from the gripe of the Clergie on the other who hitherto held the Cognizance of the Markets in Weights and Measures to themselves This model so pleased all men that Richard the Second that was pleased with nothing but his own 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 unlawful Huntings by the meaner sort of people and regrators of Wool false Weights in the Staple unlawful wearing of Liveries and unlawful Fishings contrary to the Statute at Westminster 2. Thus was the power of Justices of Peace grown to that heighth in these and other things that it undermined not onely the Council-Table and Kings Bench but the Commissions of Gaol-delivery and of Oyer and Terminer so far forth as their work was much less than formerly For Neighbours in cases of crime are better trusted with the Lives and Estates of men than 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 do alone but record a forcible Detainer although questionless in point of present security of the Peace and good Behaviour by the intent of the Statutes he might do many things but in Cases of Oyer and Terminer all must be done in publick Sessions which the Justices of the Peace had power to hold by Commission onely until 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 News or slanderous reports raised and spread amongst the great men For in these Times the Lords were of such a considerable 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 enjoy his pleasure would have the people know their duties in plain words and agreed to a Law That all such as published such false News tending to sow strife between the Great men should be imprisoned until the first mover was found and if he were not found then the Relator should be punished by advice of the Council So much power was then given to the Council whatever 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 fear 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 quarrels upon pain of Fine and Imprisonment and the Trial to be before the Justices of Assize which it seems was in affirmance of former Laws as by the Preamble of the Statute doth appear though the Laws themselves are not extant About Fifteen years after it was by sad experience found that the Lords maintained quarrels by multitude of Liveries and therefore another Law was made inhibiting the Lords to give Liveries to any but their menial Servants and it is ordered that the Justices of the Peace shall make enquiry 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 humours may so abound as nothing will keep them in they must either break out into a sore or a long sickness of State will certainly follow To this end therefore the Statute made at Northampton is again revived expresly forbidding all persons to ride armed unless in some particular cases of executing Justice or guarding the person of the King or his Justices and suchlike And if men will be so adventurous as to outâ—dare Law by publick force Troopings together and riotous Ridings another course is taken not by Commission of the Peace but rather of War directed unto valiant persons in every County and they have power thereby to apprehend such Offenders and imprison them until the Gaol-delivery though no Indictment be found thereof until the Gaol-delivery shall be By this Commission therefore power is given of Posse Comitatus in nature of a Commission of Array with an additional 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 War it is originally from that power The fourth and last prevention was the taking away means of continuance and supporting such Riotous ways Viz. Castles and Gaols out of the Custody of private hands and restoring them to their Counties For Gaols and Castles are taken promiscuously for places of security in times of Peace to keep ill persons from going out and in times of War 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 Gaol 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 Asylum 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 yoke of the Statute 13 E. 1. For remedy of all which the Kings Castles are once more returned to the Sheriff's Custody by Act of Parliament who questionless have the power to dispose of all places of strength whether in order to Peace or War and could not dispose them into a more safe and indifferent hand than the Sheriff's who is as well the King's Officer as the Kingdoms Servant and much intrusted by the Law in the execution of its own power And thus is this Nation now prepared for a setled Peace a condition that is long in ripening and soon rotten unless 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 enforces into Foreign Countries and himself holds on his career over Hedge and Ditch into Ireland where under pretension of holding possession of that Kingdom he lost England and whilst he plays
