the Staple unlawfull wearing of Liveries and unlawfull fishings contrary to the Statute at Westminster 2. Thus was the power of Justices of the Peace grown to that heighth in these and other things that it undermined not onely the Councel-Table and Kings Bench but the Commissions of Gaole delivery and of Oier and Terminer so farre forth as their work was much lesse then formerly for Neighbous in cases of Crime are better trusted with the lives and estates of men then strangers so as in all this the people are still the gainers The manner of Judicature by these Justices of the Peace still remains nothing appears by any Statute in these times that one Justice of the Peace might doe alone but record a forcible detainer although questionlesse in point of present security of the Peace and good behavior by the intent of the Statutes he might doe many things but in Cases of Oier and Terminer all must be done in publique Sessions which the Justices of the Peace had power to hold by Commission onely untill the thirty sixth year of Edward the Third and ever after that they held their Sessions by vertue of the Statutes and had power to determine divers things in their Sessions according to discretion These were remedies after the Fact now see what preventing Physick these times afforded One thing that much irritated the spirits of men into discontents was false newes or slanderous reports raised and spread amongst the great men For in these times the Lords were of such considerable a power as the vexation of one Lord proved the vexation of a multitude of the meaner sort and though the Statute of Westminster the 1. formerly had provided against such tales yet it touched onely such as concerned discord between the King and People although by implication also it might be construed to extend further But Richard the Second willing to live in quiet that he might injoy his pleasure would have the people know their duties in plain words and agreed to a Law that all such as published such false newes tending to sow strife between the great men should be imprisoned untill the first mover was found and if he were not found then the Relator should be punished by advice of the Councell So much power was then given to the Councell what ever it was Thus the seed was choked or was so intended to be though every passion was not thus suppressed For some angers conquer all feare and will hold possession come what will In the next place therefore provision is made against the first actings in sorting of parties by
tokens and liveries utterly inhibiting the meaner sort of the people from giving of Liveries to maintain quarrells upon pain of Fine and Imprisonment and the triall to be before the Justices of Assize which it seems was in affirmance of former Lawes as by the Preamble of the Statute doth appeare though the Lawes themselves are not extant About fifteen years after it was by sad experience found that the Lords maintained quarrells by multitude of Liveries and therefore another Law was made inhibiting the Lords to give Liveries to any but their meniall Servants and it s ordered that the Justices of the Peace shall make inquiry of such offences and punish them according to their discretion A third prevention was provided against gathering together of parties after they are sorted For the humors may so abound as nothing will keep them in they must either breake out into a sore or a long sicknes of State will certainly follow To this end therefore the Statute made at Northampton is again revived expresly forbidding all Persons to ride Armed unles in some particular Cases of executing Justice or guarding the Person of the King or his Justices and such like And if men will be so adventerous as to outdare Law by publique force Troopings