THE CONTINUATION OF AN HISTORICALL DISCOURSE OF THE GOVERNMENT OF ENGLAND Vntill the end of the Reigne of Queene ELIZABETH WITH A Preface being a Vindication of the ancient way of Parliaments in ENGLAND By Nath Bacon of Grais-Inne Esquire LONDON Printed by Tho Roycroft for Matthew Walbanck and Henry Twyford and are to be sold at Grais-Inne Gate and in Vine Court Middle Temple 1651. The Contents of the severall Chapters of this Book I. THe sum of the severall Reignes of Edward the third and Richard the second fol. 3. II. The state of the King and Parliament in relation of him to it and of it to him fol. 13. III. Of the Privy Council and the condition of the Lords f. 26. IV. Of the Chancery fol. 35. V. Of the Admirals Court. fol. 41. VI. Of the Church-mens Interest fol. 45. VII Concerning Trade fol. 64. VIII Of Treason and Legiance with some considerations concerning Calvins Case fol. 76. IX Of Courts for causes criminall with their Laws fo 92. X. Of the course of Civill Justice during these times fo 96. XI Of the Militia in these times fol. 98. XII Of the Peace fol. 108. XIII A view of the summary courses of Henry the fourth Henry the fifth and Henry the sixth in their severall Reignes fol. 115. XIV Of the Parliament during the Reignes of these severall Kings fol. 127. XV. Of the Custos or Protector Regni fol. 134. XVI Concerning the Privy Councell fol. 141. XVII Of the Clergie and Church-government during these times fol. 146. XVIII Of the Court of Chancery fol. 162. XIX Of the Courts of Crown Plas and Common Law fo 165 XX. Concerning Sheriffs fol. 168. XXI Of Justices and Lawes concerning the Peace fol. 170. XXII Of the Militia during these times fol. 175. XXIII A short survey of the Reignes of Edward the fourth Edward the fifth and Richard the third fol. 181. XXIV Of the Government in relation to the Parliament fol. 187. XXV Of the condition of the Clergie fol. 191. XXVI A short sum of the Reignes of Henry the seventh and Henry the eighth fol. 194. XXVII Of the condition of the Crowne fol. 202. XXVIII Of the condition of the Parliament in these times fol. 223. XXIX Of the power of the Clergy in the Convocation f. 229. XXX Of the power of the Clergy in their ordinary Jurisdiction fol. 232. XXXI Of Judicature fol. 241. XXXII Of the Militia fol. 245. XXXIII Of the Peace fol. 253. XXXIV Of the generall Government of Edward the sixth Queen Mary and Queen Elizabeth fol. 259. XXXV Of the Supream power during these times fol. 268. XXXVI Of the power of the Parliament during these times fol. 277. XXXVII Of the Jurisdiction Ecclesiasticall during these last times fol. 283. XXXVIII Of the Militia in these later times fol. 290. XXXIX Of the Peace fol. 297. XL. A summary Conclusion upon the whole matter fol. 300. A PREFACE CONTAINING A Vindication of the Ancient way of the Parliament OF ENGLAND THE more Words the more Faults is a divine Maxime that hath put a stop to the publishing of this second part for some time but observing the ordinary humor still drawing off and passing a harsher censure upon my intentions in my first part then I expected I doe proceede to fulfill my course that if censure will be it may be upon better grounds when the whole matter is before Herein I shall once more minde that I meddle not with the Theologicall right of Kings or other Powers but with the Civill right in fact now in hand And because some mens Pens of late have ranged into a denyall of the Commons ancient right in the Legislative power and others even to adnull the right both of Lords and Commons therein resolving all such power into that one principle of a King Quicquid libet licet so making the breach much wider then at the beginning I shall intend my course against both As touching the Commons right jointly with the Lords it will be the maine end of the whole but as touching the Commons right in competition with the Lords I will first endeavour to remove out of the way what I finde published in a late Tractate concerning that matter and so proceede upon the whole The subject of that Discourse consisteth of three parts one to prove that the ancient Parliaments before the thirteenth Century consisted onely of those whom we now call the House of Lords the other that both the Legislative and Judiciall power of the Parliament rested wholly in them lastly that Knights Citizens and Burgesses of Parliament or the House of Commons were not knowne nor heard of till punier times then these This last will be granted Viz. That these severall titles of Knights Citizens and Burgesses were not known in Parliament till of later times Neverthelesse it will be insisted upon that the Commons were then there The second will be granted but in part Viz. That the Lords had much power in Parliament in point of Jurisdiction but neither the sole nor the whole The first is absolutely denyed neither is the same proved by any one instance or pregnant ground in all that Book and therefore not cleerly demonstrated by Histories and Records beyond contradiction as the Title page of that Book doth hold forth to the World First because not one instance in all that Book is exclusive to the Commons and so the whole Argument of the Discourse will conclude Ab authoritate Negativa which is no argument in humane testimony at all Secondly the greatest number of instances in that Booke are by him supposed to concerne Parliaments or generall Councils of this Nation holden by the Representative thereof whereas indeed they were either but Synodicall Conventions for Church matters whereunto the poore Commons he well knoweth might not come unlesse in danger of the Canons dint or if they did yet had no other worke there then to heare learne and receive Lawes from the Ecclesiasticks And the Lords themselves though present yet under no other notion were they then as Councell to the King whom they could not cast out of their Councell till after Ages though they often endeavoured it Thirdly the Author of that Tractate also well knoweth that Kings usually made Grants and Infeodations by advice of the Lords without the ayde of the Parliament And it is no lesse true that Kings with the Lords did in their severall ages exercise ordinarily Jurisdiction in cases of distributive Justice especially after the Norman entrance For the step was easie from being Commanders in Warr to be Lords in peace but hard to lay downe that power at the foot of Justice which they had usurped in the rude times of the Sword when men labour for life rather then liberty and no lesse difficult to make a difference between their deportment in commanding of Souldiers and governing of Countrey-men till peace by continuance had reduced them to a little more sobriety Nor doth it seeme irrationall that private differences
