A brief censure of the Saxon Prelatical Church-Government 27 XVI Of the Saxons Commonwealth and the Government thereof and first of the King. 29 XVII Of the Saxon Nobility 33 XVIII Of the Freemen amongst the Saxons 34 XIX Of the Villains amongst the Saxons 35 XX. Of the grand Council amongst the Saxons called the Micklemote 36 XXI Of the Council of Lords 38 XXII Of the manner of the Saxon Government in the time of War. 39 XXIII Of the Government of the Saxon Kingdom in the times of peace and first of the division of the Kingdom into Shires and their Officers 40 XXIV Of the County-court and Sheriffs Torn 41 XXV Of the division of the County into Hundreds and the Officers and Court thereunto belonging 42 XXVI Of the division of the Hundreds into Decennaries 43 XXVII Of Franchises and first of the Church-franchise 44 XXVIII Of the second Franchise called the Marches 45 XXIX Of County Palatines ibid. XXX Of Franchises of the person 46 XXXI Of Mannors ibid. XXXII Of Courts incident and united unto Mannors 48 XXXIII Of Townships and their Markets 49 XXXIV Of the Forests 51 XXXV Concerning Judges in Courts of Justice 52 XXXVI Of the proceedings in Judicature by Indictment Appeal Presentment and Action 53 XXXVII Of the several manners of extraordinary trial by Torture Ordeal Compurgators and Battle 55 XXXVIII Of the ordinary manner of Trial amongst the Saxons by Inquest 56 XXXIX Of passing Judgement and Execution 59 XL. Of the penal Laws amongst the Saxons 60 XLI Of the Laws of property of Lands and Goods and the manner of their Conveyance 64 XLII Of the times of Law and vacancy 68 XLIII An Epilogue to the Saxons Government 69 XLIV OF the Norman entrance 70 XLV Of the Title of the Norman Kings to the English Crown that it was by Election 72 XLVI That the Government of the Normans proceeded upon the Saxon principles and first of Parliaments 75 XLVII Of the Franchise of the Church in the Norman times 77 XLVIII Of the several subservient Jurisdictions by Marches Counties Hundreds Burroughs Lordships and Decennaries 82 XLIX Of the Immunities of the Saxon Freemen under the Norman Government 84 L. Recollection of certain Norman Laws concerning the Crown in relation to those of the Saxons formerly mentioned 86 LI. Of the like Laws that concern common Interest of Goods 89 LII Of Laws that concern common Interest of Lands 90 LIII Of divers Laws made concerning the execution of Justice 94 LIV. Of the Militia during the Normans time 65 LV. That the entry of the Normans into this Government could not be by Conquest 97 LVI A brief Survey of the sense of Writers concerning the point of Conquest 99 LVII OF the Government during the Reigns of Stephen Henry the Second Richard the First and John and first of their Titles to the Crown and disposition in Government 103 LVIII Of the state of the Nobility of England from the Conquest and during the Reign of these several Kings 107 LIX Of the state of the Clergie and their power in this Kingdom from the Norman time 109 LX. Of the English Commonalty since the Norman time 117 LXI Of Judicature the Courts and their Judges 118 LXII Of the certain Laws of Judicature in the time of Henry the 2. 120 LXIII Of the Militia of this Kingdom during the Reign of these Kings 125 LXIV OF the Government of Henry the Third Edward the First and Edward the Second Kings of England And first a general view of the disposition of their Government 129 LXV Of the condition of the Nobility of England till the time of Edward the Third 137 LXVI Of the state of the English Clergie until the time of Edward the Third and herein concerning the Statutes of Circumspecte agatis Articuli Cleri and of General Councils and National Synods 140 LXVII Of the condition of the Freemen of England and the Grand Charter and several Statutes concerning the same during the Reign of these Kings 158 LXVIII Of Courts and their Proceedings 177 LXIX Of Coroners Sheriffs and Crown-Pleas 179 LXX Of the Militia during these Kings Reigns 184 LXXI Of the Peace 188. THE PREFACE THe policy of the English Government so far as is praise-worthy is all one with Divine Providence wrapped up in a Vail of Kings and Wise men and thus implicitely hath been delivered to the World by Historians who for the most part read Men and wear their Pens in decyphering their Persons and Conditions Some of whom having met with ingenious Writers survive themselves possibly more famous after death than before Others after a miserable life wasted are yet more miserable in being little better than Tables to set forth the Painters Workmanship and to let the World know that their Historians are more witty than they of whom they wrote were either wise or good And thus History that should be a witness of Truth and Time becomes little better than a Parable or rather than a Nonsence in a fair Character whose best commendation is that it is well written Doubtless Histories of Persons or Lives of Men have their excellency in Fruit for imitation and continuance of Fame as a reward of Vertue yet will not the coacervation of these together declare the nature of a Commonwealth better than the beauty of a Body dismembered is revived by thrusting together the Members which cannot be without deformity Nor will it be denied but many wise and good Kings and Queens of this Realm may justly challenge the honour of passing many excellent Laws albeit it is the proper work of the Representative Body to form them yet to no one nor all of them can we attribute the honour of that Wisdom and Goodness that constituted this blessed Frame of Government For seldom is it seen that one Prince buildeth upon the foundation of his Predecessor or pursueth his ends or aims because as several men they have several Judgements and Desires and are subject to a Royal kind of self-love that inciteth them either to exceed former Precedents or at least to differ from them that they may not seem to rule by Copy as insufficient of themselves which is a kind of disparagement to such as are above Add hereunto that it is not to be conceited that the wisest of our Ancestors saw the Idea of this Government nor was it any where in precedent but in him that determined the same from Eternity For as no Nation can shew more variety and inconstancy in the Government of Princes than this especially for three hundred years next insuing the Normans So reason cannot move imagination that these Wheels by divers if not contrary motions could ever conspire into this temperature of policy were there not some primum mobile that hath ever kept one constant motion in all My aim therefore shall be to lay aside the consideration of Man as much as may be and to extract a summary view of the cardinal passes of the Government of this Kingdom and
which shew him to be a brave King if he was not a very rich man. Henry the second was more heavy because he had more to do yet find we but one assessment which was Escuage unless for the holy War which was more the Clergy-mens than his Richard was yet a greater burthen his Reign was troublesome to him and he deserved it for from the beginning thereof to the ending could never the guilt of his disobedience to his Father be blotted out but it was more troublesome to the people because it cost so much treasure was managed by such ill Governours except the Archbishop of Canterbury and was unsuccessful in most of his undertakings yet never invaded the liberties of the Commons by any face of Prerogative But what wanted in him was made compleat and running over in his Successor John who to speak in the most moderate sence of his Government being given over to himself when he was not himself robbed the Lords of their authority bereaved the Church of its Rights trod under foot the Liberties of the people wasted his own Prerogative and having brought all things into despair comes a desperate cure the head is cut off to save the body and a president left for them that list to take it up in future ages And thus that which Steven gave Henry the second lost Richard the first would not regain and John could not and so all were gainers but the Crown CHAP. LXI Of Judicature the Courts and their Judges IT is no silent argument that the Commons gain where Laws grow into course and it was the lot of these troublesome times to lay a foundation of a constant Government such as all men might learn which formerly was laid up onely in the breasts of wise experienced men The two most considerable points in Government is the Law and the Execution the latter being the life of the former and that of the Common-wealth I say not that the Law was augmented in the body of it or that the Execution had a freer course than in the best of the former times but both were more and more cleared to the world in many particulars as well touching matters concerning practice of the Law as touching rules of righteousness For the first whereof we are beholding to Glanvil in Henry the second 's time and for the latter to King John or rather the Barons in his time in the publishing of the Grand Charter or an enumeration of the Liberties or Customes of the people derived from the Saxons revived continued and confirmed by the Normans and their Successors which for the present I shall leave in lance dubio to stand or fall till occasion shall be of clearing the point in regard that King John soon repented of his Oath the Bond of his consent and to heal the Wound got the Pope's pardon and blessing thereupon so easie a thing it was for a Son of the Roman Church to pass for a good Catholick in an unrighteous way The execution of the Law was done in several Courts according to the several kinds of affairs whereof some concerned matters of Crime and Penalty and this touched the King's honour and safety of the persons of himself and his Subjects and therefore are said to be contra coronam dignitatem c. The second sort concern the profits of the Crown or treasure of the Kingdom The third concern the safety of the Estates of the people These three works were appointed unto three several Courts who had their several Judges especially appointed to that work Originally they were in one viz. in the supream Court of Judicature the Court of Lords whereof formerly was spoken but after through increase of affairs by them deputed or committed to the care of several men that were men of skill in such affairs and yet retained the Supremacy in all such cases still And because that which concerned the publick Treasure was of more publick