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
daring Spirits yet do we not meet with a whisper in story of any turbulent or aspiring humour in them or the people during those tenderer times of that King's Reign But after that he came to know more in himself than was to be found and to outreach his abilities having some of the Lords ready at his Elbow to help him these changed the King's course although the general 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 King's Friends though the others were Richard's Favourites so as he was fain to stoop to occasion and submit to be a King that would have otherwise been more or less 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 mind in their King who seeing them so united and endeavouring to break them into parties to obtain his desire lost both it and himself It is a degree of cleanly modesty to impute the miscarriages of unruly Kings to their Council For however during their minority Counsellors are more rightly Officers of State yet when Kings will be their own men their Counsellors are no other than the breath of the King 's own breast and by which a King may be more truly discerned than any man by his Bosom-friends Edward the Third was a man of a publick Spirit and had a Council suitable to his aim Richard the Second a man that desired what him pleased would have what he desired and a Council 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 Council It must be granted that the Privy Council of Kings hath been an old Ginn of State that at a sudden lift could do much to the furthering of the present estate of publick Affairs Nevertheless through the Riot of Kings their designes generally tended to make more work for the Parliament than to dispatch to do much rather than well like works for sale rather than for Master-piece and sometimes to undermine yea to out-face the Parliament it self like some unruly Servants that will put away their own Masters Nor can it otherwise be expected unless the King 's elected ones be turned into the Parliaments Committee or that constant annual Inquisition by Parliament be made into their actions for occasional 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 natural and original power of the Privy-Council is very obscure because there are several degrees of them that occasionally have been used all of whom may deserve the name of Privy-Council in regard of the Parliament which is the most publick Council of all the rest and always hath a general interest in all Causes in the Kingdom The first of these is that which was called The Grand Council of the King which as I think 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 own Retinue And of this it seems there was a constant body framed that were sworn to that service for some in these times were sworn both of the Grand Council and the Privy-Council and so entred upon Record The second of these Councils was also a great Council and probably greater than 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 Earls Lords and Great men of the Kingdom one out of every County City and Burrough called together for that end their results were but as in point of trial for six Moneths space and then were turned into Statute-law by the Parliament These two are Magna Concilia yet without power further than as for advice because they had no ancient foundation nor constant continuance Another Council remaineth more private than the other of more continual use though not so legally founded and this is called the King's Privy-Council not taking up a whole House but onely a Chamber or a Table signifying rather communication of Advice than power of Judicature which more properly is in Banco And yet the power of this grew as virile and Royal as it would acknowledge no Peer but the Parliament and usurped the representative of it as that had been of the whole Kingdom The ambition thereof hath ever been great and in this most notoriously evident that as it had swallowed up the Grand Council of Lords it seldom can endure the mention of a Parliament but when Kings or Affairs are too rugged for their own touch The Platform of their power you may behold in this their Oath 1. That well and lawfully they shall counsel the King according to their best care and power and keep well and lawfully his Counsels 2. That none of them shall accuse each other of any thing which he had spoken in Council 3. And that their lawful Power Aid and Counsel they shall with their utmost diligence apply to the King 's Rights 4. And the Crown to guard and maintain save and to keep off from it where they can without doing wrong 5. And where they shall know of the things belonging to the Crown or the Rights of the King to be concealed intruded upon or substracted they shall reveal the same to the King. 6. And they shall enlarge the Crown so far as lawfully they may and shall not accounsel the King in decreasing the Rights of the Crown so far as they lawfully may 7. And they shall let for no Man neither for love nor hate nor for peace nor strife to do their utmost as far as they can or do 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 King's leave unless Meat or Drink in their Journey 9. And if they be bound by Oath formerly taken so as they cannot perform this without breaking that they shall inform the King and hereafter shall take no such Oaths without the King's consent first had All which in a shorter sum sounds in effect that they must be faithful Counsellors to the King's Person and also to his Crown not to decrease the true Rights but to enlarge them yet all must be done lawfully And Secondly that they shall do right in Judgement to take no Fees nor any other Oath in prejudice of this The first of these concern the publick onely at a distance and yet