with certain select persons in every County did administer Justice in several Iters or Circuits so when Kings had once gotten the name of being chief in civil affairs as they had it in martial they soon left the Lords behind them who also were willing enough with their own case and had the name of doing all notwithstanding it was done by advice of the Lords and directory of Ministers or Commissioners thereto deputed And thus that Peace which formerly passed under the Titles of Pax Domini pax Vicecomitis which is pax Regni became by eminency swallowed up in that which was called the Kings Peace and the Justices called the Kings Justices and himself flattered into that Title of Fountain of Justice which belongeth onely to him that is The Most High or Chief Law-giver The manner how this honourable care of the Safety and Peace of the Kingdom was employed may be referred to a double consideration the one in execution of Justice upon Delinquents the other in preventing occasions of offence or delinquency by means whereof the publick Peace might be endangered The first was acted diversly according to the present sence of affairs for what was at first done by the Princes in their Circuits with one hundred of the Commons called Comites and that done per pagos vicosque was afterwards done by itinerant Judges sent from the King for the greatest matters and by Lords in their Leets Governours or chief Magistrates of Towns in their Courts and Sheriffs in their Torns as Judices stati for the ease of the people in matters of less moment I say I conceive it was in the Torn for I suppose no emergent Court taken up upon occasion could by the Law draw a necessity of a sudden appearance of all above twelve years of age at the same And for the same cause it seemeth that one certain Torn every year was holden for inquiries of Homicide unto which all above twelve years of age were to come except Barons Clergie and Women or otherwise all such had been bound to attendance on every Torn Nevertheless the work of the Torns continued not to hear and determine as anciently they had done For in Henry the third's time and formerly divers men had Prisons to their own use some as Palatines others as Lords of Franchise and others by power and usurpation and had the benefit of all Fines incident and by this means many were fined that deserved it not and some also that deserved worse To prevent which evil Henry the third took away that power of holding Crown-pleas And Edward the first took away their power to determine Escapes and left them onely the power of inquiry and to certifie at the next coming of the Justices But these injurious times had holden too long to be forgotten or laid aside by such cool pursuit Men were still ordinarily imprisoned and so continued oftentimes till the coming of the Justices itinerant For whereas in case of Bloudshed the Writ de odio atia was a remedy the other had no remedy but by procuring a Commission of Oyer and Terminer which ordinarily was a cure worse than the hurt As a remedy hereof Edward the first found out the new way of making Justices of Peace as may appear by the Statute at Winton which Law being purposely made for the conserving of the Peace providing for penalty of Crimes already committed as well as for the suppressing of future ordaineth That offences against that Law shall be presented to Justices assigned to enquire thereof and though these at the first might be itinerant yet it soon made way to resiant And before that Statute it seemeth the King had found out the way if that Note be true which is left revived into memory by that honourable Reporter which relating to the sixth year of Edward the first saith That then prima fuit institutio justiciariorum pro pace conservanda And yet some semblance there is that it was yet more ancient even in the time of Henry the first if I mistake not the sence of that clause in his Laws concerning Vagabonds he ordereth that they shall be carried Justiciae quae praeest although the Language be not so Clerkly as to speak the sence out Now though their Work as yet was but in tryal and they were onely trusted with power of inquiry yet it induced a new way wherein the Sheriff was not so much as intrusted to intermeddle and which not onely intermitted the course of his proceedings in such matters but also led the way to the dispoiling of the Sheriff's Torn and Lord's Leet of that little remainder that was left them of Judicatory power in matters that were against the Peace and made their Inquisitory power less regardful and eased the Justices itinerant of much of their Work in regard they were speedily to certifie up to the King and so these matters should be determined in Parliament according as those Justices were elected in Parliament who as it seems were jealous of giving the power of determining those offences into any sudden hand To sum up then the first part as touching the punishment of offences against the Peace the wheel is now in the turning the Leets and Torns begin to be slighted the labour of the Justices itinerant lessened the Commissions