together and Riotous ridings Another course is taken not by Commission of the Peace but rather of Warre directed unto valiant persons in every County and they have power thereby to apprehend such Offenders and imprison them untill the Goale-delivery though no Indictment be found thereof untill the Goale-delivery shall be By this Commission therefore power is given of Posse Comitatus in nature of a Commission of Array with an additionall power of fighting and destroying so as though the King granteth the Power by the Commission yet the Parliament giveth the power to the Commission and be it a Commission for Peace or Warre it is Originally from that power The fourth and last prevention was the taking away means of continuance and supporting such Riotous wayes Viz. Castles and Goales out of the Custody of private hands and restoring them to their Counties For Goales and Castles are taken promiscuously for places of security in times of Peace to keep ill persons from going out and in times of Warre from getting in Amongst these some belonged to the King and were committed to such as he favoured who commonly in such times of Oppression and Violence grew too big for Justice usurping a Gaole-delivery and making such places of strength many times even to the innocent a Prison to keep them from the Law but unto guilty persons an Assilum to defend them against the Law And these thus belonging to the King were under no Law but of Prerogative whereas other Castles of private persons were under the yoake of the Statute 13 E. 1. For remedy of all which the Kings Castles are once more returned to the Sheriffes Custody by Act of Parliament who questionlesse hath the power to dispose of all places of Strength whether in order to Peace or Warre and could not dispose them into a more fafe and indifferent hand then the Sheriffes who is as well the Kings Officer as the Kingdomes Servant and much intrusted by the Law in the execution of its owne power And thus is this Nation now prepared for a settled Peace a Condition that is long in ripening and soon rotten unlesse it be well fenced and over-awed by a good Conscience But Richard the Second was neither so good nor so happy his Heart affected to be high but his Head could not bear it he turns giddy and runs far wide Those that would reduce him he inforces into Forrain Countries and himselfe holds on his careere over hedge and ditch into Ireland where under pretention of holding Possession of that Kingdome he lost England and whiles he playes his game in that Country another playes King by your leave in this and steps into the Throne teaching the King thereby this lesson though too late That Nonresidency is dangerous for a Preist but unto a Prince fatall unlesse his Subjests be fast to him when he is loose to them CHAP. XIII A view of the summary Courses of Henry the Fourth Henry the Fifth and Henry the Sixth in their severall Reignes HE that played this pranke was the banished Duke of Hertford sonne of John of Gaunt and by his death now become Duke of Lancaster by Title and as the times then were it proved not hard to get more For in uncertain Common-wealths it is an easie thing for a man of opinion that hath lesse then his due to get more then he ought As sonne of John of Gaunt this Duke had the peoples good wishes he a wise and a brave man and under oppression gained the more upon the people by how much they love brave men and compassionate such as suffer wrong especially from such persons from whom they all found the like measure All these concurring with the Kings absence invited the Duke to adventure himself upon the influence of the peoples favour to gain his own right and what more the people would allow him and if no more yet his Honour is saved he came for his own and