they were in their original and what overplus they had by Laws And first concerning the Metropolitan In his original his Office was to visit the Bishops admonish and exhort them and in full Synod to correct such disorders as the Bishop could not reform and in all things to proceed according to the prescript Canon Thus witnesseth Boniface an Archbishop to an Archbishop of an Archbishop not according to the practice of the times wherein it was written but according to the ancient rule For long before Boniface his time Archbishops were swoln beyond the girt of the Canon and before that England waâ— honoured with that rank of men Metropolitans were become Metronoâ—â—ians and above all rule but that of their own will and through common custom had no regard to any other so as if England will have them it must be content to have them with their faults But the truth is the dignity or title which you will was a plant of that virulent nature that would scarce keep under-ground in the time of the hottest persecution For Steven Bishop of Rome liked the title of Universal Bishop And after a little peace it 's a wonder how it grew to that height that it had and no less wonderful that the Saxons gave entertainment to such Potentates Much of whose spirits they might have observed in the entrance of their first Archbishop Austin if God had not given them over to thraldom under the mystery of iniquity of sinful man aspiring into the place of God taught by that Courtly messenger of Rome because they would not stoop to that mystery of godliness God manifested in the flesh as it was taught in simplicity by the rural Picts and Britons But this was not all for because Archbishops were gotten above Canon which was thought scandalous therefore they gave as large a power by Canon as the former usurpation amounted unto and so stretched the Canon to the mind of the man whenas they should have rather reduced the man to the Canon The words of the Canon in our English tongue run thus It belongs to the Metropolian Bishop to rule Gods Churches to govern chuse appoint confirm and remove Abbots Abbotesses Presbyters and Deacons and herewith the King hath nothing to do And thus though the apparent power of Archbishops was great and unlimited yet what more was wrapped up in that word Churches only time must declare for it is very likely that in those daies it was not understood yet the practice doth not obscurely declare the matter for before this Law was established by Withered in a Council wherein Bertnaldus Archbishop of Canterbury was president and who was first Primate of England Theodore Archbishop of Canterbury used such power over other Bishops in ordaining or removing them as a Writer saith that his rule was no other than perturbatio and impetus animi But the Metropolitan in England as the times then were had yet a further advantage even over Kings themselves for there were divers Kingdoms in this Island and Kings had no further power than their limits afforded them But there was but one Metropolitan for a long time in all the Saxon Territories so as his power was in spirituals over many Kingdoms and so he became indeed Alterius orbis Papa And it was a remarkable testimony of Gods special providence that the spirits of these petty Popes should be so bound up under the notion of the infallibility of the Roman Chair that they had not torn the European Church into as many Popedoms as Provinces But no doubt God ordered it for a Scourge to the World that Antichrist should be but one that he might be the more absolute Tyrant and that Kings should bow down their necks under the double or rather multiple yoke of Pope and Archbishops for their Rebellion against the King of Kings CHAP. VIII Of the Saxon Bishops HAd not Bishops been somewhat sutable the Roman Clergy had not been like it self and it had been contrary to Austin's principles to have advanced to Bishopricks men better qualified than himself They first ruled the Saxon Church joyntly in the nature of a Presbytery till about Sixty years after Austin's time their pride would not endure together any longer and it may be grew somewhat untractable under the Metropolitan that resolved to be prouder than all and thereupon Theodore Archbishop of Canterbury first divided his Province into Five Diocesses and by appointment of the Kings and People placed Bishops over each every one of them being of the right Roman stamp as himself was of the right Roman shaving And it had been a wonder if Episcopacy now for the space of Three hundred years degenerated and that into such a monstrous shape as a Pope should by transplanting become regenerate into their original condition of meekness and humility But it is a much greater wonder that they should become so purely ambitious as not to endure a thought of the ways of sobriety but would be proud by Law to let all the world know that they held it no infirmity but an honour For albeit that in the first time the Bishops work was to instruct teach to see the service of God to be diligently purely administred in publick Congregations to Exhort Reprove by teaching to amend such matters as he should find in life and Doctrine contrary to Religion and accordingly they carried themselves meekly and humbly studying peace truth and medled not with Secular Affairs they are now grown up into State and must now ride on horse-back that were wont to go on foot Preaching the Word and must be respected above the rank of ordinary Presbytery none must doubt of their truth nor question their words but they must be holden Sacred as the word of a King sine juramento sit irrefragabile Their presence must be a Sanctuary against all violence all Clerks and Religious houses must stoop under their power their sentence must be definitive and thus advanced they must keep state viz. not go too far to meet Princes in their approach towards them nor to light off their Horses backs to do Princes Reverence at their meeting because they are equal to Princes and Emperours and if any Bishop shall behave himself otherwise and after the old rustical fashion for such are the words of the Canon for disgrace done to their Dignity they must be suspended So as by their own confession Bishops henceforth are Bishops of a new fashion that must incur a note of infamy for shewing any gesture of humility to Princes which if any man will see more fully let him peruse the Canon if he please But this is not sublime enough they must be not only equal but in many respects superiour to Princes for in matters that concern God Omnibus dignitatibus praesunt and more plainly Princes must obey them Ex corde cum magna humilitate and this was
the gift of the King for the Law of St. Edward which provideth for the recovery of the Arrears of this Money and enjoyneth that they must be paid to the King and not to Rome as it was in the days of Canutus and Edgar rendereth the reason thereof to be because it was the Kings Alms. Secondly that it was an Alms onely from the King and out of his own Demesnes may seem not improbable because it was ex regali munificentia which could never be affirmed if the gift had been out of the Estates of others Secondly it was granted onely out of such houses as yielded Thirty pence Rent called vivae pecuniae because in those times Rent was paid in Victual so as it may seem that onely Farms were charged herewith and not all mens Farms neither for the general income will never answer that proportion The particular hereof I shall in brief set forth It appeareth in the former Quotation that Offa charged this Leavy upon the Inhabitants dwelling in Nine several Diocesses viz. Hereford which contained the City and County adjacent 2. Worcester containing the Cities and Shires of it and Gloucester 3. Litchfield containing Warwickshire Cheshire Staffordshire Shropshire and Derbyshire 4. Leicester with the County adjacent 5. Lincoln with the County adjacent 6. Dorchester whereto belonged Northamptonshire Buckinghamshire Bedfordshire Huntingtonshire Cambridgeshire and half Hertfordshire 7. London with Essex Middlesex and the other half of Hertfordshire 8. Helmham with Norfolk 9. Domuck or Dunwich with Suffolk In which nine Diocesses were two and Twenty Shires And he further granted it out of Spatinghenshire now Nottingham whose Church belonged to York But in Ethelwolfs time the Grant was enlarged and extended into Fifteen Diocesses which together with their several charge out of the English Martyrology I shall particularize as followeth  l. s. d. Cantuar. Dioces 07 18 0 London 16 10 0 Roffen 05 12 0 Norwic 21 10 0 Elienum 05 00 0 Lincoln 42 00 0 Cistrens 08 00 0 Winton 17 06 8 Exon 09 05 0 Wigorn 10 05 0 Hereford 06 00 0 Bathon 12 05 0 Latisburgh 17 00 0 Coventry 10 05 0 Ebor 11 10 0  200 06 8 The whole Sum whereof not exceeding Two hundred pounds Six shillings and Eight pence will not amount to Seven hundred pounds of now-currant Money if the weight of a Penny was not less in those times than in the Reign of Edward the First when it was the Twentieth part of an Ounce and that the Twelfth part of a Pound as by the Statute thereof made may appear Nor can the difference be much if any in regard of the vicinity of the time of this extract to that of the Statute for though no particular date thereof appear yet it seemeth to be done after the Translation of the See from Thetford to Norwich which was done in William Rufus his time and after the erecting of the Bishoprick of Ely which was in the time of Henry the First Now albeit this charge was in future times diversly ordered and changed yet upon this account it will appear that not above Eight and forty thousand and Eighty Houses were charged in this time of Edward the Second with this Assessment which is a very small proportion to the number of Houses of Husbandry in these days and much more inferiour to the proportion of Houses in those times if Polydores observation be true that in the Conquerour's time there were Sixty thousand Knights Fees and as others Fifty thousand Parishes It may therefore be rather thought that none but the Kings Farmers were charged herewith notwithstanding the positive Relations of Writers who in this case as in most others wherein the credit of Rome is engaged spare not to believe lightly and to write largely And thus for their Sevenfold Church-Officers we have also as many kinds of constant maintenance One in Lands and Tenements and Six several kinds out of the Profits and the personal Estate besides the emergent benefits of Oblations and others formerly mentioned CHAP. XII Of the several Precincts of Jurisdictions of Church-Governours amongst the Saxons THe Church-Officers thus called to the Drum and paid are sent to their several charges over Provinces Diocesses Deaneries and Parishes as they could be setled by time and occasion Before the Saxons arrival London had the Metropolitan Sea or was the chiefest in precedency for Arch-bishops the Britons had none Afterwards by advice of the Wise-men Canterbury obtained the precedency for the honour of Austin who was there buried The number of Provinces and their several Metropolitan Sees was first ordered by advice of Pope Gregory who appointed two arch-Arch-Bishops in Saxony the one to reside at Canterbury the other at York and that each of them should have Twelve Bishops under them But this could never be compleated till Austin was dead as by the Epistle of Kenulphus to Pope Leo appeareth Nor then had the Pope the whole power herein intailed to his Tripple Crown for the same Epistle witnesseth that the Council of the wise-men of the Kingdom ruled the case of the Primacy of Canterbury And Offa the King afterward divided the Province of Canterbury into two Provinces which formerly was but one The Precincts of Diocesses have been altered ordinarily by Kings or the Arch-bishops and their Synods as the lives of those first Arch-bishops set forth Theodore had divided his Province into Five Diocesses and within a hundred years after Offa we find it increased into eleven Diocesses Diocesses have also been subdivided into inferiour Precincts called Deanaries or Decanaries the chief of which was wont to be a Presbyter of the highest note called Decanus or Arch-Presbyter The name was taken from that Precinct of the lay-Lay-power called Decennaries having Ten Presbyters under his visit even as the Decenners under their chief The smallest Precinct was that of the Parish the oversight whereof was the Presbyters work They had Abbeys and other religious Houses but these were however Regular among themselves yet Irregular in regard of Church-government whereof I treat CHAP. XIII Of the manner of the Prelates Government of the Saxon-Church HAving discoursed of the Persons and Precincts it now befals to touch upon the manner of the Government of the Church by the Saxon-Prelates which was not wrapped up in the narrow closet of private opinion but stated and regulated by publick Council as well in the making as executing of Laws already made This course was learned from antiquity and inforced upon them by a Roman-constitution in the case that concerned Arch-bishop Theodore and Wilfrid upon this ground Quod enim multorum concilio geritur nulli consentientium ingerat scandalum These are most ordinarily called Synods although at the pleasure of the Relator called also Councils and are either Diocesan or Provincial or National and these either particular or general The general consisted of all the Bishops and Clergy and such
also the Civil Magistrate the cognizance in point of Right albeit future times introduced a change herein CHAP. XV. A brief Censure of the Saxon Prelatical Church-Government THis that I have said might at the first view seem to represent a curious Structure of Church-policie which might have put a period to time it self but to speak sine ira studio the height was too great considering the foundation and therefore ever weak and in need of props The foundation was neither on the Rock nor on good ground but by a Ginn screwed to the Roman Consistory or like a Castle in the Air hanging upon a pin of Favour of Kings and great men At the first they thought best to temporize and to hold both these their strings to their Bow but feeling themselves somewhat under-propped by the Consciences of the ignorant people they soon grew wondrous brave even to the jealousie of Princes which also was known so notoriously that the publick Synods rang That the Prelates loved not Princes but emulated them and envied their greatness and pursued them with detraction And if the Cloth may be judged by the List that one example of Wilfrid Archbishop of York will speak much He was once so humble minded as he would always go on foot to preach the Word but by that time he was warm in his Archbishops Robes he was served in Vessels of Gold and Silver and with Troops of Followers in such Gallantry as his Pomp was envied of the Queen A strange growth of Prelacy in so small a space as Eighty years and in the midst of stormy times such as then afflicted this poor Country But this is not all for never doth Pride lead the way but some other base Vice follows I will not mention the lives of the Monks Nuns and other Clerks Malmsbury speaks sufficiently of their Luxury Drunkenness Quarrelling and Fighting Others witness thereto and tell us that the Clergie seldom read the Scripture and did never preach and were so grosly ignorant that Alfred the King being a diligent Translator of Latine Writers into the Saxon Tongue rendreth this reason Because they would be very useful to some of his Bishops that understood not the Latine Tongue Nor were the Presbyters of another dye for that King bewailing their ignorance in his Letter to Wolfegus saith That those which were de gradu spirituali were come to that condition that few of them on this side Humber could understand their Common prayers or translate them into Saxon and so few as I do not saith he remember one on this side the Thames when I began to reign And the Synod that should have salved all covers the Sore with this Canonical Plaister that those of the Clergie that could not say Domine miserere in Latine should instead thereof say Lord have mercy upon us in English. It was therefore a vain thing for the Clergie to rest upon their Works or Title of Divine Right their great Pomp sacred Places and savour of Kings commended them to the Administration or rather Adoration of ignorant people and the favour of the Roman Chair unto the regard of Kings who maintained their interest with the Conclave on the one side and with the People on the other side by their means and so they mutually served one another It cannot be denied but the Pope and Kings were good Cards in those days yet had the Prelacie maturely considered the nature of the Saxon Government so much depending upon the people they might have laid a more sure foundation and attained their ends with much more ease and honour I commend not the base way of Popularity by principles of Flattery but that honourable service of Truth and Vertue which sets up a Throne in the minds of the Vulgar few of whom but have some sparks of Nature left unquenched for though Respect may chance to meet with Greatness yet Reverence is the proper Debt to Goodness without which we look at great men as Comets whose influence works mischief and whose light serves rather to be gazed upon than for direction The foundation thus happily laid the progress of the building was no less irregular in regard of their ends that they aimed at For first they admitted the Laity into their Synods who were not so dull but could espie their ambition nor so base spirited as to live in slavery after conviction This Errour was espied I confess but it was too late and though they reformed it yet it was after Four hundred years labour And in the mean time by the contentions of the Clergie amongst themselves Kings had first learned so much of their Supremacy and the Laity so much of their Liberty as they began to plead with the Clergie and had brought the matter to issue before the Synod could rid themselves of these Lay-Spectators or rather Overseers of their ways and actions A second Errour was the yoking of the Bishops power under that of the Synods for they had little or no power by the Canon that was not under their controul neither in admission or deprivation of Presbyters or others determining of any Cause nor passing sentence of Excommunication And this could not but much hinder the hasty growth of Antichrist's power in this Kingdom Nor could it ever be compleated so long as the Synods had the chief power Nevertheless the inthralled spirits of the Clergie and terrour of the Papal thunder-bolt in continuance of time surmounted this difficulty and Synods became so tame and easily led as if there had been but one Devil to rule amongst them all For if any quick eye or active spirit did but begin to peep or stir the Legate e latere soon reduced him into rank and kept all in awe with a Sub poena of unknown danger A third error was the allowing of peculiars and exemptions of Religious Houses from ordinary jurisdiction and this was an error in the first concoction a block in the way of Prelacy and a clog to keep it down This error was soon felt and was occasion of much mutiny in the body Ecclesiastical but exceeding profitable for Rome not only in point of Revenue by the multitude of Appeals but especially in maintaining a party for the Roman See in case the Prelacy of England should stumble at the Supremacy of Rome Otherwise it seemed like a Wen upon the body rather than any Homogene Member and without which certainly the English Prelacy had thriven much better and the Roman Chair much worse In all which regards I must conclude that the Prelatical Government in England was as yet like a young Bear not fully licked but left to be made compleat by time and observation CHAP. XVI Of the Saxons Common-wealth and the Government thereof and first of the King. HAving already treated of the Saxon Church in order I am now come to the Republick which in all probability will be expected to be suitable to their original in Germany whereunto having
to glance at the various Aspects of the ancient upon the modern that so these divers Princes and wise Councils in their different course may appear to be no other than the instruments of him that is but one and of one mind whose goings forth have been in a continual course of Wisdom and Goodness for our selves in these latter days And herein I am encouraged because I am not in danger of temptation to Flattery or Spleen nor pinched with Penury of grounds of observation having to do with a Nation than which a clearer mirour of Gods gracious Government is not to be found amongst all the Nations and People under Heaven A TABLE Of the PRINCIPAL MATTERS contained IN THE FIRST PART of this BOOK ABbots page 142 Abbey quarter 151. not taxed or visited from forrein parts 152 Vacancies ibid. Purveyance ibid. Abere murder amongst the Saxons 62 Accolites amongst the Saxons 18 Accusation witnesses amongst the Saxons 94 Action amongst the Saxons 53 Acquittal vide Knight-service Administration vide Intestate Adultery amongst the Saxons 26 Amongst the Normans 88 After 145 Advowsons cognizance 111 Aedeling 33 Age vide Infancy Aids after the Norman times 125 173 178 Alderman 33 Alienations license 114 171 Allegiance according to the Saxons 53 The Normans 94 Amercements 163 Apostacy punished by the Saxons 25 After 121 Appeals amongst the Saxons 53 The Normans 94 After 171 Appeals to Rome 110 Setled 111 To Ecclesiastical Courts ibid. Archbishops vide Metropolitans Arrays 191 c. Arms assessment 128 Vide Arrays Austin the Monk his coming and his Actions 11 c. B. BAil 122 21 158 c. 182 Barks vide Bridges Baron vide Court. Bargain and sale of Goods amongst the Saxons 67 The Normans 82 Barons Wars 221 c. Bastardy amongst the Saxons 26 Battle trial amongst the Saxons 56 Batteries punished by the Saxons 62 120 Bigamists 91 Bishops amongst the Saxons 16 Vide Prelacy amongst the Normans their power encreased 77 c. Vide Elections their Oath to the Pope 115 Blasphemy punished by the Saxons 25 61 Amongst the Normans 86 Bloudshed vide Manslaughter Bridges 164 Britons their Religion and Government 1 c. Conversion 2 Instructed in Learning 4 A Province ibid. The last that submitted to the Papalty and the first that shook it off 13 Burgage amongst the Saxons 51 Burghbote ibid. Burglary punished by the Saxons 63 Burning of Woods punished by the Saxons ibid. Vide 121 Burroughs Mag. Chart. Burroughs English 66 C. CAnon-Law 75 Vide Prelacy Carriages 165 166 Castles their use 73 165 c. Abuse 104 Occasion of the first Civil Wars 130 Castles-guard vide Mag. Chart. 166 De Cautione admittenda 113 Chancery 178 Chancemedley 179 Church maintenance by the Saxons 18 c. Franchise 44 Alienation 115 Reparation 146 Church-men Action 183 184 Discharged from Torns 183 Purveyance 17 143 Their complaints 141 147 Priviledged from distress 150 Cricksceat amongst the Saxons 19 Normans 86 Vide First-fruits Circuits 120 Citation 113 151 242 Clerks trial 116 143 151 Killers of Clerks 116 Comites ex plebe 35 Common-pleas setled 162 Commutation vide Articuli Cleri Compurgators amongst the Saxons 56 Confession sacred 150 Constitutions at Clarindon 111 De Consimili casu 178 Conveyance vide Deeds Copy-hold vide Mannor Coroners amongst the Saxons 41 179 Corporations 48 c. 78 Coverfew 102 Councils general vide Synods Council of Lords amongst the Saxons 33 Vide Lords Counties Courts amongst the Saxons 41 Normans 82 131 After 172 179 285 Court Baron amongst the Saxons 48 Crown-pleas Mag. Chart. 164 Courtesie of England in the Saxons time 65 Custodes pagani amongst the Saxons 35 D. DAne-guelt 102 Released 118 Darreign presentment Mag. Chart. 163 Deacons 18 Deaneries amongst the Saxons 23 Debt to the King satisfaction 160 Debt to the King Mag. Chart. Decenâ—â— amongst the Saxons 43 Normans 83 Deeds among the Saxons 67 Defamation 146 149 Departure beyond Sea without license 112 Diocesses amongst the Saxons 23 Distress in the Normans time 89 Mag. Charta 161 c. Vide County-court Disseisin vide Redisseisin Novel-disseisin Dower in the Saxon time 64 Norman times 91 160. E. ECclesiastical cognizance and power 109 c. 80 127 Vide Stat Circumspecte agatis Articuli Cleri Ederbrece amongst the Saxons 63 Edward the first 133 Edward the Second 35 Elections 75 112 144 151 Elegit amongst the Saxons 59 Englishire a Saxon Law 62 Errour vide Appeals Escheats 167 Vide Forfeiture Felony Escuage Mag. Charta 173 c. Excommunication in the Saxons time 59 Normans 80 After the Normans time 113 Excommunicato deliberando 150 Excommunicato capiendo 151 182 Execution in the Saxon time 59 Executors Mag. Charta Exorcists 18 F. FAirs in the Norman time 89 Fauxonry 120 122 Feast-days Norman Law 87 Felonies and Felons punishment and forfeiture 94 121 167 Concealment 181 Defamed ibid. Feorme or Farm amongst the Saxons 47 Fightwit amongst the Saxons 62 Fine by the Normans 94 175 c. Folkmote vide County-court Fools and Ideots amongst the Normans 93 After 175 Forein Councils 130 132 137 Fornication vide Adultery Forests amonst the Saxons 51 Franchises 42 Frankpledge amongst the Saxons 78 Vide View Freemen of the Saxons 34 Normans 84 After 117 169 Frithbrech amongst the Saxons 62 Fugam fecit 53 Fugitives 167 G. GAvel-kind amongst the Saxons 66 Normans 100 Glebe amongst the Saxons 20 Goods found Saxon Law 68 Norman 89 Sale ibid. Grithbrech vide Frithbrech H. HAbendum Saxon 67 Hamsockne Saxon 63 Heresie punished by the Saxons 24 Normans 86 After 121 Haubergettum Haubertum Halbargellum what it is 194 Heretock Saxon 33 Henry the First 74 Henry the Second 104 Henry the Third 129 c. Shifts for Money 130 Forein Councils 132 Yields up his interest in the Militia to the Lords ibid. c. Heordpeny vide Peter-pence High-ways priviledge 190 Hundred and the Court Saxon 42 Norman 83 Hundred Setena Saxon 43 I. IDolatry punished by the Saxons 60 Normans 86 Vide Blasphemy Imprisonment Saxons 62 Norman 94 Incest punished by the Saxons 62 Indictment Saxon Law 53 Infancy amongst the Saxons 55 After 123 Infangtheoff Saxon 46 Inheritance Saxons 62 Normans 100 After 122 c. Inquest Saxon 56 Interdict in the Saxon time 24 After 113 Intent punished by the Normans 94 Intestate Saxon Law 68 Norman 89 Afterward 144 c. 165 c. John 106 Judgement vide Execution Judges vide Justice Judicatory 118 c. Jury grand petit amongst the Saxons 56 Justice and their Courts amongst the Saxons 52 Chief Justice 119 Judges or Justices itinerant after the Normans 120 124 177 K. KIngs amongst the Saxons election continuance covenant maintenance power in Church matters 22 c. 35 Amongst the Normans election 70 c. Covenant 72 c. Power in Church-matters 77 c. In the times of Stephen Henry the Second Richard the First and John Election 103 Power in Church-matters 109 c. In the time of Henry the Third