of Oyer and Terminer disused by the bringing in of a new Order of Justices for the Peace especially appointed and the Parliament as the supreme Providers left as the reserve for the asserting and maintenance of the same albeit that under it the power of determining much rested upon Justices or Judges that attended the King's Court after that the Common-pleas were setled and confined to a certain place The preserving of the Peace for the future consisted in preventing and suppressing Riots Routs unlawful Assemblies and in apprehending and securing of such as were actors and contrivers of such designes and other Malefactors And herein we are to consider 1. The Laws 2. The Means 3. The executive power Concerning the first there is no question to be made but that the power of making Laws for the maintenance of the Peace rested in the Parliament although endeavour possibly might be used to settle the same in the sole order of the King 's own person and therefore we find not onely the assize of Arms but generally the substance of the Statute at Winton to be formerly taken up by Proclamation by Kings predecessors to Edward the second who first that I can find put the same into force of a Law by Parliament finding by experience that Proclamations may declare the King's Mind but not command the Peoples Wills although peradventure the thing enjoyned was of ancient use and little inferiour to Custom or Common Law. Such are the Distempers of Civil Broils that bring up Peace in the rear as a reserve when their own strength is wasted rather than out of any natural inclination thereto A brief
Womanhood 138. Coverture 139 Custos Regni a formality of State under the Parliaments Order 79. many times conferred upon Children 80. and upon a Woman 148. D. DElegates though named by the King yet by Authority of the Parliament 133 Defender of the Faith 122 Dispensations Licenses and Faculties never in the Crown but by the Parliament givent to the Archbishop under limitations 137 139 Duels ordered by the Marshal as subservient to the Common Law 63. E. EDward the Third his Reign 2. his Title upon Entry by Election ibid. Edward the Fourth his Reign though had Title of Inheritance yet entred by Election 106 Edward the Fifth approached the Crown by Inheritance but never put it on 108 Edward the Sixth his Reign his Title and Possession did meet though he was a Child and his Sister Mary grown in age 152 Ecclesiastical power vide Prelacy and Prelates Elizabeth Queen her Reign 155. her Title by Election 163 Englishire taken away 56 Episcopacy vide Prelates and Prelacy Errors vide Heresie Exchange ordered by the Statute 38 Excommunication 159. the Writ de excommunicato capiendo ordered 169. vide Parliament exportation 38. F. FAlse News punished 66 Felony by riding in armed Troops 56 66 101 150 174 First-fruits regulated 90. taken away from Rome 130 Forcible entries 101 Forts Fortifications and Castles ordered by Parliament 147 171. G. GOal-delivery by the Judges of the Benches 54 97. vide Judges Goals regulated 67 149 Guard for the Kings Person brought in by Henry the Seventh 113 Gypsies made Felons 174 H. HEnry the Fourth his Reign doubtful in his Title but rested upon Election chosen by Parliament sitting when there was no King 68 c. Henry the Fifth his Reign his Title by an Intail by the Parliament 70 c. Henry the Sixth his Reign his Title by the Intail last mentioned though a Child he is admitted to the Crown 72 c. Henry the Seventh first setled a constant Guard his sixfold Right to the Crown and his gaining Prerogative in the persons and Estates of the people ibid. 113 c. Henry the Eighth his natural endowments 116 c. his power in the matters Ecclesiastical 120 c. in Temporals 125 c. Heresie and Errour in Doctrine under the cognizance of the Civil Magistrate 36 92. not punishable by death by Law till Henry the eighths time 126 138. the Writ De Heretico comburendo hath no legal ground in any of those former Times 67 93 95 126 138 Honours vide Parliament Hospitals visited by the Pelacy 90. I. IMportation 42 Judges of Assizes 97 142 Jurisdiction Ecclesiastical not originally in the Prelacy nor absolutely 137 Justices of the Peace their residency and quality their number various their work also 62 99. one Justice 63. and the setling of their Session ibid. their power to take Bail 149. K. KIngs vide Parliament Allegiance Supremacy Militia L. LAbourers their Work and Wages 42. ordered by the Justices of the Peace 63 Lancaster the Princes of that House friends to the Clergie in policy 86 Laws made by the Successors of Henry the Eighth during their minority annulled 69. Ecclesiastical Laws vide Parliament Lieges by Birth though not born within the Allegiance of England 57 Liveries and Tokens inhibited to the Lords 64 103. and limited in the Kings person ibid. means of jealousie between the King and his people 143 Libels in the Spiritual Court to be delivered in Copies upon demand 90 Licenses vide