be a loser by so well-deserving service as in those days that was accounted Nevertheless the English look upon Henry as the fitter man for their turn being now at hand and Robert at Jerusalem and being a native born in England civilized into the English garb by education and of a wiser and fairer demeanour and more inclining to peaceable Government which both Normans and English much inclined to as being weary of thirty years service in the Wars And therefore it is not marvellous if they applied themselves to him in a way of capitulation and less wonderful if he hearkned thereunto and yet neither unadvisedly yielded unto by him nor traiterously propounded by them as some in zeal to Monarchy conclude the point The worst of the whole matter resting in this that the King bound himself to be just that he might be great and the people to submit unto Justice that they might be free like as their Ancestors were and themselves by the Law established ought to be For the capitulation was in substance setled by the ancient Laws of the Saxons mixed with some additions of Laws made by the Kings Father with the joynt advice of the grand Council of the Kingdom all which both the Norman Williams had often confirmed by solemn protestations and promises however their actions upon sudden surprisal were malae consuetudines and exactiones injustae by this Kings own acknowledgment Thus these three Norman Kings made their way to the Throne the first by Arms under colour of Title the second by a kind of Title under colour of Arms and the last by favour but all entred the same by capitulation election and stipulation and for the general had some regard to suit their course in order of retaining the good will of their people although in a different measure according to the differency of occasions CHAP. XLVI That the Government of the Normans proceeded upon the Saxon principles and first of Parliaments THE principles which I mean are these First the Legislative power and influence thereof upon the whole Secondly the Members of that Government with their several motions Thirdly the Laws and Customs or Rules of those Motions And first concerning the Legislative power Although it be true that the first Williams great and most constant labour was to have and to hold and had but little time or liberty to enjoy yet that time of rest which he had did apply it and himself in the setling of the Laws by the advice of Common-council I say not by advice of his own heart or two or three Norman Lords or of the Norman Nobility only as some men take the confidence to aver as if they had been eye-witnesses to the actions of those days but by the joynt advice of the grand-Council of the Lords and wise men of the Kingdom of England I will not insist upon force of argument to shew that common reason must of necessity sway the King into this course but shall reserve that to another place the testimonies of Writers must now serve the turn and herein the testimony of the Chronicle of Lichfield must have the first place which speaks both of a Council of Lords and saith that by their advice he caused to be Summoned a meeting of all the Nobles and wise men through all the Counties of England to set down their Laws and Customs This was in the fourth year of his Reign or rather after his entry and as soon as the Kingdom was brought into any reasonable posture of quiet and which besides the intention of governing the Kingdom according unto Law doth strongly pretend that the Parliament had the Legislative power and right of cognizance and judicature in those Laws that concerned the Kingdom in general and for the particular Laws or Customs of several places or Precincts it was referred to a Committee or Jury in every County to set them forth upon Oath Secondly that this Council had power to change Laws may likewise appear in that Act made concerning the introduction of the Canon-Law which shews not only the power of that Council in Church-matters but also that the Canon was no further in force than the same would allow and this was also done by Common council and the Council of the Archbishops Bishops Abbots and all the Princes of the Kingdom which connexion shews plainly that there was a Council besides that of the Prelates and Princes Thirdly in matters of general charge upon the whole body of the people the King used also the help of this grand-Grand-council as may especially appear in the charge of Arms imposed upon the Subjects which was said to be done by the Common council of the whole Kingdom as is witnessed even by the Kings own Law. It may seem also that the grand Officers of the State were elected by such grand assembly of the wise men for we find that Lanfrank was elected to the See of Canterbury by the assent of the Lords and Prelates and of the whole people that is by the Parliament of England and as probable it is