Edward the First and Edward the Second Succession 129 c. Power in Ecclesiastical matters 140 c. 145 In Civil affairs 173 c. 199 c. Knight-service amongst the Saxons 47 Marriage 91 126 159 Acquittal 93 Widows 160. L. LAnguage endeavoured to be changed by the Normans 101 Lashlight amongst the Saxons 62 Lecturers amongst the Saxons 18 Leet amongst the Saxons 48 Legierwit amongst the Saxons 62 Livery and seisin amongst the Saxons 67 London 161 Lords day maintained by the Saxons 61 By the Normans as plea of the Crown 86 Lords their Councils amongst the Saxons 38 52 From the Conquerour's till Henry the Third 107 Lorica what it is 193 Lucius 5 c. Luminaries amongst the Saxons 20 Lunacy vide Fools M. MAgna Charta 107 Renewed with the Curse 130 Stat. c. 158 Cap. 35. 152 Cap. 37. ibid. Mainpernours by the Saxons 53 54 By the Normans 94 Maims punished by the Saxons 62 Mambota amongst the Saxons 61 Mannors amongst the Saxons 46 Normans 83 Man-slaughter punished by the Saxons 61 Normans 87 After 121 Manumisson 85 Marriage-portion vide Dower Marriage vide Knights-service Merchants Mag. Charta 170 Marches amongst the Saxons 45 Normans 82 Markets amongst the Saxons 49 Normans 89 Vide Townships Marshals Courts 178 Matrimonial causes amongst the Saxons 26 Medietas linguae amongst the Saxons 57 Metropolitan amongst the Saxons 15 Micklemote amongst the Saxons 36 The Primacy of Canterbury setled there 22 Mills tythed 149 Militia amongst the Saxons 39 The Normans 95 During the Kings next ensuing 127 During Henry 3. Edward 1. Edward 2. 184 Mint amongst the Saxons Normans 85 Monastery admission 114 Mortdancester 123 163 Mortmain 152 Mortuary amongst the Saxons 20 N. NEws scandalous 182 Night-watches by the Normans 88 After 190 Nobility amongst the Saxons 33 From the Normans times 107 From King John's time 137 Normans their Title 70 c. Not Conquest 97 Novel disseisin 124 163. O. OBlations cognizance 146 Odio Atia 168 c. Officers power greater than Kings 108 Ordeal amongst the Saxons 55 Ordinaries intestate 144 Outfangtheoff amongst the Saxons 46 Ostiares amongst the Saxons 18 Oaths 153 169 P. PAlatine county amongst the Saxons 45 Parishes amongst the Saxons 22 Parliaments 75 173 Parks trespasses 183 Passage 170 Peace amongst the Saxons 62 The Normans 87 After 188 Penal Laws Saxons 60 Normans 86 After in the time of Henry 2. 120 After 179 Perjury punished by the Saxons 25 63 Peers amongst the Saxons 58 Peter-pence amongst the Saxons 20 The Normans 86 Pledges 94 Plough-Alms Saxons 20 Pope's power 12 110 114 Oppressions of the Clergie 140 Prelacy in England not till Constantine's 7. came from Rome by Austin 13 c. Suddenly grown 27 Prâ—cipe Mag. Charta 167 Priors vide Abbots Presbyters amongst the Saxons 17 Presentment amongst the Saxons 54 Priority vide Tenure Prohibitions 142 145 Protector 130 Provinces amongst the Saxons 22 Purveyance 152 165 c. Q. QUare Clausum fregit Saxon 63 Quare excommunicavit 141 Quare non admisit ibid. Quarentine 160 176 Quo warranto 152 R. RAnsom 59 162 Rape Norman 88 After 121 c. 180 Reasonable part 160 165 Vide Dower Redemption vide Ransom Redisseisn 183 Relief Norman 90 After 125 Religious houses vide Abbeys Replevy Norman 89 After 161 Richard the First 105 Romans entry 3 The Papalty with seven degrees of their Church-Officers 18 Seven sorts of Church-maintenance 22 Romescot Romesfeogh vide Heordpenny Robbery punisht by the Saxons 63 By Normans 88 After 121 122 180 190 S. SAbbath-day Saxon-Law 61 Sacriledge Saxon-Law 25 Sanctuary 87 114 150 Saxons in England mingled 56 Seal vide Deeds 67 Sheriffs Saxon 40 Extortion 172 179 Simony punished by the Saxons 26 Sorcery vide Witchery Soul-shot Saxon 20 Socage Saxon 48 Steven his government 103 Stat. Magna Charta vide Magna Charta Merton cap. 1 2 6 7. 160 Cap. 1. 176 Cap. 3. 183 Cap. 9 157 Cap. 10. 172 Cap. 11. 183 Marlbridge cap. 1 2 3. 161 Cap. 4. ibid Cap. 5. 175 Cap. 8. 183 Cap. 9. 162 Cap. 10. 142 172 Cap. 15. 162 Cap. 16. 163 Cap. 17. 176 Cap. 19. 164 Cap. 20. 163 Cap. 21. 162 Cap. 22. 162 Cap. 25. 179 188 Cap. 29. 142 West cap. 1 2 5. 143 c. Cap. 3. 181 189 Cap. 4. 176 Cap. 6. 164 Cap. 9. 181 Cap. 10. 179 Cap. 11. 168 Cap. 12. 181 Cap. 13. 180 Cap. 14. 172 Cap. 15. 182 Cap. 16. 162 Cap. 20. 183 Cap. 22. 160 Cap. 23. 179 Cap. 32. 166 Cap. 33. 172 Cap. 34. 182 Cap. 36. 178 Cap. 51. 163 Bigamy 154 c. Gloucest cap. 1. 164 Cap. 5. 160 Cap. 6. 163 Cap. 8. 179 189 Cap. 9. 168 De Religiosis 153 Westm. 2. cap. 13. 172 Cap. 16. 160 Cap. 19. 144 Cap. 24. 178 Cap. 26. 183 Cap. 29. 168 178 Cap. 30. 164 Cap. 33. 153 Cap. 44. 180 Winton 189 c. Circumspecte agatis 145 c. Quia emptores 172 De Judaismo 171 Quo Warranto 152 De vasto 160 De consultatione habenda 148 De Wardis 160 Artic. super Cart. cap. 2. 166 Cap. 3. 178 Cap. 9. 179 Cap. 12. 163 Cap. 13 14. 173 Cap. 15. 178 Cap. 18. 160 Conjunct feoffat 164 Amortizand terris 153 Asportat bonis Relig. 152 De militibus 184 Artic. Cleri 137 148 Vicecomit 137 172 179 De prisis bonis Cleri 137 152 Prerog Reg. 137 Cap. 3 13. 160 Cap. 7. 172 Cap. 9. 175 Cap. 11. 176 Cap. 14 16. 167 Sub-Deacons 18 Suit of Court 125 Vide Mannor Synods Briton 7 Saxon 23 Disadvantages to Prelacy 27 Norman 77 Without the Laity 117 Power 154 c. T. TAil Saxon Law 66 Taxes 173 Vide Free-men Tenures vide Mannor Normans changed them not 100 Tenures by several Lords priority 124 By Escheats 171 Term Saxon 68 Testament Saxon ibid. After 126 c. Thefts cognizance 121 222 Tythes original 19 Cognizance 27 Normans 86 111 148 149 Torn Saxon 41 173 Torture amongst the Saxons 55 Townships and their Courts Saxon 49 Normans 83 Treason punished by Saxons 61 After 121 Trover of Goods 89 Troth-plight 111 V. VAcancies of Churches 111 c. 115 Vacation vide Term. View of Pledges Saxon 48 Norman 83 After 164 173 Villains Saxon 34 Normans 85 Violence done to Clerks 146 Use in deeds of Conveyance Saxon 67 Usury 171 W. WArdship 92 126 160 169 Warranty Saxon 67 Wears 167 Wera wergilda Saxon 62 Weights and Measures Saxons 28 Normans 88 168 Widows vide Socage and Knight-service William the First 70 c. William Rufus 73 Wife Saxon 62 Will vide Testament Witnesses deeds Saxon 67 Witchery 25 Punished by Saxons 60 Wita Saxon 62 Worship Saxon cognizance 24 Wrecks 176. AN Historical and Political Discourse OF THE Laws Government OF ENGLAND CHAP. I. Of the BRITONS and their Government THIS is Britain or rather that part thereof in after-ages called Saxony and England from the peoples Names transplanted thither The Britons to lay aside all conceipts of Fame I take to be
at length the Haven was attained For Constantine having overcome Maxentius and gotten thereby into the highest Orb of Government in the Empire reflected such an amiable aspect upon the Churches especially in Britain as if he had intended to pay to them all that God had lent him A wise Prince he was questionless yet towards the Church shewed more affection endeavouring to reduce the Government in every place unto the Roman Prototype and therein added much honour to that See especially to Pope Sylvester whose Scholar he had been This may seem a sufficient inducement to perswade that he was the first Patron of English Prelacy seeing we find it in no approved testimony before that time nor was it long after when as the presence of the British Bishops are found at the Synod by him called at Arles viz. the Bishops not Arch-bishops of London and York and the Bishop of Maldune and those in no great pomp if the relation be true that by reason of their poverty they were not able to undergo the charge of their Journey and Attendance so as it seems they had but new set up and had not yet found out the right way of trade that the Bishops had attained And thus God ordered first the setling of a Government of the Church in Britain and its Liberties before the Secular part enjoyed any therein working with this Nation as with a man making him to be bonus homo before he can be bonus civis The Church of Britain thus set together is wound up for motion they soon learned the use of Synods from that Synod at Arles if they had it not before and took as much power to themselves in their Synods as in other Countries were used and somewhat more to boot For they had the hap to continue in Britain in free course a full century of years before the Civil Magistrate had any other power but what was wrapped up under the allowance of their Romon Masters who like Gallio looked upon the Church-affairs as out of their Sphear and therefore cared for none of those things or if the zeal of any See far prevailed it was much in favour of the Bishops upon whom the Emperours began to dote as Oracles and this raised the price of the Clergy and taught them the way to fish for themselves No wonder it is therefore if Synods in Britain or rather the Clergy in the Synods which probably were then the representative Body of the Nation swayed all that was free from the Roman-Magistracy and in some things out-reached their Limits especially during the interim wherein the Romans held the Arms of civil Magistracy bound and let the Clergy have their scope that soon began to be ambient and conceit a new Idaea of deportment like that of the second Beast in its Infancy Nor did the Britons espy their danger herein for they had been used to idolize their Druides and it was no more but facing about to do as much for their Bishops Of this power of Synods I shall propound but three Presidents and so draw to a Conclusion of what I think meet to note concerning the British affairs I supose it will not be doubted but that publick Consultations concerning the publick Government of any Place or Nation ought not to be called but by the Supream Power and that such Consultations are to be directed by that Supream Power The Britons had a King and yet without his consent they call a Synod against the Pelagian Heresie and chuse a Moderator from beyond the Sea and by that Synod not onely overwhelmed the Heresie but excommunicated their King. This was a National Synod and might well stand with the rule of State which then had seated the Supream Power in the People as I formerly noted out of Dion But it could be no warrant for that which followed viz. that a Country Synod should excommunicate a King as it befel in the the cases of Moris and Morcant or that such a Synod should intermeddle in matters of Meum and tuum as in the case of Loumack who having invaded the patrimony of the Church the Bishop of Landaff in a Synod of his Clergy enjoyned him Penance And the like befel unto Brockvaile who was compelled by the Synod to make amends to Civiliack Bishop of Landaff for injury to him done Which I note not by way of imputation for this exorbitancy if so it were might correspond with these Times wherein very probable it is that Justice could not be had elsewhere And had the Clergy been as careful of Holiness as in the former cases they seem jealous for Justice Britain must have had the repute of a Nation of Priests and Holy men rather than of Tyrants whereas it was become a glut of wickedness and a burden that God would endure no longer Which rendereth their Synod liable to Exception as being such as were either lifted up or drawn aside and as the List to the Cloath sheweth that the Nation stood in need of that instruction which with a strong hand God wrought into them by the sad Calamity which ensueth CHAP IV. Of the entry of the Saxons and their manner of Government WAsted with time and wounded by eternal doom the glory of the Western Empire going down apace now draweth nigh unto its everlasting night and that vast body not able longer to subsist but dying by degrees abandons this Isle of Britain its utmost limit and last inlivened to subsist alone miserably or else to die The choice was more difficult by how much the more England was much wasted in the Roman Wars the flower of their strength spent in Forraign service the remainder but few and these exceeding vicious and which was worst of all ingaged by the Romans in a War with the Picts against whom the Romans themselves found it too burdensome for some of them to hold out without the help of a Wall and albeit that the very name of an old Servant of four hundred years continuance might have moved a Roman heart to commiserate yet their spirits fail and forsaken England must now go into the wilderness and naked as they are endure the brunt of the cold storms of the Northern Picts without any shelter but the hidden will of God then frowning upon them In this condition they half desperate seek for a cure in reason worse than the disease For it had been better for them to have stooped to hard conditions with the Picts considering they were all but one people and differing only by the breadth of a wall than to call in a new people whose qualities they were ignorant of and at the best to make them their companions who might prove as they afterwards did both Lords and Masters over them But there is no reason against God's will. The Britons needed present help they overlaid by invasions from the Picts who soon espied the Romans gone and their own advantage sent for aid where they were most like
for the Saxons to get all their bounds being predetermined by God and thus declared to the world In all which God taming the Britons pride by the Saxons power and discovering the Saxons darkness by the Britons light made himself Lord over both people in the conclusion CHAP. V. Of Austin's coming to the Saxons in England His Entertainment and Work. DUring these troublesome times came a third party that wrought more trouble to this Isle than either Pict or Saxon for it troubled all This was the Canonical power of the Roman Bishop now called the Universal Bishop For the Roman Emperour having removed the Imperial residence to Constantinople weakned the Western part of the Empire and exposed it not only to the forrain invasions of the Goths Vandals Herules Lombards and other flotes of people that about these times by secret instinct were weary of their own dwellings but also to the rising power of the Bishop of Rome and purposely for his advancement Who by patience out-rode the storms of forrain force and took advantage of those publick calamitous times to insinuate deeper into the Consciences of distressed people that knew no other consolation in a plundred estate but from God and the Bishop who was the chief in account amongst them The power of the Bishop of Rome thus growing in the West made him to out-reach not only his own Diocess and Province but to mind a kind of Ecclesiastical Empire and a title according thereunto which at length he attained from an Emperor fitted for his turn and that was enough to make him pass for currant in the Empire But Britain was forsaken by the Roman Empire above 153 years before So as though the Emperor could prefer his Chaplains Power or Honour as far as his own which was to the French shore yet Britain was in another world under the Saxons power and not worth looking after till the plundering was over and the Saxon affairs setled so as some fat may be had Then an instrument is sought after for the work and none is found so far fit to wind the Saxon up to the Roman bent as a Monk that was a holy humble man in the opinion of all but of those that were so in the truth and knew him This is Austin sent by Pope Gregory to do a work that would not be publickly owned It was pretended to bring Religion to the Saxons in England therefore they give him the title of the Saxon Apostle but to be plain it was to bring in a Church-policy with a kind of worship that rendred the Latria to God and the Dulia to Rome The Saxons were not wholly distitute of Religion and that Gregory himself in his Letter to Brunchilda the French Queen confesseth Indicamus saith he ad nos pervenisse Ecclesiam Anglicanam velle fieri Christianam so as there was a good disposition to Religion before ever Austin came and such an one as rang loud to Rome But far more evident is it from the Saxons keeping of Easter more Asiatico which custom also continued after Austins coming fifty years sore against Austins will. The dispute between Coleman and Wilfride bears witness to that and it had been a miraculous ignorance or hardness had the Saxons a people ordained for mercy as the sequel shewed conversed with the Christian Britons and Picts above 150 years without any touch of their Religion If we then take Austin in his best colour he might be said to bring Religion to the South-Saxons after the Roman garb and his hottest disputes about Easter Tonsure the Roman supremacy and his own Legatine power and his worthy Queries to the Pope shew he regarded more the fashion than the thing and the fashion of his person more than the work he pretended for he loved state and to be somewhat like to the Legate of an Universal Bishop and therefore of a Monk he suddenly becomes a Bishop in Germany before ever he had a Diocess or saw England and after he perceived that his work was like to thrive he returned and was made Archbishop of the Saxons before any other Bishops were amongst them and after three years had the Pall with title of Supremacy over the British Bishops that never submitted to him His advantages were first his entrance upon Kent the furthest corner of all the Island from the Britains and Picts and so less prejudiced by their Church-policy and at that very time interessed in the Roman air above all the other Saxons for their King had Married a Daughter of France one that was a pupil to Rome and a devout woman she first brought Austin into acceptance with the King who also at that present held the chief power of all the Saxon Kings in this Isle which was now of great efficacy in this work for where Religion and power flow from one spring to one stream it is hard to chuse the one and refuse the other And thus Rome may thank France for the first earnest they had of all the riches of England and we for the first entrance of all our ensuing bondage and misery Austin had also a gift or trick of working miracles whether more suitable to the working of Satan or of God I cannot define It seems they walked onely in the dark for either the Britons saw through them or saw them not nor could Austin with his miracles or finess settle one footstep of his Church-poliy amongst them happily they remembring the Roman Dagon liked the worse of the Roman woman and the rather because the Carriage of their Messenger was as full of the Archbishop as it was empty of the Christian. I would not touch upon particular passages of action but that it is so remarkable that Austin himself but a Novice in comparison of the British Bishops the clearest lights that the Northern parts of the world then had and unto whom the right hand of fellowship was due by the Roman Canon should nevertheless shew no more respect to them at their first solemn entrance into his presence than to Vassals I would not but note the same as a strong argument that this whole work ab initio was but a vapour of Prelacy This the British Bishops soon espied and shaped him an answer suitable to his message the substance whereof was afterward sent him in writing by the Abbot of Bangor and of late published by Sir Henry Spelman as followeth BE it known and without doubt unto you that we all and every one of us are obedient and subject to the Church of God and to the Pope of Rome and to every godly Christian to love every one in his degree in perfect Charity and to help every one of them by word and deed to be Children of God And other obedience than this I do not know to be due to him whom you name to be Pope nor by the Father of Fathers to be claimed or demanded And this obedience we