therefore safe if not necessary that every eye should be open and Counsells ready for every Occasion A law at length is agreed upon that A Parliament shall be holden once every yeare or more if need be But in thirty yeares the power of this Law is wasted out of minde and the evill reviving revives also the Statute and yet they had thirteen or fourteen Parliaments in thirty yeares space and not above three or but once foure yeares distance of time between any two of them in Succession This was the sense of the Members of the Houses in their meeting but at home they had homely conceits and it s found no lesse difficult to bring them to the meeting then to continue the meeting according to the Law being either loath to adventure their thoughts into the troublesome affaires of the Publique or their Persons to expence and hazard But the Publique must be served and therefore an Act of Parliament is made That all such Members as decline their appearance at the Parliament after Summons made shall be amerced and the Sheriffes likewise that shall neglect return of Summons And the Statute implyeth that it was no Introduction of a new Law but a reviving of former Law now or lately difused or a Custome now out of Custome And to take away all Objection in point of charges and expences another Law was made to establish the assessments and levying of their Wages upon the Lands that anciently were chargeable therewith in whose hands soever the same shall come I shall conclude with this that the Parliament though like a Garment it sometimes covers the goodly feature and proportion of a well composed body yet it keepes the same warme and as a Sheild is first in all dangers and meets with many a knock which the body feels not This is their worke and reward It s true that in the wearing it is felt heavy but it is the easier born if it be duely considered that it is better to be so clothed then to be naked CHAP. III. Of the Privy Councell and condition of the Lords THe later must make way for the former for according to their Personall esteeme in their own Countries such is their Authority at the Board in joynt Councells And it was one point of happinesse in a sad time of Warre that all men looked one way The Lords were much addicted to the Feild and could doe much with Edward the Third who was a brave Leader and more with the People who had bin so long time used to the rough trade of Souldiery that they loved not to be at home about matters of Husbandry wherein they had so little experience And having so fair a Garland in their eye as France it s no wonder if Domestick designes seemed meaner or more dangerous Thus did God doe England a good turn although it was made for the present thereby neither so rich or populous as it might have bin in a time of Peace This French Heate wasted many a tumultuous Spirit and Innobled the Fame of the King and Lords not onely abroade but won them much Honour and Repute of those that remained at home and so by congregating Homogenealls and severing Heterogenealls rendered the body of the People more Univecall which tended much to the settling of the joynts of this distracted Nation A timely birth hereof doubtlesse was the peaceable entry of Richard the Second upon the Throne and quiet sitting there whiles as yet he was but a Childe the Princes of the blood many and they of generous Active and daring Spirits yet doe we not meete with a whisper in Story of any turbulent or aspiring humor in them or the People during those tenderer times of that Kings reigne But after that he came to know more in himselfe then was to be found and to outreare his abilities having some of the Lords ready at his elbow to help him these changed the Kings course although the generall part of that Noble Band kept still their Array and retaining the body of the People in due composure thereby declared themselves to be the Kings Friends though the others were Richards Favorites so as he was fain to stoop to occasion and submit to be a King that would have otherwise beene more or lesse And thus the Lords were become Supporters to the Crown Studds to the Throne and a Reserve to the People against the violent motions of an unbridled minde in their King who seeing them so united and indeavouring to break them into parties to obtain his desire lost both it and himselfe It is a degree of cleanly modesty to impute the miscarriages of unruly Kings to their Councell For however during their minority Councellors are more rightly Officers of State yet when Kings will be their owne Men their Councellors are no other then the breath of the Kings owne breast and by which a King may be more truely discerned then any man by his bosome Friends Edward the Third was a man of a publique Spirit and had a Councell suitable to his aime Richard the Second a man that desired what him pleased would have what he desired and a Councell he had that served him in all for God answers the desires of mens hearts in Judgement as well as in Mercy and a sore judgement it is both to King and People when the corrupt desires of the King are backed by a flattering Councell It must be granted that the Privy Councell of Kings hath been an old ginne of State that at a sudden lift could doe much to the furthering of the present Estate of publique Affaires Neverthelesse through the Riot of Kings their Designes generally tended to make more worke for the Parliament then to dispatch to doe much rather then well like workes for sale rather then for Master-peice and sometimes to undermine yea to outface the Parliament it selfe like some unruly servants that will put away their owne Masters Nor can it otherwise be expected unlesse the Kings elected ones be turned into the Parliaments Committee or that constant annuall Inquisition by Parliament be made into their Actions for occasionall inquiries breed ill blood though no attainder be nor are they easily undertaken whereas constancy in such Cases makes the worst to be resolved but into a matter of common course The naturall and originall power of the Privy Councell is very obscure because there are severall Degrees of them that occasionally have beene used all of whom may deserve the name of Privy Councell in regard of the Parliament which is the most publique Councell of all the rest and alwayes hath a generall interest in all Causes in the Kingdome The first of these is that which was called The Grand Councell of the King which as I thinke was not the House of Lords who are called by Summons and were onely to attend during the Parliament but a body made up of them and other wise men of his owne retinue and of this it seems