that Bishops were therein also elected for that the Bishop of Lichfield resigned his Bishoprick in such like Assembly if the meaning of Lanfrank be rightly understood who saith in his Letter that it was in conventu Episcoporum atque Laicorum Lastly that one Law of the Kings which may be called the first Magna Charta in the Norman times by which the King reserved to himself from the free-men of this Kingdom nothing but their free service in the conclusion saith that their Lands were thus granted to them in inheritance of the King by the Common-council of the whole Kingdom and so asserts in one the liberty of the free-men and of the representative body of the Kingdom These footsteps of the Parliament find we in the Conquerors time besides other more general intimations scattered amongst the Historians which may induce opinion to its full strength that this King however Conqueror he was yet made use of this additional power of Parliament to perfect his designs and it may be more often than either of his Sons that yet had less pretence of superlative power to countenance their proceedings William Rufus was a man of resolution no whit inferiour if not surpassing his Father and had wit enough for any thing but to govern his desires which led him many times wild and might occasion conceit that he was almost a mad King though he were a witty man and therefore it is the less marvail if he used not the help of the Common-council more than needs must where Kings many times are told of that which they are loth to know Nevertheless William the second could not pass over thirteen years without a parley with his Commons and Clergy unless he meant to adventure a parley between them and his Brother Robert who like an Eagle eyed his posture though he hovered afar off But Henry the first was more wise
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
this power within its own bounds than the watry Element upon which it sloated but it made continual waves upon the Franchise of the Land and for this cause no sooner had these great men savoured of the Honour and Authority of that Dignity but comes a Statute to restrain their Authority in the Cognizance of Cases only unto such matters as are done upon the main Sea as formerly was wont to be And within two years after that Act of Parliament is backed by another Act to the same purpose in more full expressions saving that for Man-slaughter the Admirals power extended even to the high water-mark 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 Admiral 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 Foraigners as between the English and Foraigners as may appear 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 Admiral is the Judge to determine according to Law and Custom 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 Realm and during the said voyage but this he cannot do without express Order because the determining of a voyage Royal is not wholly in his power Lastly the Lord Admiral hath power not only 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 Admiral or power deputed from him he hath power by enquiry to make a Record thereof and certifie the same to the Sheriffs Mayors Bailiffs c. who shall cause them to be apprehended and imprisoned By all which and divers other Laws not only the power of the Admiral is declared but the original 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 Council whatsoever But enough hath been already said of these Courts of State in their particular precincts One general 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 endeared to Kings as being subservient to their Prerogative no less than the Common-Law is to the peoples liberty In which condition being looked upon as Corrivals this principal Maxime of Government will thence arise That the bounds of these several Laws are so to be regarded that not the least gap of intrenchment be laid open each to other lest the Fence once broken Prerogative or Liberty should become boundless and bring in Confusion instead of Law. CHAP. VI. Of the Church-mens Interest BUt the Church-mens interest was yet more Tart standing in need of no less allay than that of the King's Authority for that the King is no less concerned therein than the people and the rather because it was now grown to that pitch that it is become the Darling of Kings and continually henceforth courted by them either to gain them from the Papal Jurisdiction to be more engaged to the Crown or by their means to gain the Papal Jurisdiction to be more favourable and complying with the Prerogative Royal. The former times were tumultuous and the Pope is gained to joyn with the Crown to keep the people under though by that means what the Crown saved to it self from the people it lost to Rome Henceforth the course of Affairs grew more civil or if you will graced with a blush of Religion and it was the policy of these times whereof we now treat to carry a benign Aspect to the Pope so far only as to slave him off from being an enemy whilst Kings drove on a new design to ingratiate and engage the Church men of their own Nation unto it's own Crown This they did by distinguishing the Office or Dignity of Episcopacy into the Ministerial and Honourable Parts the later they called Prelacy and was superadded for encouragement of the former and