Dispensations Lords their power and jurisdiction in the Parliament 14. in Council 17 142 Lunacy no impediment in Trial of Treason 151. M. MAry Queen her Reign 153. her Title by Election 164. she prejudiced her Supremacy by Marriage 163 Marque and Reprisal 122 Martials Court 62 Matrimonial Causes after the Reformation by Henry the Eight in the Cognizance of the Clerge by leave 139 Militia 58 102 143 122. vide War. Mint 44 84. vide Parliament Monasteries dissolved 117. maintained by Henry the Fourth 86 Money out of England to Rome stopped 32. N. NAvy Royal as Forts for the publick safety maintained at the publick charge 148 Nisi prius 98 Non-residency 139 Noble Ladies Trial 101. O. OYer Terminer 54 98 Ordinary not to be questioned in the Civil Courts for things under Ecclesiastical jurisdiction 28 29. hath cognizance of Vsury 28. of Avoidances Bigamy and Bastardy 29. grant Administration 30. visit Hospitals and call Executors to account 90. hath power to fine and imprison 91 141. to keep Courts but the Authority doubtful 137. have Cognizance of the Heresie 91 138. Matrimony Non-residence ibid. In Queen Elizabeth's time their jurisdiction left in doubt 168 c. Oath ex Officio first brought in by the Church-men in matters Ecclesiastical 92. afterwards by the Parliament into the Star-chamber in cases criminal 142. P. PArdon of Crimes not absolutely in the King 11 Parliament without the King consisting of three States 69. without the Clergie 34 Parliaments power in ordering of the Crown 75 133 162. In ordering the King's person by Protectors 9. vide Protector In ordering their Children In ordering their Family 10 75. In ordering their Revenues 10 75 68. In ordering their Council 83 In the Militia vide Militia and War. In conferring places of Honour and Trust 11 23 In ordering the Mint vide Mint In making Ecclesiastical Laws Concerning Church-Government 131 c. 121 165. Concerning Doctrine 123 131 138 c. Concerning Worship 131 Concerning Church-censures 140 In granting Licenses and Dispensations 137 In final Appeals 133 In ordering it self 14 76 In Judicature 15 111 Parliament not inconstant though mutable 110 Peace Justices and their Sessions 62 c. 99 c. 148 c. 173 c. penal Laws executed to get money 108 114 Pleadings in English 57 Pope's power in England abated 33 c. vide Ordinary Supremacy Archbishop Prelacy not favoured by the Canon 140. their power since the time of Queen Mary 166. their dignity and power distinguished 28 34 Priests Wages 41 91 Praemunire and Provisors 32 34 c. 89 Proclamations made equal to Laws 125. altered 158 Protectors variety of them makes a doubtful Government 3 5 72 Purveyance regulated 31 39 R. RAvishment consented to forfeits Joynture 56 Request Court established by Cardinal Wolsey 140 Richard the Second his Reign 6. endeavours to over-rule the Parliament but failed in the conclusion 7 Richard the Third's Reign 108. his Title by Vsurpation and Murther ibid. Riots 101. S. SAnctuaries changed into fewer priviledged places 151 Servants imbezelling Felony ibid. 174 Sheriffs Courts regulated 149. Election of Sheriffs 55. Farm of the County 98. continuance in service ibid. Extortion ibid. Souldiers vide War. Staple 42 c. 111 Star-chamber 19 c. 141 Stealers of Men and Women Felony 174 Supremacy Supream Head 120. certainly not Absolute or Arbitrary power nor a Legislative power 166 c. Supream Governour 159. in causes Ecclesiastical ibid. c. in Temporal ibid. T. TEnths and First-fruits
shipped over the Popes power to the Chair of Canterbury and had made a Pope instead of an Archbishop but that the man was not made for that purpose What the Ordinary Jurisdiction got or lost we come in the next place to observe First they had still their Courts and Judicatory power but upon what right may be doubted Their first foundation was laid by the Civil power of a Law in the time of William the first Norman King yet the power of the Pope and Bishop growing up together they came to hold the power of the Keys by a Divine Right and so continued until these times of Henry the Eighth wherein they have a Retrospect to the Rock from whence they were first hewn and many seem to change their Tenure and therewith therefore are in right to change the Style of their Courts and Title of Summons but the times not being very curious and the work of reformation but in fieri the more exact lineaments must be left to time to finish and beautifie A greater blow did light upon the Law of these Courts which was left as doubtful as the Canons all which are now put to the question and to this day never received full resolution but were left to the Parliament to determine them at leisure and in the mean time to the Judges of the Common Law to determine the same Lawful or Unlawful as occasion should require Nevertheless the Courts still hold on their course according to their old Laws and Customs for their form of Proceedings some say by Prescription yet more rightly by Permission