attained his end Thus then he comes over without Army or Forraine power or other help saving the advice and interest of Arch-Bishop Arundell who was his Companion in suffering Partner in the Cause and no lesse welcome to the Clergy then the Duke himself was to the people and so gained power to the Duke though he brought none Upon their Arivall the aspects of all are benigne the Dukedome waits for him and in that as in a mirrour he beholds the way fair and easie yet further it pities him to see the Kingdome so torne in peices and spoyled The People knew him able and hoped him willing to amend all they offer him their Service which he accepts and therewith the Crowne so hard a thing it is for to put a stop to a Conquerour in his careere By this time was the Duke of Hertford thus become Duke of Lancaster and King of England under the name of Henry the Fourth by a designe that in the proof was more easie then commendable and which being effected cost more skill to make that seem fair which was so foul then to accomplish the thing He therefore first heaps together Titles enough to have buried the clamour of Usurpation if it would have succeeded Conquest was a Title freest from dispute whiles Power holds but it lookes better from a Forrain Enemy then one sworn to the English Crowne and therefore after that had served his turne he disclaymed it as that which was though meet enough to have yet unmeet to hold His right by Designation from his Predecessour he glanced upon but durst not adventure it too deep into the Peoples consideration whose Ancestors had formerly over-ruled the Case against King John He then stayed upon a concealed Title from a concealed Sonne of
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
20 39 In ordering the Mint vide Mint In making Ecclesiastical Laws Concerning Church-Government 224 c. 208 281 Concerning Doctrine 211 224 236 c. Concerning Worship 224 Concerning Church-censures 240 In granting Licenses and Dispensations 234 In final Appeals 227 In ordering it self 24 130 In judicature 25 190 Parliament not inconstant though mutable 188 Peace Justices and their Sessions 109 c. 170 c. 253 c. 297 c. Penal Laws executed to get money 184 196 Pleadings in English 98 Popes power in England abated 56 c. vide Ordinary Supremacy Arch-bishop Prelacy not favoured by the Canon 239. their power since the time of Queen Mary 283. their dignity and power distinguished 46 58 Preists Wages 70 155 Praemunire and Provisors 54 58 c. 151 Proclamations made equal to Laws 214. altered 269. Protectors variety of them makes a doubtfull Government 4 8 123 Purveyance regulated 53 65 R. RAvishment consented to forfeits Jointure 96 Requests Court established by Cardinal Woolsey 241 Richard the second his Reign 6. endeavours to over-rule the Parliament but failed in the Conclusion 11 Richard the thirds Reign 184. his Title by Vsurpation and Murder ibid. Riots 173 S. SAnctuaries changed into fewer priviledged places 257 Servants imbesselling Felony 258 299 Sheriffs Courts regulated 254. Election of Sheriffs 93. Farm of the County 168. continuance in service ibid. Extortion ibid. Souldiers vide War Staple â—72 c. â—90 Star-chamber 31 c. 242 Stealers of Men and Women Felony 299 Supremacy supreme Head 206. certainly not absolute or arbitrary power nor a Legislative power 208 c. Supreme Governour 270. in causes Ecclesiastical 270 c. in Temporal ibid. T. TEnths and first-fruits 222 Torniament 108 Tonnage and Poundage 189 Trade 64 190 Treason 76. c. By thoughts by marriage and counterfeiture 255 256. tryed where the King will 258. Petty Treason 94. W. WAles subdued by Henry the fourth 118. Vnited to the English Crowne by Henry the eighth 241 Warr by advice of Parliament 98 175. Levying of men 101 176 248 290. Jurati