regard than the other the deputation thereof was committed probably to some of their own members who in those days were Barons of the Realm and afterwards retained the Title but not the Degree and therefore were called for distinction-sake Barons of the Exchequer The particular times of these deputations appear not clearly out of any monument of antiquity nevertheless it is clear to me that it was before Henry the second 's time as well because Henry the first had his Judex fiscalis as Glanvil so frequently toucheth upon the King's Court of Pleas which cannot be intended at the Court of Lords for that in those days was never summoned but in time of Parliament or some other special occasion But more principally because the Historian speaking of the Judges itinerant reciteth some to be of the Common-pleas which sheweth that there was in those days a distinction of Jurisdiction in Judicatures And it may very well be conceived that this distinction of Judicature was by advice of the Parliament after that the Grand Council of Lords was laid aside by Kings and a Privy-Council taken up unto whom could not regularly belong any juridical power because that remained originally in the grand assembly of the Lords Over these Courts or two of them one man had the prime Title of Chief Justice who then was called Lord Chief Justice of England and whose office was much of the nature of the King's Lieutenant in all causes and places as well in War as Peace and sometimes was appointed to one part of the Kingdom and by reason thereof had the name onely of that part and some other of the other parts The greatness of this Office was such as the man for necessity of state was continually resident at the Court and by this means the King's Court was much attended by all sorts of persons which proved in after-times as grievous the King as it was burthensome to the people Other Judges there were which were chosen for their learning and experience most of them being of the Clergie as were also the under-Officers of those Courts for those times were Romes hour and the power of darkness Other Courts also were in the Country and were Vicontiel or Courts of Sheriffs and Lords of Hundreds and Corporations and Lordships as formerly and these were setled in some place But others there were which were itinerant over which certain Judges presided which were elected by the Grand-Council of Lords and sent by Commission from King Henry the second throughout the Kingdom then divided into Six Circuits unto each of which was assigned Three Justices so as the whole number of Justices then was Eighteen The office was before the coming of the Saxons over hither but the assignation was new as also was their Oath for they were sworn But the number continued not long for within four years the King re-divided the Land into four Circuits and unto each Circuit assigned five Justices making in the whole the number of Twenty and one Justices for the Northern
intended to have no other respect than the publick good and which is the Abridgement of the large Volume of the Kingdom A Summary Conclusion ANd thus have I brought the shape of English Government rude as it is from the first off-spring of the Saxons through the rough waves of the Danish Tempests the Rocks of Norman invasion and of the Quick-sands of Arbitrary Government under Popes and Kings to the Haven much defaced it is I confess by the rage of time and yet retained the original likeness in proportion Kings first about the Norman times joyning with the Lords for their joynt interest above the ordinary pitch had mounted each other too high to be Lords over Free men Then by flattering of the Free-men into their designs hovered above them all but not being able to maintain their pitch so long as the Lords held together stooped for a party amongst them and soon obtained their desire For some Lords more ambitious than others and these again more popular than they seek several interests And thus Kings aided by their party to a Supremacy which they were never born to and raised by them into a preheminence above their Peers which neither Law nor Custom ever gave them are of Moderators in the Council of Lords become Moderators of those Councils and so they obtained all that the Lords had but no more For though both they and the Lords abused their power over the Free-men by extortion and oppression as Lords over Tenants yet could they never prevail over them as free-born Subjects to gain their consent to give their Right or the Law up to the King's beck but still the Law remained arbiter both of King and People and the Parliament Supream Expounder and Judge both of it and them For other argument hereof there will be little need besides what hath formerly appeared than what we find in Bracton who wrote in the time of Henry the Third to this effect God is superiour to the King and the Law by which he is made King and his Court viz. the Earls and Barons Earls according to their name Comites are the Kings Associates and he that hath an Associate hath a Master and therefore if the King be unbridled or which is all one without Law they ought to bridle him unless they will be unbridled as the King and then the Commons may cry Lo Jesus c. This was the judgement of that famous Lawyer of the state of an English King in Henry the Third's time I shall add hereto a concurrent testimony of a Lawyer also in Edward the First 's time Although saith he the King ought to have no equal in the Land yet because the King nor his Commissioners in case where the King intrencheth upon the right of any of his Subjects can be both Judge and Party the King by right ought to have Companions to hear and determine in Parliament all Writs and plaints of wrongs done by the King the Queen or their Children and of those wrongs especially whereof otherwise common right cannot be had Nor is this the opinion onely of Lawyers but it is the Law it self unto which the Royal assent was added and the same sealed with an Oath in the solemn stipulation made by Kings at their Coronation with the people then present in the name of the whole body the sum whereof is wont to be propounded to the King in this manner though in a different Language 1. Will you grant and keep and by your Oath confirm to the people of England the Laws and Customs to them granted by the ancient Kings of England your righteous and godly Predecessors and especially to the Clergie and People by the glorious King St. Edward your Predecessor The King's Answer I do them grant and promise 2. Will you keep to God and the Church and the Clergie and the People Peace and Concord sincerely according to your power The King's Answer I will do it 3. Do you grant to hold and keep the Laws and rightful Customs which the Commonalty of your Realm shall have chosen and to maintain and enforce them to the honour of God after your power The King's Answer I this do grant and promise In few words the King promised to keep the Laws already made the peace of his Kingdom and the Laws to be agreed upon by the Commonalty the same in substance with that of Henry the First William the Conquerour the Danish and Saxon Kings formerly had and in the foregoing discourse observed And thus is he led to the Throne in a Chain of Gold a serious memorial of the King's duty as he is a man and a glorious ornament to him as a King. If then the King be under the Law in case of direction as by stipulation he is bound if he be likewise under the Law in case of transgression to be judged by his Comites or Peers Hitherto certainly an English King is but Primas inter omnes and not supra totum and if at any time he skipped higher he afterwards fell lower for it was the lot of these times to have Lords that were bent to work the people to regard their own Liberties in which the Lords had first wrapped up their own Claims Thus come the counsels of such as have been notoriously exorbitant to be scanned and to bring these into frame all run out of frame the Barons Wars arise and thrive according as interests do concenter more or less the issue is like that of a drawn battle wherein he that continueth last in the Field is glad to be gone away and so the Title is left to be tried upon the next advantage that shall arise Yet had Kings gotten one step forwards to their designe which was in that they now had to deal with a divided Baronage It was the birth of Ambition and it was nourished by the same milk for those that side with the King are become Magnificoes next to the King's person and the sole managers of all the great affairs of State concurrent with their own designes under-board But the other Lords are in account rural standing further off and looking on at a distance are laid away as superfluous And as they themselves are out of the game of great men so grow they mindless of their interest in the great affairs yet of these there is diversity for some sport themselves in their condition others observe the irregular motions of those above and watch their own time This was the first advance of that society which was afterwards called the Privy Council being a company of choice men according to the King 's bent unto whom the consideration of all the weighty affairs of the Kingdom is committed but nothing can be concluded without the King 's fiat which regularly should follow upon the premisses according to the major vote but more ordinarily suiteth with that which best suiteth with his pleasure And now are Parliaments looked on as fatal or at the best