it being a difficult matter to make Prescription hold against a Statute-Law As touching the matters within their Cognizance the Law setled some and unsetled others First As touching Heresie the Church-men formerly thought scorn the Lay-Magistrate should intermeddle but not being able to stop the growth thereof by their Church-Censures prayed aid of the Civil Magistracy so by degrees arose the penalties of Imprisonment and Burning which brought the whole matter into Cognizance before the Civil Magistrate because no Free man might be proceeded against for loss of Life or Liberty but by the Laws of the Nation and for this cause the Civil Magistrate granted the Writ of Habeas Corpus and relieved many times the party imprisoned wrongfully or granted Prohibition as they saw cause And therefore it cannot be said rightly that the sole or supream Cognizance of this crime of Heresie belonged to the Clergie before these times Nor did their proceeding upon the Writ of Burning warrant any such thing partly because till these times the Canon-Law was the best ground that these proceedings had and the course therein was not so uniform as to permit the Title of a Custom to warrant the same Conviction being sometimes by Jury sometimes according to the Canon sometimes before the Ordinary sometimes before the Convocation sometimes before the King sometimes before special Delegates as the Histories of the 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 setled more to the prejudice of Reformation than all the endeavours foregoing like to the darkness 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 effectual otherways than 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 express 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 judgement of the Romish Church is called into question in one of their Fundamentals and the Clergie left in a Muse concerning the rule upon which they were to proceed against this crime The Parliament within six years after undertakes though somewhat unhappily to determine and define certain points of Controversie which had some relation to the Worship of God and the publick Peace and declared the contrary to these determinations to be Heresie and the punishment to be Death and Forfeiture and the Trial to be before Commissioners by Jury or Testimony of two Witnesses or by examination in the Ecclesiastical Court or inquisition in the Leet 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 Primer wherein they imployed their study as making most for their design and laid aside thoughts of all other Heresies as dry notions or old fashions laid aside and not worthy the setting forth to the common sale Secondly The Lesson concerning Marriage was no less difficult for the Clergie 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 Archbishop of Durham in the Case between 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 Civil Law and some forbidden Marriage as all Priests 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 unlawful all other further off are made lawful In all which regards the Cognizance of Matrimonial Causes is theirs onely by leave Thirdly Residency and Non-residency was a Theme formerly learned from the Canon-Law in which as also in the thing it self the Clergie were the onely skilful men The rule of the Canon-law was strict enough considering the times but it was not â—â—eel to the back The Parliament now undertakes the Cause and though it gave in some respects more liberty than the Canon yet stood it better to its tackling and kept a stricter hand upon the reins than was formerly used and by giving a general rule for Dispensation took away all arbitrary Dispensations and Licenses which were formerly granted beyond all rule but that of Silver or Gold
Labour or other Contribution none of which ought to be done but by publick Law. And therefore when the Inhabitants of the County of Cornwal were to make defence against Invasion and Piracy from the Coast of Little Britain in regard they were a long slender County and upon sudden surprizals People could not so readily flock together for their joynt defence they obtained an Act of Parliament to give them power to fortifie the Sea-coasts according to the direction of the Sheriff and Justices of the Peace Lastly Wars once begun must be maintained at the charge of the undertakers If they be the Kings own Wars he must maintain them out of his own Treasury till the benefit of them do prove to the common good and in such cases the charges have been sometimes provided before the work by Act of Parliament and sometimes after Henry the Seventh and Henry the Eighth both of them at their several times went to Boloigne with their Armies Henry the Seventh with an intent to gain profit to himself by an advantagious peace and had his ends therein and was ashamed to ask aid of the people towards the charges of that War. Henry the Eighth went upon his own charge also with his Army