obligati ad arma taken away 100. Arming of men 100 290. Conduct to their Rendezvous 101. Runing from their Colours 101 180 296. Plunder satisfied 101. Their pay 176.251 296. Offensive and defensive 291. Watches inquired into by Justices of the Peace 173. Wickleif 60. Wills probate 154. Witchcraft made Felony 257 299. FINIS Pag. 126. Concil Britt Pag. 212. Ibid. pa. 194. Ibid. pa. 242.245 Pag. 219. Pag. 300. Pag. 321. Concil Brit. Pag. 328. Concil Brit. Pag. 334. Concil Brit. Pag. 350. Concil Brit. Pag. 480. Concil Britt Pag. 490. Pag. 534. Pag. 621. Pag. 23. Mr. Seldens Title of Honor. Tit. Honor Pag. 703. Tit. Honor Pag. 703. Littlet lib. 2. cap. 3. Britt Pa. 122. Antiq. Brit. Rich. 2. The. lib. 4. Cap. 21. Hist Eccles Ang. Antiq. Brit. â—62 11. Rich. 2. n. 8.13 21. Rich. 2. cap. 9. 21. Rich. 2. cap. 3. 1 E. 3. Stat. 1. 9 Rich. 2. n. 31. 11 Rich. 2. n. 23. 5 Rich. 2. n. 17 18. 2 Kich 2. n. 12. 9 Rich. 2. n. 4. or 41. 14 E. 3. n. 6. 27 E. 3. n. 8. 9 R. 2. n. 40. 15 E. 3. n. 16. 14 E. 3. cap. 20. 25 E. 3. n. 16. 1 E. 3. vet 1. 1 Rich. 2. n. 48. 25 E. 3. Provisor 21 E. 3. n. 64. 3 Rich. 2. n. 83. 2 Rich. 2. n. 38. 15 E. 3. n. 6 7. 1. E. 3. Ver. 1. 15 E. 3. cap. 3. 11 Rich. 2. n. 11.12.15.17 5 Rich. 2. n. 8.12.13 10. E. 3. cap. 2. 14 E. 3. c. 15. 2 E. 3. cap. 2. 13 Rich. 2. Sr. 2. cap. 1. 11 Rich. 2. n. 3.6 21 Rich. 2. n. 35. 14 E. 3. n. 55. 50 E. 3. n. 10. 1 Rich. 2. n. 5â— 3 Rich. 2. n. 34. 5 Rich. 2. n. 17 18.28 6 Rich. 2. n. 19. 37 E. 3. n. 34. 1 Rich. 2. n. 5. 5 Rich. 2. n. 75. 15 E. 3. c. 3. Antiq. Britt Eccles 15 E. 3.50 15 E. 3. c. 1. 15 E. 3. c. 3 4. 14 E. 3. cap. 5. Walsing An. 1315. 4 E. 3. cap. 14. 36 E. 3. c. 10. 1 Rich. 2. c. 4. 12 Rich. 2. cap. 12. 16. E. 3. Memb. 5. in Dors 27 E. 3. Stat. 2 28 E. 3. cap. 13. Mag. Cart. Vet. 20. Ass pl. 52. 41 E. 3. Rat. Clauâ— 16 Rich. 2. Memb. 11. in Dors Fleta li. 2. cap. 34. 38 E. 3. Rot. Pat. Ps 1. Memb. 13. 39 E. 3. Ps 1. M. 13.42 E. 3. Rot. claus Memb. 8. in Dors 2 Rich. 2. Rot. Pat. Ps 1. 12 Rich. 2. cap. â— 43 Ass pl. 38. Co. Instit 4. c. 5. 22 Ass pl. 75. 13 Rich. 2.12 Tit. Prohibition 5 E. 3. cap. 9. 37 E. 3. c. 17. 25 E. 3. c. 4 5. 42 E. 3. c. 3. 4. 1 Rich. 2. n. 87. Fabian Vit. Hen. 3. ann 1141. 43. Ass pl. 38. 43. Ass pl. 38. Miror cap. 4. Sect. 2. Fleta lib. 2. cap. 13. Fleta lib. 2. cap. 13. Sect. 8. Instit 4. c. 8. fol. 78. 4 E. 3. cap. 12. 9 E. 3. cap. 1. 14 E. 3. cap. 5. 27 E. 3. cap. 26. 36. E. 3. c. 9. cap. 13. 12 Rich. 2. c. 12. 27 E. 3. c. 24. 22 Ass pl. 25. Bro. scire fac 154. 24 E. 3.73 43 Ass pl. 32. 24 E. 3. pl. 35. 39 E. 3. fo 14. 21 E. 3. fo 47. 43. Ass pl. 35. 37 E. 3. cap. 27. 38 Ed. 3. c. 9. 17 Rich. 2. cap. 6. 43 Ass pl. 32. 15 E. 3. n. 10.15 15 E. 3. c. 3. 10 Rich. 2. n. 16.10 Instit 4. cap. 22. fol. 142. 144. Gloss fol. 16. 15 Rich. 2. c. 3. Dier 15. 16. El. mic pl. 2. 8 E. 3. Coronn 199. 13 Rich. 2. cap. 5. 15 Rich. 2. cap. 5. 25 Rich. 2. cap. 3. 2 Rich. 2. cap. 4. 25 E. 3. Stat. 6. 15 E. 3. cap. 6. 22 Ass pl. 70. 45 E. 3.24 Fus consultat 5. 31 E. cap. 4. 25 E. 3. Stat. 3. cap. 9. 15 E. 3. c. 5. Miror Just cap. 5. Sect. 1. 51 H. 3. petit cleri Artic. 16. 50 E. 3. n. 158. 6 Rich. 2. n. 57. 14 Rich. 2. n. 24. Instit 3. cap. 70. 6 Ed. 3. coram Rege Rot. 130. Porff 25 E. 3. c. 8. pro clero â—8 E. 3. cap. 2. â—5 E. 3. St. 2. 9 Rich. 2. c. 4. Bro. quar imp 85. 8 E. 3. 8. 18 E. 3. cap. 1. 14 E. 3. cap. 2. 25 E. 3. c. 6. 44 E. 3. fol. 35 36. Per Thorpe 7 H. 4. fol. 41. Per Gascoigne 31 E. 3. c. 11. West 2. cap. 19. 5 E. 3. c. 5. 1 Rich. 2. c. 15 14 E. 3. Stat. 3. cap. 1. Westm 1. cap. 1. Stat. de prisis 1 Rich. 2. c. 3. 4 E. 3. cap. 6. 5 E. 3. cap. 3. Rot. Parl. 10. E. 3. Arch. Reg. 18 E. 3. tit 38. Fox 388 25 E. 3. Stat. 5. cap 22. Fox Sect. 1. 27 E. 3. c. 1. Antiq. Brit. Eccles 247. 21 E. 3. fol. 40 38 E. 3. cap. 1. Rot. Parl. 51. E.