there was a constant body framed that were sworn to that service for some in these times were sworne both of the Grand Councell and the Privy Councell and so entered upon Record The second of these Councells was also a great Councell and probably greater then the other but this was called onely upon occasion and consisted of all sorts like a Parliament yet was none An example whereof we have in the Ordinances concerning the Staple which at the first were made by the King Prelates Dukes Earles Lords and great Men of the Kingdome one out of every County Citty and Burrough called together for that end their results were but as in point of triall for sixe moneths space and then were turned into Statute-Law by the Parliament These two are Magna Concilia yet without power further then as for advise because they had no ancient foundation nor constant continuance Another Councell remaineth more private then the other of more continuall use though not so Legally founded and this is called the Kings Privy Councell not taking up a whole House but onely a Chamber or a Table signifying rather communication of Advice then power of Judicature which more properly is in Banco And yet the power of this grew as virile and royall as it would acknowledge no Peere but the Parliament and usurped the representative of it as that had bin of the whole Kingdome The ambition thereof hath ever bin great and in this most notoriously evident that as it had swallowed up the grand Councell of Lords it seldome can endure the mention of a Parliament but when Kings or Affairs are too rugged for their owne touch The platform of their power you may behold in this their Oath 1. That well and lawfully they shall councell the King according to their best care and power and keep well and lawfully his Councels 2. That none of them shall accuse each other of any thing which he had spoken in councell 3. And that their lawfull Power Aid and Councell they shall with their utmost diligence apply to the Kings rights 4. And the Crowne to guard and maintaine save and to keepe off from it where they can without doing wrong 5. And where they shall know of the things belonging to the Crowne or the rights of the King to be concealed intruded upon or substracted they shall reveale the same to the King 6. And they shall enlarge the Crowne so far as lawfully they may and shall not accouncell the King in decreasing the rights of the Crowne so farre as they lawfully may 7. And they shall let for no man neither for love nor hate nor for peace nor strife to doe their utmost as far as they can or doe understand unto every man in every Estate Right and Reason and in Judgement and doing right shall spare none neither for riches nor poverty 8. And shall take of no man without the Kings leave unlesse meat or drinke in their journey 9. And if they be bound by Oath formerly taken so as they cannot performe this without breaking that they shall informe the King and hereafter shall take no such Oathes without the Kings consent first had All which in a shorter summe sounds in effect that they must be faithfull Councellors to the Kings Person and also to his Crowne not to decrease the true Rights but to inlarge them yet all must be done lawfully And secondly that they shall doe right in Judgement to take no Fees nor any other Oath in prejudice of this The first of these concerne the Publique onely at a distance and yet the point of increasing and diminishing of the Crowne in the sixth Section is captious and may sound as if there is a Legall enlarging of the Crowne whereof he that takes the Oath is to judge A matter which onely and properly concerns the Parliament to order and determine or else farewell all liberty of the People of England The second concerneth immediately the King in his politique capacity but trencheth upon all the Laws of the Kingdome in the executive power and all the motions in the whole Kingdome either of Peace or Warre following in the reare either immediately or mediately are under this notion interested into the transaction of the Privy Councell to debate and determine the Kings judgement therein unlesse it will determine alone And how easie a thing it is for such as have power of determining the Action by the Law to slip into the determining of a Law upon the Action and so to rule by Proclamation experience taught succeeding times sufficiently Neverthelesse these times wherein Parliaments were every moment upon the wing and kept this Noble Band in awe by taking them into their Cognisance placing and displacing some or all of them directing and binding them by Oath as they saw occasion of which the Records are full and plentifull I say these times thus constituted added yet further incouragement to them by giving them powers by Statute-Law over and beyond what by ancient Custome they had obtained The King and Councell of Lords had anciently a power of Jurisdiction that hath bin in the first part of this discourse already observed yet it s very probable that it was not any select company of Lords but the whole Association for it s granted by all that they had originally a Principall hand in the jurisdiction And its hard to conceive how any private number should catch such a power if not by usurpation But the manner of acquiring is lesse materiall the principall consideration resteth upon the quality of this Jurisdiction For it is evident that much difference hath bin both concerning the place and manner of exercising this Authority In generall It must be granted that all Pleas Coram Rege were grounded upon Writs first purchased and returnable either in Banco or in Camera or in Cancellaria And no difference at all will be concerning the Jurisdiction in Banco for that was by the Course of the Common Law and the people held it one of their liberties to have one known course of Law for determining matters of right and wrong As touching these Pleas which were holden by Writs returnable in Camera they were properly said to be Coram Rege Consilio whose meeting was in the Councell Chamber in those dayes called the Star-Chamber For other returns of Writs in the Star-Chamber doe not we finde but such as were in Camera nor Prohibitions from thence but under the notion of the Kings Councell and this Camera as I said was the place of the joynt meeting of the Councell as well of those of the Chancery and Benches as of those that attended upon matters of State Now the influence of Society in point of Judicature principally aspected upon some Pleas belonging to the Crowne although even these also properly were determinable in the Kings Bench nor can I observe any rule to bound the powers of these two Judicatories but this that the Councell Table