trusting to the Parliament for consideration to be had of his employment wherein his expectation did not fail and in his absence made Queen Katherine General of all the Forces of England in his absence and gave her power with other five Noble Personages to take up Money upon Loan as occasion should require and to give security of the same for the maintaining and raising of Forces if need should require as is more particularly set forth in the Patent-rolls of these times Nevertheless the War at Sea Infra quatuor Maria was ever reputed defensive as to the Nation and under the publick charge because no War could be there but an Enemy must be at hand and so the Nation in imminent danger and therefore the maintenance of the Navy-Royal in such cases was from the publick Treasury To conclude therefore if the Parliament and Common Law in all these Cases of Levies of men for War payment of Souldiers and their deportment in cases of Fortifications and of maintenance of Wars at Sea and the deportment of such as are employed therein I say if they give the Law and carry the Supream Directory then certainly the Law rules in that which seems most lawless and though Kings may be chief Commanders yet they are not the chief Rulers CHAP. XXXIII Of the Peace PEace and War originally depend upon the same power because they relate each to other as the end to the means and receive motion from one and the same Fountain of Law that ruleth both in Peace and War. It is very true that several Ages hitherto have been troubled with arbitrary Exhalations and these very times whereof we now treat are not altogether clear from such an air 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 do all or be all in all Peace suited more with Henry the Seventh than with his Son who delighted to be accounted terrible rather than good yet both of them were glad enough to be at peace at home and were industrious to that end though by several means 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 Wars both Civil and Foreign 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 self Secondly he reforms Goals as well in their number as their use During the Civil Wars every small party of men that could get a strong place made the same not onely a Castle but a Goal and usually imprisoned and ransomed at their own pleasure For remedy whereof Henry the Seventh restores all Goals to the Sheriffs saving such as hold by Inheritance and gives power to two Justices of the Peace one being of the Quorum to take Bail in cases bailable and Recognizances of the Peace to be certified at the next Sessions or Goal-delivery Thirdly both Kings concur in providing against such disorders as more immediately did trench upon the publick Peace and reached at the Crown it self 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 unlawful Assemblies The first being in nature of unlawful 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 Cognizance these Crimâ— 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 flie at so high a pitch and therefore they are reduced before a higher Tribunal as matter of State as hath been already mentioned The severity of punishment consisted not so much in aggravating the Pain as the Crime matters of injury being made Felonies and those Treasons 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 harm to the King but of the Queen or their Heirs apparent or tending to deprive them of their Title of Name of Royal 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 Council Steward Treasurer or Controller so as the Person of the Queen was not then in the case and yet then newly Crowned and at that instant bearing in her Womb the Royal Seed which was then the onely earnest of the stability and glory of England and therefore it is a subject of wonderment unless it were out of extremity of Jealousie lest he should seem to make too great account of her Title and thereby disparage his own And then is it a piece of wit but not without weakness for he that is jealous of the slightings of other men shews himself unresolved in his own pretensions Now Henry the Eighth not onely raised the price but added to the thing and not onely putteth the Queen but the Prince or Heir