the point of encreasing and diminishing of the Crown in the sixth Section is captious and may sound as if there is a legal enlarging of the Crown whereof he that takes the Oath is to judge A matter which onely and properly concerns the Parliament to order and determine or else farewel all liberty of the people of England The second concerneth immediately the King in his politick capacity but trencheth upon all Laws of the Kingdom in the executive power and all the motions in the whole Kingdom either of Peace or War following in the Rear either immediately or mediately are under this notion interested into the transaction of the Privy-Council to debate and determine the King's Judgement therein unless it will determine alone And how easie a thing it is for such as have power of determining the Action by the Law to slip into the determining of a Law upon the Action and so to rule by Proclamation experience taught succeeding times sufficiently Nevertheless in these times Parliaments were every moment upon the wing and kept this Noble Band in awe by taking them into their Cognizance placing and displacing some or all of them directing and binding them by Oath as they saw occasion of which the Records are full and plentiful I say these times thus constituted added yet further encouragement to them by giving them powers by Statute-Law over and beyond what by ancient Custom they had obtained The King and Council of Lords had anciently a power of Jurisdiction that hath been in the first Part of this Discourse already observed yet it is very probable that it was not any select company of Lords but the whole Association For it is granted by all that they had originally a principal hand in the Jurisdiction and it is hard to conceive how any private number should catch such a power if not by usurpation But the manner of acquiring is less materal the principal consideration resteth upon the quality of this Jurisdiction For it is evident that much difference hath been both concerning the place and manner of exercising this Authority In general it must be granted that all Pleas Coram Rege were grounded upon Writs first purchased and returnable either in Banco or in Camera or in Cancellaria And no difference at all will be concerning the Jurisdiction in Banco for that was by the course of the Common-Law and the people held it one of their Liberties to have one known course of Law for determining matters of right and wrong As touching these Pleas which were holden by Writs returnable in Camera they were properly said to be Coram Rege Concilio whose meeting was in the Council-chamber in those days called the Star-chamber For other returns of Writs in the Star-chamber do not we find but such as were in Camera nor Prohibitions from thence but under the notion of the King's Council and this Camera as I said was the place of the joynt meeting of the Council as well of those of the Chancery and Benches as of those that attended upon matters of State. Now the influence of Society in point of Judicature principally aspected upon some Pleas belonging to the Crown although even these also properly were determinable in the King Bench. Nor can I observe any rule to bound the powers of these two Judicatories but this that the Council-Table would pick and chuse and prohibit the Kings Bench as they pleased and to that end would order Originals out of the Chancery as they thought most meet For it is observed by Fleta that the Kings-Bench hath no jurisdiction of it self but by special Warrant that is to say by Original Writs returned thither Nevertheless it may seem that such Crimes as are contrary to common honesty or the publick profit or peace in a more exemplary way than ordinary and therefore may be called Crimina laesi Regni or against the State these I say might more properly belong to the sublime Judicature of the Council-Table as knowing better how far the publick State was interested or endamaged in such Cases than the other Judges that were experienced onely in ordinary matters of a more private concernment To recite the particular Cases upon record concerning racing of Records Forgeries and other crimes of Falshood Conspiracies Combinations to abate and level the prices of Commodities Riots and such-like will be supersluous In all which and others of that Cognizance the Sentence exceeded not Fine and Imprisonment or Ransom Neither yet were the Common pleas so rural but the Council Table could relish them also and digest them well enough and therefore did not stick to prohibit the Courts of Common-Law under colour of a strange maxime That it is neither just nor honest for a man to be sued at the Common-Law for a matter depending before the King and his Council No though the Court of Common-law had the precedency And therefore although the right of Tythes being depending at the Common-Law the Archbishop in opposition to the Jurisdiction sueth before the Kings Council and the proceedings at the Law are thereby stayed And no wonder for the Council-Table challenged to hold the ballance of all Courts of Law within their own Order and so if any doubt concerning the Jurisdiction depended the Council-Table gave the word and all stooped thereto But enough of the Subject-matter the manner follows a new form of Process is taken up that the Common-Law and ancient Custom never knew and which grew so noisom to the people that complaints are made thereof as of common grievance and remedies are thereto applied by the Laws of these times For whereas by the Grand Charter nothing could be done in Judgement but according to the Laws of the Land and in affirmance thereof a Law was made in these times that no Accusation nor Attachment nor forejudging of Life or Member nor seisure of Lands Tenements Goods or Chattels should be against the form of the Grand Charter and Law of the Land This course of affairs grew so stale that amongst other innovations a trick of a new kind of Trial is brought forth by suggestions upon Articles exhibited against any man before the Council-Table and thereupon issued forth Attachments against the party complained of by means whereof and other courses for they could also sequester much vexation arose unto the people Hereunto upon complaints multiplied a remedial Law is made whereby it is Enacted That all such suggestions made shall be carried to the Chancellor Treasurer and the King 's Grand Council and the Informer shall find Surety to prosecute with effect and to incur the like penalty intended for the Defendant if the Plaintiff's proofs be not compleat and then the Process of Law shall issue forth and the Defendant shall not be taken against the form of the Great Charter that is he shall not be taken until first the fault appear upon Record by Presentment or by due Process or by original Writ
controul for when displeasure was like to ensue he could speak fair and feast and if need was kiss away all discontent Towards his end as stale drink he grew sowr For as in the first part of his Reign he had been supplied by good-will against Law so in his latter times he had gotten a trick of supply by Law against good-will This was by penal Laws which are a remedy if they be used Ad terrorem but if strained beyond that the Remedy proveth worse than the Disease In their first institution they are forms of courtesie from the people to the King but in the rigorous execution of them are trials of mastery of the King over the people and are usually laid up against days of reckoning between the Prince and them Those penal Laws are best contrived that with the greatest terrour to the Delinquent bring the least profit to the King's Coffers Once for all this King's Acts were many his Enterprizes more but seldom attaining that end which they faced He was a man of War and did more by his Fame than his Sword was no sooner resolved in good earnest but he died left a Kingdom unassured his Children young and many friends in shew but in truth very few Now if ever was the Kingdom in a Trance Edward the Fourth left a Son the Prima materia of a King and who lived long enough to be enrolled amongst English Kings yet served the place no further than to be an occasion to fill up the measure of the wickedness of the Duke of Gloucester and a monument of Gods displeasure against the House of Edward the Fourth whether for that breach of Oath or treachery against Henry the Sixth or for what other cause I cannot tell But at the best this Prince was in relation to his Uncle the Duke of Gloucester little other than as an Overseer to an Executor that might see and complain but cannot amend For the Duke ruled over-ruled and mis-ruled all under the name of Edward the Fifth and left no monument of good Government upon record till he changed both the Name and Person of Edward the Fifth to Richard the Third his Fame had lifted him up and might have supported him had he regarded it But as no man had more honour before he ascended the Throne so no man ever entred and sate thereon with less His proceedings were from a Protector to an Vsurper and thence to a Tyrant a Scourge to the whole Nation especially the Nobility and lastly an instrument of Gods Revenge upon himself a man made up of Clay and Blood living not loved and dying unlamented The manner of his Government was strained having once won the Saddle he is loth to be cast knowing himself guilty all over and that nothing could absolve his Fame but a Parliament he calls it courts it and where his Wit could not reach to apologize he makes whole by recompence takes away Benevolences he is ready to let them have their present desires what can they have more He promiseth good behaviour for the future which he might the better do because he had already attained his ends Thus in one Parliament for he could hold no more he gave such content as even to wonderment he could assoon find an Army in the field to fight for him as the most meritorious of his Predecessors Hiâ— ill Title made him very jealous and thereby taught his best Friends to keep at a distance after which time few escaped that came within his reach and so he served God's Judgement against his adjutants though he understood it not Amongst the rest against the Duke of Buckingham his great Associate both in the Butchery of the two young Princes and usurpation of the Royal Scepter He lived till he had laid the Foundation of better times in the person of Henry the Seventh and then received his reward But an ill Conscience must be continually fed or it will eat up its own womb The Kings mind being delivered from fear of the Sons of Edward the Fourth now dead torments himself with thoughts of his Daughter alive ashamed he is of Butchery of a Girl he chuseth a conceit of Bastardizing the Children of Elizabeth Gray that calleth her self Queen of England but this proved too hard to concoct Soon after that he goes a contrary way The Lady Elizabeth Gray is now undoubted Wife of Edward the Fourth and her eldest Daughter as undoubted Heir to the Crown And so the King will now be contented to adventure himself into an incestuous Marriage with her if his own Queen were not in the way onely to secure the Peace of the Kingdom which he good King was bound in Conscience to maintain though with the peril of his own Soul and in this zeal of Conscience his Queen soon went out of the way and so Love is made to the young Lady But Henry Earl of Richmond was there before and the Lady warily declined