are ready to give and pay to him and to every Christian continually Besides we are under the government of the Bishop of Caerleon upon Uske who is to oversee under God over us and cause us to keep the way spiritual This was the Britons resolution and they were as good as their word for they maintained the liberty of their Church five hundred years after this time and were the last of all the Churches of Europe that gave their power to the Roman beast and Henry the Eighth that came of that blood by Teuther the first that took away that power again Austin having met with this affront and perceiving that the Britons were stronger in their Faith than he by his Miracles cast about to try the Saxons courtesie that what the Ephod could not the Sword wrapt up therein should I say not that he procured but he threatned or prophesied the destruction of the Monks of Bangor and it came to pass and the accasion by writers loudly suspected Nevertheless the Saxons were not so zealous of their new Religion as to make a new National quarrel between the Britons and themselves but left the game to be played out by Austin who finding by experience that it would not prove the work of one man left it to successors to work out by degrees in efflux of time And thus Austin neither good Servant to the Servant of Servants nor good Monk retires to settle his Saxon province and to present or rather to prostitute it to the lusts of that red Whore which was the general piety of those ignorant times CHAP. VI. Of the Imbodying of Prelacy into the Government of this Kingdom I Cannot think that the platform of the mystery of iniquity when boiled to the height was ever fore-seen or in the aim of the wicked spirits on Earth or those in Hell. Yet were they all instruments of this monstrous birth filled with subtilty and mischief guided principally by occasion and over-ruled by the Justice and Wisdom of God to make a yoke for Monarchs and a scourge to the world for their refusal of the government of Christ until this Monster came to perfection and wherein themselves were feloes de se and wrought their own mischief For Austin coming in as a third Proprietor with King and People and having gathered the materials of a Church reason told them that a form of government must be setled in that Church The Saxons had no principles of their own for they had no learning and to go to the Britons for a pattern might be ignoble and where the choice is small it is soon made Rome held now the most part of the Churches of Europe at School the Saxons soon resolve Rome that had been their Mother shall be also their Father And thus at one draught they drank up a Potion of the whole Hierarchy of Rome from the Pope to the Apparator with a quicquid imponitur imponetur which was of such lasting efficacy that it ceaseth not to work even to this day although it was slow in the first operation For the Saxons had a Common-wealth founded in the liberty of the people and it was a masterpiece for Austin and the Clergy so to work as to remain members of this Common-wealth and yet retain their hearts for Rome which was now grown almost to the pitch of that Antichrist For reason must needs tell them that the Saxon principles would not suffer them to be ad omnia for Rome nor the Roman Canon allow them to be wholly Saxon and they faw plainly that the times were too tender to endure them to be declarative on either part and therefore they chose a third way which was to preserve the municipal Laws in moderation towards the Canon and to that end to endeavour such a temper upon the State as must admit them to be in repute such as without whom the Common-wealth could not well subsist no more than a body without a soul and that few occasions should befal but at least in ordine remoto must reflect upon both and then all reason will bespeak them to joyn in the legislative power and government of this Kingdom but especially as Bishops who are now Magnae spes altera Romae and the very top-flowers of wisdom and learning And unto this temper the Saxons were sufficiently prepared and inclinable for it was no new thing for them to admit their Heathenish Priests into their general meetings and allow them much power therein and then it is but the person changed and they must do as much for their Bishops now they are become Christian especially themselves being all for the field and overgrown with a general ignorance the common disease of those times Kings were in no better condition it was hard for them to be Baptized and not to be Baptized into Rome and commonly under such a Covenant as though many might repent of yet none durst amend For whenas the Pope is Lord of the Consciences of the people the Kings power may sometimes out-face but can never govern the Saxon Kings were therefore fain to make a vertue of necessity and advance Bishops to be common favorites both of Rome and themselves to maintain good correspondency between both Swords and to countenance the power of the temporal Magistrate in cases of dispute else he oftentimes might command and yet go without Thus entred the Prelates upon affairs of Kings and Kingdoms and became lovers of Lordships and troublers of States and if in any thing they served their Country they served Rome much more their merchandise was made of the policies and Counsels of all Kingdoms and States and such returns proceeded as were still subservient to the Roman interest and they intoxicated the domestick counsels in such manner as they generally staggered and many times came short of home Nevertheless at the first this was but rare clancular and covered with much modesty for excepting such choice spirits as Austin had Roman Prelacy in these younger times was but Velvet-headed and endured not much greatness or big titles but spake like a Lamb Ego non verbis quaero prosperari sed moribus said this Gregory to the Alexandrian Bishop who had put upon him the title of Universal Bishop or Pope and whereas he had in a way of Courtship called Gregories Counsels commands he startles at it quod verbum jussionis saith he peto a meo auditu removeri quia scio quis sum qui estis Thus Prelacy first conveyed it self into opinion afterwards into conscience and ambition coming in the rear made it become both Bishop and Lord. CHAP. VII Of Metropolitans in the Saxons time BEing in pursuit of the Government of this Kingdom in elder times and therein first of the persons with their relation then of their work and lastly of their Courts and Laws and now in hand with the Ecclesiastical persons I shall descend to their particular ranks or degrees and shall shew what
liberty of the Laws Nor was it to be expected that the Saxons would endure a King above this pitch For those parts of Germany whence they came that had the Regiment of Kings which these had not yet used they their Kings in no other manner than as Servants of State in sending them as Embassadors and Captains as if they claimed more interest in him than he in them And the Historian saith expresly that amongst those people in Germany that had Kings their Kings had a defined power and were not supra libertatem And this Maxim of State became afterwards priviledged by Sanctuary for by the growth of Antichrist not only the Clergy but even their Tenants and Retainers were exempt from the reach of Kings and even by their own concession allowed of a Law that cut the throat of their indefined prerogative viz. That if the King defend not his people and especially Church-men from injury nec nomen Regis in eo constabit verum nomen Regis perdit Which Law however it might pass for currant Divinity in those days yet 't is strange it should get into a publick Act of State. Nor was this a dead word for the people had formerly a trick of deposing their Kings when they saw him peep above the ordinary reach and this was an easie work for them to do where ever Neighbouring Princes of their own Nation watched for the windfals of Crowns This made the Monarchical Crown in this Land to walk circuit into all parts of the Countrey to find heads fit to wear it until the Norman times Thirdly the Saxons had so hampered their Kings in their Elections and made them so properly their own as they claimed an interest not only in the person of their Kings but also in their Estates so as in some respects they were scarcely sui juris For King Baldred had given the Mannor of Malings in Sussex to Christ-church in Canterbury and because the Lords consented not thereto it was revoked and King Egbert afterwards made a new grant by advice of the Lords which shews that the Demesnes of the Crown were holden sacred and not to be disposed of to any other use though pious without the consent of the Lords and herewith concur all the Saxon infeodations attested and confirmed by Bishops Abbots Dukes and others of the Nobility under their several hands Nevertheless Kings were not then like unto plumed Eagles exposed to the charity of the Fowls for food but had a Royal maintenance suitable to their Majesty Their power was double one as a Captain another as a King the first was first and made way for the second As Captain their power was to lead the Army punish according to Demerits and according to Laws and reward according to Discretion As Captain they had by ancient custom the spoil left to their ordering by permission of the Army Exigunt Principis liberalitate illum Bellatorem equum illam cruentam victricem frameam and they were not wont in such cases to be close handed per bella raptus munificentiae materia the spoils in these wasted parts of Germany bring little other than Horses and Arms. But after they came into Britain the change of Soil made them more fat Horses and Arms were turned into Towns Houses Lands and Cattle and these were distributed as spoils amongst the Saxon Souldiers by their Generals and this redounded to the maintenance of the State and port of the great men who were wont to be honoured non stipendiis sed muneribus and the people used ultro viritim conferre principibus vel armentorum vel frugum aliquid But now upon the distribution of conquered Towns Houses Lands and Cattle in Britain a yearly product of Victuals or other service was reserved and allowed to the Saxon Kings by the people as the people allowed to Joshua his Land Jos. 19. 46. So as they needed no longer the former course of Offerings but had enough to maintain their Royal port and great superfluity of Demesnes besides as their charity to the Church-men does sufficiently evidence And by this means all the Lands in England became mediately or immediately holden of the Crown and a setled maintenance annexed to the same besides the casual profits upon emergencies or perquisites of Felons or Fugitives goods mines of Gold and Silver Treasure trove Mulcts for offences and other priviledges which being originally in the Kings were by them granted and made Royalties in the hands of Subjects as at this day To the increase of his Majesty and maintenance there was an access of power not to make dispense with or alter Laws but to execute and act the Laws established and against this power there was no rising up so long as it like an unfeathered Arrow gadded not at random It 's true the Church-men or Prelates checked them often but could never give them the mate For peace sake Kings many times yielded much yet would no King of Saxon principles allow of any Canon that extolled the Clergy's Authority above that of Kings And though the placing and displacing of Bishops seemed to be all Ecclesiastical work yet would not the Kings altogether connive as the examples of Ina in placing a Bishop in Wells Offa in making two Provinces of one Cenulphus in restoring Polydorus Edfrid in deposing Wilfrid and Edward the Confessor in making Robert Norman Archbishop of Canterbury may induce into opinion and for their own safety sake the Prelates thought it wisdom for them sometimes to stoop to that power that at other times they must be beholding to And therefore though in Synodical disputes they would hold with the Canon yet in matters of Action would suit with the occasion and thereby taught Princes to account of Canons but as Notions and politickly to put the honour of Commissioners upon these men Thus the current of both powers passing in one channel made the people drink double Beer at once the turns both of Pope and King were competently served and these men had the honour of the two-handed Sword and all seemed composed into a fair compromise But the Popedom finding its Authority becalmed endured this but as a burthen till Pope Nicholas the second 's time who by the like trick commended all to the Crown as from the Papal Benediction For Edward the Confessour upon his foundation of the Abbey of Westminster sent to the Pope for his allowance and confirmation of what he had done or was to do and to make way for the more favour sent presents and a confirmation of Romescot The Pope was so inflamed with such an abundant measure of blessing as he not onely granted the Kings desire but also discharged that Abbey from ordinary jurisdiction made it a peculiar subject onely to the Kings visitation and concluded his Bull with this Horn Vobis vero posteris vestris regibus committimus advocationem tuitionem ejusdem loci omnium
sentencing one to suffer death upon the Coroners record without allowing the Delinquent liberty of Traverse This Officer also was made by election of the Freeholders in their County-Court as the Sheriff was and from amongst the men of chiefest rank in the County and sworn in their presence but the Kings Writ led the work CHAP. XXIV Of the County-Court and the Sheriffs Torne THE Government of the County in times of peace consisted much in the administration of Justice which was done in the publick meetings of the Freeholders and their meetings were either in one place or in several parts of the County in each of which the Sheriff had the managing of the acts done there The meeting of the Free-men in one place was called the Folkmote by the Saxons saving the judgment of the honourable Reporter Coke Instit. 2. p. 69. and of latter times the County-Court the work wherein was partly for consultation and direction concerning the ordering of the County for the safety and peace thereof such as were redress of Grievances election of Officers prevention of dangers c. and partly it was judicial in hearing and determining the common Pleas of the County the Church-affairs and some trespasses done therein but not matters criminal for the Bishop was Judge therein together with the Sheriff and by the Canon he was not to intermeddle in matters of Blood yet neither was the Bishops nor Sheriffs work in that Court other than directory or declaratory for the Free-men were Judges of the act and the other did but edocere jura populo yet in special cases upon petition a Commission issued forth from the King to certain Judges of Oier to joyn with the others in the hearing and determining of such particular cases But in case of injustice or errour the party grieved had liberty of appeal to the Kings Justice Nor did the Common Pleas originally commence in the County-Court unless the parties dwelt in several Liberties or Hundreds in the same County and in case any mistake were in the commencing of Suits in that Court which ought not to be upon complaint the Kings Writ reduced it to its proper place and in this also the Kings own Court had no preheminence In those ancient times this County-Court was to be holden but twice a year by the constitution of King Edgar but upon urgent emergencies oftner and that either by the Kings special Writ or if the emergent occasions were sudden and important by extraordinary summons of ringing the Moot-bels Unto this Court all the Free-men of the County assembled to learn the Law to administer Justice to provide remedy for publick inconvenience and to do their fealty to the King before the Bishop and Sheriff upon Oath and in the work of administring Justice causes concerning the Church must have the precedency so as yet the Canon-Law had not gotten footing in England The other Court wherein the Sheriff had the direction was in the meeting of the Free-men in several parts of the County and this was anciently and now is called the Sheriffs Torne which simply considered is but a Hundred-Court or the Sheriffs Torne to keep the Hundred-Court It was ordered to be kept twice every year viz. at the Lady-day and Michaelmas or soon after Unto this Court all the Free-holders of the Hundred repaired and there they the Bishop and Sheriff executed the same power and work for kind that they did in the County-Court In this Court all the Suits in the Hundred-Court depending had their determination and others had their commencement and proceedings as well the Pleas of the Crown as others Some have conceived it to be a County-Court or superiour thereto but there being no ground thereof I conceive it to be no other than a Visitation of the County by parcels or in circuit CHAP. XXV Of the Division of the County into Hundreds and the Officers and Court thereto belonging COunties were too great to meet upon every occasion and every occasion too mean to put the whole County to that charge and trouble and this induced sub-divisions the first whereof is that of the Hundred now and also anciently so called but as ancient if not more is the name Pagus for the Historian tells us that the Germans in the executing of their Laws a hundred of the Free-men joyned with the chief Lord per pagos vicosque which first were called Centenarii or Hundreders from their number but used for a title of Honour like the Triarii And as a second hereunto I shall add that testimony of the Council at Berkhamsted which speaking the reduction of Suits from the Kings Court ad pagi vel loci praepositum in other places it is rendred to the Governours of the Hundred or Burrough And at this day in Germany their Country is divided into Circuits called Centen or Canton and Centengriecht and the Hundreders they call Centgraven or Hundred-chiefes whether for Government in time of peace or for command in time of War the latter whereof the word Wapentake doth not a little favour Amongst these one was per eminentiam called the Centgrave or Lord of the Hundred and thereunto elected by the Free men of that Hundred and unto whom they granted a stipend in the nature of a Rent called Hundredsettena together with the government of the same The division of the County in this manner was done by the Free-men of the County who are the sole Judges thereof if Polydores testimony may be admitted and it may seem most likely that they ruled their division at the first according to the multitude of the Inhabitants which did occasion the great inequality of the Hundreds at this day The Government of the Hundred rested at the first upon the Lord and the Hundredars but afterwards by Alfred they were found inconvenient because of the multitude and reduced to the Lord or his Bailiff and twelve of the Hundred and these twelve were to be sworn neither to condemn the Innocent nor acquit the Nocent This was the Hundred Court which by the Law was to be holden once every Month and it was a mixt Court of Common-pleas and Crown-pleas for the Saxon Laws order that in it there should be done justice to Thieves and the trial in divers cases in that Court is by Ordeale Their Common-pleas were cases of a middle nature as well concerning Ecclesiastical persons and things as secular for the greater matters were by Commission or the Kings Writ removed as I formerly observed all Free-holders were bound to present themselves hereat And no sooner did the Defendant appear but he answered the matter charged against him and judgment passed before the Court adjourned except in cases where immediate proof was not to be had albeit it was holden unreasonable in those days to hold so hasty process and therefore the Archbishop of York prefers
and being trained up even from the Cradle in the English garb moralized by Learning and now admitted into the Throne found it the wisest course to apply himself to the rule of an English King viz. To win and maintain the good opinion of the people by consorting together with them under one Law and pledging himself thereto by taking unto Wife one of the English Blood-royal by this means he refeised and reassumed the English in partnership with the Norman in their ancient right of Government and reconciled the minds of the people under a lively hope of enjoying a setled Government Nor were they greatly deceived herein for his course was less planetary than that of either of his predecessors and yet we find little said of his parley with his people in a Parliamentary way although more of his Laws than of any of his predecessors The reason will rest in this that the Writers of those times touch more upon matters of ordinary than political observation and regarded rather the thing than the place or manner how The Laws therefore although they are not entituled as made in Parliament yet in the continuation of the History of Bede it is noted that the King renewed or confirmed the ancient Laws in Concilio peritorum proborum virorum regni Angliae which may give sufficient cause to suppose that he declined not the ancient way no more than he did the ancient Law. CHAP. XLVII Of the Franchise of the Church in the Normans time THE Canon-Law that ever since Austin's coming like Thunder rumbled in the Clouds now breaks forth with confusion to all opposers It had formerly made many fair proffers of service to this Island but it was disaccepted as too stately to serve yet by often courtesies received it was allowed as a Friend afar off For the vast body of the Roman Empire like a body wasting with age died upward and left the Britains to their own Laws before the second Beast was grown which being young was nourished under the Imperial Law of the first Beast till it grew as strong as its Dam and began to prey for it self The Empire perceiving its grey hairs and the youthful courage of this Upstart was glad to enter mutual League with it That to maintain the Ecclesiastical Monarchy and This again to support the Imperial and so became the Canon and Imperial Law to be united and the Professours to be utriusque juris But this parity continued not long the young Beast looked like a Lamb but spake like a Lion and contrarily the Eagle had cast its Feathers and could towre no more so as by this time the Pope was too good for the Emperour and the Canon-Law above the Imperial yet allowing it to serve the turn And so the Professours of both Laws became Students in the Civil but Practisers of the Canon This Composition thus made beyond the Seas the great work was how to transport it over into this Isle for the Emperour could entitle the Pope to no power here because none he had Austin the Monk undertakes the work he offers it to the Britains under the goodly Title of Universal Bishop but they kept themselves out of Canon-shot The Saxons allowed the Title but liked not the power the Monk observed the stop and left time to work out that which present cunning could not being content for the present that a League of Cohabitation should be made between the two Swords though the spiritual were for the present underling not despairing that it would work out its own way over the Saxon Law as it had done over the Imperial Nor did his conceit altogether fail for the Saxons by little allowed much and the Danes more although the main was preserved until the Normans came upon the Stage who made their way by the Pope's lieve and gave him a colour of somewhat more than ever any of their Saxon predecessors had done and to gain the more quiet possession of the Crown to themselves allowed the Pope the honour of their Council learned to draw the Conveyance which as some think was made advantageously for the Pope himself in point of tenure but more probably in the Covenants For the Conquerour was scarce setled in his seat but the Canon-Law began to speak in the voice of a Royal Law First complaining of misgovernment as if the Church were extremely wronged by having the same way and Law of Tryal with the Commons of England and then propounds four several Expedients enough to have undone the whole Commonwealth in the very entrance had not the superstition of those times blinded both Parliament and People and rendred them willing to that which their successours in future ages often repented of No offence against the Bishops Laws shall be handled in the Hundred By the Saxon Law Church-matters had the preheminence both in the Hundred and in the County and it was the Bishop's duty to joyn with the Sheriff in those Courts to direct and see to the administration of Justice and yet the Canon had been above three hundred years foregoing in the Negative No Case concerning the Regiment of Souls shall be brought before the Secular Judge The Regiment of Souls was a common place sufficient to contain any thing that was in order thereunto and so every one that hath a Soul must be no more responsible unto the temporal Judge for any matter concerning it but unto the Ecclesiastical power And this not onely in case of scandal as against the moral Law or rule of Faith but for disobedience done to the Canons made afar off concerning any gesture or garb that may come within the savour of an Ecclesiastical conceit That all Delinquents against the Bishops Laws shall answer the Fact in a place appointed by the Bishop to that end So as now the Bishop hath gotten a Court by the Statute-Law that had formerly no other Cards to shew but that of the Canon and a Court of such place as the Bishop shall appoint however inconvenient for distance or uncertainty it be That the tryal of such matters shall be according to the Law of the Canon and not according to that of the Hundred That is not by Jury but by Witnesses in a clandestine way if the Bishop please or without any Accuser or by more scrutiny or any other way that may reserve the Lay-man to the breast of a prepossessed spirit of the spiritual Judge And thus the poor Country-man is exposed to the censure of an unknown Law in an unknown Tongue by an unknown way wherein they had no footing but by an implicit Faith. And herein the providence of God I imagine was more manifest than the wisdom of Man which was too weak to foresee events at so great a distance for questionless it was a point of excellent wisdom for the people now under a King of a rugged nature that would not stick to catch whatsoever he could get to deposit part of their Liberties into