the power that made them I shall leave the particulars to be inquired into by them that shal minde it elsewhere and only touch so much as shall reflect upon the maine Government This power was executed by Deputies diversly according as the times and opportunities were for Warr or peace and either transitu or partu What was done in time of Warr or whiles this Shipp is out of the English Seas comes not to our purpose and therefore I shall not meddle with that further then this that in the first times Kings were wont to divide the worke of judicature and of Warr into severall hands The power of Warr and Peace they committed unto men of approved courage and Skill in that service and therefore generally not to the men of highest ranke who had neither minde nor Skil for a worke of such labour dyet and danger this power passed under divers names sometimes by grant of the custody of the Sea coasts somtimes of the parts and Sea coasts somtimes by being made Captain of the Sea men and Marriners and somtimes Admiral of the Ships It was a great power and had bin much greater but that it suffered a double diminution the one in the time for three or four years commonly made an end of the command of one man and at the best it was quam diu Regi placuerit the other diminution was in circuit of the power for all the Maritine coasts were not ordinarily under the power of one man but of many each having his proper precinct upon the South or North East or Western shotes and under the title of Admirall in the times of Ed. the first and forwards who brought that title from the holy Land neverthelesse about the end of the times whereof we now treat the custody of the whol Sea began to settle in one hand under the title of Admirall of the English Seas and the place was conferred upon men of the greatest ranke and so continued ever afterward The power of jurisdicton or judicature all this while remained distinct and it seemes was settled in part in the power of the Sheriffe and Justices For by the Law the Sheriff and Justices had cognisance of matters betweene the high water and the low water marke and what was done Super altum mare was within the directory of the Admirall these were but few things and of small considerablenesse the principall of them being concerning Warr or peace and those only within the English Seas But after Edward the third had beaten both the French and Spaniards at Sea the people grew much more towards the Sea and became so famous that the greatest Lords thought the Regiment of Sea affaires worthy of the best of their ranke and were willing with the title of Admirall whiles they left the worke to others and so the Admirall became a person of more honour and lesse worke then he had been formerly The greatnesse of the honour of this place thus growing soone also began to contract greatnesse of power beyond what it had formerly and this was principally in matter of jurisdiction For not contented with the power of a cheife Justice of Warr and Peace within the Seas which was his proper dominion the Lord Admirall gained the same within the low water marke and in the maine streames below the next Bridge to the Sea and in all places where Ridells were set and yet these places were within the body of the County Nor did he indeavour lesse to gaine in matters of distributive justice for although he had a legal jurisdiction in things done upon the open Sea so farr as to defend order determine and cause restitution to be made in cases of damage done unjustly yet was it no lesse difficult to keep this power within its own bounds then the watry Element upon which it floated but it made continual waves upon the franchise of the Land and for this cause no sooner had these great men savored of the honour and authority of that dignity but comes a Statute to restrain their Authority in the Cognisance of Cases onely unto such matters as are done upon the main Sea as formerly was wont to be and within two yeares after that Act of Parliament is backed by another Act to the same purpose in more full expressions saving that for Man-slaughter the Admiralls power extended even to the high water marke and into the main streams And this leadeth on the next consideration Viz. What is the subject matter of this Jurisdiction and Authority I shall not enter into the depth of particulars but shall reduce all to the two heads of Peace and Justice The Lord Admirall is as I formerly said a Justice of Peace at Sea maintaining the Peace by Power and restoring the Peace by setting an Order unto matters of Difference as well between Forrainers as between the English and Forrainers as may appeare by that Plea in the fourth Institutes formerly mentioned Secondly That point of Justice principally concerneth matters of Contract and Complaints for breach of Contract of these the Admirall is the Judge to determine according to Law and Custome Now as subservient unto both these he hath authority of command over Sea men and Ships that belong to the State and over all Sea men and Ships in order to the service of the State to arrest and order them for the great voyages of the King and the Realme and during the said voyage but this he cannot doe without expresse Order because the determining of a voyage Royall is not wholly in his power Lastly the Lord Admirall hath power not onely over the Sea men serving in the Ships of State but over all other Sea men to arrest them for the service of the State and if any of them run away without leave from the Admirall or power deputed from him he hath power by inquiry to make a Record thereof and certifie the same to the Sheriffs Maiors Bayliffs c. who shall cause them to be apprehended and imprisoned By all which and divers other Lawes not onely the power of the Admirall is declared but the originall from whence it is derived namely from the Legislative power of the Parliament and not from the single Person of the King or any other Councell whatsoever But enough hath been already said of these Courts of State in their particular Precincts One generall interest befalls them all that as they are led by a Law much different from the Courts of Common Law so are they thereby the more indeared to Kings as being subservient to their Prerogative no lesse then the Common Law is to the Peoples liberty in which condidition being looked upon as Corrivalls this principall Maxime of Government will thence arise That the bounds of these severall Lawes are so to be regarded that not the least gap of intrenchment be laid open each to other least the fence once broken Prerogative or Liberty should become boundlesse and bring in