to make their work more acceptaple to men for their Hospitalities sake for the maintenance whereof they had large Endowments and Advancements And then they reduced them to a right understanding of their Original which they say is neither Jus Divinum nor Romanum but that their Lordships power and great possessions were given them by the Kings and others of this Realm And that by vertue thereof the Patronage and custody of the Possessions in the vacancy ought to belong to the Kings and other the Founders and that unto them the right of Election into such advancements doth belong not unto the Pope nor could he gain other Title unto such power but by usurpation and encroachment upon the right of others But these great men were not to be won by Syllogisms Ordinarily they are begotten between Ambition and Covetousness nourished by Riches and Honour and like the Needle in the Compass turn ever after that way Edward the Third therefore labours to win these men heaped Honour and Priviledges upon them that they might see the gleanings of the Crown of England to be better than the vintage of the Tripple Crown Doubtless he was a Prince that knew how to set a full value upon Church men especially such as were devout and it may be did somewhat outreach in that course For though he saw God in outward events more than any of his Predecessors and disclaiming all humane merits reflected much upon God's mercy even in smaller blessings yet we find his Letters reflect very much upon the Prayers of his Clergy he loved to have their Persons nigh unto him put them into places of greatest Trust for Honour and Power in Judicature and not altogether without cause he had thereby purchased unto his Kingdom the name and repute of being a Kingdom of Priests But all this is but Personal and may give some liking to the present Incumbents but not to the expectants and therefore the Royal Favour extended so far in these times as to bring on the Parliament to give countenance to the Courts and Judiciary power of the Ordinaries by the positive Law of the Kingdom although formerly the Canons had already long since made way thereto by practice I shall hereof note these few particulars ensuing Ordinaries shall not be questioned in the King's Court for Commutation Testamentary Matters or Matrimonial Causes nor other things touching Jurisdiction of Holy-Church Things
by the access to the Crown of the services of such as held of those Lords that were attainted or disinherited And yet by a hidden providence the King was little the better when it came to the pinch For when Edward the second 's Queen came from beyond the Seas though with but a small force all forsake the King neither regarding the former terrour of the Army of a King nor the right or service nor Oath of Fealty nor Promises nor Laws nor other Engagements and so the King becomes a prey to an enraged woman or which is worse to a jealous Wife So little can the name of a King do when his person is despised and so vain for him to trust in his Militia that hath already disarmed himself of the hearts of his Subjects The sum then of all the labours of the Nobles during these times will rest in this that they won the day and yet lost the field although they lost their own blouds and Estates yet they saved all to the people and left Laws in force able to debate with Prerogative in the hand of any King that should succeed Thus stood the matter in fact upon such grounds as it had the validity whereof it is not my work to censure neither by the ballance of Law or Gospel but leave it as a sore time that scarce will endure touch nor bear a King further than he was good or brave CHAP. LXVI Of the state of the English Clergie until the time of Edward the Third And herein concerning the Statute of Circumspecte agatis Articuli Cleri and of general Councils and National Synods IT was a time of much action throughout the whole Christian State and Rome now having attained to its full glory began to be eyed on all parts as an irregular motion crossing all affairs that it may like the sole Empress command all and be controuled by none and this wrought some stirrings in France complainings in England and facing between the Emperour and the Pope How chargeable this was to the Pope's Treasury it is not material but it occasioned or was pretended to be the occasion of all the intolerable exactions ensuing there being scarce one year passed over without some extraordinary exaction levyed upon the Church-men either by Provisors Tenths Procurations Levies for the Holy War Quindizms Benevolences or other such like and where money was not to be had by levies of Ornaments or of rich Apparel by intimation begging perswading commanding threatning and in this course they continued till they had out-faced shame it self and that the whole Law of Rome became comprehended in this one Quicquid libet licet In general therefore the Church of Rome cannot be said to thrive during these extorting times although Rome did for if the Laity were pillaged by the King the Clergie much more both by Pope and King if the one complained the other cried the one sometimes found relief from the King but the other was helpless for the Pope had no Ears to hear nor the King Hands to help He neither durst nor would cross the Pope although the Clergie told him that