directed and restrained the swelling of that censure and made it keep measure whose Tenants and Officers and Servants must not be meddled with by this censure but by the King 's lieve nor must they be called to answer but in the King's Court. That Right still remained to them after the spoil made by the Hierarchy upon the Rights of all the rest of the Free-men and therefore could not of right be called nova in the Historians sence seeing that it was no other than the ancient custom used amongst the Saxons before that the Clergie had either purpose or power to reach at such a height as afterwards by degrees they attained unto Furthermore the Hierarchy as they neither could possess the Legislative nor Juridical power in Church-matters so neither could they possess themselves for as yet they were the King's men and the more the King's men because they now think a Bishoprick but a naked commodity if not robed with a Barony Nevertheless before that ever they knew that honour whatever the Canon was for their election yet both their Title and Power de facto was derived to them from the Kings who also invested them with Staff and Ring nor had the Pope as yet though he had conquered the Hierarchy possessed himself of their colours but during all the Norman times the Kings maintained that trophy of the right they had from their Predecessours notwithstanding the many assaults from Rome and treacheries of the Cathedrals within the Realm And albeit sometimes Kings were too weak to hold the shadow yet the convention of the States did maintain the substance viz. the right of Election without intermission as the examples of Lanfrank unto the See of Canterbury and Anselm and Ralph his successours and of Thomas into the See of York and Ralph Coadjutor to Thurstan Archbishop of the same See and of Gilbert into the See of London besides others do sufficiently set forth Whether it was because the convention of States was more stout or that the Bishops now wedded to Temporal Baronies were so unquestionably interessed in the publick affairs of the Commonwealth that it was against common sense to deny the States their vote and cognizance of their Election I cannot determine yet it is a certain truth the more Baron the less Bishop and more unmeet for the service of Rome Politickly therefore it was done by Kings to hold these men by a Golden hook that otherwise had prostituted themselves to a forreign power and proved absolute deserters of their Countries Cause which now they must maintain under peril of the loss of their own honour In the next place as they were the King's men so their Bishopricks and Diocesses were under the King's power to order as by the advice of the Bishops and Baronage should be thought most convenient either to endow another Bishop with part thereof and so to make two Diocesses of one as befel in the case of the Diocess of Lincoln out of which the Diocess of Ely budded in the time of Henry the first or to endow a Monastery or other Religious foundation with part and exempt the same from all Episcopal or ordinary jurisdiction as in the example of the foundation of the Abbey of Battel in Sussex in the time of William the Conquerour may appear Lastly whatever the first intention of this recited Statute were it may probably be judged that it was but a noise to still the Clergie and that it never had more than a liveless shape not onely in regard of the before-mentioned particulars but especially in regard of that subservient Law of Henry the first concerning the County-Court which reciteth it as a custom in his time used that the Bishop and Earls with other the chief men of that County were there present as Assistants in directory of judgment And that in order are handled first matters of the Church Secondly Crown-pleas Thirdly and lastly Common-pleas However therefore the Kings spake fair they either acted not at all or so coolly as the current of the custom was too strong but most probable it is that the Kings spake fair till they were setled in their Thrones and afterwards pleased themselves for by the general thred of story it may appear that the Clergie in those times were more feared than loved and therefore ridden with a strait Rein. The Prelacy on the contrary grew unruly yet too weak for the rugged spirits of the Norman Kings they are glad to be quiet and the Pope himself to drive fair and softly as judging it expedient potestatem Regalem mitius tractandam and continued that course and posture till the calmer times of Henry the first wherein they mended their pace and got that without noise which they had long striven for viz. the preheminence and presidency in the Synods though the King himself be present and if the Historian writeth advisedly the whole ordaining or Legislative power for so runs the stile or phrase of the Author Archiepiscopi Episcopi statuerunt in praesentia Regis as if the presence of the King and his Barons and People were but as a great Amen at the Common-prayer after the old stamp to set a good colour upon a doubtful matter to make it go down the better How the Kings brooked this draught I cannot say but it hath made the Kingdom stagger ever since and it may be feared will hardly recover its perfect wits so long as the brains of the Clergie and the Laity thus lie divided in several Cells CHAP. XLVIII Of the several subservient Jurisdictions by Provinces Marches Counties Hundreds Burroughs Lordships and Decennaries HAD the Normans owned no other Title than that of Conquest doubtless their mother-wit must needs have taught them the expediency of preserving the particular subservient Jurisdictions of the Kingdom entire and unquashed if they regarded either the benefit of their Conquest or reward of their Partners and Allies unless it should be allowed unto Conquerours to be more honourable for them to do what they will rather than what is meet But hereof there is no cause of question in this present subject for nothing is more clear than that Wales enjoyed in the Conquerour's time and for ages after him its ancient Liberties Tribute excepted nor did Conquest ever come so nigh to their Borders as to trench upon the Liberties of the Marches For as it had been a piece of State-nonsence to have holden two sort of people under conquest and their Marches in freedom or to preserve them in good Neighbourhood by Marches which by the Law of Conquest were made one so was it no less vain if all had been once subdued by Conquest to have raised up the Liberties of the Marches any more And as they had less cause to have invaded the bounds and ancient limits and partitions of the Counties so questionless had they so done they would have taken the old course of the Micklemote as they did divide
instigation of her Father whose Conscience told him that the Title to the Crown by inheritance was weakned by his own precedent himself coming to the same by Election of the People contrary to the Title of his Brother Robert. Nevertheless this was not the first time that the English Crown refused to be worn by practice for Henry the first being dead Steven the younger Son to a younger Sister of Henry the first put up head who being of the Royal Stem a Man and a brave Souldier by the ancient course of the Saxons had Title enough to be thought upon in a doubtful Succession Besides he was a rich man and had enough to raise up his thoughts to high undertakings had a Brother a Bishop and Legate to the Pope here in England one who was of a high spirit and vast power advantages enough to have quickned a much duller spirit than his was who was a Son of a Daughter to William the Conquerour And to make him yet more bold he had the upper ground of the Heir who was a woman disadvantaged by a whispering of wilfulness and customary Government like an Empress which was too high a sail for an English bottom wherein so precious a Treasure as the Subjects Liberties was to be shipped Thus provided Steven stepped up to the English Throne and with protestations of good Government entred and made up the match both for Crown and Scepter the People waving the Title both of Empress and Heir The pretensions of the E. of Bloys elder Brother to Steven gave way to the common Law and Liberties of the Subject to fasten root and gather strength after the violence of the Norman blasts was out of breath thus making way over Hedge and Ditch of all Oaths till the King was quietly setled in the Throne Quietly said I that I must retract for he never had quiet during his life though generally he was victorious and did as much as a King could do that had the passions of a man and Souldier to give the Subjects content The true cause whereof was an errour in the tying of the Knot wherein he neither became theirs nor they his for the Fealty that was sworn to him was but conditional and eousque and yet the King's promises were absolute and better observed than the Peoples were possibly because his Engagements were more For besides his Protestations the King pledged his Brother the Legate to the people and mortgaged himself to his Brother and to boot gave both to the Clergie and Barons liberty to build and hold Castles for their private security The issue whereof may remind that too much countersecurity from the King to the people is like so many Covenants in Marriage that make room for jealousie and are but seeds of an unquiet life And thus it befel this King's Reign His first troubles are brought in by Historians as if they dropped from Heaven yet probably came immediately from without viz. from beyond Sea where the Empress was for as the King's Engagements were in their first heat on the one side so was also the Empress's Choler on the other side and therefore might make the first assault And the King 's first success therein falling out prosperously for him gave him a conceit that he was strong enough to encounter his own Covenant although in truth he invaded but the skirts thereof I mean that collateral security of Castles for by experience he now feels that they are blocks in his way he must therefore have them into his own power But the Clergie loth to forgo their pawn till they had their full Bargain for now they were working hard for investitures of the Mitred Clergie under the patronage of a Legate that had the King in bonds acted their parts so well as they engaged the Nobility for their liberty of Castles in which Atchievement the King was taken prisoner The Empress betakes her self to the Clergie and by the Legate's means procures a kind of Election to be Queen But she sick of the Womans humour and thinking too much of the Empress and too little of the Queen and forgetting that the English Crown would not fit an Empress unless she could fit her head first to it choaked her own Title by Prerogative and so let the Crown slip through her own hands which fell upon the head of Steven again who maintained it by his Sword after by Composition and then died a King. And thus like a Vapour mounted up by the Clergie tossed by Tempests for a time and at length falling he gave way to the Crown to have its free course to the Empress's Son by Geoffery Plantagenet This was Henry the second the most accomplished for Wisdom Courage and Power of all his Predecessors and one that wanted nothing but purpose to have undone what the foregoing Princes had done in the setling of the Liberties of the People for the Subjects were tired with the unquiet former times and the Clergie in distraction through the Schism in the Popedom between Victor the fourth and Alexander the third and very unfitting all were to dispute the point of Prerogative with so mighty a Prince And it was the wisdom of God to order his affairs so as that he was not very fit to dispute with the people in that case for his Title to the Crown was not very excellent being neither Heir to the last King that Reigned nor to the last of that Title I mean to Henry the first but Son only to the Empress who was now alive and by descent was to be preferred before all other His Title therefore is clearly by compact and agreement made between the Lords King Steven and himself all being then ready to try the right by the Sword to that to which none of them had any right at all at that time but by the favour of the people Nor did the King ever after dispute the strength of this Title although before he died his Mothers death conveyed over to him what right of descent soever was consistent with the Law of the Crown nor did occasion favour him thereto for as it is never seen that any man is honoured by God with many advantages without proportionable employment for the same so it befel with this King His great Territories in France brought jealousie in the rear and thence strife and contention with France enough to turn his thoughts from waxing wanton against his own people and therefore his wisdom taught him to prefer peace at home to the chief of his Prerogative to become somewhat popular and yet to lose nothing of a King thereby His way was to keep the Church-men down that had during his predecessors time grown whether more obstinate against the King or insolent over the people is hard to judge and in this he had the people to friend and might have prevailed much more than he did but that the people feared the threats of Rome more than he and he if not guilty of Becket's death
coming nigh unto the push of pike and the King ready for the spoil of both the Barons and Clergy suddenly close their files and like a stone-wall stood firm to each other till the King wearied with succesless labour was glad to give and take breath confirmed the Liberties of the people by his Charter which is now called the Magna Charta for substance and gave such collateral security for performance on his part as did let the World know the thing was as just as himself had been unjust The worst point in the case was that the people got their own by a kind of re disseisin a desperate remedy for a desperate condition wherein the Common-wealth then lay between life and death upon the rack of the will of a King that would be controuled by nothing but his own appetite and was in the end devoured by it CHAP. LVIII Of the state of the Nobility of England from the Conquest and during the Reign of these several Kings UNder the Title of the Nobility of England I shall comprehend all such as are of the greatest eminency for birth or wisdom and learning and advancement into place of Government and Honour These were in the Saxons times the flower of the people flourishing only from the honour that ascended from beneath their deportment then was full of chear and safety to the people after that Royalty sprung up the influence thereof upon them exhaled such a reciprocal interest back again as made them less regardful of their own root whereas we see the more mature flowers are the more propense to turn head and look downward to their own original This distemper was yet much worse by the coming in of the Normans whose Nobility besides their Titles of honour in their own Countrey obtained by custom such command and power amongst the meaner sort being Souldiers under them in time of the service in the field that when the Wars had breathed out their last neither of them could forget or were very careful to lay aside This was observed by Kings and advantage espyed to climb to the top of Monarchy by the help of these great men whom if they could make their own all would be theirs and therein they had prevailed much more than they did if they had been wise enough to have maintained them in unity but in that failing the Kings were necessitated to take parties and serve the Nobility to save the main and thus continued they a considerable party in the Government of this Kingdom from the Normans for the space of two hundred years well-nigh to the prejudice both of the growth of the Prerogative of Kings and Liberties of the Commons and benefit of none but the Lords who in those unquiet times were the chief Commanders in the field This errour of the Kings was soon espied but could not be avoided it is natural to man to be proud and to such to fall into contention another course therefore is taken viz. to raise up some so high as may over-top all and keep them under nor is it altogether without reason for Kings are no ubiquitaries and some must bear their power where they cannot be personally present yet it is dangerous to bestow too much upon one man for there is no man fitting to be a King but himself that is a King and where Kings are immoderate in bestowing power it many times works much woe to the people and not seldom sorrow to the Kings themselves The place of the chief Justice was in shew but one Office yet in these times was in nature of the Kings Lieutenant-general throughout the Kingdom A power and work too great for any one man in the World that can make no Deputies to manage it and yet in those times you shall meet with one man made up of an Arch-bishop a Legat and chief Justice of England or a Bishop a Lord Chancellour a Legat and chief Justice of England and a strange kind of Government must that needs be wherein the Servants Throne is above his Masters and a Subject shall have a plenitudinary power beyond that which his Lord and King had or as the times then were was capable of By these and such like pluralities the great men of England kept the Commons below and themselves above and probably rendred the temper of the Government of this Kingdom more Aristocratical than in after-Ages And if their personal authority was of such value how much rather in their joynt assembly or court of Council concerning which I must agree that as in their original in Germany they did consult and determine of the meaner matters that is to say of matters concerning Property and therefore were in their most ordinary work Meetings of Judges or Courts of Judicature and also matters of defensive War because themselves were the Commanders and lastly in matters of sudden concerment to the State not only to serve as eyes to foresee but to provide also if they can or otherwise to call in the ayd of the peoples advice so also they continued this course and it may be now and then as all Councils have done strained their endeavours beyond their reach especially since the Normans entrance and therefore I shall not deny but that they alone with the King and without the Commons have made many Laws and Constitutions some of which now are called Statutes although many of them in truth are no other than Rules for Judicature which ordinary Courts may frame or Judgments in particular cases such as are the constitutions at Clarindon in Henry the Second's time and many other Laws which are reported to be made between the King and his Lords Nor can I look upon such Laws otherwise than as upon Judgments in Courts of Justice in new points of controversie grounded upon ancient grounds which properly are not new Laws but the ancient Rule applied to new particulars and being so published to the World may bear the name of Laws Ordinances Constitutions or Judgments the word Statute being of latter times taken up and used in a more restrictive sence of which more in their due place Now that this Court was a setled Court of Judicature and so used may appear in that Fines were levied therein and Writs of Right determined as in the great Case between the two Kings of Navar and Castilè referred to the Judgment of Henry the second and tried in this Court it is said that the Tryal was by Plea and if need were by Battel The Judges in this Court were the Baronage of England for the entry of Judgment in that great Case is thus Comites Barones Regalis Curiae Angliae adjudicaverunt c. So as though doubtless many were absent some being enemies others discontented others upon other occasions yet all might claim their Votes as Barons The President over all the rest was the Chief Justice as if the King were present then himself and by him was the Sentence or Judgment
over-spread the body of the Clergie in those days and therefore I shall sum them up as follows Rights of Advowsons shall be determined in the King 's Court. This had been quarrelled from the first Normans time but could never be recovered by the Clergie Before the Normans time the County-courts had them and there they were determined before the Bishop and Sheriff but the Ecclesiastical Causes being reduced to Ecclesiastical Courts and the Sheriff and the Laity sequestred from intermeddling the Normans according to the custom in their own Country reduced also the tryal of rights of Advowsons unto the Supreme Courts partly because the King's Title was much concerned therein and the Norman Lords no less but principally in regard that Rights require the consideration of such as are the most learned in the Laws Rights of Tythes of a Lay-fee or where the Tenure is in question belong to the King 's Court. Pleas of Debts by troth-plight belong to the King 's Court. These were Saxon Laws and do intimate that it was the endeavour of the Clergie to get the sole cognizance of Tythes because they were originally their dues and of Debts by troth-plight because that Oaths seemed to relate much to Religion whereof they held themselves the onely Professors The King's Justice shall reform Errours of the Ecclesiastical Courts and Crimes of Ecclesiastical persons Appeals shall be from Arch-Deacons Courts to the Bishops Courts and thence to the Archbishops Courts and thence to the King's Court and there the Sentence to be final No man that ever was acquainted with Antiquity will question that these were received Laws in the Saxons time nor did the Clergie ever quarrel them till the Normans taught them by courtesie done to Rome to expect more from Kings than for the present they would grant whereof see Cap. 47. But King Steven that was indebted to the Clergie for his Crown and could not otherwise content them parted with this Jewel of Supreme power in Causes Ecclesiastical to the Roman cognizance as hath been already noted but Henry the second would have none of this Cheat at so easie a rate This struck so smart a blow as though the Popedom had but newly recovered out of a paralytick Schism yet seeing it so mainly concerned the maintenance of the Tripple-Crown Alexander the Pope having lately been blooded against a brave Emperour made the less difficulty to stickle with a valiant King who is conclusion was fain to yield up the Bucklers and let the Pope hold what he had gotten notwithstanding against this Law and all former Law and Custom And thus the Popes Supremacy in Spiritual Causes is secured both by a Recovery and Judgment by confession thereupon The King shall have vacancies of Churches and power to elect by his secret Council The Party elected shall do homage salvo ordine and then shall be consecrated This certainly was none of the best yet it was a custom not altogether against reason although not suitable to the opinion of many yet we meet two alterations of the ancient custom First that the election shall be by the King and secret Council whereas formerly the election of Bishops and Archbishops was of such publick concernment as the Parliament took cognizance thereof and that which was worse a Council was hereby allowed called a secret Council which in effect is a Council to serve the King's private aims and unto this Council power given in the ordering of the publick affairs without advice of the publick Council of Lords which was the onely Council of State in former times And thus the publick affairs are made to correspond with the King 's private interest which hath been the cause of much irregularity in the Government of this Island ever since The second alteration resteth in the salvo which is a clause never formerly allowed unless by practice in Steven's time whenas there was little regard of the one or the other Nor doth it concur with the file of story that it should be inserted within these Constitutions seeing that Writers agree it was the chief cause of quarrel between him and Becket who refused submission without the clause and at which the King stuck with the Archbishop for the space of seven years which was six years after the Constitutions were consented unto and concluded upon No Clergie-man or other may depart the Realm without the King's License It is a Law of Nations and must be agreed on all hands that no reason of State can allow dispensations therein especially in a doubtful Government where the Supremacy is in dispute and this the wilful Archbishop never questioned till he questioned all Authority but in order to his own for but the year before when he went to Turonn to the general Council upon summons he first obtained License from the King before he went. No Sentence of Excommunication or Interdiction to pass against the King's Tenant or any Minister of State without License first had of the King or his Chief Justice in the King's absence Till the Conquest no Excommunication passed without Warrant of Law made by the joynt assembly of the Laity and Clergy but the Conquerour having let loose the Canons and the Clergie having got the upper hand in Councils made Canons as they pleased and so the Laity are exposed to the voluntary power of the Canon onely as well the Normans as until these times Kings have saved their own associates from that sudden blow and upon reason of religious observance lest the King should converse with excommunicate persons e're he be aware The Laity are not to be proceeded against in Ecclesiastical Courts but upon proof by Witnesses in the presence of the Bishop and where no Witnesses are the Sheriff shall try the matter by Jury in the presence of the Bishop A negative Law that implieth another course was used upon light Fame or Suspition ex officio although the Oath at that time was not born into the World and that all this was contrary to the liberty of the Subject and Law of the Land And it intimates a ground of prohibition in all such cases upon the Common Law which also was the ancient course in the Saxons times as hath been formerly noted Excommunicated persons shall be compelled onely to give pledge and not Oath or Bail to stand to the Judgement of the Church Upon the taking and imprisoning of the party excommunicate the course anciently was it seemeth to give Pledge to stand to Order Of this the Bishops were weary soon as it seemeth and therefore waved it and betook themselves to other inventions of their own viz. to bind them by Oath or Bail both which were contrary to Law for no Oath was to be administred but by Law of the Kingdom nor did it belong to the Ecclesiastical Laws to order Oaths or Bail and therefore this Law became a ground of prohibition in such
