underlings to the great men then they are to their Fethers to were them no longer then they will make them brave Secondly the Person thus agreed upon his intertainment must be accordingly and therefore the manner of taxing in full County and levying the rate of Wages for their maintenance is reformed and settled And lastly their Persons are put under the Protection of the Law in an especiall manner for as their work is full of reflexion so formerly they had met with many sad influences for their labour And therefore a penall Law is made against force to be made upon the Persons of those workmen of State either in their going to that Service or attending thereupon making such Delinquents liable to Fine and Imprisonment and double damages And thus however the times were full of confusions yet a foundation was laid of a more uniforme Government in future times then England hitherto had seen CAHP. XV. Of the Custos or Protector Regni KIngs though they have vast dimensions yet are not infinite nor greater then the bounds of one Kingdome wherein if present they are in all places present if otherwise they are like the Sunn gone down and must rule by reflexion as the Moone in the night In a mixt common wealth they are integrall members and therefore regularly must act Per deputatum when their Persons are absent in another Ligialty and cannot act Per se Partly because their Lustre is somewhat eclipsed by another Horizon and partly because by common intendment they cannot take notice of things done in their absence It hath therefore been the ancient course of Kings of this Nation to constitute Vicegerents in their absence ' giving them severall titles and severall powers according as the necessity of affaires required Sometimes they are called Lord Warden or Lord Keeper of the Kingdome and have therewith the generall power of a King as it was with John Warren Earle of Surry appointed therunto by Edw. the first who had not onely power to command but to grant and this power extended both to England and Scotland And Peter Gaveston though a Forrainer had the like power given him by Edward the second over England to the reproach of the English Nobility which also they revenged afterward Somtimes these Vicegerents are called Lievtenants which seemeth to conferr onely the Kings power in the Militia as a Lievtenant Generall in an army And thus Richard the second made Edmund Duke of Yorke his Lievtenant of the Kingdome of England to oppose the entry of the Duke of Hertford Afterwards called Henry the fourth into England during the Kings absence in Ireland And in the mean while the other part of the Royalty which concerned the revenues of the Crowne was betrusted to the Earle of Wiltshire Sir John Bush Sir James Baggot and Sir Henry Green unto whom men say the King put his Kingdome to farme But more ordinarily the Kings power was delegated unto one under both the titles of Lord Gaurdian of the Kingdome and Lievtenant within the same such was the title of Henry Lacy Earle of Lincolne and of Gilbert De clare Earle of Glocester and of Audomar De valentia Earle of Pembroke all of them at severall times so constituted by Edward the second as by the Patent Roles appeareth So likewise did Edward the third make his Brother John of Eâ—tham twice and the black Prince thrice and Lionell Duke Clarence and his Brother Thomas each of them once in the severall passages of Edward the third beyond the Sea in the third fifth twelfth fourteenth sixteenth nineteenth and thirty third years of his reigne concerning which see the Patent Rolls of those yeares And Henry the fifth gave likewise the same title and authority to the Duke of Bedford upon the Kings voyage into France and afterward that Duke being sent over to second the King in the French Wars the Duke of Glocester obtained the same power and place But Henry the sixth added a further title of Protector and Defendor of the Kingdome and Church of England this was first given to the Duke of Bedford and afterwards he being made Regent of France it was conferred upon the Duke of Glocester And towards the later time of Henry the sixth it was granted by him to Richard Duke of Yorke This title carried along with it a power different from that of a King onely in honor and the Person so adorned may be said to sway the Scepter but not to weare the Crowne And therefore in the minority of Henry the sixth when as the Government was ordered by the Parliament and to that end a Protector was made and he wel guarded with a Privy Councill and they provided with instructions one of them was that in all matters not to be transacted ordinarily but by the Kings expresse consent the Privy Councell should advise with the Prorector but this is not so needfull in regard that it concerneth the power of executing of Lawes which by right of the liberty of the Subject is the known duty of the Scepter in whose hands soever it is holden And therefore I shall passe to the Legislative power wherein its evident that the Protectors power was no whit inferiour to the Kings power For first the Protector Ex officio by advice of the Councell did summon Parliaments by Writs even as the Kings themselves under their owne Teste and if not bear the Royall Assent yet did they direct the same and received Petitions in Parliament to them directed as to Kings and every way supplied the roome of a King in order to the perfecting publishing and inforcing of Law to Execution Secondly the Parliaments holden by Protectors and Lawes therein made are no whit inferiour to those by the King whether for Honour or Power And therefore if a Parliament be-holden by the Lord Warden and sitting the Parliament the King in person shall arrive and be there present neither is the Parliament interrupted thereby nor the power thereof changed at all though the power and place of the Wardenship of the Kingdome doth utterly vanish by the personall accesse of the King because in all Cases where the King is subservient to the Kingdome or the Common-wealth The Lord Warden in his absence is conservient unto him being in his stead and not under him for the very Place supposeth him as not because not present And this was by a Law declaratively published at such time as Henry the fifth was Regent of France and therefore by common presumption was likely to have much occasion of residence in that Kingdome and it holdeth in equall force with all other Lawes of the highest Size which is the rather to be noted because it is though under a Protector obligatory to the King and makes his personall presence no more considerable then the presence of his shadow For the King spent three whole yeares in the French Warres and during that time never saw England where