Martyrs more particularly set forth and no Act of Parliament positive in the point But the time is now come when nighest reformation that the thing is settled more to the prejudice of reformation then all the endeavoures foregoing like to the darknesse of the night that is at the Superlative degree when nighest break of Day A Statute is now made that indeed quite blotted out the very name of the Statute of Henry the fourth De haeretico comburendo but made compleat that Statute of 5 Rich. 2. and the other of 2 Hen. 5. both which were formerly neither good in Law nor effectuall otherwise then by Power and gave more settlement to the Ordinaries proceedings in such Cases For the Delinquent might be convict before the Ordinary by Witnesses or might be indicted at the Common Law and the indictment certified to the Ordinary as Evidence yet did the Parliament carve them out their work and in expresse words declared That opinions against the Authority and Laws of the Bishop of Rome were not Heresie and by the same reason might have done more of that kind but that was enough to tell all the World that the Parliament could define what was not Heresie although they did not then determine what was Heresie And thus the judgment of the Romane Church is called into question in one of their fundamentals and the Clergy left in a Muse concerning the rule upon which they were to proceed against this Crime The Parliament within six yeares after undertakes though somewhat unhappily to determine and define certain points of Controversie which had some relation to the Worship of God and the publique Peace and declared the contrary to these determinations to be Heresie and the punishment to be Death and Forfeiture and the triall to be before Commissioners by Jury or testimony of two Witnesses or by examination in the Ecclesiasticall Court or inquisition in the Leete or Sessions of the Peace Upon the whole matter therefore the Ordinary had a particular Power to determine Heresie but the Parliament determined such Heresies as were punishable with Death and Forfeiture by enumeration in the six Articles This was the Clergies Primmer wherin they imployed their study as making most for their designe and laid aside thoughts of all other Heresies as drie Notions or old fashions laid aside and not worthy the setting forth to common sale Secondly the Lesson concerning Marriage was no lesse difficult for the Clergy to take out They were put by their former Authority derived from abroad and their ancient rule of the Canon Law with the Kings leave they do what they do and where they doubt they take his Commission so did the Arch-Bishop of Durham in the Case betweene John and Jane Fisher in the Kings Case the determining part is put to the Parliaments Conclusion and for a rule in other Cases some persons are enabled to Marry which formerly were not Viz Masters of the Chancery and Doctors of the Civill Law and some forbidden Marriage as all Preists by the Statute of the six Articles And unto the rest concerning degrees of Consanguinity or Affinity a particular enumeration is appointed to be observed within which Marriage is declared unlawfull all other further off are made lawfull In all which regards the Cognisance of Matrimoniall Causes is theirs onely by leave Thirdly Residency and Nonresidency was a Theame formerly learned from the Canon Law in which as also in the thing it self the Clergy were the onely skilfull men The rule of the Canon Law was strict enough considering the times but it was not steel to the back The Parliament now undertakes the cause and though it gave in some respects more liberty then the Canon yet stood it better to its tackling and kept a stricter hand upon the reines then was formerly used and by giving a generall rule for Dispensation took away all arbitrary Dispensations and Licences which were formerly granted beyond all rule but that of Silver or Gold and made all practises contrary to the rule damageable to the party Thus far concerning the matters in Cognisance now touching the Power of the Keyes English Prelacy having laid aside the pretentions of Rome they put the World to a gaze to see which way they would go In the inocent infancy of Prelacy it was led by the hand by the Presbytery and would doe nothing without them afterwards having gained some degree of heighth and strength they entred themselves to be Chariot Horses to the Roman Sun till they had set all on fire now unharnest it is expected they should returne to their former wits neverthelesse forgetting their ancient yokefellowes the rurall Presbyters they stable with the King use his name sometimes but more often their owne serving him with Supremacy as he them with Authority beyond their Spheare they raise him above Parliament he them above Councills so as they do what they list let the Plebeian Presbyter wil or nill they are the onely numerall Figures and the other but Ciphers to make them Omnibus numeris