But Queen Mary having gotten a safe reserve from Spain upon all adventures and a strong interest amongst the people by upholding the Catholick party made no bones to innovate in the point of arming of the Militia although it cost the people much more than was imposed upon their Ancestors The pattern hereof was taken from the Spanish Cabinet the Queen being loth to be inferiour to her own Husband in bringing as much strength to him as he to her and both of them willing enough to appear 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 it was cast off again For the better understanding see it in this Scheme Per Annum Lances Light-horse Corslets Bows 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 Coat of Plate 1 1  5 l.   A Coat of Plate 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.   2 Coats of Plate 1  1 20 l.   1 Coat of Plate 2  1 10 l.    1 1 The Lances were to be compleatly harnessed or the one half of them The Corcelets furnished with Coats of Mail and Pikes the Bows with and Iron Cap and a Sheaf of Arrows the Hacquebuts with Sallets All which was to be over and besides such Arms as men were bound unto by Tenure or Covenant with the Landlord or by vertue of the Statute 33. H. 8. c. 5. besides Townships which were charged with joynt-arms Annuities and Copy-holds were charged as Goods If the Arms 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 proceeded upon as in other cases Here is provision enough yet not as the Arms 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 publick Service either upon suddain Invasion in a defensive War 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 Justice of Queen Elizabeth to grant Commissions of Array Secundum formam Statutorum and do hurt to no man. It is true her Commissions of Lord Lieutenancy wanted that limitation in words yet they carried the sense For if the Crown were bound by the Law the Lord Lieutenants were much rather but the danger arose after the death of Queen Elizabeth For when King James came to the Crown under colour of pleasing the people and easing them of a burthen he pleased himself more and made the yoke upon the people much more heavy in the conclusion for where no declared Law is there the discretion of them that have the care lying upon them must be the Rule And thus came the Scotish blood to have pretensions to a greater Prerogative than all their Predecessors had upon this supposal that the Statute of Queen Mary took away all former Laws of that kind and then the taking away of the Statute of Queen Mary takes away all declared Law as to that point But more truly it may be inferred that if all Statute-Laws be taken away then the rule of Tenures at the Common Law must remain in force and no other Nevertheless this Statute of Queen Mary though in force for the present was not a general rule for Arms in all places of this Nation for the Marches of Scotland were a peculiar Jurisdiction as to this point They stood in more constant need of Arms than any other part of this Nation in regard of their uncertain condition in relation to their neighbouring Jurisdiction and therefore were the Farms of these parts generally contracted for upon a special reservation of Arms for each particular which being now decayed are again reduced by Queen Elizabeth to their ancient condition in the time of Henry the Eighth A second thing which may come under this general consideration of arming is the arming of places by making of Forts and Castles which was not in the immediate determinate will of the Crown to order as it pleased For though they may seem to be means of Peace and present Safety yet they are Symptoms of War and in the best times are looked upon with a jealous eye especially such as are not bordering upon the Coasts Because that Prince that buildeth Castles within the Land is supposed to fear the Neighbourhood This was more especially regarded in the days of Philip and Mary for when that Marriage was to be solemnized it was one of the Articles to provide for the safety of such Forts and Castles as then were maintained to the end they might be preserved free from Usurpation for the Use Profit Strength and Defence of the Realm onely by the natural born of the same And afterwards when occasion was offered for the building of more of that nature a new power is given to King Philip and Queen Mary to re-edifie or make Forts and Castles which must be executed by Commission to the Lieges for ten years and onely within the Counties bordering upon Scotland and these particularly named in the Statute So as the Crown had not power to build in all cases nor to any end they pleased Nor to place therein or betrust the same to whom it would Nor yet had Edward the Sixth that absolute power although not engaged in Foreign Interests as his Sister Mary was and therefore whereas Castellanes had been made for life by Patent and so the absolute power of the Crown was barred in the free disposal of the same during such time the Parliament gave the King power to remove such as were not liked or thought not faithful to the Publick Interest although they gave no cause of seizure by any disloyal act The like also may be observed of the Ships and Ordnance for they also do belong to the State as the Jewels of the Crown and therefore upon the Marriage of Queen Mary they also are by Articles preserved and saved for the use profit strength and defence of the Realm by the natural born of the same Thirdly As touching the ordering of the Souldiery the matter is not much to be insisted upon for little doubt is to be made but