Forrain and sudden invasion and attempts Thirdly the powers are not undefined but circumscribed 1. To Array such as are Armed so as they cannot assesse Armes upon such 2. To compell those of able Bodies and Estates to be Armed and those of able Estates and not able bodies to Arme such as are of able Bodies and not Estates but this must be Juxta facultates and salvo Statu 3. Whereas they straine themselves to make the Statute of Henry the Fourth and the Commission of Array to consist with the Statutes of 13 E. 1. 1 E. 3. and 25 E. 3. thereby they affirm so many more restrictions unto this power of Array as those Statutes are remediall in particular cases yet doe I not agree to their Glosses but leave them to the debate already published concerning the same Secondly as this power was not absolutely in the King so was it not originally from themselves because they had not the Legislative Power concerning the same but the same was ever and yet is in the Parliament hereof I shall note onely three particular instances First the Militia is a Posture that extendeth as well to Sea as Land That which concerneth the Sea is the Law of Marque and Reprisall granted to such of the People of this Nation as are pillaged by Sea by such as have the Kings Conduct or publique Truce And by this Law the Party pillaged had to recompence himself upon that man that had pillaged him or upon any other Subject of that Nation in case upon request made of the Magistrate in that Nation satisfaction be not given him for his wrong it was a Law made by the Parliament whereby the Chancellor had power to grant such Letters or Commission upon complaint to him made This was grounded upon the Statute of Magna Charta concerning Free Trade which had been prejudiced by the rigour of the Conservators of the Truce against the Kings Subjects although what was by them done was done in their own defence And by which means the Forrainers were become bold to transgress and the English fearfull in their own Charge and many laid aside their Trade by Sea and thereby the strength of the Kingdome was much impaired Nor is the Equity of this Law to be questioned for if the Magistrate upon complaint made grants not releif the offence becomes Publique and the Nation chargeable in nature of an Accessory after the Fact and so the next man liable to give satisfaction and to seek for releif at home The King then hath a power to grant Letters of Marque by Sea or Land and this power is granted by Parliament and this power is a limited power onely in particular cases in regard that many times these prove in nature of the first light skirmishes of a generall War Two other Instances yet remain concerning the Order and Government of the Souldiers in the Army the one concerning the Souldiers Pay Viz. That Captains shall not abate the Souldiers Wages but for their Cloathing under peril of Fine to the King The other concerning the Souldiers service That they shall not depart from their Colours without leave before the time of their Service be expired unlesse in case of sicknesse or other good cause testified and allowed by the Captain and such as shall doe otherwise shall suffer as Fellons Which Lawes could not have holden in force had they not been made by Parliament in respect that the Penalties concern the Estates and Lives of Men which are not to be invaded but by the Law of the Land so as both Captains and Souldiers as touching the Legislative power are not under the King in his Personall Capacity but under the Law of the Parliament Lastly as the rule of War was under the Legislative power of the Parliament so was the rule of Peace for whiles Henry the Sixth was in France which was in his tenth yeare from Saint Georges day till February following The Scots propound tearmes of Peace to the Duke of Glocester he being then Custos Regni which he referred to the Order of the Parliament by whom it was determined and the Peace concluded in the absence of the King and was holden as good and effectuall by both Kingdomes as if the King had been personally present in his full capacity CHAP. XXIII A Survey of the Reignes of Edward the Fourth Edward the Fifth and Richard the Third THe reign of Henry the Sixth was for the most part in the former parts of it like fire buried up in the ashes and in the later parts breaking out into a flame In the heat wherof the Duke of York after Fealty given by him to Henry the Sixth and dispensation gotten from the Pope to break his Faith lost his life and left his Sonne the Mark-grave to pursue his Title to the Crown which he claimed by Inheritance but more especially by Act of Parliament made upon the agreement between Henry the Sixth and his Father This was Edward the Fourth who neverthelesse reserved himself to the Election of the Lords and was by them received and commended to the Commons in the Feild by which meanes he gaining the Possession had also incouragement to maintain the same yet never held himself a King of full age so long as Henry the Sixth lived which was the one half of his reigne Nor did he though he held many Parliaments scarce reach higher then at reforming of Trade which was a Theame well pleasing to the People next unto their Peace which also the King carefully regarded For although he had been a Souldier of good experience and therewith successfull yet as one loath to trust too far either the constancy of the People of his own dominion or the fortune of War with his neighbouring Princes he did much by brave countenance and discourse and yet gain'd repute to the English for valour after the dishonorable times of Henry the sixth He had much to do with a wise King of France that knew how to lay out three or foure calme words at any time to save the adventure of his Peoples blood and make a shew of Mony to purchase the peaceable holding of that which was his only by force untill the winde proved more faire to bring all that continent under one head In his Government at home he met with many crosse gales occasioned principally by his owne rashnesse and neglect of the Earl of Warwicks approved freindship which he had turned into professed enmity And so weakned his own cause thereby that he was once under Water his Kingdome disposed of by a new intaile upon the Heires of Duke Clarence and so the Earle of Warwick remained constant to the House of York though this particular King was set aside Nor did he in all this gaine any thing but a Wife who though his subject and none of the greatest family neither brought any interest unto her Lord and Husband amongst forraine Princes brought neverthelesse a Pearle which was
rest upon this Law for within three yeares following another Law is made to confirme what was then already done by the King and a larger power granted to the King to change and alter as to his Wisdome shall seeme convenient Thus the Kings injunctions already set forth were established all opposall to them inhibited and the King hath a power of Lawing and Unlawing in Christs Kingdome and to stab an Act of Parliament in matters of highest concernment And the reason is the King will have it so and who dares gain-say it as Cranmer said the King loves his Queene well but his own opinion better for new things meeting with new love if it be once interrupted in the first heat turnes into a displeasure as hot as the first love nor had either party great cause to boast in their gainings for none of them all had any security but such as kept close to a good conscience All this though much more then any of his Predecessors ever attained was neverthelesse not enough till his Title was as compleat The Pope had fashioned him one now above twenty yeares old for his service done against Luther and others of that way and sent it to him as a Trophee of the victory this was Defender of the faith which the King then took kindly but laid it up till he thought he had deserved it better and therefore now he presents it to the Parliament who by a Statute annexed it to the Crown of England for ever now made triple by the Royallizing of that of Ireland amongst the rest A third Prerogative concerned the Kings Power in temporall matters and now must England look to it selfe for never had English King the like advantage over his people as this man had His Title out-faced all question Left rich by his Father