by these exactions they were impoverished in such manner as they were disabled to do him service for their Lay-fees Thus Rome becomes a burthen to Rome and the Members weary of bearing their Head. Hereafter must the Pope beware of falling out with Kings for the English Clergie now though late see that all is not Gold that glitters nor is it any great priviledge to be the Pope's men further than the Pope will be a good Master but this was not to be expected Popes were grown so excellent as they could not amend and England so enamoured of them as it is become their verè hortus deliciarum as the Pope called it when he saw the rich vestments of the English Church-men and therefore they must now be contented to be the Pope's viands as often as his hungry maw doth call or otherwise they must fall out An excellent posture of affairs and brave preparative to dispose the hearts of all sorts for entertainment of the easie yoke of Christ's government which was now at the door and ready to be revealed Nevertheless poor and mean as the Clergie was they had courage enough not onely to stickle both with King and people for their own liberties but also to invade the liberties both of the Crown and Commons having this advantage that they had to do with a King and people that were two and themselves well seconded by the Pope that had no less power in those times of publick distraction and was bound to serve the Cattle well that yielded him so much milk The particular matters of debate may appear in their Paper of Grievances composed in Henry the third's time and their Resolutions thereupon their Complaints were renewed again in the time of Edward the first if we may give credit to Baronius after the Statute of Circumspecte agatis To the end therefore that the whole may lie before us I shall set down the matter or substance of both these Papers severally in regard they sound much alike and note the difference all which I shall do to the end that it may more plainly appear what the Church-mens Idaea was and how far the common Law and King's Prerogative would agree thereto The Complaints are of this nature 1. That the Church-possessions in their vacancies are wasted and that Escheators do not onely seize the personal Estate of the Abbot or Prior deceased but such Corn in the Barn and other Goods belonging to the houses for their maintenance as also the profits of Churches impropriate 3 4 5. Elections are either disturbed by the King's Letters preceding or by delay of the Royal assent subsequent to the said Elections 6. The Lay-power without the advice of the Clergie do put in eject or restore Incumbents to Benefices void 7. Prelates are summoned to answer to the Lay-power in the Writs Quare excommunicavit and Quare non admisit 8. Clerks are distrained in their Lay-fees to answer before the Lay-power in Action of Debts Trespass or other personal Actions and in case they have no Lay-fees the Ordinary is distrained by his Barony to cause the Clerk to appear 9. The Laity are forbidden to take Oath or to inform upon Oath before the Prelates and to obey the Prelates commands in such cases 10. Persons taken and imprisoned upon Excommunication are ordinarily dismist without satisfaction to the Prelate and sometimes are not taken by the Sheriff notwithstanding the King 's Writ And as well the King as his Officers do ordinarily communicate with such as are excommunicated and likewise command others to communicate with them 14. Clerks imprisoned for Felony are refused to be delivered to the Ordinary unless upon security to appear before the Justices in Oyer and sometimes are hanged before their Ordinary can demand them and sometimes their heads are all shaven
this Kingdom and yet the Law for all this suffered no change nor did the House of Commons however the name is thrust into the English Ordinary Print ever yield unto the passing of the same but in the Parliament next ensuing complained thereof and protested they would not be bound by such Laws whereto the House of Commons had not given their consent And this dashed the Law quite out of countenance although it holds the place still amongst the number for within four years after the Clergie bring in another Bill of the same nature in general though varying in some particulars but the same was again rejected All the strength therefore of this Law resteth upon the King and House of Lords engaged by the Clergie whom they trusted for their Religion for Book-learning was with them of small account and no less by the King who knew no better way to give the Clergie content that gave him so much as to set the Crown upon his Head nor to discharge his Royal Word passed by the Earls of Northumberland and Westmorland in his behalf unto the Convocation viz. That they were sent to declare the Kings good will to the Clergie and Church-Liberties and that he was resolved to defend all the Liberties of the Church by his Kingly power and to punish Hereticks and the Churches Enemies in such manner as the Clergie should think meet and therefore desired their daily prayers for his own and the Kingdoms safety And yet for all this the people were not of this mind no small part of the Kingdom being overspread with these opinions After Henry the Fourth comes Henry the Fifth and he also makes another essay the former opinions then