uncertain colour neither made by the Clergy nor Laity but spoyled between them both The intent thereof seemeth to be principally to draw on the House of Commons to passe the Law under hope of gain by the forfeitures for the penalty is like that of Fellony though the Crime be not expresly declared to be Fellony But the intent fell short in event For first the nature of the Crime is not defined nor declared by any Law and therefore can no man by Indictment be found to be such Secondly no penalty of death hath been by any former or by this Law determined upon such as are guilty for it s not enacted by any Law that such Person shall be delivered to the Seculer power c. Thirdly this Statute determining the forfeiture to be not till death and neither that nor any other Law of this Kingdome determining death then is no forfeiture determined Fourthly though this Law taketh it for granted That Heresie and Errors belong to Ecclesiasticall Cognisance yet the same allowes of no further proceedings then Ecclesiasticall Censures Lastly by this Law there can be no proceeding but in case of Indictment for otherwise without Record no forfeiture can be therefore where no Indictment is there is no forfeiture In all which regards its evident that the Clergy could by this Law neither get fat nor blood and therefore at their Convocation in the next yeare following they tooke another course and ordered that three in every Parish should make presentment upon Oath of such Persons as are defamed for Hereticks and the truth so farre as they can learn which puts me in minde of a Presentment that I have seene by some of Saint Mary-Overies in these times Item we saine that John Stevens is a man we cannot tell what to make of him and that he hath Bookes we know not what they are This new course shewes plainly that the former held not force as they intended it So God blasted the practises of the Clergy at this time also rendering this Law immateriall that had the form as the other missed in the form and had the matter CHAP. XVIII Of the Court of Chancery IT often befalls in State Affaires that extraordinary Exigencies require extraordinary remedies which having once gotten footing are not easily laid aside especially if they be expedient for Prerogative The Privy Councell in the Star-Chamber pretending default of the Common Law both in speed and severity in Cases whereby the State is indangered The Chancery pretends default by the Common Law in point of equity and moderation The People taken with these pretences make that rod more heavy which themselves had already complained of What the Chancery was in times past hath been already shewed still it is in the growing and gaining hand First in the Judicatory power it prevailed in relation to the Exchequer exercising a kinde of Power to survay the proceedings thereof in Cases of Commissioners distrained to account for Commissions executed or not executed for it was no easie matter to execute Commissions from the Exchequer in those times of Parties nor were men willing with such unwelcome occasions between Freinds and Neighbors and it may be they grew weary of imbroyling themselves one against another and of being Instruments of the violent counter-motions of Princes and great Men. Secondly it gained also upon the Admiralty which by former Lawes had Jurisdiction in all Cases incident upon the great Sea but now either through neglect of the Admirall or the evill of the times occasioning Piracies to grow Epidemicall the ill government upon the Sea became dangerous to the State trenching upon the Truce made between this and other Nations For a remedy whereof first Conservators of the Truce were settled in every Port who had power committed to them to punish Delinquents against the Publick Truce both by Indictment at the Kings suite and according to the course of the Admiralty by complaint saving matters of death to the Cognisance of the Admirall But this was soon found defective for Justice done in the dark is many times more respective and lesse respected and therefore within a few yeares it is provided that Offenders against the Kings Truce upon the Sea or in any of the Ports shall be proceeded against in the Chancery before the Chancellour who hath power given him calling to his Assistance some of the Judges to execute the Statute of 2 H. 5. foregoing by a handsome contrivance For that Statute was once and again suspended for the rigour that was used by the former Conservators who being Borderers upon the Sea for their own peace spared as few as they could which had so discouraged the Sea-men that the Kingdome had been almost utterly bereaved of its strength at Sea Neverthelesse all this while these Lawes were but penall and not remediall for the Parties wronged And therefore another Law is made to give the Chancellour and Judges power to make restitution and reparation Thirdly the Chancery gained upon the Ecclesiasticall Court for whereas by the Canon the Church-men were to be judged by their Superiours according to Ecclesiasticall and Ordinary Jurisdiction and the iniquity of the times was again returned to that height that Parents could not enjoy their own Children but the little ones were allured stolne away and detained in Cloysters nor did the Church-men afford remedy in such Cases A Law was made that upon complaint hereof made to the Chancellor the Provinciall should be by him sent for and punished according to his discretion Lastly the Chancery incroached upon the Common Law For whereas the stirs between the two Houses of Yorke and Lancaster beganne to rise Men made their dwellings in places of security and strength Women likewise and other persons flying thither for refuge especially such of them as had most to lose these were contrary to the Law of common honesty urged to ingage their Estates unto the desires of such to whom they had fled for refuge and some times compelled to marry before they could gain their liberty It was now provided that all such complaints should be heard and determined by the Chancellor Secondly as touching the Ministeriall power of the Chancery this likewise was inlarged in making of Processe to compell appearance in cases of forcible Entries Murders Manslaughters Robberies Batteries Assemblies in nature of Insurrections Riots and Plunder committed by Servants upon their Masters goods before their Masters death and such like Offences now growne common and in need of sudden remedy Thus as the worke and power of the Chancery grew so did the Place and Person of the Chancellor grow more considerable raised now from being the Kings Secretary for no better was he in former times to be the Kingdomes Judge and of such Trust that although the King might make election of his owne Secretary yet the Parliament would first know and allow him that must be trusted with the power over the Estates of so