Circuit had six Justices which the King made Justices of the Common pleas throughout the Kingdom Neither yet did the first Commission continue so long as four years for within that time Richard Lucy one of the Justices had renounced his Office and betaken himself to a Cloister and yet was neither named in the first Commission nor in the latter nor did the last Commission continue five years for within that time Ralph Glanvil removed from the Northern Circuit to that of Worcester as by the story of Sir Gilbert Plumpton may appear though little to the honour of the justice of the Kingdom or of that Judge however his book commended him to posterity I take it upon the credit of the reporter that this itinerary judicature was setled to hold every Seven years but I find no monument thereof before these days As touching their power certainly it was in point of judicature as large as that of the Court of Lords though not so high It was as large because they had cognizance of all Causes both concerning the Crown and Common-pleas And amongst those of the Crown this onely I shall note that all manner of falshood was inquirable by those Judges which after came to be much invaded by the Clergie I shall say no more of this but that in their original these Iters were little other than visitations of the Country by the grand Council of Lords Nor shall I adde any thing concerning the Vicontiel Courts and other inferiour but what I find in Glanvil that though Robbery belonged to the King's Court yet Thefts belonged to the Sheriff's Court and if the Lords Court intercepts not all batteries and woundings unless in the complaint they be charged to be done contra pacem Domini Regis the like also of inferiour Trespasses besides Common-pleas whereof more shall follow in the next Chapter as occasion shall be CHAP. LXII Of certain Laws of Judicature in the time of Henry the second ANd hereof I shall note onely a few as well touching matter of the Crown as of property being desirous to observe the changes of Law with the times and the manner of the growth thereof to that pitch which in these times it hath attained We cannot find in any story that the Saxon Church was infested with any Heresie from their first entrance till this present Generation The first and last Heresie that ever troubled this Island was imbred by Pelagius but that was amongst the Britains and was first battered by the Council or Synod under Germanus but afterwards suppressed by the Zeal of the Saxons who liked nothing of the British breed and for whose sake it suffered more haply than for the foulness of the opinion The Saxon Church leavened from Rome for the space of above five hundred years held on its course without any intermission by cross Doctrine springing up till the time of Henry the second Then entred a Sect whom they called Publicans but were the Albigences as may appear by the decree of Pope Alexander whose opinions I shall not trouble my course with but it seems they were such as crossed their way and Henry the second made the first president of punishing Heresie in the Kingdom under the name of this Sect whom he caused to be brought before a Council of Bishops who endeavoured to convince them of their errour but failing therein they pronounced them Hereticks and delivered them over to the Lay power by which means they were branded in the fore-head whipped and exposed to extremity of the cold according to the decree of the Church died This was the manner and punishment of Hereticks in this Kingdom in those days albeit in seemeth they were then decreed to be burnt in other Countries if that Relation of Cog shall be true which Picardus noteth upon the 13th Chapter of the History of William of Newberry out of which I have inserted this Relation Another Case we meet with in Henry the second 's time concerning Apostacy which was a Crime that as it seems died as soon as it was born for besides that one we find no second thereto in all the file of English story The particular was that a Clerk had renounced his Baptism and turned Jew and for this was convicted by a Council of Bishops at Oxford and was burned So as we have Apostacy punished with death and Heresie with a punishment that proved mortal and the manner of conviction of both by a Council of the Clergie and delivered over to the lay-Lay-power who certainly proceeded according to the direction of the Canon or advice of the Council These if no more were sufficient to demonstrate the growing power of the Clergie however brave the King was against all his Enemies in the field Treason was anciently used onely as a Crime of breach of Trust or Fealty as hath been already noted now it grows into a sadder temper and is made all one with that of laesa Majestas and that Majesty that now-a-days is wrapped up wholly in the person of the King was in Henry the second 's time imparted to the King and Kingdom as in the first times it was more related to the Kingdom And therefore Glanvil in his book of Laws speaking of the Wound of Majesty exemplifies Sedition and destruction of the Kingdom to be in equal degree a Wound of Majesty with the destruction of the person of the King and then he nameth Sedition in the Army and fraudulent conversion of Treasure-trove which properly belongs to the King. All which he saith are punished with Death and forfeiture of Estate and corruption of Bloud for so I take the meaning of the words in relation to what ensueth Felonies of Manslaughter Burning Robbery Ravishment and Fausonry are to be punished with loss of Member and Estate This was the Law derived from the Normans and accordingly was the direction in the Charge given to the Justices itinerant in Henry the second 's time as appeareth in Hoveden But Treason or Treachery against the Oath Fealty or Bond of Allegiance as of the Servants against the Lord was punished with certain and with painful deaths And therefore though the murther of the King was Treason yet the murther of his Son was no other than as of another man unless it arose from those of his own Servants The penalty of loss of Estate was common both to Treason and Felony it reached even unto Thefts in which case the forfeiture as to the Moveables was to the Sheriff of the County unto whose cognizance the case did belong and the Land went to the Lord immediately and not to the King. But in all cases of Felony and of a higher nature the party though not the King's Tenant lost his personal Estate to the King for ever his Free-holds also for a year and a day after which they returned to the Lord of the Soil by way of Escheat
the humours of his Servants to keep his head above water but especially after he was chased by the Scots and quite out of breath he calls for help of all but first of the Clergie and bespeaks them with the Ordinance of Articuli Cleri wherein he gives some satisfaction to the complaints formerly mentioned which it seems by Baronius were exhibited in Parliament Ecclesiastical cognizance extendeth unto Tythes Oblations and Mortuaries and to pecuniary recompence In the first times neglect or denial of Church-duties was punished in the King's Court by Fine Afterwards the Bishop was joyned in that Work and the Tythable Goods were seized eight parts whereof were taken to the Lords and the Bishops use by moyeties a ninth part left to the Owner and the tenth to the Church Nor had the Bishops any peculiar Courts of cognizance of causes till the times of the Normans nor as yet in those times had they power to all intents For though it be true that the Roman Tribute of Peter-pence was allowed by the Conquerour's Law to the Bishop's Court yet we find no Law for Tythes and other profits to be recovered by the Ecclesiastical Court till about the end of Henry the second 's Reign or King Steven's time For at a Council at London in Henry the second 's time it was ordained that three Summons in the Pope's name should be made to such as payed not their Tythes and in case they then refused they should be Anathema And after that time in a Council at Oxford under Steven Archbishop of Canterbury it was decreed that the Laity should be entreated first to pay their Tythes and then if necessity require that they should be compelled by Ecclesiastical censure So as their power crept up by degrees in recovering of Church duties as it did in Testamentary matters and at length Henry the third worn and spent with the Barons Wars about his latter end yielded to Boniface the Archbishop his importunate demands and first gave liberty to the Clergie to be their own Judges and yet the Lay-Judges although divers of them were Clergie men did not suddenly forbear till this Law came which gave some satisfaction to the first and fourth Articles of Complaint foregoing Ecclesiastical cognizance extendeth not to a fourth part of the Tythes of any Living nor to pecuniary mulcts for sin saving by way of commutation The Complaint of the Clergie in Henry the third's time was against the King's prohibition in case of Tythes indefinitely for in those times and afterwards in Edward the first 's time the King's Court had the cognizance of all Tythes and therefore in the Statute of West 2. c. 5. the Writ of Indicavit was allowed in case of right of any portion of Tythes yet the Church still gained ground and about or before the death of Edward the first the Temporal Judge had yielded unto the Clergie the cognizance of a portion of Tythes under the value of the fourth part for in the Article next foregoing the Clergies complaint was that the Kings Justices held cognizance of the fourth part and here they were confined thereto by this Law which the Clergie could never remove For violence done to Clerks the offender shall render damage in the Kings Court but Excommunication Penance and Commutation shall be in the Bishops Court. The Canon-Law had an ancient claim to the protection of Clerks both as touching their persons and estates and prevailed so far as they were thereby emboldened to offer violence unto others But as I formerly shewed by a Law in Henry the Second's time the Temporal Judge resumed his original power and this became a sore evil between the Clergie and Laity for though it were allowed that Clerks should not be sued but before the Ecclesiastical Judge in such cases yet it was no warrant for the Laity likewise to be called before the Ecclesiastical Judge in such cases and therefore the Clergies complaints shew that the matter was doubtful and that the Lay-Judge generally maintained his Jurisdiction although sometimes he disclaimed it as it may appear in the case of a Trespass in the nature of a riot committed upon the Priory of St. John's of Jerusalem in the seventh year of Henry the Third when as it was adjudged per Curiam that it belonged to the Ecclesiastical Court to punish But in Edward the First 's time by the Ordinance of Circumspecte agatis and Articles concerning prohibitions the difference was made between damages and pro reformatione and the same affirmed by this Law and so the matter setled and the fourth Article of the Clergies complaint in some measure was satisfied Defamation within Cognizance of the Ecclesiastical Court and corporal penance therefore and Commutation The words are general and peremptory with a non obstante the Kings prohibition and yet the Law afterwards restrained the sence to defamation for crimes or offences triable in the Ecclesiastical Court and this gave further satisfaction to the fourth Article of the Clergies complaint foregoing Tythes of new Mills may be recovered in the Ecclesiastical Court. This Tythe of Mills was a new encroached Tythe never mentioned in any former Law of this Kingdom nor demanded by the Synod at London Anno 1173. which mentions Fruit-Trees young broods of living creatures that are tame Herbage Butter Cheese with other particulars but mentions not new Mills It is true that anciently Mills paid Tythes but such they were which were ancient and had paid the same by custom and such as by Law in the Confessors time were declared to be given a Rege Baronibus populo But by the second Article of the Clergies complaint next foregoing it appears that the Kings Mills refused to pay this Tythe now whether the new Mills were called the Kings Mills as being made upon the publick streams by the Kings license or whether the Mills newly made within the Demesnes of the Crown it is not to be insisted upon but it is evident that till this Law made the new Mills would not Tythe their labours One and the same matter may be tryed at the Common-Law after Sentence in the Spiritual Court in divers respects The great sore that was complained of was that the Clergie after purgation in the Ecclesiastical Court made were proceeded against in the Kings Court in case of breach of peace or Felony as may appear out of the 16th Article of the Clergies first complaints and the 8th Article of that taken out of Baronius Nevertheless the present Law subjoyns an example of the questioning a Lay-man in the Ecclesiastical Court in case of violence done to a Clerk as a matter which may be tryed in the Ecclesiastical Court and yet reviewed by the Kings Court. The Writ de Excommunicato deliberando shall not issue forth but upon evident breach of the Kings Liberty This might be intended in satisfaction of the Tenth Article of the Clergies complaint
and nothing shall hinder it but the special reservation of the donor and yet he saith that such gift or grant taketh not away the right of the Lord Paramount in his Tenure albeit the gift be in free Alms. Nevertheless it seemeth to be such restraint that the Templars and Hospitallers were fain to find out a new way which was to protect mens Tenements from execution of Law by levying crosses thereon albeit the right of the Lords was not barred and therefore Edw. 1. provided a Law to make this also in nature of a Mortmain within the Statute made in the seventh year of his Reign called the Statute de Religiosis by which it was enacted that in case of such alienations in Mortmain the Lord should have liberty to enter if he failed then the Lord Paramount or if he failed the King should enter and dispose of the same and that no license of Mortmain should be sued out but by the mean Lord's assent and where part of the premises remain still in the Donor and the original Writ mentioneth all the particulars And thus at length was this issue for the present stayed which hitherto wasted the strength of the Kingdom and by continual current emptying it into the mare mortuum of the Clergie consumed the maintenance of Knight service by converting the same to Clerk-service No Judge shall compel a Free-man to make Oath without the Kings command So is the sence of the Law rendred by an ancient Authour and I hope I shall not wrong the Text if I affirm that the Ecclesiastical Judge was included within the equity though properly he be not Balivus for the Law intends to shew that it is a liberty that the Subject hath not to be compelled to take Oath without the Kings especial command and by consequence it sheweth also that the King at that time and until then had the directory of Oaths for it was an ancient Liberty given in the Kings Charters unto such as they pleased viz. to impose Oaths and to punish for breach of Oath and this passed under the word Athae or Athas and so Edmund the Saxon King gave to the Abbey of Glastenbury amongst other Athas Ordulas and the Church-men that first procured vacations from Suits of Law during holy times procured a Law also to be setled by Edward the Saxon King and Gunthurne the Dane that Ordeal and Oaths should be forbidden upon the holy Feasts and lawful Fasts And a wonder it is how it escaped the gripe of the Clergie so long who catched at any thing that had but a glance of Gods worship in it And if this were the Subjects Liberty not to be compelled to Swear surely much more not to be compelled to accuse himself unless by the Law he be especially bound for it is Glanvil's rule Ob infamiam non solet juxta legem terrae aliquis per legem apparentem se purgare nisi prius convictus fuerit vel confessus in curia But the power of the Clergie now was grown strong and they begin to remember themselves and that Oaths are of a holy regard and they men for holiness best able to judge when and to whom they shall be ministred and therefore now they begin to enter their claim and to make a sure Title they get a grant from Pope Innocent to Steven Langton Arch-Bishop of Canterbury of a faculty of licensing administration of Oaths during the time of Lent and he accordingly enjoyed it during the mad time of Henry the Third But Edward the first quarrelled it and left it questionable to Edward the Second who being in his condition as a lost man had less care of such smaller matters and therefore allowed that his Judges of Assizes should be licensed by the Arch-bishop to administer Oaths in their Circuits in the sacred times of Advent and Septuagessima and this course continued till Henry the Eighth's time The Clergie having thus gotten the bridle gallop amain they now call whom they will and put them to their Oaths to accuse other men or themselves or else they are Excommunicated Henry the Third withstood this course if the Clergie-mens complaints in the times of that King Artic. 9. be true and notwithstanding the same the Law holds its course and in pursuance thereof we find an attachment upon a prohibition in this form ensuing Put the Bishop of N. to his pledges that he be before our Justices to shew cause why he made to be summoned and by Ecclesiastical censures constrained Lay-persons men or women to appear before him to swear unwillingly at the Bishops pleasure to the great prejudice of our Crown and Dignity and contrary to the custom of the Kingdom of England And thus both King and Clergie were at contest for this power over the peoples Consciences to which neither had the right otherwise than by rules of Law. Bigamists shall not be allowed their Clergie whether they become such before the Council of Lyons or since and that Constitution there made shall be so construed Whatsoever therefore their Synods in those times pretended against the married Clergie it seemeth by this Law that they had Clergie that were married once and again and yet before and after the Council were admitted as Clerks in the judgment of the Law. But the general Council interposes their authority and deprives them that are the second time married of all their priviledges of Clergie It was it seemeth twenty years and more after that Council before the Church-men in England were throughly reformed for either some were still Bigami at the making of this Law or as touching that point it was vain nor is it easie to conceive what occasion should after so long a time move such exposition the words of the Constitution being Bigamos omni privilegio clericali declaramus esse nudatos Now whether this slow Reformation arose from the defect in Law or in obedience thereto may be gathered from some particulars ensuing First it is apparent that the Canons of general Councils eo nomine had formerly of ancient times gotten a kind of preheminence in this Nation but by what means is not so clear In the Saxon times they were of no further force than the great Council of this Kingdom allowed by express act For the Nicene Faith and the first five general Councils were received by Synodical confirmations of this Kingdom made in the joynt meeting both of the Laity and Clergie and during such joynt consulting the summons to the general Councils was sent to the King to send Bishops Abbots c. but after that the Laity were excluded by the Clergie from their meetings and the King himself also served in the same manner the Summons to the general Council issued forth to the Bishops immediately and in particular to each of them and to the Abbots and Priors in general by vertue whereof they went inconsulto Rege and sometimes Rege