trained up in the highest way of Prerogative absolute Lord of the English Clergy and of their Interest in the People of a vast spirit able to match both the Emperour and French abroad and yet more busie at home then all his Predecessors A King that feared nothing but the falling of the Heavens the People contrarily weary of civill Wars enamored with the first tastes of Peace and Pleasure whiles as yet it was but in the blushing child-hood overawed by a strange Giant a King with a Pope in his belly having the temporall Sword in his Hand the spirituall Sword at his command Of a mercilesse savage nature but a word and a blow without regard even of his bosome companions what can then the naked relation of a Subject do with such an one if providence steps not in and stops not the Lions mouth all wil be soon swallowed up into the hungry maw of Prerogative To set all on work comes Steven Gardiner from his Embassage to the Emperor sad apprehensions are scattered that the motions abroad are exceeding violent and sudden that the Emperor and French King are fast in nothing but in change according to occasion that like the Eagle they make many points before they stoop to the prey That if the motions at home do wait upon debates of Parliament things must needs come short in execution and the affaires of this Nation extreamly suffer A dangerous thing it is that the King should be at disadvantage either with the Emperour or French King for want of power in these cases of suddaine exegencies and for some small time during the juncture of these importent affaires that seeing likewise at home the point concerning Religion is comming to the Test the mindes of men are at a gaze their affections and passions are on their tiptoes It s reason the King should steare with a shorter Rudder that this care might meete with every turne of providence which otherwise might suddainly blow up the Peace and good Government of this Nation These and the like represented a faire face to that which followed and made way for the King without shame to ask what no King before him suffered ever to enter into conceit I meane a Legislative power to this effect That Proclamations made by the greater part of the King for the time being and his Councell whose names hereafter follow with such penalties as by them shall be thought meet shall be of equall force to an Act of Parliament provided it shall not extend to forfeiture of Estates or Priviledges nor to losse of Life but in cases particularly mentioned in the Law provided no Proclamation shall crosse any Statute or lawfull or laudable Custome of this Realme All which at length comes to be demanded by a formall Bill with as ill favored a preface as the matter it self which was much worse ere it was well licked in the House of Commons and when all was done proved a Bare still Whatever it was it passed in manner above said neither much to the desire of the Commons that so much was given nor to the good liking of the King that there was no more For in stead of a Legislative power which he grasped at for himself he received it in common with his Councell and so becomes ingaged neither to alter nor destroy that Brother-hood if he intended to reape any fruit of this Law leaving the point in doubt whither his gaine or losse was the greater For this Law thus made for this King these Councellors and these times and occasions can be no president to the future unlesse to informe Kings that the Parliament hath a power to give more Authority and prerogative to Kings then they or the Crowne have by common right and to give it with such limitations and qualifications as seemeth good to them And secondly that even Henry the eighth acknowledged that the Legislative power was not in the Crown nor was the Crowne capable thereof otherwise then it was conferred by the Parliament Onely Steven Gardiner might glory in this atcheivement having for the present obtained much of his ends by perswading the King that forrain Princes estranged from him not so much for his departure from the Pope as for some apprehensions they had of his departure from that way of Religion and Worship which they apprehend every Christian ought to maintaine And therefore if he meaned to gaine better correspondency amongst these Princes he must ingage more resolvedly to the fundamentalls of the Worship though he shook of some sleighter ceremonies with the Romish supremacy for he knew that they were willing enough with the later though the other could not go downe with them thus did forraine correspondency float above when as the Church as then it stood was underneath and gave the tincture to every wave And it was holden more safe by the Romish party to trust the King thus attempered with the legislative power in the Church matters then the rough Parliament whose Course steered quite wide from the Roman shore as if they never meant to look that way any more though Cranmer and the cheif Officers of State and of the Houshold
the People However unequall it may seem yet both that and other advantages were gained by the House of Lords after the seperation was once made as many of the ancient Statutes by them only made do sufficiently hold forth which although in the generall do concern matters of Judicature wherin the Lords originally had the greatest share yet other things also escaped the Commons Vote which in after ages they recovered into their consideration again And the condition of the People in those times did principally conduce hereunto For untill the Norman times were somwhat settled the former ages had ever been uncertain in the changes between War and Peace which maintained the distance between the Lords and their Tenants and the Authority of the one over the other savouring of the more absolute command in War And after that the Sword was turned into the plough-share the distance is established by compact of Tenure by Service under perill of default although in a different degree for the Service of a Knight as more eminent in War so in Peace it raised the minde to regard of publique Peace but the Service of the plough supporting all is underneath all yet still under the common Condition of free men equally as the Knight Peace now had scarcely exceeded its minority before it brought forth the unhappy birth of Ambition Kings would be more absolute and Lords more Lordly the Commons left far behinde seldom come into mention amongst the publique Acts of State and as uselesse set aside this was the lowest ebb that ever the Commonage of England indured which continued till Ambition brought on contention amongst the great men and thence the Barons Warrs wherein the Commons parting asunder some holding for the King who promised them Liberty from their Lords others siding with the Lords who promisied them Liberty from the King they became so minded of their Liberties that in the conclusion they come off upon better advantage for their Liberties then either King or Lords who all were Loosers before their reckoning was fully made These Wars had by experience made the King sensible of the smart of the Lords great Interest with the People and pointed him to the pin upon which the same did hang to take which away a Designe is contrived to advance the value of the Commoners and to levell the Peerage that they both may draw in one equall yoke the Chariot of Prerogative The power of the Commons in publique Councells was of some efficacy but not much Honour for their meetings were tumultuary time brought forth a cure hereof the