would pick and chuse and prohibite the Kings Bench as they pleased and to that end would order Originalls out of the Chancery as they thought most meet for it is observed by Fleta that the Kings Bench hath no Jurisdiction of it selfe but by speciall Warrant that is to say by Originall Writs returned thither Neverthelesse it may seeme that such Crimes as are contrary to common honesty or the publique profit or peace in a more exemplary way then ordinary and therefore may be called Crimina laesi Regni or against the State These I say might more properly belong to the subline Judicature of the Councell Table as knowing better how far the publique State was interested or indammaged in such Cases then the other Judges that were experienced onely in ordinary matters of a more private concernment To recite the particular Cases upon record concerning racing of Records Forgeries and other crimes of falshood conspiracies combinations to abate and levell the prices of Commodities Ryots and such like will be superfluous In all which and others of that Cognisance the Sentence exceeded not Fine and Imprisonment or ransome Neither yet were the Common Pleas so rural but the Councel Table could rellish them also and digest them well enough and therefore did not stick to prohibite the Courts of Common Law under colour of a strange maxime That it is neither just nor honest for a man to be sued at the Common Law for a matter depending before the King and his Councell No though the Court of Common Law had the precedency and therefore although the right of Tithes being depending at the Common Law the Arch-Bishop in opposition to the jurisdiction sueth before the Kings Councell and the proceedings at the Law are thereby stayed and no wonder for the Councell Table challenged to hold the ballance of all Courts of Law within their owne Order and so if any doubt concerning the Jurisdiction depended the Councell Table gave the word and all stooped thereto But enough of the Subject matter the manner followes a new form of Processe is taken up that the Common Law and ancient Custome never knew and which grew so noisome to the People that complaints are made thereof as of common greivance and remedies are thereto applyed by the Lawes of these times For whereas by the Grand Charter nothing could be done in Judgement but according to the Lawes of the Land and in affirmance thereof a Law was made in these times that no Accusation nor Attachment nor forejudging of Life or Member nor seisure of Lands Tenements Goods or Chattels should be against the form of the Grand Charter and Law of the Land the course of affaires grew so stale that amongst other innovations a trick of a new kind of triall is brought forth by suggestions upon Articles exhibited against any man before the Councell Table and thereupon issued forth Attachments against the party complained of by meanes whereof and other courses for they could also sequester much vexation arose unto the People Hereunto upon complaints multiplied a remediall Law is made whereby it is Enacted that all such suggests made shall be carried to the Chancellor Treasurer and the Kings Grand Councell and the Informer shall finde surety to prosecute with effect and to incurre the like penalty intended for the Defendant if the Plaintiffes proofes be not compleat and then the Processe of Law shall issue forth and the Defendant shall not be taken against the form of the great Charter that is he shall not be taken untill first the fault appear upon Record by Presentment or by due Processe or by originall Writ according to the Ancient Law of the Kingdome Either therefore the Privy Councell had no power to hold any Pleas at all or else no power of triall The first of these was concluded in open Parliament and the second as good as so for if the first then the second will come on undeniably But suppose all this be given up yet was this Liberty to hold Pleas so qualified that the person could not be touched till the thing did appear by Inquisition and then in a Legal way such proceedings was had upon suggestion made against the City of London in Henry the Thirds time for one of the Judges was first sent into the City to finde the suggestion by a Jury and then the Lord Maior appeared before the Lords and traversed the matter and in a manner appealed or rather demanded to be tryed according to the custome of the City And the like course doe we finde observed in our Law Reports of these times in a Case concerning the price of Wooll by a false Report The foote of the whole account will be this That the work of Judicature of the Privy Councell in these times in Cases of Crimes was to receive Articles and award Inquisitions and after return in nature of a Grand Inquest to recover Traverse and to order triall at the Common Law and upon Verdict returned to Fine and Ransome In other Cases either of right or equity in matters of private property they were determined either by Judges of the Bench or Chancery although possibly the suite was Coram Concilio for that all the said Judges were of the Kings Councell And yet as I dare not affirme so I cannot deny but it might also be possible that some matters especially these of a greater consequence either in their own nature or in regard of the persons whom they concerned were determined by the major Vote of the whole Councell in a prudentiall or rather Arbitrary way But this was Invita minerva and used so rarely as the Path is growne out of view saving some few footsteps here and there remaining which shew that the Grand Councell of Lords had been there CHAP. IV. Of the Chancerie IT is the birth of the Kings Power in Judicature and may deserve the name of the first born For though it had no better Title in these later times then Officium because amongst other of the Kings Escripts it formed Writs remediall for such as had received wrong yet even by that work it was in repute for so much skill in the Law of the Land that by the consent of all it was as well able to advise a remedy as to advise the Complainants where to have it and yet it had one adventage further that it was an Office of remembrance to the King who is a Person of great trust in the Law and gave such credit to all Acts done before him as being entred into the remembrance became of the highest nature of Record against which no Plea did lie Amongst these matters of debt and contract coming into the account this Office taking notice of the Record tooke Cognisance of the thing and for the executing thereof and thus in these and such like Cases granted Judiciall Writs and so found out a way of Judicature to as many Causes as