to its end CHAP. XL. A Summary Conclusion upon the whole matter IN the stating of this whole account I shall first glance upon the natural Constitution of the people of England and then gather up the scattered Notions into one form because the one doth not a little illustrate the other and shew the same to be radical and not by any forced inoculation The people are of a middle temper according to their Climate the Northern Melancholy and the Southern Choler meeting in their general Constitution doth render them ingenious and active which nourished also under the wings of Liberty inspires a Courage generous and not soon out of breath Active they are and so nigh to pure act that nothing hurts them more than much quiet of which they had little experience from their first transmigration till the time of King James but ever were at work either in building as before the Norman times or after in repairing their ruines occasioned by tempestuous pretensions from Rome and Foreign Princes or by Earthquakes of Civil Contention about the Title between the two Houses of York and Lancaster or intrenchments of the Crown upon the Liberty of the people But King James conquering all enmity spake Peace abroad and sang Lullaby at home Yet like a dead calm in a hot Spring treasured up in store sad distempers against a back-Winter Their ingenuity will not allow them to be excellent at the Cheat but are rather subject in that kind to take than give and supposing others as open-hearted as themselves are many times in Treaties over-matched by them whom they over-match in Arms. Upon the same account they are neither imperious over those beneath nor stubborn against them above but can well discern both person and time Man Woman or Child all is one with them they will honour Majesty where ever they see it And of the twain tender it more when they see it set upon infirmity as if they knew how to command themselves onely in order to the publick good Nevertheless they love much to be free When they were under awe of the Popes Curse they bore off designs by the head and shoulders but afterwards by watchfulness and foresight and having attained a light in Religion that will own their Liberties of them both they make up one Garland not to be touched by any rude hand but as if it were the bird of the eye the whole body startles forthwith the Alarm is soon given and taken and whether high or low none are spared that stand in their way This they do owe to the Eastern people from whom they fetch their Pedegree So as the onely way to conquer them is to let them have their Liberties for like some Horses they are good for carriage so long as their Burthens are easie and sit loose upon them but if too close girt they will break all or cast their load or die And therefore Queen Elizabeth gained much to the Crown by fair carriage good words and cleanly conveyance which was not soon discovered nor easily parted with But Henry the Eighth by height 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 Clergie came not into pomp and power till Austin's time and soon came to the height of a third State appendent to the former and so continued till Henry the Eighth's 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 General by their Election under whom after they had obtained a peaceable setling they named him anew by the name of Konning or the Wise man for then was Wisdom more necessary than Valour But after the Clergie 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 onely to Ecclesiasticks although the vulgar held their appellation still which by contraction or rather corruption did at length arrive into the word King a notion which as often changeth the sence as the Air some making the person all in all others some in all and some nothing at all but a complement of State. The Clergie gave him his Title in the first sence and are willing he should have a power over the Estates in order to their design which then was to rule the King and by him all his People he doing what he listeth with them and the Clergie the like with him The Saxons take the word in the second sence for though they had put upon the Commonwealth one Head and on that one Head one Crown yet unto that Head did belong many Eyes and many Brains 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 humours be yet must the Law be his rule He cannot engage the people either to make continue or determine any offensive War without their consent nor compel them to arm themselves nor command them out of their Counties for War or 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 Laws nor alter the old form new Judicatories Writs Process Judgements 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 Licenses Ecclesiastical nor Commissions of Jurisdiction other than 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 King's 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 than that of Kings For though Law as touching morality in the general be of heavenly Birth yet the positive Laws 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