flowers of the People are by Election sent to the Representative and so the Lords are matched if not over-matched the People lesse admiring the Lords and more regarding themselves This was but a dazle an eclips ensues for Kings having duely eyed the Nature of Tenures between the Lords and Commons look upon it as an out-work or block-house in their way of approach Their next endeavour is therefore to gain the Knighthood of England within the compass of their own Fee and so by priority to have their Service as often as need should require by a trick in Law as well for their own safety in time of War as for their benefit in time of Peace This was a work of a continuing Nature and commended to Successors to accomplish by degrees that the whole Knighthood of England is become no more the Lords till Kings be first served and thus the power of the People is wholly devolved into the Kings Command and the Lords must now stand alone having no other foundation then the affections of the People gained by beneficense of Neighbourhood and ordinary society which commonly ingratiates the inferiour rank of men to those of higher degree especially such of them as affect to be popular Henry the seventh found out this sore and taught his Successors the way to avoid that occasion of jealousy by calling up such considerable men to attend the Court without other wage but fruitlesse hopes or under colour of Honour to be had by Kings from the presence of such great men in their great Traines or of other Service of speciall note to be done onely by men of so high accomplishment And by this meanes Lordship once bringing therewith both Authority and Power unto Kings before Kings grew jealous of their greatness in these later dayes is become a meer jelly and neither able to serve the Interest of Kings if the People should bestir themselves nor their own any longer henceforth the Commons of England are no mean Persons and their representative of such concernment as if Kings will have them to observe him he must serve them with their Liberties and Lawes and every one the publique good of the People No mans work is beneath no mans above it the best Honour of the Kings work is to be Nobilis servitus as Antigonus said to his Son or in plain English supreame Service above all and to the whole I now conclude as I found this Nation a Common-Wealth so I leave it and so may it be for ever and so will it be if we may attain the happinesse of our Fore-Fathers the ancient Saxons Quilibet contentus sorte propria A Table of the Principall Matters conteined in this Book A A Betting of Felony made Felony 299 Administration granted to the next of the Kindred 51 Admirals power from the Parliament 41. formerly under many brought into one 42. once gained jurisdiction to the high water-mark 44. and his Power regulated by Law ibid. over Sea-men Ports and Ships 44 Allegiance according to Law 18. vide Supremacy the nature thereof in general 79. its not natural 79 89. not absolute or indefinite 82. not to the King in his natural capacity 86. it obligeth not the People to serve in forrain War 10â— it is due to the person of the King for the time being 246 279. what it is in time of War and relation thereunto 247. Henry the seventh and Henry the eighth indeavoured to advance it in relation to the Crown but effected it not 204. 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 227 233. vide Archbishop Archbishop hath the lawfull power of the Pope in Appeals and Dispensations Licenses and Faculties 233. the Archbishop of York looseth his jurisdiction over the Scottish Bishops 193 Arrays Commission of Array 178 vide War Assent of the King to Acts of Parliament serveth onely to the execution of the Law and not to the making thereof 21 Association of the People for the common safety before the Statute inabling the same 298 B. BAstardy not to be determined by the Ordinary before Summons to the Pretendors of Title to be heard 156 Bench the Kings Bench at Westminster abated in power by the Commissions of Oyer and Terminer and Gaol delivery
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
the severall Counties had formerly the power but were found to savour too much of Neighbourhood and Alliance the leading of the work therefore is now committed to the Judges at Westminster and the other made onely Associates to them But above all the Courts of Sheriffes Coroners and Leets were now grown soure with Age having attained courses by common Practice differing from Oppression onely in name and yet were the times so unhappy as by these courses they had obtained fovour and respect amongst the great men and so gained more power from above to abuse them below These men loved to be Commissioners of Oier and Terminer and having learned how to make capitall offences pecuniary found such sweetnesse as they used not to be weary of their places though the Countrey grew weary of them and therefore disliking uncertainties in such matters of benefit they cannot rest till they obtaine more certaine settlement in their places some for yeares others for life and some for ever The disease thus contracted by degrees the cure must be accordingly first the Sherifwicks much dismembred to please the Court Favorites and fill the Kings privy purse and all raised to the utmost penny of the full and beyond the just vallue A Law is made to restore the severall Hundreds and Wepentakes to the Sheriffs and their Counties and all of them are reduced to the old rent and it is likewise provided that none shal execute that place in County or Hundred who shall not then have sufficient Lands in that County to answer dammages for injustice by them done And that no Sheriff shall serve in that place above one yeare and then not to be chosen againe for that service till three yeares be past which later clause was only a medium taken up for the present occasion in regard that men of ability became very rare in these times especially in some of the Counties The election of the Sheriff is likewise not to be forgotten for though the Counties had the election of Coroners in regard they looked that no man should come nigh their blood but whom they trusted yet the Sheriffe came not so nigh their skinne nor yet so nigh their freeholds as anciently they had done for that their power in judicature was much abated and so not worthy of so high regard yet in respect he was still to be a Minister of justice and his place valuable more then formerly it was holden convenient that such as had the cheife power of judicature at Westminster Viz. the Chancellor Treasurer Cheife Baron and the two cheife Justices should nominate the man that should be their Servant and in the Parliament neverthelesse interposed in that Election as often as they saw cause Secondly as touching Causes criminall which more ordinarily come within the Cognisance of these Courts They generally held the same regard in the eye of Law in these times that they had done formerly neverthelesse in two crimes these times wrought diversly urging the edge of Law against the one and abating it as to the other The later of these is commonly called Petit Treason which is a murder destructive to the Common-wealth in an inferiour degree and at a further distance because it is destructive to that Legiance by which Families doe consist and of whom Kingdomes are derived In former times it extended unto the Legiance between Lord and Tenant and Parents and Children but by this Law of 25. E. 3. it is reduced to the Legiance onely of Man and