renitente and appeared either personally or by proxie Others came as parties to give and receive direction or hear Sentence in matters tending to spiritual regards And for this cause issued Summons even to Kings as at the Council of Lyons aforesaid it is said that the Pope had cited Regis terrae alios mundi principes dictum principem meaning Henry the third the matter was for assistance to the holy War and to determine the matter between Henry the third and his Clergie men And as in that case so in others of that kind Kings would send their Embassadors or Proctors and give them power in their Princes name interessendi tranctandi communicandi concludendi First of such matters quae ad reformationem Ecclesiae universalis in capite membris then of such as concern fidei orthodoxae fulciamentum Regumque ac principum pacificationem or any other particular cause which occasionally might be inserted So long then as Kings had their votes in the general Councils they were engaged in the maintenance of their decrees and by this means entred the Canon-law into Kingdoms Nor was the vote of Kings difficult to be obtained especially in matters that trenched not upon the Crown for the Pope knowing well that Kings were too wise to adventure their own persons into foraign parts where the general Councils were holden and that it was thrift for them to send such Proctors that might not altogether spend upon the King's purse allowed Bishops and Clergy-men to be Proctors for their Princes that in the Negative they might be pii inimici and less active but in the Affirmative zealous and so make the way wider by the Temporal and Spiritual vote joyned in one Neither did Kings onely save their purse but they also made their own further advantage hereby for by the engagement and respect which these their Proctors had in Councils they being for the most part such as were had in best esteem obtained better respect to the cause that they handled and speedier dispatch Nevertheless the case sometimes was such as could not expect favour and then as the King's temper was they would sometimes ride it out with full sail and to that end would either joyn with their Ecclesiastcal Proctors some of the Barons and great men of their Realm to add to the cry and make their affairs ring louder in the ears of fame although the Pope had the greater vote or otherwise would send an inhibition unto their Proctors and their assistants or an injunction to look to the rights of the Crown as Henry the Third did at the Council at Lyons and this sounded in nature of a Protest and within the Realm of England had the force of a Proviso or Saving But if the worst of all come to pass viz. that the Council passed the cause against Kings without any Inhibition or Injunction yet could it not bind the Law of the Land or Kings just Prerogatives no not in these times of Rome's hour and of the power of darkness For at a Synod holden by Arch-bishop Peckham An. 1280. the Acts of the Council of Lyons were ratified and amongst others a Canon against non-residency and pluralities and yet neither Council nor Synod could prevail for in Edward the Second's time an Abbot presenting to a Church vacant as was supposed by the Canon of pluralities the King whose Chaplain was disturbed enjoyned the Abbot to revoke his presentation upon this ground Cum igitur c. in English thus Whereas therefore that Decree bindeth not our Clerks in our service in regard that the Kings and Princes of England from time to time have enjoyed that liberty and prerogative that their Clerks whilst they attend upon their service shall not be constrained to undertake holy things or to be personally resident on their Benefices c. And if this present Law be considered whereof we now treat which took leave to enact a sence upon a former Canon so long since made and which is all one to makâ— a general Council will or nill it to tread in the steps of an English Parliament or which is more mean to speak after the sence of an English Declaration that had not yet attained the full growth of a Statute as was then conceived it will evidently appear that the power of a council made up of a mixture of a few votes out of several Nations or the major part of them being unacquainted with the Laws and Customs of Nations other than their own was too mean to set a Law upon any particuler Nation contrary to its own original and fundamental Law. And as the Voters sent to the grand Councils from England were but few so neither were the Proctors as may appear from this that Pope Innocent out of his moderation if we may believe it and to avoid much expence as he saith did order that the number of Proctors in such cases should be few But in truth the times then were no times for moderation amongst Popes and their Officers and therefore it was another thing that pinched for multitude of Proctors if their number had not been moderated might perhaps if not prevail yet so blemish the contrary party that what the Pope should get must cost him loss of spirits if not bloud And although the Bishops being fast Friends to the Pope by vertue of their Oath did prevail in power and the Pope had the controul of the Council yet the exceeding number of the Proctors on the contrary might render their conclusions somewhat questionable in point of honesty as being made against the mindes of the greater number of persons present though their votes were fewer To avoid this difficulty therefore for more surety-sake the Popes enlarged the number of Voters for whereas it seemeth to be an ancient rule that onely four Bishops should go out of England to the general Council in after-ages not one Bishop could be spared unless in cases of great and emergent consequence as may appear by the Pope's Letter to Henry Third and the case required it for the oppressions of the Pope began to ring so loud as the holy Chair began to shake Neither did Kings confine themselves to any certain number of Proctors notwithstanding the Pope's moderation but as the case required sent more or less as unto the Council at Pisa for the composing and quieting that great Schism in the Popedom Henry the Fourth sent solemn Embassadors and with them nigh eighty in all But unto the Council at Basil Henry the Sixth sent not above twelve or thirteen as Mr. Selden more particularly relateth And unto the Council at Lyons formerly mentioned the Parliament sent but six or seven to remonstrate their complaints of the extortions of the Court at Rome their Legates and Emissaries The sum of all will be that the Acts of general Councils were but Counsels which being offered to the sence of the Parliament of England might grow up
but as heavy dull Debates and inconvenient both for speed and secrecy which indeed are advantages for weak and unwarrantable councils but such as are well-grounded upon truth and strength of reason of State are not afraid to behold the clearest noon-day and prevail neither by speed nor secrecy but by the power of uncontrolled Reason fetcht from truth it self The Grand Council of Lords also are now no less burthensome For though they were not able to prevail against the private designes of an arbitrary Supremacy yet do they hinder the progress tell tales to the people and blot the names of those that are of that aspiring humour which once done like that of Sisyphus they have no other end of their labour than their toil Thus perished that ancient and rightly honourable Grand Council of Lords having first laid aside the publick then lost unity and lastly themselves besides the extream danger of the whole body For the sence of State once contracted into a Privy-Council is soon contracted into a Cabinet-Council and last of all into a Favourite or two which many times brings damage to the publick and both themselves and Kings into extream praecipices partly for want of maturity but principally through the providence of God over-ruling irregular courses to the hurt of such as walk in them Nor were the Clergie idle in this bustle of affairs although not very well employed for it is not to be imagined but that these private prizes plaid between the Lords Commons and King laid each other open to the aim of a forrein pretension whilst they lay at their close guard one against another And this made an Ecclesiastical power to grow upon the Civil like the Ivy upon the Oak from being Servants to Friends and thence Lords of Lords and Kings of Kings By the first putting forth it might seem to be a Spiritual Kingdom but in the blossom which now is come to some lustre it is evident to be nothing but a Temporal Monarchy over the Consciences of men and so like Cuckows laying their Eggs in nests that are none of their own they have their brood brought up at the publick charge Nevertheless this their Monarchy was as yet beyond their reach it was Prelacy that they laboured for pretending to the Pope's use but in order to themselves The Cripple espyed their halting and made them soon tread after his pace he is content they should be Prelates without measure within their several Diocesses and Provinces so as he may be the sole Praelatissimo beyond all comparison And undoubtedly thus had been before these times destroyed the very principles of the Church-Government of this Kingdom but that two things prejudiced the work The one that the Papalty was a forrein power and the other that as yet the Pope was entangled with the power of Councils if he did not stoop thereunto The first of these two was the most deadly Herb in the Pottage and made it so unsavoury that it could never be digested in this Kingdom For Kings looking upon this as an intrenchment upon their Prerogative and the People also as an intrenchment upon their Liberties both or one of them were ever upon the guard to keep out that which was without and would be ruled neither by Law nor Counsel And therefore though both Kings and People yielded much unto the importunity of these men and gave them many priviledges whereby they became great yet was their greatness dependant upon the Law of the Land and Vote of Parliament and though they had the more power they nevertheless were not one jot the more absolute but still the Law kept above their top I deny not but they in their practice exceeded the rule often and lifted themselves above their rank yet it is as well to be granted that they could never make Law to bind the Church-men much less the Laity but by conjunction of the Grand Councils both for Church and Commonwealth-affairs nor could they execute any Law in case that concerned the Liberty or Propriety of either but in a Synodical way or as deputed by the Parliament in that manner And therefore I must conclude that in these times whereof we treat the principles of Church-Government so far as warranted by Law were in their nature Presbyterial that is both in making Laws and executing them Bishops and Arch-bishops were never trusted with the sole administration of them but in and by consent of Synods in which the Clergy and Laity ought to have their joynt vote And all power more or contrary hereto was at the best an usurpation coloured by practice which was easily attained where there was a perpetual Moderatorship resting in the Bishop and over all the Pope the King Lords and Commons in the mean while being buried in pursuit of several interests elsewhere To make all semblable the Free-men met with the sad influence of these distempers as well from the King and Lords as the Clergy Kings to save their own stake from the Pope remitted of that protection which they owed to their Subjects and let in upon them a floud of oppressions and extortions from the Romish and English Clergy and so like a little ship cast out a Barrel for the Whale to pursue till it gets away But this changed no right The Lords by their parties shattered them asunder and dismembred their body by intestine broils The Clergy more craftily making some of them free Denizons of the Roman See and taking them into their protection whilst others of the Free-men at a distance were exposed as a prey to the continual assaults of those devouring times All these conspired together to deface and destroy that ancient and goodly bond of Brotherhood the Law of Decenners by which the Free-men formerly holden together like Cement in a strong Wall are now left like a heap of loose stones or so many single men scarcely escaping with their skin of Liberties and those invaded by many projects and shifts in Government of State-affairs So must I leave them until some happy hand shall work their repair both for time and manner as it shall please that great and wise Master-builder of the World. FINIS THE CONTINUATION OF THE Historical Political DISCOURSE OF THE LAWS GOVERNMENT OF ENGLAND Until the end of the REIGN of Queen Elizabeth WITH A VINDICATION Of the ancient way of PARLIAMENTS In ENGLAND LONDON Printed for John Starkey at the Miter in Fleet-street neer Temple-Bar M.DC.LXXXII THE CONTENTS OF THE Several CHAPTERS of this BOOK I. THe sum of the several Reigns of Edward the Third and Richard the Second fol. 2 II. The state of the King and Parliament in relation of him to it and of it to him fol. 9. III. Of the Privy Council and the condition of the Lords fol. 16 IV. Of the Chancery fol. 21 V. Of the Admirals Court. fol. 24 VI. Of the Church-mens interest fol. 27 VII Concerning Trade fol. 38 VIII Of Treason and Legiance with some Considerations
eat their own word However for the present the House of Lancaster hath the Crown entailed and the Inheritance is left in the Clouds to be revealed in due time For though this was the first precedent of this kind yet was it not the last wherein the Parliament exercised a Power by Grant or Confirmation to direct the Law and Course of the Crown as they pleased The due consideration hereof will make the things that follow less strange For the Parliament according to occasion as the Supream Power of this Kingdom exercised Supream Jurisdiction in order to the safety of the Kingdom as if no King had been to be found in issuing forth Writs under the Great Seal concluding of matters without the Royal Assent treating of Peace with Foreign Nations and of other matters and determining their Resolves before discovery made to the King of their Counsels making Ordinances and ruling by them 3 H. 6. n. 29. 2 H. 6. n. 27. 8 H. 6. n. 12. referring matters determinable in Parliament to be determined according to their directions Authoritate Parliamenti confirming Peace made by the King protesting against Peace made without or against their consent making Embassadours with power to engage for the Kingdom making Generals of the Army Admirals at Sea Chancellors Barons and Privy Counsellors and giving them instructions 8 H. 4. n. 73. and 76. and 31. 5 H. 4. n. 57. 31 H. 6. n. 21. and binding them to observance upon Oath 11 H. 4. n. 19 39. ordering the person of the King denying his power of Judicature in Parliament and ordering his Houshold and Revenue besides many other particulars Now if such as these things were thus done not by one Parliament which possibly might be overswayed by Factions but by the course of a Series of Parliaments that mightily laboured against Faction and unworthy ends and aims that man who shall determine the same to be unjust or indiscreet should himself first be determined to be very just and exceeding wise Nor was the Parliament partial in all this but being in a way of Reformation it set upon the work of reforming it self Some that are very zealous in the point of Arbitrary and Absolute Government of Kings in this Nation and in all other amongst other grounds rest upon this one That an English King hath power to call Parliaments and dissolve them to make and unmake Members as he shall please I do easily grant that Kings have many Occasions and Opportunities to beguile their People yet can they do nothing as Kings but what of right they ought to do They may call Parliaments but neither as often or seldom as they please if the Statue-Laws of this Realm might take place Nor if they could is that power necessarily and absolutely arising from Supremacy seeing it is well known that such power is betrusted by the Superiour States in other Nations to the Inferiour who dayly attend on publick Affairs and therefore can discern when the general Conventions are most necessary As touching the dissolving of Parliaments against the wills of the Houses it is true that sad precedents have been of later times in that kind and so for want of due attendance Parliaments have been enforced to adjourn to prevent a worse inconvenience but these are infirmities better buried in silence than produced as Arguments of power seeing it is evident that Kings themselves were no greater gainers thereby than an angry man is by his passions It is true alâ—o that Kings may make Lords and Corporations that may send their Burgesses to the Parliament and thus the King may make as many as he will as the Pope did with the Bishops in the Council of Trent yet cannot he unmake them when he pleases nor take the Members from the Parliament without attainder and forfeiture according to the known Law. Neither can all these Instances prove that the Kings of England have the sole and supreme power over the Parliament Nor did the Parliament in these times allow of any such Authority and therefore proceeded for the reforming of themselves by themselves in many particulars as the Statutes do hold forth And first in the point of Elections for an errour in that is like an errour in the first Concoction that spoils the whole Nutriment they ordained that the Election of Knights shall be at the next County-Court after the Writ delivered to the Sheriff That in full Court between the hours of eight and nine in the morning Proclamation shall be made of the day and place of the Parliament That the Suters duly summoned and others there present shall then proceed to the Elections notwithstanding any Prayer or Commandment to the contrary That the names of the persons elected whether present or absent they be shall be returned by Indenture between the Sheriff and the Elizors and that a Clause to that end shall be added to the Writ of Summons This was enough to make the Sheriff understand but not to obey till a penalty of one hundred pound is by other Laws imposed upon him and a years imprisonment without Baibor Mainprise besides damages for false return in such cases and the party so unduly returned fined and deprived of all the Wages for his service Thus the manner of Election is reduced but the persons are more considerable for hitherto any man of English bloud promiscuously had right to give or receive a Vote although his Residency were over the wide World. But the Parliament in the time of Henry the Fifth reduced these also whether they were such as did chuse or were chosen unto their proper Counties or else rendred them uncapable to vote or serve for any County And the like Order was made for the Burroughs That no person must serve for any City or Burrough nor give vote in Electing such as shall serve for that Town unless they be both free and resiants within that City or Burrough A Law no less wholsom than seasonable For the times of Henry the Fourth had taught men to know by experience That a King that hath Souldiers scattered over the Kingdom can easily sway the County-courts and make Parliaments for their own Tooth Yet this was not enough for all Elizors though of the meanest sort yet are still able to do as much hurt with their Vote as those of the best sort both for wisdom and publick mind can do good by theirs This made Elections much subject to parties and confusions and rendred the Parliament much less considerable A remedy hereunto is provided in the minority of Henry the Sixth viz. That no man should give his Vote in Elections in the County unless he hath forty shillings yearly in free Lands or Tenements and this is to be testified upon Oath of the party And more plainly it is orderded within two years after that each Elizor shall have Frank-Tenement of that value within the same County
in their Original Bishops were meerly Donatives from the Crown being invested by delivery of the Ring and Pastoral Staff and until King John's time the Canonical way of Election was disallowed yet King John by his Charter De communi consensu Baronum granted that they should be eligible which also was confirmed by divers publick Acts of Parliament in after-times and now by this Law last recited and with this way the King was contented for the space of Six years for the Reformation intended by the King was not done at once but by degrees and therefore though this course of Conge d'eslire was brought into use yet the Parliament being of Six years continuance a necessary thing in times of so great change of Policy began this course of Election by giving the King power to nominate and allowing of the Pope power to grant to such his Bulls or Pall at his own will otherwise they should be Consecrated by Commission without his consent And thus at the first the Pope's Concurrence was not excluded though his Negative was In this posture of affairs comes Cranmer to be consecrated Archbishop And being nominated thereunto by the King the wily Pope knowing the Kings aim meaned not to withstand lest he should lose all but granted the Pall as readily as it was desired so as Cranmer is thus far Archbishop of Canterbury without all exception yet he must go one step farther and take the old Oath to the Pope which the King allowed him to do Pro more and which he did renitente Conscientia say some and with a Salvo say others and all affirm it was done Perfunctorie like some worn Ceremonie or civil Complement Nevertheless it was not so soon turned over the Archbishop loved not the Office the King loved not Partnership in this matter and it was evident to all that no man could serve these two Masters any longer an agreement is soon concluded in Parliament to exclude the Popes Power quite out of this game and all is left to be done by the King and his Commissioners by the Law formerly propounded In all this the Pope is loser the English Clergie the savers for the Pall cost Cranmer Nine hundred Marks And the Crown is the great gainer for hereby the King got the men sure to him not onely by their own acknowledgement and submission but also by a Statute-Law And lastly by Oath which to make sure was treble twined once upon their first submission in the Kings Twentie second year when they had been under Praemuniri Secondly Soon after the decease of Queen Katherine Dowager in the Twentie sixth year which Oath was more compleat than the former containing First A Renunciation of all Fealty to the Pope or any Foreign Power Secondly An Obligation to adhere to the Cause of the King and his Successors Thirdly A Disavowing of the Pope otherwise than as another Bishop or fellow hrother Fourthly An Engagement to observe all Laws already established against the Pope's power Fifthly A Disavowing of all appeals to Rome Sixthly An Engagement to inform the King of all Messages or Bulls sent from Rome into England Seventhly An Engagement not to send or be privy to the sending of any Message to Rome for any such purpose The third Oath was that of Fealty which anciently was due to Kings and now revived to be taken by all Bishops upon their admission And thus the English Prelacie having been sworn Slaves to the Papacie ever since Becket's time are now preferred to a more Royal Service and the pursuit by Kings after their right being laid aside by the space of 300 Years is now renewed and the prey seized upon by the Lion who found it upon a better Title and in better condition by much than when at the first it was lost For it was upon some semblance of Reason that the Archbishop and Clergie gained it but being afterwards dispossessed thereof by the Pope and yet without any other shadow of Title but the power of his own gripe for the present he is the Occupant and becomes Proprietor by prescription till now the Felon being apprehended the stolen Goods are the Kings in Right and by Remitter whereunto the Parliament by the Statute adding their Conveyance establishes the same by an unquestionable Title Nevertheless their service is no less servile to this Crown than it had been to the Romish Miter formerly they asserted the Pope's Infallibility now the King's Supremacy They are now called by the King made by the King sent by the King maintained by the King whatsoever they are whatsoever they have all is the King 's He makes Bishops he makes new Bishopricks and divides or compounds the old as he pleaseth by a power given to Henry the Eighth by Parliament Which Oath was never in any Prince before or after him that I can find so as the Crown had it not but the man and it died with him The King thus loaden with Power and Honour above all his Predecessors if without proportionable Maintenance to support the one and act the other must needs consume himself as one in a Tympanie by growing great For though he was left rich by his Father's Treasure yet his Zeal to Rome in its now poor captivated condition under the Imperial power stirring up in him great undertakings abroad besides his own Pleasures and Gallantry at home exhausted that and doubtless had starved these his grand designs had he not found the hidden Treasures of the Cells and Monasteries the sight whereof so rouzed up his Spirits that he adventured upon the purchase though he knew difficulties enough to have stopped his undertakings if he had not resolved both against fear and flattery It was not done without deliberation for the thing was felt as a grievance before the Norman times and complained of in Parliament above a hundred and forty years ago and divers times since but Kings either understood not or believed not or durst not give remedy or had much else to do But now the King is beyond all his Predecessors he knows much dares do more and is at leisure He will go as far as Emperour or French King and beyond them also but would not try masteries with either for they were all Cocks of the game The first occasion that discovered the work feasible was a president made by Cardinal Wolsey whose power was enough to dissolve some petty Cells and no opposition made The King might well expect the work would be as lawful for him and not much more difficult or if any Storms ensued the people that had so long complained and felt the burthen of these excrescences of the Clergie would soon find out a way to calm them the King need do no more than speak and the people will do This opened the door but that which brought the King in was the hold the Pope had in this Kingdom by these Cloistered people who were persons dead in Law and dead to all Law but the