the choice till the golden Apple was won which was not long after accomplished the King losing both the Lady his Crown and own Life together put an end to much wickedness and had the end thereof in Bosworth-Field CHAP. XXIV Of the Government in relation to the Parliament THe seasons now in Tract were of short continuance lives passed away more speedily than years and it may seem useless to enquire what is the nature of the Government in such a time whenas the greatest work was to maintain Life and Soul together and when all is done little else is done For though the Title of the House of York was never so clear against that of Lancaster yet it had been so long darkned with a continual â—uccession of Kings of the Red Rose that either by their Merit had gained a Throne in the peoples Hearts or by their Facility had yielded their Throne up to the peoples will as it proved not easie to convince them that liked well their present Lot and were doubtful of change or to make them tender of the right of Edward the Fourth above their own quiet Above Threescore years now had England made trial of the Government of the Lancastrian Princes and thereof about Thirty years experience had they of Henry the Sixth they saw he was a gentle Price On the other side Edward the Fourth newly sprung up out of a Root watered with blood himself also a man for the Field This might well put the minds of the people to a stand what to think of this Man whose Nature and ends are so doubtful and brought nothing to commend him to the good wills of the people but his bare Title which the common sort usually judge of according as they see it prosper more or less Add hereunto that Divine Providence did not so clearly nor suddenly determine his secret purpose concerning this change by any constant success to either part by means whereof the one half of Edward the Fourth's Reign was spent while as yet Henry the
The number of these Fees much increased so as in the Conquerours time they were above sixty thousand which was a mighty body for a small Island and brought much honour to the Nation But the profit arose from beneath I mean from the soccage tenure or service of the Plough which in the first times was performed by those that were unfit for the service of the Wars either being green and young or decrepit and aged and sometimes by the Women But after that the Saxon Conquest was at a stop and that no more was to be gotten by Blood men endeavoured to satisfie their desires by sweat and turned their Swords into Plough-shares and thus the Husbandry increased exceedingly and hath proved the best Pillar of the Common-weal the nature of this tenure is fully set out by the Reporter nor can I add thereto more than the Law of the Confessor concerning these men viz. That no man might trouble them but for their Rent nor any Lord thrust them out of their Farm so long as they do their service And thus it appeareth that the service became in nature of a condition subsequent begetting an increaser of the Estate which by continuance wrought an inheritance and so the Title of Entry was turned wholly into distresses for service not performed yet the Lord was no looser thereby so long as Heriots Rents and Services accrewed unto him CHAP. XXXII Of Courts incident and united unto Manors BY Grants made by Lords unto Tenants already noted the Lords had power by common right to call their Tenants before them and enquire concerning their payment of Rents and performance of service which became Courts of constant appointment of which sort there-were two one for the Free-men the other for the Bond-men and this brought forth another service which we call suit of Court. The Court of Free-men was holden from three weeks to three weeks wherein the Free-men as in the Hundred and County were Judges of the fact and from them named as at this day Court-leet or the Court of the Liti of such as are manumitted or Free-men In this Court all Actions or Suits between the Free-men of the same Manor and within the same arising were determined nor could any Court no not the Kings intermeddle with such Suits before Trial had but by the Lords allowance And upon this priviledge the Writ of right Patent was grounded But the full nature of this Court is not within my intention but I must refer the Reader to the Law-books For it was the least part of the work and power which this Court obtained by continuance of time in regard that Manors exceedingly multiplied so as no part of the Land was left free and many one of them extended into divers Decennaries the Lords obtained great power over them and had of Kings grants of view of Frank-pledge within their several Lordships and further power of inquiry and punishing of matters of publick nusance and such as were contra Pacem Coronam which by custom became annexed unto the Court-leet The nusances of Copy-holds being done to disherison of the Lord and not proper for the Court of publick inquiry The Judge of this Court-leet was the Lord or his Steward for the directory part and the Steward was properly Coroner within the Mannor to take Presentments and certifie them to the Coroner of the County And thus this Court swallowed up much of the power of the Decenners Court in the very infancie so as we find no foot-steps of any Writ of Right to the Decenners or Chief-pledges but contrariwise many views of Frank-pledge granted to particular persons in the time of Alfred and many things done by the Chief pledges in the Courts of these Mannors as is to be yet seen in many ancient Court-Rolls The other Court which by common Right belonged to the Lords of Mannors was that of the Copy-holders called or rather included under the name of the Court-Baron which albeit it is called in the ordinary stile Curia Baronum yet not so properly as I conceive and it may be by way of mistake for Baronis for if it were so properly united formerly to the Court of Free-men as ab excellentiori it always passed under that name yet when that Court is omitted and slipt out of the way the Court of Copy holders that remaineth improperly retaineth the name of that which is gone This Court at the first was intended onely for the Lords benefit and for the Tenants right as subservient thereunto I say the Tenants right not against their Lord for they had no right against him but against any other they had protection of Law both for themselves and their Estates And as I said before by custom or rather light of Religion their persons and Estates were considerable even by the Lords themselves Which also caused a Law to be made ut sic de suis hominibus agant quatenus erga Deum reatum non incurrant Regem non offendant Which Law could never be intended of the Free-holders for it had been a vain redundancy to have made an especial Law for that which was provided for by the known fundamental Law of the Kingdom against which a speedy remedy lay by the Kings Writ And these men how mean soever had even in those days a kind of Property both in Lands and Goods for the Laws though by their antick Language darkned yet plainly speak de terra sua Catallis ejus And if the ancient Germans were so generous to their Bond-men surely much rather after their coming into this Island inasmuch as their service was more and more necessary in Agriculture which could never be performed by the Natives who were not in their own persons conquered although their Land was CHAP. XXXIII Of Townships and their Markets THE next Franchese is that of Towns This was taken up as a Birth of War and Nurse of Peace for their Ancestors liked not to dwell in crowds ne pati quidem inter se junctas sedes it being their trade or pastime to war upon Beasts when they found no Enemies amongst them This solitudinary custom could not be soon shaken off and might well occasion multitudes of Towns in those times though small ones doubtless that Writers speak of if true it be that after the wasting times of the Danes and Normans in the Conquerours time were found in England Forty five thousand Parishes and Sixty two thousand Villages Nor was Peace less beneficial to them than they careful of it for by continuance of Peace Husbandry Manifactures and Commerce occasioned people to gather to places commodious for Habitation in good Soil nigh Navigable Rivers or Havens and according to their scituation and trade so they swelled in multitude or decayed Some of whom growing more eminent than others more care was had of their government and safety for the latter by building of
marry at their own will without paying Fine or Composition to the Lord and yet must have the liking of the Lord so far as to declare whether the man intended were his Enemy or not and fit to perform Knight-service This Law was therefore grounded upon the present distress of affairs wherein the Nation was unsetled and common right having established a mutual trust between Lord and Tenant found out this means to preserve the same for if the marriages of those that are related to the Tenant in such manner as may inherit part of all his Lands or have joynture therein should be left altogether at the liberty of the Tenant or his Widow it must needs follow that the mutual trust between Lord and Tenant must fail and the publick receive damage And therefore if this custom were of Norman birth it was begotten upon a Saxon Law and might the rather be owned by the English. The Widow of the King's Tenant having Children shall have her Dower and Portion so long as she keeps unmarried The portion here is in the Latine word maritagium which I take to be the Marriage portion given by the Husband according to the Saxon custom whenas the Dower in Land was not in use whereof is spoken formerly in that Chapter of Dower And the Normans were necessitated to introduce this custom of theirs with themselves partly because it was a priviledge which was their own by birth and it could not be waved without an evident wrong done to the Wives of these men who had ventured their lives in that service but principally because it would not consist with the work in hand to disclaim that custom which must needs be of infinite consequence in the effecting of what was principally sought after viz. the union of the two peoples Normans and Saxons into one I say it was principally sought after by the Norman Conquerour if not led thereto by his own genius yet necessitated thereto by force of reason of State as shall appear hereafter And what could be imagined a more ready way to stay