Wife Master and Servant Clerk and his Ordinary the last of which was now lately taken up and might have beene as well laid aside as divers others were but that in these times much is to be yeilded to the power of the Prelacy who loved to raise the power of the Ordinary to an extraordinary pitch that themselves might be the more considerable This reducing of Treason into a narrower ground made the Regiment of Fellonies to swell A hard thing it was in a Warring time for men to conceit themselves well drest untill they were compleatly armed Some used it for a Complement and amongst others honest men had as good cause to use it as some that were ill affected had a bad and of the last sort some did aime at private revenge though many aimed against the Publique quiet But however the intentions of men thus harnessed might be different the lookes of them all are so soure that its hard to know a man for Peace from a man for Warre And therefore the People were now so greedy after Peace as they are ready to magnifie or multiply all Postures of Armed men into the worst fashion being well assured that the readiest way to keep themselves from the hurt of such men is to have none of them at all But Edward the Third had more need of them then so and will therefore allow men to ride Armed but not to Troope together to rob kill or imprison any man and if any Person did otherwise it should be Fellony or Trespasse but not high Treason All this was in favour to the People and yet it was not all for when Mercy groweth profuse it becomes cruelty Murder is very incident to times of Warre yet is an Enemy to the Peace of so high a nature that though the Kings pardon may doe much yet both King and People declare it an impardonable crime by the Common Law and that the Kings Prerogative shall not extend so farre as to Pardon the same This justice done to the party dead was a mercy to them that were alive a means to save blood by blood-shed and not so much by the Kings Grant as by his Release One thing more in these cases of blood the people obtained of the King which they had not so much by Release as by Grant and that was the taking away of Englishire an ancient Badge of the Imperiall Power of the Danes over the Saxons and which had either continued through the desidiousnesse of the Saxons in the times of Edward the Confessor unto the Normans time or by them taken up again and continued untill these times that Edward the Third was so farre desirous to declare his readinesse to maintaine the Liberties of the people as to be willing to restore them where they failed and in particular tooke away the manner of Presentment of Englishire blotting out the Title and Clause concerning it out of the Articles of inquiry for the Judges Itinerant And thus whether Native or Forrainer all men are now made in death equall and one Law serves all alike Next unto blood these times grew more sensible of Ravishments then former times had done For though they had determined a severe Penalty against so foule a Crime and made it in the nature of Fellony capitall which was enough to have scared any man from such attempts yet for the proof of the matter in Fact much rested upon the will of the Woman which for
high value is not to be exposed to every occasion that may provoke Warre without due advice first had with the publique Councell because in his person the people adventureth as well as himself And in this manner were the Warres in France by Edward the Third and in Scotland concluded upon debate In the next place as touching the arraies of Men for Warre I finde no foot-steps of any power which was claimed as peculiar to the King therein and acknowledged by the Parliament but many instances do I meet with in the opposite all which do plainly tell us that the old shifts of Jurati and obligati ad arma could do little either in the calling of men forth or arming them for the Warr. But in case of publique defence against forrainers men were summoned upon their Legiance as anciently was used And this was by both King and Parliament fully declared and all such obligations by writing called in and damned as dishonorable to the King In forraine service the course was no lesse regular if the Warr was by especiall direction of the Parliament they likewise ordered the manner of the raising of Souldiers Viz. So many out of a County and so many out of a Burrough all which are by the expresse words of the Statute said to be granted by the Knights and Burgesses But if it was only upon the Kings particular instigation and not by order or consent of the Parliament the King in such cases being Volunteir all the Souldiers were in like manner unlesse some particular Law or Tenure otherwise obleiged them As touching the arming of Souldiers the Law was yet more certaine and particular If the Souldiers were men of estate they were armed according to the ancient rule asserted by the Statute at Winton or otherwise were especially assessed by the Parliament or by vertue of their Tenures the first of these is confirmed by Edward the third in Parliament wherein he willeth that no man shal be urged to arme himselfe otherwise then hee was wont in the times of his Ancestors Kings of England The two later were likewise confirmed by another Law made in the same Kings time whereby it was ordained that no manshall be constrained to find men of armes Hoblers nor Archers other then those which hold by such services if it be not by common consent and grant made in Parliament By men of Armes meaning those which we now call Curiasseires or compleat armed by Hoblers meaning those now called light horse-men The Archers served on foot and were Principally armed with Bowes although they had also Swords or other such offensive portable Weapons The first of these concerneth only the arming of a mans owne person the other the finding of Souldiers and arming of them and both together sufficient for the safegard of the rights and liberties of the people invaded in those times by Commissions of array and such other expressions of Prerogative Royall for as touching the arming of a mans owne Person the Statute of 1. Ed. 3. formerly mentioned is cleare in the point And though the Statute of 25. Edw. 3. doth not in the letter direct as touching the finding armes for others as is urged in his Majesties answer to the Declaration of the Parliament concerning the Commission of Array July 4. 