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
and made all practices contrary to the rule damageable to the party Thus far concerning the matters in Cognizance now touching the power of the Keys English Prelacy having laid aside the pretentions of Rome they put the world to a gaze to see which way they would go In the innocent infancy of Prelacy it was led by the hand by the Presbytery and would do nothing without them afterwards having gained some degree of height and strength they entred themselves to be Chariot-horses to the Roman Sun till they had set all on fire Now unharnest it is expected they should return to their former Wits nevertheless forgetting their ancient Yoak-fellows the rural Presbyters they stable with the King use his name sometimes but more often their own serving him with Supremacie as he them with authority beyond their Sphere They raise him above Parliament he them above Councils so as they do what they list let the Plebeian Presbyter will or nill they are the onely numeral Figures and the other but Cyphers to make them Omnibus numeris absoluti Nevertheless the Canon still remains the same Episcopi se debent scire Presbyteros non Dominos nec debent in clerum dominari Episcopus se sedente non permittat Presbyterum stare Episcopi noverint se magis consuetudine quam dispensatione Presbyteris majores Kings may make them Lords but as Bishops they hold their former rank assigned by the Canon as Lord s the King never gave them the Keys and as Bishops the Canon did not yet as under the joynt Title of lord-Lord-Bishops they hold themselves priviledged to get what power they can Two things they reach at viz. The absolute power of Imprisonment and of Excommunication in all causes Ecclesiastical The Common Law would never yield this some Statutes in some Cases did pretend First As touching Imprisonment the Statute of Henry the Fourth concerning Heresie doth lisp some such power of what force the same Statute is hath been already observed In case of incontinency of Church-men it is more directly given them by a Statute in Henry the Seventh's time before which time the Statute it self doth intimate that an Action did lie against them for such Imprisonment which Law also was made useless by another in Henry the Eighth's time who gave a way to Statutes for the punishing them at the Common Law. First with Death which continued for some Moneths and that being found too heavy it was punished by another Law with Forfeiture and Imprisonment And the same King likewise gave way to a Law for the like punishment in case of Heresie By that Law that revoked the Statute of Henry the Fourth formerly mentioned although till Trial the same was bailable And thus continued till the time of Edward the Sixth But as touching Excommunication it was to no purpose for them to struggle the Common Law would never permit them to hold possession quietly but did examine their Authority granted Prohibition enjoyned the Ordinary to grant Absolution where it saw cause Nevertheless in some cases Henry the Eighth gives way to some Statutes to allow them this power as in the â—evying of Tenths In the next place the Prelacy had not this Ecclesiastical Jurisdiction in themselves so as to grant it to others but the Parliament did dispose thereof not onely to Bishops but to Chancellors Vicars general Commissaries being Doctors of the Law and not within holy Orders and limiting their Jurisdiction in cases concerning the Papal Jurisdiction and their manner of sending their Process and Citations to draw men from their proper Diocess and also their inordinate Fees in Cases Testamentary The Prelates therefore might possibly make great claim hereof for generally they were still of the old stamp loved to have all by Divine Right and lived they cared not by what wrong But the Laity enclining too much to the new Religion as then it was termed refused to yield one foot unto their pretentions And so like two Horses tied together by their Bits they endeavour after several courses ever and anon kicking one at another yet still bestrode by a King that was joynted for the purpose and so good a Horseman that neither of them could unhorse him till Death laid him on the ground And thus was the Roman Eagle deplumed every Bird had its own Feather the great men the Honours and Priviledges the meaner men the Profits and so an end to Annates Legatine levies Peter-pence Mortuaries Monasteries and all that Retinue the vast expences by Bulls and Appeals to Rome to all the cares expences and toil in attendance on the Roman Chair The beginning of all the happiness of England CHAP. XXXI Of Judicature THese two Kings were men of towring Spirits liked not to see others upon the Wing in which regard it was dangerous to be great and more safe not to be worthy of regard Especially in the times of Henry the Eighth whose motion was more eager and there was no coming nigh to him but for such as were of his own train and would follow as fast as he would lead and therefore generally the Commons had more cause to praise the King for his Justice than the Nobility had Both the Kings loved the air of profit passing well but the latter was not so well breathed and therefore had more to do with Courts which had the face of Justice but behind were for the Kings Revenue Such were the Court of Requests of mean Original mean Education yet by continuance attained to a high growth The Court of Tenths and first-Fruits The Court of Surveyors The Court of the Lord Steward of the Houshold The Court of Commission before the Admiral The Court of Wards The Court of the President of the North The Prerogative Court The Court of Delegates The Court of Commission of Review Others of more private regard And that which might have given the name to all the rest the Court of Augmentation Besides these there were some in Wales but that which concerned more the matter of Judicature was the loss of that grand Liberty of that Country formerly a Province belonging to this Nation and now by Henry the Eighth incorporated into the same and made a Member thereof and brought under the same Fundamental Law a work that had now been long a doing and from the time of Edward the Third brought on to perfection by degrees First by annexing the Tenure of the Marches to the Crown Then upon occasion of their Rebellion by loss of many of their wonted Liberberties Afterwards Henry the Eighth defaced the bounds of divers the ancient Counties and setled them anew and the bounds of the Marches also and appointed Pleas in Courts of Judicature to be holden in the English Tongue And last of all re-united them again to the English Nation giving them vote in Parliament as other parcel of the English Dominions had True it is that from their
looking on and such as stood more directly in her Path she would rather set aside than trample down and be fair to all without respect to difference of Religion that would be fair to her Much of her happiness depended upon Election of her Council more in observing their advice that whether she did rule or were ruled or did rule by being ruled might deserve some consideration This she did to give satisfaction to such as took prejudice at her Sex rather than out of any sense of imbecility in her own Intellectuals for therein she equalled the best of her Predecessors and in learned Endowments exceeded them all Generally she was of a publick mind if not popular she loved to be seen of the People and yet kept her distance Her Sex taught her to use her Tongue much and her Education to use it well and wisely That with a reserved Carriage was her Scepter winning thereby Applause from the inferiour sort and Awe from the greater A wise man that was an Eye-witness of many of her Actions and of those that succeeded her many times hath said That a Courtier might make a better Meal of one good Look from her than of a Gift from some other King. Another Felicity she had beyond others of her place She loved not to be tied but would be knit unto her People To them she committed her confidence under God and they to her their chiefest Treasure on Earth viz. Their hearts to her Parliament which was the most considerable Party that she had to deal with She could personate Majesty equal to any Emperour and advise commend yea and chide if she saw occasion And yet ever had a trick to come off with a kind Conclusion without blur of Honour So as of thirteen Parliaments called during her Reign not one became abortive by unkindness and yet not any one of them passed without Subsidy granted by the People but one wherein none was desired And sometimes the Aid was so liberal that she refused the one half and thanked the People for the remnant a Courtesie that rang loud abroad to the shame of other Princes She would often mention her Prerogative and yet not hold her self wise enough either to interrupt the Judges in their way nor the Bishops in theirs Albeit she spared not also as she saw occasion to check the best of them for their Irregularities She had no Beloved yet entertained Favourites at a cheaper rate and in better order than Kings use to do For she had a preferment within her power beyond the reach of them all and Passion also soon at command or rather sometimes beyond command yet if calmly taken it ever proved good for that Party that suffered in the conclusion However her love she held under her own power and therein excelled her Forefathers She had the Precedent of her Sister that adventured upon a Prince for her Bed and missed what she expected and lost what she had and thereby learned to call into question the possibility for her to gain the private Contentments of a married Life and therewith maintain her publick Interest in the Kingdom and therefore resolved rather to sit alone than to sit below and to refuse the help of any Consort rather than to part with any one jot of her Interest in the People So she remained above the People and her self and thereby enjoyed both But Custom in Government growing together with Infirmities of Age made her Regency taste somewhat stale and spiritless and gave occasion to mens minds to wander after the next Successor Before she had been nine years Queen this scrutiny was once begun but it received a fair answer of delay because it was then taken as done in love now the apprehensions hereof according to her age are more fad she thinks them weary of her and thereupon she is weary of her self and them She supposes she can no longer give them content the Lords have the power they will not be ruled and such like dark thoughts working upon an aged body weakned with other infirmities wasted her spirits and hastned a conclusion unto a weary life her self not unwilling herewith and her Courtiers less who expecting more from Successors than they find lived to dis-desire and unwish their former choice by late repentance Thus making the ending of her days she renewing of her Reign in the hearts of all that observed her alive or consider her now dead in the written Registers of her Fame CHAP. XXXV Of the Supreme Power during these Times THE Supreme Power but erewhile monstrous in the two former Kings times for Greatness now suffers as great a diminution over-shadowed by Infancy Womanhood and Coverture and gives the People breath to beware for the future Ne potentes si nocere velint non possent Nevertheless the loss was onely of the Hydropical humour and the Government came forth more clearly like it self In the point of Infancy Edward the Sixth bears it forth being the seventh President of Infancy ruling under Protectorship since the Norman times yet beyond all the rest in managing his Supremacy in Church-matters which none of them all did ever engage upon before him English Prerogative and Supremacy are Notions of a sublime nature and commonly looked upon as the Holy Mount at the delivery of the Law at a great distance for fear of death or undoing and yet it is such a thing as a child may handle without hurt done either to the Estates Persons or Consciences of any man because it is presupposed he does nothing but what the Law first dictates by his Council unto him There is then no Infancy in the Crown though in the Person because the wisdom of the Crown is not intended to rest in one Person but in the Counsels of many who are equally wise whether the Person of the King be old or young And the Statutes made by Henry the Eighth by which this King had power by his Letters-patents after the age of 24 years to adnul any Act of Parliament made by him before that time was not grounded either upon Principles of Law or general Reason of State but upon some particular circumstances of the state of the Affairs as then they stood and therefore is this power limited onely to such Heirs or Assignees of Henry the Eighth to whom the Crown shall come by his appointment Nor did it ever thrive to that desired end whereto it was intended for upon the entry of Edward the Sixth the Councils changed and the Parliament took this Statute away as scandalous to the Fundamental Government of the Nation and instead of the power of Adnulling allowed of the power of Repealing yet so as until such time of Repeal the said Statutes and all Acts thereupon done shall for ever be deemed warrantable and good This was too much but that the Times were yet in Equilibrio and men were loath to part with their Interests which they did hang upon that Power of
Reserve unto the King's Letters-patents Yet in that the Power is limited not onely in regard of the manner and time but of the persons and also of the Statutes that are to be repealed it is sufficient to vindicate the nature of this Prerogative if such it were to be no ways inherent but acquired by Concession But as touching the Legislative Power they would not trust it in the least manner to any other King. The Parliament had crowned Proclamations at the instance of Henry the Eighth with that Royal Title of Laws in manner as formerly hath been noted Now all Interests both of the Popish and of the reformed parties of this Nation are against it the former because they saw the King 's present way to be against them and both it and the latter because the thing it self was abominable unto the Liberties of the people and therefore it is soon taken away by Repeal and the Legislative Power is wholly re-assumed to themselves as formerly For though in matters Ecclesiastical the Power of the Crown might seem to be more pre-eminent in regard of the Supremacy and some particular powers in making Bishops by Election without Conge d'eslire yet did the Parliament neither yield or acknowledge any Legislative power to be in the Crown thereby but proceeded on in that way of the thirty and two Commissioners formerly agreed upon by them in the time of the King's Father Thus the King though an Infant was a gainer and the Crown nevertheless still the same Secondly That Crown that may be worn by an Infant may much rather be worn by a Woman whose natural endowments do far exceed the other and are not inferiour unto the most of men Of this we have two Examples in these times Queen Mary and Queen Elizabeth of several professions in matters of Religion and liable to exceptions in regard of their Sex by men of the counter-profession on both sides yet both upheld the Honour of the Crown though therein the one more especially being neither ingaged in the Roman Cause nor in the Estate of Marriage as the other was This was Queen Elizabeth in person a Woman but in mind endowed with all the perfections of a man she could not endure to abate one hairs breadth of her State and yet upon the sole regard of her Sex she submitted her Title of Supremacy to a more moderate name of Supream Governour whereas her Father would be called Supream Head as if it were not onely hazardous but hideous for a Woman to be Supream Head of the Church And for this cause would she not receive that Statute made by her Father and continued by her Brother Edward the Sixth and repealed by her Sister Queen Mary Nevertheless such as she was she had all such Jurisdictions Priviledges Superiorities and Pre-eminencies Spiritual or Ecclesiastical as by any Ecclesiastical Power or Authority formerly had been or might be lawfully exercised for visitation of the Ecclesiastical State and Persons and for Reformation Order and Correction of the same and all manner of Errours Heresies Schisms Abuses Offences Contempts and Enormities She had therefore neither absolute Empire nor absolute Jurisdiction over the Churches neither power to make declare alter or repeal any Law neither did she ever exercise any such power but onely by Act of Parliament She had a Power over Ceremonies in the Worship of God which was given her by the Parliament to execute by advice and therefore was limited as also was all the remainder of her Power in Jurisdiction Ecclesiastical For she could do nothing in her own person but by Commission and these Commissioners must be Natives and Denizons not Foreigners and the same to be but in certain Cases and with certain Process Some Cases of Ecclesiastical Cognizance were referred to Trial at the Common Law viz. Such as concerned the publick Worship of God in cases of Forfeiture and Imprisonment Lastly Neither had the Queen nor her Commissioners nor Bishops absolute power over the Church-Censures no Censure was regarded but Excommunication and that no further than in order to the Writ De Excommunicato capiendo and in all Cases the same was to be regulated according to the Statute in that case provided or by the Common Law in case of Action In all which we find no Jurisdiction in Cases Ecclesiastical that is absolutely setled in the Crown In matters Temporal the thing is yet more clear she never altered continued repealed nor explained any Law otherwise than by Act of Parliament whereof there are multitudes of Examples in the Statutes of her Reign and what she did by her Judges was ever under Correction A Woman she was and therefore could be no Judge much less in the Cases of difference concerning her self and her Crown A Queen she was and might make Judges but she must go according to the Law new Judicatories she could make none nor judicially make declare alter or determine the power of any Court or Judge in case of difficulty but by her Parliament As in the cases concerning the power of the Lord-Keeper the powers of the Commissioners of Sewers and charitable uses the Courts at Westminster and the County-Courts in the several Statutes concerning the same may more fully appear And which is yet of a meaner size her Power extended not to redress any inconvenience in process of Errour or Delay in Courts of Law nor to remedy Errours in Judgement Fines Recoveries Attainders or other matters of Record or Trial whereof the Statutes of her time are full and also the opinions and judgements of the Judges of the Common Law concurring therewith I mention not the power of Life and Member which without all contradiction hath ever been under the protection of the known Law. So as upon the whole account it will be evident that this Queen had no absolute Pre-eminence in all cases but either in contradiction to Foreign power or the power of any particular person and not in opposition to the joynt interest of the Representative of England Queen Mary comes next although a Woman as well as she yea her elder Sister and Predecessor yet came short of her in the point of Supremacy by a double submission both unto the Law of a Husband and of a Foreign power in Cases Ecclesiastical although the same was with such qualifications as it was much more in Title and pretence than in reality and so in the conclusion neither approved her self to be good Wife good Catholick nor good Queen She could be no good Wife because she was too great for her Husband within the Realm and resolved not to be without A Catholick she was but the worst that ever held her place her Father appeared what he was spake plain English and was easily discerned But she told the Pope a fair Tale of disclaiming Supremacy and reconciling her Kingdom yet none of her Predecessors did go beyond her in