the effusion of bloud and all other unhappy events of enmity than by taking away enmity it self or a more speedy and certain course for union than to reduce the Men and Women of each people to mutual society and to seal up all by a lasting bond of Marriage or greater encouragement for the comfortable proceedings therein than the setling of the constant maintenance of the Wife in case of survivorship by the Law of Dower of the Lands and Tenements of the Husband which was so full of contingencies and uncertainties in the portion of Goods that was by the Saxon Law appointed to the Wife in such case Nor was this all for by Marriage thus made to the Normans they had a great hold not so much over the English as in the English and that not onely during coverture but by reason of this title of Dower the Women became Tenants and under the Lords wing so as they durst not willingly and illegally offend their Lord in their Widowhood nor by Law nor reason match themselves and their Dowry to any other that was not first allowed by the Lord to be in friendship with him and thus became the Tenants Widows to be at the liking of the Lord for their marriage And the like hereto may be said concerning the Husband in case of Tenant by the courtesie and however by the Norman former practice it was much disturbed yet by Henry the first it was again reduced to its former right rather than original arising from his grant as some hold and proved advantageous for the ends aforesaid Now as touching their marriage-portion of Goods because the Saxon Law had already endowed them thereof they could not be induced to lay down their known ancient right till they found the new Law of Dower to settle and so for some time both Laws were in force until the more ancient Saxon law had an honourable burial Nevertheless for the present the Law abridged that right so far as to limit it to the Widow during Widowhood according to the former Saxon-law Upon consideration of all which it may well be conceived that the power of the Lords in consenting or dissenting to the marriages of their Tenants Widows and Wards was not so much an usurpation upon the Common right of the English Subjects as a custom rationally and with great wisdom as the course of affairs then stood upholden and allowed amongst them principally for the speedy setling of a peaceable Government and consolidating of two Nations into one and wherein England was then so happy as to come to a conclusion in seven years which cost their Ancestors night Two hundred years experience with the Britains besides a world of bloud-shed that might have been spared e're they could find out the right way to a desired peace by mutual marriages had between them Such Widow shall have the custody of the Lands of such Children or otherwise such other person as by right ought to have the same This is the first news of Wardships that passed abroad cum privilegio of a received Law which together with the former declare the right custom of the Normans and thereby the injustas consuetudines quibus Anglioe regnum opprimebatur viz. Arbitrary Relief taken of the Tenant's Estate arbitrary Marriages made of their Peersons and arbitrary Grants of Guardianship of their Lands For as yet oppression was not so high-flown as to cast the government of the persons of their Wards out of the view of the Lords provisionary care upon adventure of the next in Law whether man or woman wise or unwise under pretence to train him up in military service fit for the Lord 's own safety and the Kingdoms lifeguard But it was the proper ground of the Lord 's own seisure and right of Wardship he being looked upon by the eye of common reason as the onely meet man that both could and would effect that work so as might be most advantageous to the publick which seemed to be chiefly concerned herein And upon the same general ground the survey of fools accompanied the former albeit it was not in practice till Henry the First brought it in as the Mirror of Justice saith fol. 258. yet it came upon an ancient foundation laid in the time of the Danes For my own part I will not dispute the point whether this custom of Wardship was purely Norman or whether it was derived from the Saxons anciently who possibly might have some respect to Orphans in such cases to train them up for the publick service in point of War especially being possessors of a known right of Relief as well as Alfred the Saxon King did undertake the work for the training of some such particular persons in Learning for the service of the Publick in time of peace and civil Government Yet thus much appeareth that Guardianship of Lands was a known Custom
Judicature rested with the Lords in relation not onely to the House of Commons but also in relation to the King whose work in such cases is not to judge above or with the Peers but to execute their sentence And that carries with it a List whereby the power of a King may appear not to be so Supreme in making of the Law as some would have it for if his Judgement and Conscience be bound by the Votes of the Peers in giving a Law in case of a particular person where the Law was not formerly known let others judge of the value of this Negative Vote in giving Law to the whole Kingdom It is true that this Parliament was quarrelled by the King and he kept it at a bay by a Proclamation that pretended Revocation as far as a Proclamation could revoke an Act of Parliament but it effected nothing nor did the contest last long Now though this Jurisdiction thus rested in the House of Lords in such cases as well as in others yet is it not so originally in them as to be wholly theirs and onely as they shall order it For the Commons of England have a right in the course and order of Jurisdiction which as the known Law is part of their Liberty and in the speedy execution of Justice as well as they have right to have Justice done And therefore whereas in Cases of Errour and delays the Appeal was from the inferiour Court to the Parliament which immediately determined the matter and now the trouble grew too great by the increase of pleas For remedy hereof a kind of Committee is made of one Bishop two Earls two Barons who by the advice of the Chancellor Treasurer and the Judges shall make good judgement in all Cases of Complaint of delay in Judgement which Committee is not made by Order of the Lords alone which they might have done in case Jurisdiction had been wholly and onely shut up in their custody but by Act of Parliament and joynt concurrence of the Commons with the Lords For as the Commons challenge speedy Execution of Justice as one of their Liberties so also to be under the Jurisdiction of such Judges and Courts as the Laws in the making whereof themselves challenge a vote do establish and appoint I will conclude this Chapter with the Constitution of the Parliament in these times For the difficulties that befel between the Kings and their people or Houses of Parliament wrought two sad effects viz. A propensity to decline calling of Parliaments so often as was used and expected and when it assembled as great a propensity in the Members to decline their attendance by means whereof as the Historian tells us the Parliament was sometimes enforced to adjourn it self for want of number sufficient The first of these arose from want of good will in the Kings the other from want of Courage and Zeal in the people The first of these was fatal and destructive to good Government for though in distempered Parliaments it is good to withdraw yet in distempered times it is necessary to meet and gain a right understanding of all parties and therefore these times were so happy as to bind themselves by publick Acts of State to re-continue the assembling of Parliaments For the face of the Times represented unto all that agitations were like to be quick violent and to continue for some succession of time It is therefore safe if not necessary that every eye should be open and Councils ready for every occasion A Law at length is agreed upon that A Parliament shall be holden once every year or more if need be But in Thirty years the power of this Law is wasted out of mind and the evil reviving revives also the Statute and yet they had Thirteen or Fourteen Parliaments in Thirty years space and not above Three or but once Four years distance of time between any Two of them in Succession This was the sence of the Members of the Houses in their meeting but at home they had homely conceits and it is found no less difficult to bring them to the meeting than to continue the meeting according to the Law being either loath to adventure their thoughts into the troublesome affairs of the Publick or their persons to expence and hazard But the publick must be served and therefore an Act of Parliament is made That all such Members as decline their appearance at the Parliament after Summons made shall be amerced and the Sheriffs likewise that shall neglect return of Summons And the Statute implyeth that it was no introduction of a new Law but a reviving of former Law now or lately disused or a Custom now out of custom And to take away all objection in point of charges and expences another Law was made to establish the Assessments and levying of their wages upon the Lands that anciently were chargeable therewith in whose hands soever the same shall come I shall conclude with this That the Parliament though like a Garment it sometimes covers the goodly feature and proportion of a well-composed body yet it keeps the same warm and as a Shield is first in all dangers and meets with many a knock which the body feels not this is their work and reward It is true that in the wearing it is felt heavy but it is the easier born if it be duly considered that it is better to be so cloathed than to be naked CHAP. III. Of the Privy-Council and Condition of the Lords THe latter must make way for the former for according to their personal esteem in their own Countries such is their Authority at the Board in joynt Councils And it was one point of happiness in a sad time of War that all men looked one way The Lords were much addicted to the Field and could do much with Edward the Third who was a brave Leader and more with the people who had been so long time used to the rough Trade of Souldiery that they loved not to be at home about matters of Husbandry wherein they had so little experience And having so fair a Garland in their eye as France it is no wonder if domestick designs seemed meaner or more dangerous Thus did God do England a good turn although it was made for the present thereby neither so rich or populous as it might have been in a time of Peace This French heat wasted many a tumultuous Spirit and ennobled the Fame of the King and Lords not onely abroad but won them much Honour and Repute of those that remained at home and so by congregating Homogeneals and severing Heterogeneals rendred the body of the people more Univocal which tended much to the setling of the Joynts of this distracted Nation A timely birth hereof doubtless was the peaceable entry of Richard the Second upon the Throne and quiet sitting there whilst as yet he was but a Child the Princes of the bloud many and they of generous active and