1642. yet is it therein granted that a compleate Souldier is within the Letter of the Statute and seeing the person of the Souldier is not in the power of any private Person in such cases to command him to the service it seemeth cleare to me that the Statute must intend the arming of him with compleat armes and not the armed person of the man The souldery thus arrayed they are in the next place to be called by their Rendezvouz the Knights by summons sent to the Sheriff but the rest by Proclamation If the Knights appeare not a fine is let upon them if others runne a way from their conduct a Writt issued to the Serjeant at armes to apprehend them if they were not arrayed then the recognisances of such as undertooke the worke are estreated All plunder or spoile committed by the Soudiers in their conduct was to be satisfied by the Conductor or Commander that received their Pay or Charges for their conduct And although the charges for conduct had formerly De facto been defraied somtimes by the County by vertue of Commissions that issued forth both for the raising and conducting of them yet was this no rule nor did Edward the third claime any such duty but disclaimed it and ordained by Act of Parliament that both the pay and conduct Money should be disbursed by the King from the time of their departure from their severall Counties For to this end and for the safegard of the Realme And for the maintenance of the Warrs of Scotland France and Gascoigne The King had supply from Aids Releifs Wardships Marriages Customes and Escheats nor did the Parliament grant any particular Aide by assessment or publique Taxe but when they evidently saw the burden of Warr to be extraordinary as it befell in the Conquest of so great and potent a Realme as France was Wherein although the Taxes were many yet so well ordered were they and with that compliance from the King that the people indured them with much patience so long as the King lived Lastly in all these Cases of forraine Warrs for of such Cases onely these Laws are to be understood it was especially provided that no man should be distrained or urged against his will to goe out of his County But in Case of defensive Warr the course was otherwise for all men in such Cases are bound by the Law of Nature to defend their owne Countrey from Invasion in order to the safety of their owne Estates and habitations They were arrayed or gathered together by Commission of Array from the King armed according to the Laws formerly mentioned and not by arbitrary order of the Commissioners And by vertue of such Commissions they were drawne forth and led to places where need required Sometimes to one Coast sometimes to another yet not altogether at the Kings pleasure for the Parliament upon occasion set rules of restriction and generally exempted the North parts beyond Humber from being drawn Southward and left them as a reserve for the defence of the Marches bordering upon Scotland and sometimes ordered the Array should be executed onely in some particular Counties and other times wholy exempted the Countrey adjacent within six miles of the Sea Coast And because the King might under colour of a defence Array the People where no such occasion led the way and command them out of their Countyes a Statute is made that states the Case wherein such Array shall be the words whereof are variously set forth in the Bookes in Print whether determinatively or carelesly I cannot tell but all of them doe differ in sence one from another and
more of that now they devise a way to spoile and prey for themselves and yet neither to rob nor break house To this end they would scatter little Scrolls in writing requiring the party that they intended to prey upon to leave so much Money upon such a day at such a place and this was Sub paena of burning the parties house and goods which many times did insue upon default made this practise was at once made Treason to prevent the grouth of such an evill And the like was done with Robberies and Manslaughters contrary to the Kings Truce and Safeconduct As many or more new Fellonies were also now created One was the cutting out of mens tongues and plucking out of eyes a strange cruelty and that shewed the extreame savagenesse of those times so much the more intollerable by how much the poore tortured creature could hardly be either eye or eare witnesse of the truth of his own wrong A second Fellony was the customary carrying of Wooll or Wool-fells out of the Realme to other places except Callis Another Fellony concerneth Souldiers which I refer over to the next Chapter The last was Servants plundering their Masters Goods and absenting themselves if upon Proclamation made they appeare not this was also made Fellony In the next place as touching forcible entries and riots the remedies so often inculcated and new dressed shew plainly the nature of the times These kind of crimes commonly are as the light Skirmishes in the beginning of a War and follow in the conclusion also as the faintings of a battell fought till both sides be weary I shall not enter into each particular Statute diverse of them being little other then as asseverations annexed to a sentence to add credit and stirr up minding in men that otherwise would soone forget what is sayd or done The remedies formerly propounded are now refined and made more effectuall First in regard of speed which is as necessary in these forces as the stopping of the breaches of waters in the first Act and therefore one Justice of the Peace may proceed upon a holder by force or breaker of the Peace with a Continuando but Riots are looked upon as more dangerous and the first opposition had need be more stiffe least being uneffectuall aggravates the violence and therefore it s required that two Justices and the Sheriffe should joyne in the worke to carry one the worke with more Authority and Power And what they cannot do in the punitive part they must certifie to the King and his Councel or to the Kings Bench if traverse be made So as though the Power of the County be annexed to the Sheriffe Jure ordinario to maintaine the peace yet the Parliament did delegate the same upon Justices as it thought most expedient To maintaine and recover the Peace when it s broken shewes more Power but to prevent the breach shewes more Wisdome and therefore to all the rest the Wisdome of these times provided carefully First for Guards and Watches according to the Statute at Wint and committed the care thereof to the Justices of the Peace And secondly against the gendring of partyes for its commonly seene that such as are admired for excellecies of Person are so far adolized of some as that their gestures actions and opinions are observed tokens of favour though never so small are desired from such and the Idoll likes it well gives Points Ribbons it may be Hats and with these men are soon gained to be Servants in the fashion and not long after to be servants in Action be it War or Treason or any other way This manner of cheat the former times had been too well acquainted with Knights and Esquires are not feared in times where the word Lord carries the wonderment away their offences against the Statutes of Liveries are all great though in themselves never so small and therefore are sure of Fine and Ransome and it s well if they escape a yeares Imprisonment without baile or mainprize Lords may weare the Kings Livery but may give none Knights and Esquires may weare the Kings Livery in their attendance upon his Person but not in the Countrey The King and Prince may give Liveries to Lords and meniall Servants The summe is that Liveries may be given by the more publique Persons for State not to make parties and Men may weare Liveries in token of Service in Peace and not in Armes One thing must be added to all which may concern triall in all Viz. A Law was now made that Noble Ladies shall be tried by their Peeres a Law now of the first stamp and strange it is that it never came before now into the breast of the Law but that it came now it is not strange no meaner Person then the Dutches of Glocester is first charged with Treason when that could not appear then for Necromancy very fitly that she might be tried by the Ecclesiasticall way of witnesses She is found guilty and a Sentence of Penance and imprisonment or banishment passed thereupon after such a wilde way as both Nobles and Commons passed this Law for the Vindication of that Noble Sexe from such hudling trialls for the future CHAP. XXII Of the Militia during these times THe Title of Henry the Fourth to the Crown was maintained principally by his Tenures which the