known onely by the general names of Heresie are now baptized by the new name of Lollardry and grown so overspreading that all the troubles of these times are still imputed to them It was indeed the Devils old and common trick thus to inrage earthly powers against these men although he be hereby but an instrument in the hand of the chief Builder that in laying a sure Foundation doth as well ram down as raise up for the malice of these men made the people of God to multiply Henry the Fifth also published a Law to this same purpose That all persons in place of Government shall swear to use their diligence to destroy all Heresies and Errors called Lollardries That all Lollards convict by the Clergie left to the secular power according to the Laws of Holy Church shall forfeit their Lands and Tenements to their Lords And the King to have the Year and Day and Waste and all his Goods and Chattels If the Lord be the Ordinary the King shall have all No forfeiture to be till the Delinquent be dead They shall be found by Indictment before the Justices of the Peace This Indictment being found shall be sent to the Ordinary with the Prisoner The Indictment shall not be for Evidence but onely for Information These are the principal things contained in this Law which by the manner of the composure seemeth to be of an uncertain colour neither made by the Clergie nor Laity but spoiled between them both The intent thereof seemeth to be principally to draw on the House of Commons to pass the Law under hope of gain by the forfeitures for the penalty is like that of Felony though the crime be not expresly declared to be Felony 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 is not enacted by any Law that such persons shall be delivered to the Secular power c. Thirdly This Statute determining the forfeiture to be not till death and neither that nor any other Law of this Kingdom determining death then is no forfeiture determined Fourthly Though this Law taketh it for granted that Heresie and Errours belong to Ecclesiastical Cognizance yet the same allows of no further proceedings than Ecclesiastical 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 it is evident that the Clergie could by this Law neither get fat nor bloud And therefore at their Convocation in the next year following they took 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 far as they can learn. Which puts me in mind of a Presentment that I have seen by some of St. 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 Books we know not what they are This new course shews plainly that the former held not force as they intended it So God blasted the practices of the Clergie at this time also rendring this Law immaterial that had the form as the other missed in the form and had the matter CHAP. XVIII Of the Court of Chancery IT often befals in State-affairs 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 Council in the Star-chamber pretends default of the Common-Law both in speed and severity in Cases whereby the State is endangered 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 kind of power to survey 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 Friends and Neighbours and it may be they grew weary of embroiling themselves one against another and of being Instruments of the violent countermotions of Princes and great men Secondly It gained also upon the Admiralty which by former Laws had Jurisdiction in all cases incident upon the great Sea. But now either through neglect of the Admiral or the evil of the Times occasioning Piracies to grow epidemical 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 setled in every Port who had power committed to them to punish Delinquents against the publick Truce both by Indictment at the Kings
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.
Womanhood 138. Coverture 139 Custos Regni a formality of State under the Parliaments Order 79. many times conferred upon Children 80. and upon a Woman 148. D. DElegates though named by the King yet by Authority of the Parliament 133 Defender of the Faith 122 Dispensations Licenses and Faculties never in the Crown but by the Parliament givent to the Archbishop under limitations 137 139 Duels ordered by the Marshal as subservient to the Common Law 63. E. EDward the Third his Reign 2. his Title upon Entry by Election ibid. Edward the Fourth his Reign though had Title of Inheritance yet entred by Election 106 Edward the Fifth approached the Crown by Inheritance but never put it on 108 Edward the Sixth his Reign his Title and Possession did meet though he was a Child and his Sister Mary grown in age 152 Ecclesiastical power vide Prelacy and Prelates Elizabeth Queen her Reign 155. her Title by Election 163 Englishire taken away 56 Episcopacy vide Prelates and Prelacy Errors vide Heresie Exchange ordered by the Statute 38 Excommunication 159. the Writ de excommunicato capiendo ordered 169. vide Parliament exportation 38. F. FAlse News punished 66 Felony by riding in armed Troops 56 66 101 150 174 First-fruits regulated 90. taken away from Rome 130 Forcible entries 101 Forts Fortifications and Castles ordered by Parliament 147 171. G. GOal-delivery by the Judges of the Benches 54 97. vide Judges Goals regulated 67 149 Guard for the Kings Person brought in by Henry the