than a power of Non obstante in the point of obedience to the Canon-Law which by a Statute in Henry the Eighth's time is declared no Law. But let this pass as a Mole in this fair face of Church-government The Prelates are now become of the Vicinage Probi legales homines they have their Jurisdiction by Law established what they lose in breadth they gain in height and goodness of their Foundation Yet their Attire looks ill-favourably in Queen Maries eye she will have it of the old cut again and though Cardinal Pool was well seen in the Roman fashion yet when he had done all he did no more than shape a Garment to serve the present Interlude neither fit to the body nor easie to be worn and therefore after four or five turns upon the Stage it is thrown away Nevertheless during the time that England was thus dancing the Italian measure Prelacy in England held its own Domestick garb so well that neither Poole being of English bloud not much distant from the Crown and then also holding the Chair Legatine as little inferiour to the Throne would not impose too much nor Queen Mary a woman of a stout Spirit yield farther than she liked By means whereof the Prelacie looking no more to Rome than the power in Appeals and therein little more than the bare Title played Rex all the while with the people under colour of Heresie and the Canon-Law which now was again made their Rule And thus as touching their Election and Jurisdiction they were as before For Queen Mary did nothing but by single Repeal But Queen Elizabeth being true English both by Father and Mother liking not this retreat faced about routed the Roman fashion out of fashion put Prelacie to its close guard and received it upon capitulation not onely to mercy but favour and so it became her Vicar to exercise her Ecclesiastical Jurisdiction per saltum For it is hard to find by what steps they gained this pitch Henry the Eighth was Supream Head by submission of the Clergie by Resumption and by Act of Parliament and as such the power of Bishops formerly derived from Rome ceased and Henry the Eighth after restored it anew and setled the same by several Acts of Parliament which Edward the Sixth confirmed with divers additional Acts of further benefit to them as hath been already noted But Queen Mary altered all by repeal of the former Laws and so left all in Remitter as before the alteration by Henry the Eighth and did neither give or grant any Jurisdiction to the Pope Last of all comes Queen Elizabeth and by Repeal and Resumption possessed her self of Jurisdiction Ecclesiastical and granted Election of Bishops by Conge d'eslire but never granted to the Bishops Ordinary Jurisdiction by any express Act other than permission of them to continue in their former course notwithstanding that the foundation of their Jurisdiction had been altered twice and so it will be difficult for it to hold by Prescription or Custom or any other way than by a kind of Divine Right which began to be pretended yet to this day could never be made evident to the World. Whatever the ground was the thing is plain that Prelacie in Queen Elizabeths time had this honour allowed thereunto that it was upholden by Election from Ecclesiastical men and held its Jurisdiction as from it self and in the name of Bishop as Ordinary and the power of Excommunication by a saving in the Statute-law and not by express Donation notwithstanding the late Precedent in the time of Edward the Sixth to the contrary Secondly The Rule of this Jurisdiction was no less at large for the Canon-Law was determined by Henry the Eighth and Edward the Sixth and was not revived by any Act of Parliament by Queen Mary or Queen Elizabeth who neither pursued the Medium of the Thirty two Commissioners nor setled other rule but a few Canons which after some time by Queen Elizabeth and her Clergie were agreed upon but never confirmed by Act of Parliament And so could never bind the Subject and which in general set forth a kind of Form of Churchâ— policy yet no fashion of Jurisdiction or rule of proceedings in the Ecclesiastical Courts but in such cases left them to the Canon-Law which was hidden in their own breasts and could be make strait or wide as they pleased Thirdly theâ— Censures now grew more sharp for whereas at the utmost formerly they â—â—uld do no more but imprison or deliver over to the Secular Power and that onely in case of Heresie and yet had scarce ground of Law for what they did now they have an additional power to fine and imprison in Cases of inferiour nature and so can reach all that a man hath even to his skin Nevertheless this was not annexed unto the ordinary Jurisdiction but given by extraordinary Commission called the High Commission wherein though many others were named yet the Clergie and Canonists did the work the rest being but in nature of a reserve to them in case they were put to the rout The power of these Commissioners was to execute the Queens Jurisdiction in Causes Ecclesiastical so as the Bishops are doubly interested in this work one way by supposed Commission â—rom God as Ordinaries within their own Diocess onely and so may proceed to Excommunication or Deprivation the other way by Commission from the Queen as Members of the High Commission for so many of them were such as the Crown would please and so they might fine and imprison They might and did I say by their Commission but not by the Statute that gives authority thereto and therefore cannot be said to be done legally Fourthly besides the contracted power of making Canons in the Convocation by the power of the Royal Assent the Queen had a power of making Laws by their consent in matters of the criminal part of the Worship of God. This might be tolerable for the Life of the one Queen who might be presumed would if she lived a few years settle all things but to subject the Consciences of all the people to the opinion of one Metropolitan that might opinionate strange things and that the Successors of the Queen should usurp this as a Flower of the Crown to determine what is for Gods glory in such cases and to be always altering and patching up a Form as he and his Metropolitan or one of them alone shall think meet is neither commendable upon any grounds of Divinity or humane Policy Now amidst the flourishing Estate of Prelacy it is no wonder if the Churches be no gainers but like Plants spending their Natures in luxuriant Branches either are over-turned by the next blast of wind or do wither upon the least change of Skie That the whole ordering of the Church-Affairs rested originally in the Parliament no man can question considering whatever the Queen did or had therein was from the power of Acts of Parliament And that the
true and so they did unto the Councils in the ancient Saxon times and so the Knights of the Counties ought to do in these days if they obey the Writ Duos Milites gladiis cinctos c. Secondly he saith that the Knights were not to come to Council That is his opinion yet the Writ speaks that the Discreti Milites were to come Ad loquendum cum Rege de negotiis regni It is true saith he but not Ad tractandum faciendum consentiendum It is true it is not so said nor is it excluded and were it so yet the Opponents conclusion will not thence arise That none but the King and those who are of the House of Lords were there present The Sixth and last instance mentioned by the Opponent is in his Thirtieth page and concerneth Escuage granted to King John who by his Charter granted That in such cases he would summon Archbishops Bishops Abbots Earls and the greater Barons unto such Conventions by special Writs and that the Sheriff shall summon promiscuously all others which hold in Capite and thence he concludes That none but the Great Lords and the Tenants in Capite whom he calls the lesser Barons were present but no Knights Citizens or Burgesses all which being granted yet in full Parliament the Citizens and Burgesses might be there For Councils were called of such persons as suited to the matter to be debated upon If for matters purely Ecclesiastical the King and his Council of Lords and the Church-men made up the Council If for advice in emergencies the King and such Lords as were next at hand determined the conclusions If for Escuage the King and such as were to pay Escuage made up a Council to ascertain the sum which was otherwise uncertain If for matters that concerned the common Liberty all sorts were present as may appear out of the very Charter of King John noted in my former discourse page 258. and also from an Observation of Cambden concerning Henry the Third Ad summum honorem pertinet said he Ex quo Rex Henricus Tertius ex tanta multitudine quae seditiosa ac turbulentia fuit optimos quosque ad Comitia Parliamentaria evocaverit Secondly The Opponent takes that for granted that never will be viz. That all the Kings Tenants In Capite were of the House of Lords whenas himself acknowledgeth a difference page 28. viz. That the Barons are summoned by Writs sigillatim as all the Members of the House of Lords are but these are by general Summons their number great and hard it will be to understand how or when they came to be excluded from that Society I shall insist no further upon the particulars of this Tractate but demur upon the whole matter and leave it to Judgement upon the Premises which might have been much better reduced to the main Conclusion if the Opponent in the first place had defined the word PARLIAMENT For it was a Convention without the People and sometimes without the KING as in the Cases formerly mentioned of the Elections of William Rufus and of King Stephen And if sometimes a Parliament of Lords onely may be against the King and so without King or People as in the Case between Stephen and Maud the Empress and the Case likewise concerning King John both which also were formerly mentioned All this is no more to the Government than it would be should at any time the Commons hold a Parliament without a King or House of Lords and then all the Opponents labour is to little purpose A TABLE TO THE Second Part. A A Betting of Felony made Felony page 174 Administration granted to the next of the Kindred 30 Admirals power from the Parliament 24. formerly under many brought into one 25. once gained jurisdiction to the high-water-mark 26. and his Power regulated by Law ibid. over Sea-men Ports and Ships ibid. Allegiance according to Law 11. vide Supremacy the nature thereof in general 42. it is not natural ibid. 52. not absolute or indefinite 49. not to the King in his natural capacity 51. it obligeth not the people to serve in forein War 60. it is due to the person of the King for the time being 144 163. what it is in time of War and relation thereunto 144. Henry the Seventh and Henry the Eighth endeavoured to advance it in relation to the Crown but effected it not 61. Appeals in cases Ecclesiastical restrained from Rome and given in the Kings case to the Convocation and in the cases of the people the Archbishop afterwards to the Delegates and were never setled in the Crown 133 136. vide Archbishop Archbishop hath the lawful power of the Pope in Appeals and Dispensations Licenses and Faculties 136. the Archbishop of York loseth his jurisdiction over the Scotish Bishops 113 Arrays Commission of Array 104 vide War. Assent of the King to Acts of Parliament serveth onely to the execution of the Law and not to the making thereof 13 Association of the people for the common safety before the Statute enabling the same 173. B. BAstardy not to be determined by the Ordinary before Summons to the pretenders of Title to be heard 92 Bench the Kings Bench at Westminster abated in power by the Commissions of Oyer and Terminer and Goal-delivery 54 97 Benevolence first used by Edward the Fourth 108. taken away by Richard the Third ibid. taken up again by Henry the Seventh 114 Bishops not impeachable before the Civil Magistrate 29. their Temporalties to be neither seized nor wasted in the vacancy Vide Ordinary Buggery made Felony 173. C. CAnons their power anciently in debate 37. such as are not according to the Law are taken away 138 Castles and Goals restored to the Country 67. vide Forts and Fortifications Chancery once an Office afterwards a Court 21. the power grows by Act of Parliament 22 95. the manner of the proceedings 23. Keeper of the Great Seal increaseth in power 95 Chancellour elected by the Parliament 23 Cheshire made a Principality 7 Children carried into Cloisters remedied 96 Clergie priviledgea from Arrests 31. discharged of purveyance and free quarter ibid. their Temporalties in question 38. the Commons love not their persons 86. their first declining from Rome in the matter of Provisors 88. they gain free process in matters Ecclesiastical 112. their defection from Rome and submission to the Crown 120 Clergie upon Trial but once allowed 151. in some cases disallowed 147 173. Commissioners Ecclesiastical 167. High Commission ibid. Conjuration vide Witchcraft Conservators of the Truce 95 Constables Court vide Marshals Court Convocation established by Parliament 89. it then undertook great matters but much more after the Clergies forsaking the Pope 134 Councils the Privy Council ordered by Parliament 13 20 83. of use for sudden motions 16. their Oaths 17. and Jurisdictions 19. and power 83 Magnum Concilium or the grand Council of Lords 16 Crown entitled not by Descent 75 162. but intailed 75. vide 109.
more uncapable of any new Light. But when the time fore-set is fully come all Mountains are laid low and double-folded Doors fly open and this Conquerour of all Nations attempts Britain not in the Rear nor by undermining but assails them in their full strength presents in a clear Sun-shine that one true Sacrifice of God-man at the appearing whereof their shadows of many Sacrifices of mans flesh fly away And thus those Druides that formerly had dominion of the Britons Faith become now to be helpers of their joy and are become the leaders of the blind people in a better way and unto a better hope and held forth that Light which through Gods mercy hath continued in this Island ever since through many Storms and dark Mists of time until the present Noon-day CHAP. III. Of the entry of the Romans into Britain and the state thereof during their continuance THis conversion of the Druides was but the first step to that which followed for the Decree was more full of grace than to make this Isle to be only as an Inne for him to whom it was formerly given for a possession The Romans are called into the work under whose Iron yoak God had subdued all Nations thereby more speedily to bring to pass his own conquest both of that one Head and all its Members The first Caesar had entred Britain before the Incarnation and having seen and saluted it and played his prize returned with the same only of Conquest of some few Lordships neighbouring to the Belgick shore and so it continued correspondent to the Romans or rather forgotten of them till the time of Claudius the Emperour who being at leisure to bethink him of the Britons Tribute or rather aspiring to honour by a way formerly untroden by his Ancestors first setled Colonies in Britain and brought it into the form of a Province and ingaged his Successors in a continual War to perfect that work which outwearied their strength at last and made them forego the prey as too heavy for the Eagle to truss and carry away It oft befals that things of deformed shape are nevertheless of excellent spirit and serve the turn best of all and it is no less remarkable that this tide of Roman invasion however it represented to the world little other than a tumour of vain-glory in the Romans that must needs be fatal to the Britons liberty and welfare yet by over-ruling providence it conduced so much to the Britons future glory as it must be acknowledged one of the chief master-pieces of supernatural moderatorship that ever this poor Island met with First he taught them to bear the yoke to stoop and become tractable for stubborn spirits must first stoop under power before they will stoop to instruction But this onely in the way for tractableness if good ensue not is of it self but a disposition for evil Secondly it brought into Britain the knowledge of Arts and Civility and questionless it was a wise policy of Agricola to go that way to work for it is an easie and Royal work to govern wise men but to govern fools or mad-men is a continual slavery and thus Religion already setled in Britain became honoured with a train of Attendants and Handmaids Thirdly they reduced the number of little Lordships nigher to the more honourable estate of Monarchy for the Romans by dear experience finding no stability or assurance in what they had gotten so long as so many petty Kings had the rule they wisely brought the whole into one Province because it is much easier to govern many subordinate each to other than co-ordinate one with another over which they allowed one chief to rule the people according to their own Laws saving their service to the Romans and their Lieutenants until they were necessitated to yield up all to the next occupant This served the British Church with a double interest The first Religion spreads sooner under one uniform Government than under variety and under Monarchy rightly ordered rather than any other Government whatsoever albeit that other Governments may afford it faster footing when it is entred Secondly Rome was a renowned Church throughout the world for gifts and graces and it is obvious to conceive that it was specially purposed by Divine Providence to make that place a Fountain that from thence the knowledge of Christ might convey it self joyfully with the influence of Imperial power as the spirits with the Blood into all Nations of that vast body Above one hundred years were spent in this Provincial way of Government of Britain under the Roman Lieutenants during all which time Religion spread under ground whiles the Roman power in a continual war sprang upward Nor is it strange that Religion should thrive in War the French Wars in Edward the Thirds time brought much of this happiness to England from the Waldenses and Germany had no less benefit by the wars of Charles the Fifth with the Italians French and Turks and thus the Romans levened with the Gospel by exchanging men with Britain and other mutual correspondencies insinuated that leven by degrees which in the conclusion prevailed over all For the Roman Lieutenants having gotten sure footing in Britain steered their course with a different hand generally they were of the Roman stamp seeking to kill Christ in the Cradle and by that means Religion met with many storms of bitter persecution and so was compelled to bear a low sail but some being more debonaire and of wiser observation soon found that the way of justice and gentleness had more Force in Britain than Arms and so endeavoured to maintain that by moderation which they had gotten by labour and blood as it is ever seen that where conquest is in the van gentleness follows in the rear because no Bow can stand long bent but at length must give in and grow weak And thus by connivance the Britons got a little more scope and Religion more encouragement till it became acquainted with the Roman Deputies began to treat with the Emperours themselves and under the wise government of Aurelius the Emperour mounting into the British Throne Crowned Lucius first of all Kings with the Royal Title of a Christian. He now not so much a Vassal as a Friend and Ally to the Romans and perceiving the Empire to be past noon and their Lieutenants to comply with the Christians began to provide for future Generations and according to the two grand defects of Religion and Justice applied himself for the establishment of both Religion in Britain hath hitherto been for the most part maintained by immediate influence from Heaven No Schools no Learning either maintained or desired the want whereof together with the persecutions stirred up by the Emperours especially Domitian brought the Church to so low an ebb that the Sacraments ceased for Histories tell us that Lucius sent to Rome for relief and that the Bishop of that place whether Evaristus or Eleutherius sent
over Learned men to Preach and Baptize both King and People and this Rome might probably gain some Honour although possibly the King intended it not or much less to acknowledg any Authority or Power in that Church over that of Britain This act of Lucius so advanced him in the opinion of Writers that they know not when they have said enough Some will have him to be the instrument of the first entry of Religion into this Isle others that he setled a form of Church-government under the three Archbishops of London York and Caerlion upon Vske and 28 Bishopricks the first of which is cried down by many demonstrative instances nor can it consist with the second nor that with it or with the truth of other stories For it neither can be made out that Lucius had that large circuit within his Dominion nor that the title of Archbishop was in his daies known and 't is very improbable that the British Church was so numerous or that Religion in his time was overspread the whole Island nor is there any mention in any Author of any Monuments of these Archbishops or Bishops of Britain for the space of 200. years after this King's reign and yet no continual raging persecution that we read of that should enforce them to obscure their profession or hide their heads or if such times had been it would have been expected that Bishops in those daies should be in Britain as well as in other places most famous for gifts and graces and pass in the forefront of persecution But we find no such thing no not in the rages of Dioclesian which made the British Church famous for Martyrs Writers speak of Alban Amphibalus Aron Julius and a multitude of Lay-people but do not mention one Bishop nor Presbyter nor other Clergy-man but quendam Clericum a man it seems of no note and of unknown name In Charity therefore the English Church in those daies must be of mean repute for outward pomp and to liftedup to that height of Archbishops when as Rome it self was content with a Bishop Somewhat more probable it is that is noted by Writers concerning Lucius his endeavour to settle the Commonwealth and good Laws for Government and to that end did write a Letter to Eleutherius Bishop of Rome for a Model of the Roman Laws probably being induced thereunto by the splendor of the state of the Roman-Church and Commonwealth the onely Favorite of fame in those times through the Northern parts of the World. Things afar off I confess are dim and it is meet that Antiquaries should have the honour due to great after-sight And therefore I might think as some of them have done that the Epistle of Eleutherius to King Lucius is spurious if I could imagine to what end any man should hazard his wits upon such a Fiction or if the incongruities charged against it were incurable but being allowed to be first written in Latine and then translated into British for the peoples satisfaction and in that Language the Original being lost traduced to posterity and then by some Latine Writer in after-ages returned into Latine and so derived to these times all which very probably hath been such occasions of exceptions well arise by mistake of Translators and Transcribers in ignorant times and the substance nevertheless remain entire and true Considering therefore that the matter of that Epistle savoureth of the purer times of the Church and so contrary to the dregs of Romulus I mean the policy practice and language of the Roman Clergy in these latter ages wherein this forgery if so it be was made I must allow it to pass for currant for the substance not justifying the syllabical writing thereof To others it seemeth needless and vain that Lucius should send for a model to Eleutherius when as the Roman Deputies and Legions at home might have satisfied the Kings desire in that particular or their own experience might have taught them grounds sufficient after two hundred years converse with the Romans that they should have little needed a model for that which they saw continually before their view or might have understood by inquiry of their own acquaintance But what could be expected of rough Souldiers concerning form of government of a Common-wealth or if some exceeded the ordinary strain in policy yet they were too wise to communicate such Pearls to conquered Nations that ought to look no higher than the will of the Conquerour and subsist in no better condition than may be controlled by the Supream Imperial Law of the Lord Paramount or if in this they had corresponded to the desires of the Britains yet being for the most part ignorant of the main they could never have satisfied the expectations of a Christian King who desires such a Law as may befriend Religion and wherein no man was more like to give direction than Eleutherius who seeing a kind of enmity between the Roman-Laws and Christ's Kingdom sends to the King a fair refusal of his request upon this ground that Leges Romanas Caesaris semper reprobare possumus He saw that they were not well grounded he therefore refers the King to the sacred Scripture that is truth itself Laws that come nighest to it are most constant and make the Government more easie for the Magistrate quiet for the People and delightful to all because mens mindes are setled in expectation of future events in Government according to the present rule and changes in course of Government are looked at as uncoth motions of the Celestial Bodies portending Judgements or Dissolution This was the way of humane wisdom but God hath an eye on all this beyond all reach of pre-conceit of man which was to make England happy in the enjoying of a better Law and Government than Rome how glorious soever then it was and to deliver that Island from the common danger of the World for had we once come under the Law of the first Beast as we were under his Power we had been in danger of being born Slaves under the Law of the second Beast as other Nations were who cannot shake it off to this day But Lucius lived not to effect this work it was much delayed by the evil of the times nothing was more changeable Then the Emperours grew many of them so vitious as they were a burthen to Mankind nor could they endure any Deputy or Lieutenant that were of better fame than themselves had Some of them minded the affairs of the East others of the North none of them were ad omnia And the Lieutenants in Britain either too good for their Emperour and so were soon removed or too bad for the people of the Land and never suffered to rest free from Tumults and Insurrections So that neither Lucius could prevail nor any of his Successors but passing through continual cross flouds of Persecutions under Maximinus Dioclesian and Maximinianus and many Civil Broiles till the times of Constantine