Courtiers call Knight-Service but the Common People force of Armes and that which destroyed many a man was the principall means of his subsistence Otherwise its clear that his Title was staring naught nor could he outface Mortimars Title without a naked Sword which he used warily for he had Enemies enough to keep his Sword in hand and Freinds enough to keep it from striking at randome for coming in by the Peoples favour he was obleiged to be rather remisse then rigorous yet his manner of comming was by the Sword and that occasioneth men much to debate about his absolute power in the Militia as supposing that what power he had other Kings may De jure challenge the same and let that be taken for granted though it will not necessarily follow in true reasoning And let it also be taken for good that Henry the Fourth entered the Throne by his Sword yet is there not any Monument in Story or Antiquity that favoureth any absolute right in him over the Militia but the current is I think somwhat clear against it First because Henry the Fourth De Jure could not compell men to serve beyond the Seas but raised them by contract and therefore by Act of Parliament he did confirme the Statute 1 Ed. 3. Stat. 2. cap. 5. which Statute was purposely made to that end And the same also is countenanced by another Statute made in these times whereof we now Treat by the words whereof appeareth that the Souldiers for the Forrain Service were levied by Contract between them and the Captain who undertooke to Levy them by
now treat She was a compleat Conquerour of War and Treason and therein the true Inheritor of the Fate of her Grand-father Henry the seventh with advantage for she out-faced all Dangers by her onely presence having therof had more experience then any Princes that ever possessed her Throne yet she was wise enough to beware against the future considering her condition to be the last of her Line that the next behinde her was rather likely to trip up her heels then support her Train that the Pope narrowly watched every opportunity the distance between him and the Throne being no greater then the breadth of her onely Person It may well therefore admit of excuse if the Statute of the 15. of Edward the third concerning Treasons did not give satisfaction although therein if she were solicitous her Subjects were more Some kindes of Offences were made Treason by Statute-Laws which formerly appeared not such because they appeared not at all and yet in the opinion of her People the Queen was too slack in the making and more slack in the execution of them The People had ingaged themselves deeply against the Queen of Scots and it was not safe for them to go back they go yet deeper and without any positive Authority leading the way they enter into an Association amongst themselves for the Queens safety and it was well liked by the Queen because she knew it was well meant although by some it was mistaken nevertheless to take away all Exception a Law is made in pursuance thereof and so the Work is reduced under an ordinary rate though the publique Danger was such as might well have digested an extraordinary undertaking I intend not to enter into the particulars of these Treasons of the new stamp because they are but temporary and in their ultimate reach tend onely to the safeguard of the Queens person in order to the intentionary sense of the Statute of 25. Edw. 3. although not within the explicit words of that Law Onely this is observable that though the Times were full of malice yet was not all malice looked upon as fatal nor every Expression thereof Treason or privity thereto Treason although the Crown it self was not a little concerned therein but reduced to an inferiour degree called Misprision as if they were willing rather to construe undertakings for mistakings and thereby overlook much of the malignity of those Times then to make strict inquisition into every Punctilio of Offence As touching Felony the Rules were various some were of a new original as that of Gipsies others formerly such afterwards said aside are now revived with advantage as Conjuration and Buggery but Imbessellings by Servants of their Masters Goods made Felony for a time by Edward the sixth is by Queen Elizabeth made perpetual Some Felonies are made such within a certain precinct as Men-stealers and other Crimes upon the Scottish Borders Others formerly made Felony are now unmade as that concerning Prophesies and divers formerly protected under the refuge of Clergy are now barred of that reserve Such as are those that command Councel or hire others to commit Pettie Treason Murder or Robbery 4 5 Phil. Mar. cap. 4. Stealers of Horses Geldings or Mares 2 E. 6. cap. 33. Robbers of Houses Booth or Tent by Day or Night 5 E. 6. cap. 9. Pick-pockets or Cut-purses 8 Eliz. cap. 4. And Women-stealers 39 Eliz. cap. 9. And some Crimes made Felony impeachable onely within a certain time and not upon a cool suite so as upon the whole heap of the Account the zeal of the Times will appear to be more hot by how much iniquity appeared more hainous and that wicked men waxed worse as the Times waxed better More particulars of this nature and of other Offences of inferior note might be superadded as also of Laws of alteration and amendment of Process and Triall and of Common Assurance and Conveyance of Estates of particular Revenue all which might be insisted upon if need were to clear out yet further the conclusion of the whole matter which I hasten to accomplish led on by a natural motion that grows in speed the nigher it comes to its end CHAP. XL. A summary Conclusion upon the whole matter IN the stating of this whole account I shall first glance upon the naturall constitution of the People of England and then gather up the scattered Notions into one form because the one doth not a little illustrate the other and shew the same to be radicall and not by any forced inoculation The People are of a middle temper according to their Climate The Northern Melancholly and the Southern Choller meeting in their generall Constitution doth render them ingenious and active which nourished also under the wings of Liberty inspires a courage generous and not soon out of breath Active they are and so nigh to pure act that nothing hurts them more then much quiet of which they had little experience from their first transmigration till the time of King James but ever were at work either in building as before the Norman times or after in repairing their ruines occasioned by tempestous pretentions from Rome and Forrain Princes or by earth-quakes of Civill contention about the Title between the two Houses of Yorke and Lancaster or intrenchments of the Crown upon the Liberty of the People But King James conquering all enmity spake Peace abroad and sang Lullaby at home Yet like a dead calm in a hot spring treasured up in store sad distempers against a back Winter Their Ingenuity will not allow them to be excellent at the cheat but are rather subject in that kinde to take then give and supposing others as open hearted as themselves are many times in Treaties overmatched by them whom they overmatch in Armes Upon the same account they are neither imperous over those beneath nor stubborn against them above but can wel discern both person and time Man Woman or Child all is one with them they will honor Majesty where ever they see it And of the twain tender it more when they see it set upon infirmity as if they knew how to command themselves only in order to the publique good Nevertheless they love much to be free when they were under awe of the Popes Curse they bore off designes by the Head and Shoulders but afterwards by watchfullnesse and fore-sight and having attained a light in Religion that will own their Liberties of them both they make up one Garland not to be touched by any rude hand but as if it were the bird of the eye the whole body startles forthwith the allarme is soon given and taken and whether high or low none are spared that stand in their way This they do owe to the Easterne People from whom they fetch their Pedegree So as the only way to conquer them is to let them have their Liberties for like some Horses they are good for carriage so long as their burthens are easy and sit loose