absoluti Neverthelesse the Canon still remaines the same Episcopi se debent scire Presbyteros non Dominos nec debent in clerum dominari Episcopus se sedente non permittat Presbyterum stare Episcopi noverint se magis consuetudine quam dispensatione Presbyteris majores Kings may make them Lords but as Bishops they hold their former rank assigned by the Canon as Lords the King never gave them the keyes and as Bishops the Canon did not yet as under the joynt Title of Lord Bishops they hold themselves priviledged to get what power they can two things they reach at Viz. The absolute power of Imprisonment and of Excommunication in all causes Ecclesiasticall The common Law would never yeeld this some Statutes in some cases did pretend First as touching Imprisonment the Statute of Henry the fourth concerning Heresie doth lispe some such Power of what force the same Statute is hath been already observed in case of incontinency of Church-men it is more directly given them by a Statute in Henry the sevenths time before which time the Statute it self doth initimate that an Action did lye against them for such imprisonment which Law also was made uselesse by another in Henry the eighths time who gave away to Statutes for the punishing them at the common Law First with Death which continued for some Months and that being found too heavy it was punished by another Law with Forfeiture and Imprisonment And the same King likewise gave way to a law for the like punishment in case of Heresie By that Law that revoked the Statute of Henry the fourth formerly mentioned although till triall the same was bailable And thus continued till the time of Edward the sixth But as touching Excommunication it was to no purpose for them to struggle the common Law would never permit them to hold possession quietly but did examine their Authority
from such an ayre Two Kings we have at once in view both of them of an elate spirit one working more closely by cunning the other more openly by Command yet neither of them pretending so high as to doe all or be all in all Peace suited more with Henry the seventh then with his Son who delighted to be accounted terrible rather then good yet both of them were glad enough to be at peace at home and were industrious to that end though by severall meanes Henry the seventh pretended Justice and Peace a welcome news to a people that formerly accounted nothing theirs but by the leave of the Souldier and therefore sets upon the reformation of the Sheriffs Courts in the entring of Plaints and making of Juries suitable to that present time wherein men of Estates were very scarce and much of the riches of the Nation evaporated into the Warrs both Civill and Forraine although the continuance of that order concerning Juries in the succeeding times of opulency hath brought these Courts into contempt and made way thereby for the Kings Courts to swell in glory and to advance Prerogative even above it selfe Secondly He reformes Goales as well in their number as their use During the Civill Warrs every small party of men that could get a strong place made the same not only a Castle but a Goale and usually imprisoned and ransomed at their owne pleasure For remedy whereof Henry the seventh restores all Goales to the Sheriffs saving such as hold hy Inheritance and gives power to two Justices of the Peace one being of the Quorum to take Baile in cases bailable and Recognisances of the Peace to be certified at the next Sessions or Goal-Delivery Thirdly Both Kings concurr in providing against such disorders as more immediately did trench upon the publique Peace and reached at the Crowne it selfe by labouring to prevent by severe punishing and lastly by regulating the proceedings of Judicature in such cases These disorders were two Inordinate wearing of Liveries and unlawfull Assemblies The first being in nature of unlawfull assembly of minds and spirits of men the second of their bodies and persons Both these had formerly been provided against but the Judges of the Common Law unto whose Cognisance these Crimes were holden did restrain their punishments to the rule of the Common Law then thought to be too facile and mean for disorders that did flye at so high a pitch and therefore they are reduced before a higher tribunall as matter of State as hath been already mentioned The severity of punishment consisted not so much in aggravating the paine as the Crime matters of injury being made Felonies and those Treason This crime of Treason at first it concerned matters acted against the Nation afterwards it reached to matters acted against the King now it reacheth even to the very thoughts and imaginations of the heart not onely of bodily harme to the King but of the Queen or their heires apparent or tending to deprive them of their Title or Name of Royall Estate This crime was formerly made but Felony by Henry the seventh and then onely extended to such offence committed by one of the Kings