to yeares of discretion and shall Declare that he will take that place upon himself The ground hereof is said to be that the King was Gravi infirmitate detentus which could not be intended of any bodily distemper for neither doth any such thing appeare by any Author or Record Nor if such had been yet had it been an irrationall thing in the Parliament to determine the same upon the Princes discretion and acceptance of the Charge upon himselfe It seemeth therefore that it was Gravis infirmitas Animi and that this way of the Parliament tended to a tacite sliding him out of the Government of the Kingdome by a moderate Expression of a Generall incapacity in his Person The Conclusion of all that hath beene said concerning this Title is double One that both the Custos Regni and Protector are not subsistent but consistent with that of a King because it supposes a King under incapacity Secondly that they tend to teach the people a necessity of having one Cheife although it may in truth seem to be but a tricke of State like some pretty carved Cherubims in the Roofe of a building that doe seeme to beare it up when as in truth it is the Pillers that supporteth both it and them CHAP. XVI Concerning the Privy Councell NAtions doe meet with their Exigencies as well as Persons and in such condition Resolutions taken up by sudden Conceit are many times more effectuall then more mature deliberations which require more time in composing are more slow in Conclusion let slip opportunities and fall short of Expectation in the end Such are the wayes of debate in the Grand Representative of the Kingdome Add hereunto that in putting the Lawes in execution greater discretion is required then can enter into the head of any one man and greater speed then can stand with debate amongst many And therefore it is beyond all doubt that the Conventicles of Councell are no lesse necessary in their Degree then the Assembly of the Estates of this Nation in their Grand Convention Yet with this Caveat that one Genius may move in both for otherwise the motions of Government must needs be inconstant inconsistent and like that of an Hipocrite one way abroade another way at home neither comfortable to it selfe nor confiding to others and therefore cannot these privater Councells by any proportion of Reason be better Constituted then by the Representative it selfe that it may be a Creature made in its owne Image one and the same with the Image of the maker This was the wisedome and the practise of these times more ordinarily then in the former for the Parliament was no lesse jealous of the power of Henry the Fourth then of the infirmities of Henry the Sixth nor more assured in the aimes of any of them all then themselves were in their own title to the Crown Neither was this sufficient for the Parliament looked upon themselves as a body that somtimes must retire to rest and upon the privy Councel as watch-men subject to change and therefore they not onely give them instructions but ingage them unto observance Their instructions were somtimes occasionall but some more generall of which I shall instance onely in two which were to be of everlasting regard First that they should hold no Pleas before them that is to say at the Councell table or at the privy Councell nor before any of them unlesse as Judges in the Chancery Exchequer or Benches at Westminster so as whatsoever miscarriages were had by the privy Councell in Cases of judicature in the Star-Chamber formerly are now reduced The second rule was this that no dispatches should be made at the Councell table of any matters there agitated but by generall consent Unity gives life to action carrying therewith both Authority and Power and when all is done must derive its originall from without and in all good ends from above And therefore as a seale to all the rest it was wisely done by the Parliament to draw the minds of the Privy Councell together and to present them joyntly before God by an oath oblieging themselves to a solemn and constant observance of their instructons and to persevere therein for the unchangeable God can onely stamp a lasting Image upon the minde and bind the same that is so subject to change to an unchangeable Law whereby the People may be made as happy for continuance as for Righteousnesse and Peace The privy Councell thus settled dressed and girt becomes of high esteeme both for trust and honorable imployment in great matters The Mint is the very Liver of the Nation and was wont to be the cheife care of the Parliament it selfe in all the dimensions thereof now the Mint is two wayes considered Viz either in the vallue of the Mettall and Mony or in the coynage The first of these things most immediatly concurring therewith the Parliament still retaines to its owne immediate Survey such as are the inhibiting of exportation of Gold and Silver and of melting of Coyne into Plate or Bullion the regulating of the currant of Forraine Coyne the reducing of Money both Eorrain and Domestick imbased by Counterfeiture clipping washing c. The regulating of allay of Gold and Silver the regulating exchange and such like concerning all which the Reader may please to peruse the Statutes 2 H. 4. cap. 5 6 11 13. 4 H. 4. cap. 16. 3 H. 5. Stat. 1. 4. cap. 6. 9. cap. 11. And 2 H. 6. cap. 6. The second Consideration touching the Mint concerned the election and government of the Officers touching the Mint and Exchange or the places where they shal be holden which with some other matters of inferiour Nature were left to the Order of the Privy Councell either with the King or alone in Case of the Kings absence or disability A second power given to the Privy Councell was in point of Trade and Merchandize formerly they had somewhat to doe therein but still the Parliament set out their bounds in Richard the Seconds time the people had liberty of trade in some Commodities by way of Exportation but the Privy Councell might restrain them upon inconvenience to the Publique Now the same is confirmed and though it concerned Corne onely yet it was a President that led the way to a much larger power in the Trade of the Staple Commodities of this Iland to inlarge or straiten it as they thought meet and so they became in a fair way to have a principall power over the Revenues and Riches of this Nation But this lasted not long for within ten yeares these Licences of Transportation cost the Merchant so much as he could make little gaines of all his care and paines and therefore a rule is set to a generall allowance of all Transportation of Corn till the price of Wheat came to a Noble and Barly at three shillings and no longer This being first made Temporary was afterwards made