Peace for whilst Henry the Sixth was in France which was in his Tenth year from St. George's day till February following the Scots propound terms of Peace to the Duke of Gloucester he being then Custos Regni which he referred to the Order of the Parliament by whom it was determined and the Peace concluded in the absence of the King and was holden as good and effectual by both Kingdoms as if the King had been personally present in his full capacity CHAP. XXIII A Survey of the Reigns of Edward the Fourth Edward the Fifth and Richard the Third THe Reign of Henry the Sixth was for the most part in the former parts of it like Fire buried up in the Ashes and in the latter parts breaking out into a Flame In the heat whereof the Duke of York after Fealty given by him to Henry the Sixth and Dispensation gotten from the Pope to break his Faith lost his life and left his Son the Markgrave to pursue his Title to the Crown which he claimed by Inheritance but more especially by Act of Parliament made upon the agreement between Henry the Sixth and his Father This was Edward the Fourth who nevertheless reserved himself to the Election of the Lords and was by them received and commended to the Commons in the Field By which means he gaining the possession had also encouragement to maintain the same yet never held himself a King of full Age so long as Henry the Sixth lived which was the one half of his Reign Nor did he though he held many Parliaments scarce reach higher than at reforming of Trade which was a Theam well pleasing to the people next unto their Peace which also the King carefully regarded For although he had been a Souldier of good experience and therewith successful yet as one loath to trust too far either the constancy of the people of his own Opinion or the fortune of War with his neighbouring Princes he did much by brave countenance and discourse and yet gained repute to the English for valour after the dishonourable times of Henry the Sixth He had much to do with a wise King of France that knew how to lay out three or four calm words at any time to save the adventure of his peoples bloud and make a shew of money to purchase the peaceable holding of that which was his onely by force until the wind proved more fair to bring all that continent under one head In his Government at home he met with many cross Gales occasioned principally by his own rashness and neglect of the Earl of Warwick's approved friendship which he had turned into professed enmity and so weakned his own cause thereby that he was once under water his Kingdom disposed of by new intail upon the Heirs of Duke Clarence and so the Earl of Warwick remained constant to the House of York though this particular King was set aside Nor did he in all this gain any thing but a Wife who though his Subject and none of the greatest Family neither brought any interest unto her Lord and Husband amongst Foreign Princes brought nevertheless a Pearl which was beyond all which was the purchase of the Union between the two Houses of York and Lancaster and a peaceable succession in the Throne for a long while to come It must be granted that there fell therewith an unhappy inconvenience in the raising of a new Nobility of the Queens Kindred of whom the ancient Stock of Nobility thought scorn and yet they were so considerable as to be envied A Wound hard to be cured and yet easily avoided by such as know how to deny themselves And therefore can be no prejudice unto that conclusion That for an English King to marry his own Subject is more safe for the King and beneficial for the Kingdom than to marry a Stranger But Edward the Fourth did not long lie underneath upon the next fair Gale he comes from beyond the Sea and like his first Predecessor of the House of Lancaster claims onely his Dutchy which no man could in reason deny to be his right and therefore were the sooner engaged with him in that accoust This was an act that in the first undertaking seemed modest but when it was done appeared too bold to adventure it upon the Censure of Henry the Sixth and therefore they were not more ready to engage than slack to dis-engage till they were secure in the Kings Interest which not long after ensued by the death of Henry the Sixth Thus Edward the Fourth recovered the Crown to save his Dutchy His Government was not suitable for he came in by the People but endeavoured to uphold himself by Foreign Dependencies as if he desired to spread his Roots rather wide than deep How ill this Choice was the event shewed for Plants that root wide may be strong enough against an outward Storm but they soon grow old barren and rot irrecoverably from beneath Such was the end of this mans Government himself lived and died a King and left Issue both Male and Female the one tasted the Government the other kissed it but neither of them ever enjoyed further than a bare Title Nor was the Government of Edward the Fourth so secured by the Engagements of Foreigners for as he sought to delude so he was deluded both by Burgundy and Scotland to the prejudice of all three Towards his own people his carriage was not so much by Law as by Leave for he could fetch a course out of the old way of rule satisfie himself dissatisfie others and yet never was called to account What was done by Entreaty no man could blame and where Entreaties are countenanced by Power no man durst contradict Thanks to his Fate that had brought him upon a People tired by Wars scared by his success and loth to adventure much for the House of Lancaster in which no courage was left to adventure for it self The greatest errour of his way was in the matter of Revenue the former times had been unhappy in respect of good Husbandry and Edward the Fourth was no man to gather heaps His occasions conduced rather to diffuse and his mind generally led the way thereto so as it is the less wonder if he called more for accommodations than the ordinary Treasury of the Crown could supply Hereto therefore he used expedients which in his former times were more moderate for whilst Henry the Sixth lived he did but borrow by Privy Seal and take Tunnage and Poundage by way of hire Afterwards when no Star appeared but what was enlightned from his own Sun he was more plain and tried a new trick called Benevolence Unwelcome it was not onely in regard of its own nature but much more in the end for it was to serve the Duke of Burgundy in raising a War against France in the first view but in the conclusion to serve his own Purse both from Friends and Foes And yet this also passed without much
first submission even unto Edward the First they were summoned unto Parliament and had vote there but onely in order to the Interests of their own Country now and henceforth they possess one and the same vote as English men Secondly as Courts and Judicatories multiplied so some also of those that were ancient enlarged their Jurisdiction especially such of them as most nighly related to Prerogative Amongst others the Privy Council leads the way who now began to have too much to do in a double capacity one at the Council-Table the other at the Star Chamber For now their power began to be diversly considered In their first capacity they had too much of the affairs of the Common-Pleas in the latter they had too much of the Crown-Pleas both of them serving rather to scare men from doing wrong than to do any man right And therefore though some men might seem to have some recompence yet the greatest gain fell to the King and his Courtiers and thus became Majesty or State or Prerogative to be more feared than beloved What the power of the Council was formerly hath already been manifested that which both these Kings conspired in and whereby they gained more power over the people than all their Predecessors was this that other Kings stood too much upon their own Legs these leaned much upon the Lords and gained the Lords to stick close to them and in this they had both the Kings Love and the Peoples Leave who now disjoynted upon several Interests especially that of Religion must be contented to let go that which they had no heart to hold And thus they obtained a Judicatory power over the people like that of great men whose censures are commonly above capacity and not like to that of the Peers This was begun in Henry the Seventh's time who taking occasion to complain of corruption and neglect in ordinary Trials of the Common Law gets the people to yield to the Council or some of them a power of Oyer and Terminer by examination upon Bill or information in matters concerning Maintenance Liveries Retainders Embraceries corruption in Sheriffs and Juries Riots and unlawful Assemblies crimes all of them of the same bloud with Rebellion which the King as much hated as the thought of his Title to the Crown and therefore would have it feared as much as the punishment by such a mighty power and a Trial of a dreadful nature could effect A Trial I say wherein both the guilty and the guiltless adventure their whole Estates against the edge of the arbitrary wills of great men of unknown Interests in an unknown way at unknown places having no other assurance how or when to come off but a Proclamation to tell the people that the King above all things delighted in Justice A bitter Pill this was for the people to swallow yet it was so artificially composed that at the first taste it gave a pretty rellish the King delights in Justice the Chancellour hath his Conscience the Archbishop brings Religion the Judges bring Law so as it is probable nothing will be done but according to Justice Conscience Religion and Law a very fair mixture but that there was a Treasurer in the case Yet the success answered not expectation the persons