houshold against the Person of the King or a Lord or any of the Councell Steward Treasurer or Controller so as the person of the Queene was not then in the Case and yet then newly Crowned and at that instant bearing in her womb that royall seed which was then the onely earnest of the stability and glory of England and therefore is it a subject of wonderment unlesse it were out of extremity of Jealousie least he should seem to make too great account of her title and thereby disparage his owne and then is it a peice of wit but not without weaknesse for he that is jealous of the slightings of other men shews himselfe unresolved in his owne pretentions Now Henry the Eighth not onely raiseth the price but addeth to the thing and not onely putteth the Queen but the Prince or Heire apparent into the Case making the same Treason So as it implyeth that English Allegiance tyeth the Subject not onely to the safety of the Person of the King but also of the Queen and Heire apparent otherwise the offence is made and declared Treason against the King Secondly the Election of the object is to be considered for whether the one or other Statute be observed it will appeare that although the King was the next object expressed yet a further was intended and that the Crime is not intended in regard of his naturall Capacity as a man but of his politique Capacity and in relation to the Common good of the Nation and this is evident not onely from the severall Prefaces of the Lawes but also from the manner of Election whereby the Title of Heire apparent is taken up and not the eldest Sonn or Daughter or these and not the other Children all which are equally dearly beloved in Naturall regard Thirdly though at the Common Law Treason be properly a Crime against Allegiance yet as in cases of Felony Crimes may be by the Statute made as Treason which at the Common Law are not against the legiance of an English man for this remaineth ever one and the same but one and the same fact may be made Treason and unmade by the Statute-Law as befell this Law of Henry the eighth by a Law within twenty yeares after like as also in former times one and the same fact hath many times received the like measure Other Treasons besides these already mentioned were by Henry the eighth created as Marriage with any of the Kings Sisters Daughters or Aunts of the Fathers side or the Daughters of his Brethren or Sisters without consent first had of the King Counterfeiting of currant Money not of the Kings Coynage was likewise made Treason by Henry the seventh who was well seen in that Mistery of Money-Trade and the like also became of Counterfeitures of the Kings Privy Signet and signe manuell And Lastly that horrid trick of poysoning was reduced to this Category rather that the Penalty might be more terrible in the Death which was by boyling then for any Tincture in the Nature of the Crime or in any Forfeiture of Estate The policy of these times thus irritated against Treason had proved very irreguler if the same had not been as rigid in cases of Felony diverse new ones of that kind are also dubbed amongst which Conjuration or Witchcraft comes first an old Felony in the Saxons time but since had gotten its Clergy now well nigh for the space of five hundred years and they it so as it never walked abroad amongst the Laity but under the favour of the Cloystered People nor ever came before the Civill Power till now Henry the eighth brought it forth into its own ancient and proper regiment Other Crimes being those of the season are made into the the same degree Such
full wherein we have a Childe a Virgin and a married Woman to sway the Work all of them in a very unmeet condition for such a Trust and yet by the help they had they managed it well enough The power of him as King or General in the Army is all one but before it is imbodied as a King onely he may do some things in order thereto according to the Law and Custome of the Nation yet this fals under a double consideration of the time and occasion In the recess of the Parliament he is the first mover and ought to move by the advice of his Councel if occasion do provoke to Arms but if the same befall the Parlaiment then sitting no History or Record do mention that ever he moved but by their concurrent advice and direction The occasion either provoketh offensive or defensive War with other Nations or with the People of his own Nation in the case of Insurrection Examples of War with other Nations that may be called offensive Wars we have but two one in Edward the sixths time with Scotland and which was but in pursuance of a War begun by his Father and wherein the Kingdom stood ingaged in a case that concerned the publique good and safety viz. the Marriage of their King refused after promise made The other was in the time of Queen Mary with the French which somewhat reflected also upon the publique safety but more upon the dishonor of the same In none of these did either of