92 165 Benevolence first used by Edward the fourth 184. taken away by Richard the third 185. taken up again by Henry the seventh 196 Bishops not impeachable before the civil Magistrate 49. their Temporalties to be neither seised nor wasted in the vacancy 50. vide Ordinary Buggery made Felony 299 C. CAnons their power anciently in debate 61. such as are not according to the Law are taken away 236 Castles and Gaols restored to the County 113. vide Forts and Fortifications Chancery once an Office afterwards a Court 35. the power grows by Act of Parliament 36 162. the manner of the Proceedings 38. Keeper of the great Seal increaseth in power 162 Chancellor elected by the Parliament 39 Cheshire made a Principality 11 Children carried into Cloisters remedied 163 Clergy priviledged from Arrest 52. discharged of purveyance and free quarter 52. their Temporalties in question 63. the Commons love not their persons 147. their first declining from Rome in the matter of Provisors 150. they gain free process in matters Ecclesiastical 192. their defection from Rome and submission to the Crown 206 Clergy upon Triall but once allowed 257. in some cases disallowed 250 298 Commissioners Ecclsiastical 288. High Commission ibid. Conjuration vide Witchcraft Conservators of the Truce 162 Constables Court vid. Marshals Court Convocation established by Parliament 151. it then undertook great matters but much more after the Clergies forsaking the Pope 229 Councels the Privy Councel ordered by Parliament 21 33 141. of use for suddain motions 27. their Oath 29. and jurisdiction 31. and power 142 Magnum Concilium or the grand Councel of Lords 28 Crown intitled not by Discent 128 277. but intailed 128. vide 188. Womanhood 270. Coverture 273 Custos Regni a formality of State under the Parliaments Order 134. many times conferred upon Children 137. and upon a Woman 252 D. DElegates though named by the King yet by Authority of the Parliament 227 Defender of the Faith 213 Dispensations Licenses and Faculties never in the Crown but by the Parliament given to the Archbishop under Limitations 234 238 Duels ordered by the Martiall as Subservient to the Common Law 108 E. EDward the third his Reign 3. his Title upon Entry by Election ibid. Edward the fourth his Reign though had Title of Inheritance yet entred by Election 181 Edward the fifth approached the Crown by Inheritance but never put it on 184 Edward the sixth his Reign his Title and Possession did meet though he was a Childe and his Sister Mary grown in age 259 Ecclesiastical power vide Prelacy and Prelates Elizabeth Queen her Reign 264. her Title by Election 278 Englishire taken away 95 Episcopacy vide Prelates and Prelacy Errors vide Heresie Exchange ordered by the statute 75 Excommunication 271. the Writ de excommunicato capiendo ordered 289. vide Parliament exportation 72 F. FAlse News punished 112 Felony by riding in armed Troops 95 113 172 257 299 First-fruits regulated 153. taken away from Rome 222 Forcible Entries 173 Forts Fortificacations and Castles ordered by Parliament 252 295 G. GAol-delivery by the Judges of the Benches 92 165. vide Judges Gaols regulated 113 254 Guard for the Kings Person brought in by Henry the seventh 195 Gipsies made Felons 299 H. HEnry the fourth his Reign doubtfull in his Title but rested upon Election chosen by Parliament sitting when there was no King 116 c. Henry the fifth his Reign his Title by an Intail by the Parliament 119 c. Henry the sixth his Reign his Title by the Intail last mentioned though a Childe he is admitted to the Crown 123 c. Henry the seventh first settled a constant Guard his sixfold Right to the Crown and his gaining Prerogative in the Person and Estates of the People ibid. 194 c. Henry the eighth his natural Endowments 199 c. his power in the matters Ecclesiastical 206 c. in Tempoporals 213 c. H. HEresie and Error in Doctrine under the cognisance of the Civil Magistrate 62 156. not punishable by death by Law till Henry the eighths time 216 236. the Writ De Heretico comburendo hath no legal ground in any of those former Times 63 158 161 216 236. Honors vide Parliament Hospitals visited by the Prelacy 154 I. IMportation 70 Judges of Assize 165 244 Jurisdiction Ecclesiastical not originally in the Prelacy nor absolutely 235 Justices of the Peace their residency and quality their number various their work also 109 171. one Justice 112. and the settling of their Sessions ibid. their power to take Bail 254 K. KIngs vide Parliament Allegiance Supremacy Militia L. LAbourers their Work and Wages 70. ordered by the Justices of the Peace 110 Lancaster the Princes of that House freinds to the Clergy in policy 146 Laws made by the Successors of Henry the eighth during their minority annulled 217. Ecclesiastical Laws vide Parliament Leiges by Birth though not born within the Allegiance of England 97 Liveries and Tokens inhibited to the Lords 112 177. and limited in the Kings person 177. means of jealousie between the King and his People 244 Libels in the Spiritual Court to be delivered in Copies upon demand 154 Licenses vide Dispensations Lords their power and jurisdiction in the Parliament 23. in Councel 29 242 Lunacy no impediment in Triall of Treason 258 M. MAry Queen her Reign 261. her Title by Election 278. she prejudiced her Supremacy by Marriage 275 Marque and Reprisal 279 Martials Court 107 Matrimonial Causes after the Reformation by Henry the eighth in the Cognisance of the Clergie by leave 238 Militia 98 175 245 290 vide War Mint 74 142. vide Parliament Monastries dissolved 220 maintained by Henry the fourth 147 Money out of England to Rome stopped 54 N. NAvy Royall as Forts for the publique safety maintained at the publique charge 253 Nisi prius 167 Non-residency 238 Noble Ladies Triall 174 O. OYer Terminer 92 165 Ordinary not to be questioned in the Civil Courts for things under Ecclesiastical jurisdiction 47 49. hath Cognisances of Vsury 47. of Avoidances Bigamy and Bastardy 48. grant Administration 51. visit Hospitals and call Executors to account 154. hath power to fine and imprison 157 239. to keep Courts but the Authority doubtfull 235. have Cognisance of the Heresie 156 236. Matrimony Non-residency 236. In Queen Elizabeths time their jurisdiction left in doubt 286 c. Oath ex Officio first brought in by the Church-men in matters Ecclesiastical 157. afterwards by the Parliament into the Star-chamber in cases criminal 244 P. PArdon of Crimes not absolutely in the King 19 Parliament without the King consisting of three States 117. without the Clergie 58 Parliaments power in ordering of the Crown 127 228 277 In ordering the Kings Person by Protectors 14. vide Protector In ordering their children In ordering their Family 15 129 In ordering their Revenues 16 129 115 In ordering their Councel 141 In the Militia vide Militia and War In conferring places of Honor and Trust