offended were many times inferiour and their Estates not great the Offenders more mean and of desperate fortunes for great men were too wise to try this new way or to taste of their entertainment Therefore within nine years the Judges of Assize are betrusted with all and that Court so continued for as many years more and then the King marked out one crime amongst the rest for his own tooth belonging to the great men onely for they are onely to commit the crime and to give recompence suitable to the King's Appetite It is giving of Liveries and Retainders a sore evil in the eyes of a jealous King tending to draw the inferiour sort to honour and admire and be of the suit of those of the greater sort and then beware the Crown These therefore must be tried before the King himself and his Council that he may know whom he is to fear and of whom to take heed And hereupon is a strange power given to summon upon a meer Suspicion To proceed without Information To examine the Defendant upon Oath and make him his own accuser To punish according to discretion by Fine and Imprisonment And thus the King and his Council have gotten a power under colour of Liveries and Retainders to bring the whole Kingdom to be of their Livery or else they can suspect whom they please apprehend whom they suspect put him presently to the rack of confession and so into Prison till he hath satisfied both displeasure and jealousie and covetousness it self Never was England before now in so low a degree of thraldom bound under a double knot of self-accusing and arbitrary censure and this out-reached not onely in matters meerly Civil tending to the common Peace but was intruded also into matters Ecclesiastical in order to the peace of the Church All bound unto the good Behaviour both in Body and Soul under peril of loss of all that a man hath dear to him in this world The plot of all this was laid by Henry the Seventh and was followed by Henry the Eighth who put that into practice which his Father had in design being led thereto by such a skilful Guide as Cardinal Wolsey was who though of mean Birth yet of a Spirit above a King and equal to the Popedom strained the string of Prerogative to its utmost height and then taught the King to play thereon which he did after his blunt manner till his dying day And thus though the Clergie are brought a peg lower and the Nobility advanced higher yet was it the policy of these Kings to make them all of their own Livery and Retaindership to keep them in an upper region looking on the poor Commons at a distance far below and well it was for the Commons thus to be till the influence of these blazing Stars grew cooler CHAP. XXXII Of the Militia IT may fall within the verge of Opinion that the guilty Title of Henry the Seventh to the Crown of England gauled his mind with jealousie the greatest part of his Reign Whether it were that he had not declared himself so fully upon his Title by his Wife or that as yet he feared some unknown Plantagenet would arise and put his Crown to the question This made him skilful in the point of Fortification wherein he likewise spent the greatest part of his Reign not so much by force of Arms for he cared not much for that noise well knowing that Peace is the safer condition for a King that comes in by power but principally by way of gaining Concessions and acknowledgement from the Subjects a Musick that he much delighted to hear well knowing it would conclude those amongst them that knew too much
of Edward the Sixth Queen Mary and Queen Elizabeth WE are at length come within sight of the shore where finding the Currents various and swift and the Waves rough I shall first make my course through them severally and then shall bring up the general Account of the Reigns of One King and Three Governours The King was a Youth of about Ten years old yet was older than he seemed by Eleven years for he had all the Ammunition of a wise King and in one respect beyond all his Predecessors that made him King indeed By the Grace of God. He was the onely Son of Henry the Eighth yet that was not all his Title he being the first President in the point of a young Son and two elder Daughters by several venters the eldest of whom was now thirty years old able enough to settle the Government of a distracted Nation and the Son so young as by an Act of Parliament he was disabled to settle any Government at all till he should pass the Fifteenth year of his Reign But the thing was setled in the life-time of his Father whose last Will though it speak the choce yet the Parliament made the Election and declared it The condition of this King's Person was every way tender born and sustained by extraordinary means which could never make his days many or Reign long His spirit was soft and tractable a dangerous temper in an ill air but being fixed by a higher principle than nature yielded him and the same beautified with excellent endowments of Nature and Arts and Tongues he out-went all the Kings in his time of the Christian world His Predecessors provided Apparel and Victual to this Nation but he Education and thereby fitted it to overcome a fiery Trial which soon followed his departure The Model of his Government was as tender as himself scarce induring to see his Funeral ready for every change subject to tumults and Rebellions an old trick that ever attends the beginning of Reformation like the Wind the Sun-rising The diversity of Interests in the Great men especially in point of Religion for the most part first set these into motion for some of them had been so long maintained by the Romish Law that they could never endure the Gospel and yet the different Interests in matters of State made the greater noise All was under a protector fitly composed to the Kings mind but ill matched with rugged humorous aspiring minds whereof one that should have been the Protectors great Friend became his fatal Enemy and though he were his Brother to prejudice his Interest pawned his own blood The other which was the Duke of Northumberland had his will but missed his end for having removed the Protector out of the way and gotten the chief power about the King yet could he not hold long what he had gotten for the King himself after Sixteen months decaying went into another world and left the Duke to stand or fall before some other Power which came to pass upon the entry of the next Successor The greatest trouble of his Government arose from the prosecution of a design of his Grandfather Henry the Seventh for the uniting of the two Crowns of England and Scotland by marriage and setling an enduring Peace within this Isle and unto this Work all were Aiders in both Nations but the Enemies of both But God's ways are not as Man 's it is a rare Example to find out one Marriage that did ever thrive to this end England meaned well in proffering Love but the Wooing was ill-favouredly carried on by so much Bloud Lastly As the Government was now tender so was it carried with much compliance with the People which ever gives occasion to such of them that are irregular to be more and such as are well governed to be less because though pleasing it be yet it is with less awe and spirit which renders their obedience at the best but careless and idle unless such as are very consciencious be the more careful over their own ways by how much their Superiours are the less NOT thus was Queen Mary but like a Spaniard she over-ruled all Relations and Engagements by Design she was about Forty years old and yet unmarried when she came to the Throne it may seem she wanted a mind to that course of life from natural abstinency or was loath to adventure her Feature which was not excellent to the Censure of any Prince of as high degree as she held her self to be or her value was not known so as to persons of meaner Interests she might seem too much above and to those of greater too much beneath Or possibly her Father was loath to let the world know her Title to the Crown till needs must or to raise up a Title for another man so long as he had hope of a Son of his own to succeed him and yet had formerly designed her for a Wife to Charles the Fifth and afterwards to the Dauphine of France Or it may be her self had set a command of her self not to change her Estate till she saw the course of the Crown either to or fro However the time is now come that she must marry or adventure her Womanhood upon an uncertain and troublesome state of Affairs She liked the Lord Courtnee above the Prince of Spain but feared he would not design with her She held him not unmeet for her degree for she feared he was good enough for her Sister that then also had the Title of a Kingdom waiting so nigh her person as she was an Object of Hope to her Friends and Fear to her Enemies And yet Queen Mary married the Prince of Spain It may be it ran in the Bloud to marry into their own Bloud or rather she was thereto led by reason of State partly to enable her with greater security in the resetling of her Kingdom in the Popish Religion wherein she knew she had to do with a People not easie to be reduced where Conscience pretended Reluctancy and partly to assure her Dominion against the Out-works of the French and Scotish designs And so she yielded up the Supremacy of her Person to the Prince of Spain but thanks to the Nobility the Supremacy of the Kingdom was reserved to her own use for it was once in her purpose to have given up all to the man rather than to miss of the man. And yet their condition was not much comfortable to either The Peoples dislike of the Match sounded so loud abroad that when the Prince was to come over the Emperour his Father demanded fifty Pledges for his Sons safety during his abode in this Land which was also denied When he was come over the English fear the Spanish Tyranny and the Spanish the old Saxon entertainment of the Danes So both lie at their close guards as after some time the King and Queen did no less for the Queen was either never earnest in her