the Supreme Powers array or raise men by Prerogative but onely such as were Volunteir in that Work And because the People were ill principled in Edward the sixths time in regard of the change of Religion he was induced to hire forrain aid out of Germany The Wars in the time of Queen Elizabeth were in order to the Defence of this Nation being ever under a malignant Aspect from abroad especially from Spain in Ireland France and the Low Countries yet were these Wars served onely by Volunteirs nor did any Commission give power of impresting men to serve against their wils in any Expedition made to any of those places as the Commissions upon Record do testifie If any Levies of Men were otherwise made or compulsory means used for such ends they are to be reckoned up amongst the errata whereof the Parliament took no notice in regard it saw the ends and issues of such reflexions in Government to be succesfull and honorable and that all was done by Councel and a Woman popularly affected and therefore less feared invasion upon their Liberties or otherwise they are to be imputed to the condition of those places being Members of the Common-wealth as the cautionary Townes in the Low Countries and the Irish Plantations were and so befall under another consideration of a defensive War in case of invasion and common danger therby or by intestine broils during which condition as it is the Kings duty to levy and array men so is it the duty of the People to be ready to assist one another in all such exegencies and to defend the publique Liberty nevertheless these Arrays are not left wholly at the Will of the King but to discretion of the Councell how far the same shall extend For never were generall Arrayes made where but one Coast was in danger and where no conquest is in pretence but only piracy or plunder But if the disease were generall as it was in the yeare 88. the Array was generall and yet it was of none but those that were of the Trained bands besides such as were Volunteir Secondly The arming of these men was also diversly there was no generall rule or Law for the arming of men since the times of Edward the first to the time of Queen Mary but the Statute at Winton the course of Tenures I mean of such men as were of the Militia of this Kingdom So as when they were raised they were raised in their own armes But for such men as passed the Seas for forrain Service as they were Volunteirs or sent over by the Parliament these were armed acccording to speciall contract But Queen Mary having gotten a safe reserve from Spaine upon all adventures and a strong Interest amongst the People by upholding the Catholique party made no bones to innovate in the point of arming of the Militia although it cost the People much more then was imposed upon their Ancestors The pattern hereof was taken from the Spanish Cabinet the Q. being loth to be inferior to her own Husband in bringing as much strength to him as he to her and both of them willing enough to appeare potent in the eyes of France that then stood in competition with them both A yoke it was yet neither the King nor Queens Will but the Parliament put it on and ere an age expired was cast off again For the better understanding see it in this Scheme Per Annum Lances Light Horse Corslets Bowes Hacquebuts Bills 1000. l. 6. 10. 40. 30. 20. 20. 1000. marks 4. 6. 30. 20. 10. 10. 400. l. 2. 4. 20. 15. 6.  200. l. 1. 2. 10. 8. 3.  100. l.  2. 3. 3. 2.  100. marks  1. 2. 2. 1.  40. l.   2. 1. 2.  20. l.   1. 1. 1.  10. l.   A Coate of Plate 1. 1.  5. l.   A Coate of Plate 1.  1. Goods 1000. marks 1. 1. 2. 4. 3.  400. l.  1. 1. 2. 1.  200. l.   1. 2. 1.  100. l.   1. 2.   40. l.   Two Coats of Plate 1.  1. 20. l.   One Coate of Plate 2.  1. 10. l.    1.  1. The Lances were to be compleatly harnised or the one half of them the Corcellets furnished with Coates of Maile and Pikes the Bowes with an Iron Cap and a sheaf of Arrowes The Hackbuts with Sallets all which was to be over and besides such Armes as men were bound unto by Tenure or Covenant with the Landlord or by vertue of the Statute 33 H. 8. ca. 5. besides town-ships which were charged with joint Armes Annuities and Coppy-holds were charged as goods If the Armes were lost in the Service the owner must make them good again The defaults were punishable with fine by the Justices of the Peace who had the view and might present them at the Sessions to be procceded upon as in other Cases Here is provision enough yet not as the Armes of the Militia of the Kingdom but as a Magazine in the hands of every particular man and as his proper goods to be imployed for the publique Service either upon sudden invasion in a defensive Warr or when the Parliament shall send them abroad And yet it is also a rule unto the Crown against arbitrary Assessments upon discretion from which it cannot recede if it mean to do right It might now very well stand with the
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