Seventh 113 Gypsies made Felons 174 H. HEnry the Fourth his Reign doubtful in his Title but rested upon Election chosen by Parliament sitting when there was no King 68 c. Henry the Fifth his Reign his Title by an Intail by the Parliament 70 c. Henry the Sixth his Reign his Title by the Intail last mentioned though a Child he is admitted to the Crown 72 c. Henry the Seventh first setled a constant Guard his sixfold Right to the Crown and his gaining Prerogative in the persons and Estates of the people ibid. 113 c. Henry the Eighth his natural endowments 116 c. his power in the matters Ecclesiastical 120 c. in Temporals 125 c. Heresie and Errour in Doctrine under the cognizance of the Civil Magistrate 36 92. not punishable by death by Law till Henry the eighths time 126 138. the Writ De Heretico comburendo hath no legal ground in any of those former Times 67 93 95 126 138 Honours vide Parliament Hospitals visited by the Pelacy 90. I. IMportation 42 Judges of Assizes 97 142 Jurisdiction Ecclesiastical not originally in the Prelacy nor absolutely 137 Justices of the Peace their residency and quality their number various their work also 62 99. one Justice 63. and the setling of their Session ibid. their power to take Bail 149. K. KIngs vide Parliament Allegiance Supremacy Militia L. LAbourers their Work and Wages 42. ordered by the Justices of the Peace 63 Lancaster the Princes of that House friends to the Clergie in policy 86 Laws made by the Successors of Henry the Eighth during their minority annulled 69. Ecclesiastical Laws vide Parliament Lieges by Birth though not born within the Allegiance of England 57 Liveries and Tokens inhibited to the Lords 64 103. and limited in the Kings person ibid. means of jealousie between the King and his people 143 Libels in the Spiritual Court to be delivered in Copies upon demand 90 Licenses vide Dispensations Lords their power and jurisdiction in the Parliament 14. in Council 17 142 Lunacy no impediment in Trial of Treason 151. M. MAry Queen her Reign 153. her Title by Election 164. she prejudiced her Supremacy by Marriage 163 Marque and Reprisal 122 Martials Court 62 Matrimonial Causes after the Reformation by Henry the Eight in the Cognizance of the Clerge by leave 139 Militia 58 102 143 122. vide War. Mint 44 84. vide Parliament Monasteries dissolved 117. maintained by Henry the Fourth 86 Money out of England to Rome stopped 32. N. NAvy Royal as Forts for the publick safety maintained at the publick charge 148 Nisi prius 98 Non-residency 139 Noble Ladies Trial 101. O. OYer Terminer 54 98 Ordinary not to be questioned in the Civil Courts for things under Ecclesiastical jurisdiction 28 29. hath cognizance of Vsury 28. of Avoidances Bigamy and Bastardy 29. grant Administration 30. visit Hospitals and call Executors to account 90. hath power to fine and imprison 91 141. to keep Courts but the Authority doubtful 137. have Cognizance of the Heresie 91 138. Matrimony Non-residence ibid. In Queen Elizabeth's time their jurisdiction left in doubt 168 c. Oath ex Officio first brought in by the Church-men in matters Ecclesiastical 92. afterwards by the Parliament into the Star-chamber in cases criminal 142. P. PArdon of Crimes not absolutely in the King 11 Parliament without the King consisting of three States 69. without the Clergie 34 Parliaments power in ordering of the Crown 75 133 162. In ordering the King's person by Protectors 9. vide Protector In ordering their Children In ordering their Family 10 75. In ordering their Revenues 10 75 68. In ordering their Council 83 In the Militia vide Militia and War. In conferring places of Honour and Trust 11 23 In ordering the Mint vide Mint In making Ecclesiastical Laws Concerning Church-Government 131 c. 121 165. Concerning Doctrine 123 131 138 c. Concerning Worship 131 Concerning Church-censures 140 In granting Licenses and Dispensations 137 In final Appeals 133 In ordering it self 14 76 In Judicature 15 111 Parliament not inconstant though mutable 110 Peace Justices and their Sessions 62 c. 99 c. 148 c. 173 c. penal Laws executed to get money 108 114 Pleadings in English 57 Pope's power in England abated 33 c. vide Ordinary Supremacy Archbishop Prelacy not favoured by the Canon 140. their power since the time of Queen Mary 166. their dignity and power distinguished 28 34 Priests Wages 41 91 Praemunire and Provisors 32 34 c. 89 Proclamations made equal to Laws 125. altered 158 Protectors variety of them makes a doubtful Government 3 5 72 Purveyance regulated 31 39 R. RAvishment consented to forfeits Joynture 56 Request Court established by Cardinal Wolsey 140 Richard the Second his Reign 6. endeavours to over-rule the Parliament but failed in the conclusion 7 Richard the Third's Reign 108. his Title by Vsurpation and Murther ibid. Riots 101. S. SAnctuaries changed into fewer priviledged places 151 Servants imbezelling Felony ibid. 174 Sheriffs Courts regulated 149. Election of Sheriffs 55. Farm of the County 98. continuance in service ibid. Extortion ibid. Souldiers vide War. Staple 42 c. 111 Star-chamber 19 c. 141 Stealers of Men and Women Felony 174 Supremacy Supream Head 120. certainly not Absolute or Arbitrary power nor a Legislative power 166 c. Supream Governour 159. in causes Ecclesiastical ibid. c. in Temporal ibid. T. TEnths and First-fruits