power of Excommunication it self notwithstanding that the Church held it by way of reservation or saving and not by donation from the Parliament by any express Act yet was that saving with such limitations as that it received but a lame power in comparison of what it claimed and exercised in former times For whereas formerly the Church-men had the Writ De Excommunicato Capiendo at their own beck now it will not come but upon Articles and certain Conditions 1. In cases of Heresie 2. Of deserting of the Sacrament 3. Deserting of publick Worship 4. Maintenance of Error 5. Incontinency 6. Vsury 7. Simony 8. Perjury 9. Idolatry In other matters the Spiritual Sword must find or make their own way or else be quiet Secondly The Church was now no less under the Chair and Throne than under power of the Parliament nor is it a wonder if it could not thrive when it was so over◠dropped for Prelacie by the King's arms is lifted up so high above the other Clergie that the rest of the Clergie are as much underlings to the Prelacie as the Prelates are to the King. They dare not offend the Crown lest they should lose their Honours nor the inferiour Clergie them lest they should lose their Livings and Liberties and so the Prelates speak the sense of the Clergie and make the Crown their Oracle Thus in the Church-matters the Crown is all in all CHAP. XXXVII Of the Militia in these latter Times IT cannot be denied but as in the sober Government of this 〈◊〉 there is a Supremacy of Command so also in the rudest times of War and wheresoever the same is setled there must the Militia also be The word Militia is a general notion sufficient enough for a name or title but not to define the thing I take it for nothing else but the Government of the Commonwealth when it is in danger or War or in order thereunto It consisteth in the raising arming ordering and paying of the Souldiery The title of the Supream Power in all this work hath been of late put to the question and brought us to this sad condition of trial by Battle and by Fighting to find out who had the chief power to fight A Lesson that might have been learned from former Generations foregoing at a far cheaper rate when England is well in its wits Where the Law of Peace is setled there also is the Law of War and in what condition the Crown standeth in relation to the Legislative power in time of Peace may be seen in the foregoing Discourse In War the King is the peoples General by his place yet if any impediment do befal either by natural disabilities or civil to render the person incapable of managing of the Service there is no question but the people may order the matter as they please With examples hereof these times are full wherein we have a Child 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 Custom of the Nation yet this falls 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 Council if occasion do provoke to Arms but if the same befal the Parliament 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 Sixth's 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 publick 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 publick safety but more upon the dishonour of the same I◠none of these did either of the Supream Powers array or raise men by Prerogative but onely such as were Voluntier in that work And because the people were ill principled in Edward the Sixth's time in regard of the change of Religion he was induced to hire Foreign 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 Voluntiers nor did any Commission give power of impresting men to serve against their wills 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 Reflections in Government to be successful and honourable and that all was done by Council and a Woman popularly affected and therefore they less feared Invasion upon their Liberties Or otherwise they are to be imputed to the condition of those places being Members of the Commonwealth as the cautionary Towns in the Low Countries and the Irish Plantations were and so befel under another consideration of a defensive War in case of Invasion and common danger thereby or by Intestine broils during which condition as it is the King's duty to levy and array men so is it the duty of the people to be ready to assist one another in all such exigencies and to defend the publick Liberty Nevertheless these Arrays are not left wholly at the Will of the King but to discretion of the Council how far the same shall extend For never were general Arrays made where but one Coast was in danger and where no Conquest is in pretence but onely Piracy or Plunder But if the disease were general as in the year 88 the Array was general and yet it was of none but those that were of the Trained-bands besides such as were Voluntier Secondly The arming of these men was also diversly there was no general Rule or Law for the arming of men since the time 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 Arms. But for such men as passed the Seas for Foreign Service as they were Voluntiers or sent over by the Parliament these were armed according to special contract
the Summons to the Parliament doth hold for this Quae de communi consilio ordinari contigerint and the words in the Coronation-oath Quas vulgus elegerit do speak no less whether they be taken in the â—â—eter perfect-tense or the Future-tense 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 Council 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 than 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 Throne This is done in the Convention of States which in the first times consisted of Individuals rather than Specificals The great men doubtless did many things even before they saw the English shore that Tacitus noteth yet in the publick Convention of all did nothing alone till of one House they became two The particular time of the separation 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 lest 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 Royal 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 whenas in no case is any Negative found upon Record but a modest waring the 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 be dis-determined by one or a few whose Counsels are for the most part but Notionary and grounded upon private inconveniencies and not upon experimentals of most publick concernment or that the veult or Soit fait which formerly held the room onely of a Manifesto of the Regal Will to execute the Law then made as his Coronation-Oath to execute all Laws formerly established should be taken to be a determination of the justness or honesty of the thing When as this Royal Assent is many times given by a King that knows no difference between good and evil and is never competent judge in matters that in his opinion do fall into contradiction between his own private interest and the benefit of the people However unequal it may seem yet both that and other advantages were gained by the House of Lords after the separation was once made as many of the ancient Statutes by them onely made do sufficiently hold forth which although in the general they do concern matters of Judicature wherein the Lords originally had the greatest share yet other things also escaped the Common Vote which in after-ages they recovered into their consideration again And the condition of the people in those times did principally conduce hereunto For until the Norman times were somewhat setled the former Ages had ever been uncertain in the changes between War and Peace which maintained the distance between the Lords and their Tenants and the authority of the one over the other savouring of the more absolute command in Law. And after that the Sword was turned into the Plough-share the distance is established by compact of Tenure by Service under peril of default although in a different degree for the Service of a Knight as more eminent in War so in Peace it raised the mind to regard of publick Peace but the service of the Plough supporting all is underneath all yet still under the common condition of Free-men equally as the Knight Peace now had scarcely exceeded its minority before it brought forth the unhappy birth of Ambition Kings would be more absolute and Lords more Lordly the Commons left far behind seldom come into mention amongst the publick Acts of State and as useless set aside This was the lowest ebb that ever the Commonage of England indured which continued till Ambition brought on Contention amongst the great men and thence the Barons Wars wherein the Commons parting asunder some holding for the King who promised them Liberty from their Lords others siding with the Lords who promised them Liberty from the King they became so minded of their Liberties that in the conclusion they come off upon better advantage for their Liberties than either King or Lords who all were losers before their reckoning was fully made These Wars had by experience made the King sensible of the smart of the Lords great interest with the people and pointed him to the pin upon which the same did hang to take which away a design is contrived to advance the value of the Commoners and to level the Peerage that they both may draw in one equal yoke the Chariot of Prerogative The power of the Commons in publick Councils was of some efficacy but not much honour for their meetings were tumultuary time brought forth a cure hereof the flowers of the people are by election sent to be the Representative and so the Lords are match'd if not over-match'd the people less admiring the Lords and more regarding themselves This was but a dazle an Eclipse ensues for Kings having duly eyed the nature of Tenure between the Lords and Commons look upon it as an Out-work or Block-house in their way of approach Their next endeavour is therefore to gain the Knighthood of England within the compass of their own Fee and so by priority to have their Service as often as need should require by a trick in Law as well for their own safety in time of War as for their benefit in time of Peace This was a work of a continuing nature and commended to Successors to accomplish by degrees that the whole Knighthood of England is become no more the Lords till the Kings be first served And thus the power of the People is wholly devolved into the King's Command and the Lords must now stand alone having no other foundation than the affections of the People gained by beneficence of Neighbourhood and ordinary Society which commonly ingratiates the inferiour rank of men to those of higher degree especially such of them as affect to be popular Henry the Seventh found out this Sore and taught his Successors the way to avoid that occasion of Jealousie by calling up such considerable men to attend the Court without other Wages but fruitless hopes or under colour of honour to be had by Kings from the presence of such great men in their great Trains or of other service of special note to be done onely by