the most part grounded upon self respects and private prudence laboured to conceale that which could not be made whole by revealing and by after consent skind over the sore as to themselves which corrupted inwardly and indangered the whole body to cure which a Law is made to restrain such late connivance in the Woman by depriving her both of her Joyncture and Inheritance which otherwise had been saved to her by such compliance as after consent unto such violations CHAP. X. Of the Course of Civill Justice during these Times HOwever the course of the Law concerning matters of the Crown passed in a troubled wave yet in matters of Common Pleas it passed in a calme and full Channell as the Reports in Print doe sufficiently witnesse nor was their any change of Principles but onely some alteration tending to a clearer manifestation of the same I will not touch upon every particular but onely upon two which reflect somewhat upon the Publique pollicy the one touching the course of Inheritance in some particular Cases the other touching pleading in the Courts of Civill Justice The first of these was occasioned from Conjuncture of Affaires the Case being such that Edward the Third had now gotten himselfe a new Kingdome unto that of England and must looke to maintaine that by Power which he obtained by force and conducing thereunto must have continuall imployment of the English in that Service as being most trusty to his Cause And that it is un reasonable that such English as had devoted themselves to his Service in this Cause and in order thereunto had transported themselves and their Families into those Forrain parts should thereby loose the benefit of Leiges in the Birth-right of their Children borne in those Forraine parts Upon consideration had hereof and of a former leading Opinion of the Lawyers and Parliament a Declarative Law was made That all Children borne without the Kings Legiance whose Father and Mother at the time of their Birth shall be under the Faith and Legiance of the King of England shall have the benefit of Inheritance within the same Legiance as other Inheritors have These are the words of the Statute and doe occasion a double observation one from the matter the other from the manner of the Expression The Subject matter is so delivered not as an Introduction of a new Law but as a Declarative of the old that lay more obscurely hidden for want of occasion to reveale it and the substance thereof resteth onely in this to enable the Children of English Natives borne beyond the Seas not the Children of those that are of Forraine birth though within the Kings Teritories in those parts as the opinion hath beene nor doth any ancient President or Case warrant the same as might be at large manifested if it might conduce to the end of this discourse and for the same cause after this Statute when as the Commons would have had a generall Naturalizing of all Infants borne beyond the Sea within the Kings Segniories the same would not be granted otherwise then according to the former Statute and the Common Law That which in the next place concerneth the manner of expression is this That a Childe is said to be borne out of the Kings Legiance and yet the Father and Mother at the same time to be of the Faith and Legiance of the King of England It seemeth to me that it intendeth onely those Children of English Parents borne within the Kings Teritories beyond the Seas because the words insuing concerning Certification of Bastardy of such Children are that the same shall be made by the Bishop of such place upon the Kings Writ directed to him which could never have passed into those places that are not of the Kings Teritories and so the Issue will be that the Legiance of those born in those parts though they are Leiges to the King yet they are not of the Legiance of the King of England but as Lord of that Teritory The other matter to be observed concerning pleading in the Courts of Civill Justice is this That whereas anciently from the Normans time till these times the pleadings were in the Norman tongue they shall be henceforth in English out of an inconvenience I beleive rather supposed then felt for though some kinde of knowledge of Law-termes may be increased thereby yet unlesse that shall be professedly studied it will breed nothing but Notions and they an overweening conceit which many times sets men to suites in Law to their owne losse like some weake influence of the Celestiall bodies that are strong enough to stirre up humours but not to expell them or draw them out However even thus in part is the reproach of Normandy rolled away like that of Egypt from the Israelites at Mount Gilgall CHAP. XI Of the Militia in these Times WArre is ever terrible but if just and well governed majesticall the one may excite resistance and defence but the other Conquers before blow given because it convinceth the judgement and so prevails upon the Conscience For that heart can never be resolute in its own defence that is at Warre with its own understanding nor can such a heart consider such a Warre otherwise then as Divine and bearing the face of an Ordinance of God and then how can the Issue be unsuccessfull It is no strange thing for Kings to miscarry in their Warres because it s rarely seen that they are under good Councell but if a Christian Councell miscarry we may conclude it extraordinary in the efficient Cause and no lesse wonderful in the issue and end Upon this ground it concerneth a Christian Nation not onely in point of Honour but of safety and continuance to settle fundamentall Lawes for War against time of War as of Peace in time of Peace Neither was England deficient herein saving that ancient times were more obscure in the particulars and these dayes revealed them at such a time wherein we may say that Edward the Third approved himself not onely King of England but of himself above the ordinary strain of expectation for being now become a famous Commander and Conquerour having also an Army inured to fight and overcome and so might have given a Law he neverthelesse received the same submitting both it and himself to the Directory of the Parliament in making a Warre with France which was three to one against him in every respect but in the Title besides the disadvantage from Scotland that lay continually beating upon his reare The like may be observed of his Warre with Scotland in both which he evidently telleth the World that he held it unreasonable to enter upon the managing of an offensive Forraine Warre without the concurrence of the common consent of the people and that not onely for the thing it selfe but also for his owne personall ingagement in the Service For a King though he be the Generalissimo yet is he so from the people and his person being of that