until general Proclamation of dismission In short therefore here is a new Militia as touching the King's Patentees they must attend the King's Person whither ever the King will lead them either within the Realm or without whether against such as he will suppose to be his Enemies abroad or if he will mistake his Subjects for his Enemies at home And this under the colour of Allegiance published in doubtful expressions as if it were not meet that Henry the Seventh that loved not to yoke himself to the Law should yoke his Laws under the Laws of plain Language Or rather that he held it a point of Policy to publish his Laws in a doubtful stile that such as durst question his Laws might have no positive Charge against them and such as dared not to enter into the Lists with him might not be bold to come nigh the breadth of them Nevertheless neither doth the glance of Allegiance in the Preface of the former nor in the body of the later Statute any whit confirm that what is in them enacted is done upon the ground of Allegiance but contrarily whenas the first Statute cometh to the point it startles from the ground of Allegiance and flies to the ground of a kind of Equity or Reason And the second resorteth to the first as its proper ground as being a supplement thereunto in Cases forgotten and so omitted though it may be rather thought that the King creeping up into his height by degrees made the former onely as an Essay to prepare the way for the later like the point of the Wedge that maketh way for the bulk and body thereof The truth of this Assertion will be more manifest from the nature of both these Laws being limited both in regard of time and person In regard of time for both these Laws are but temporary and to continue onely during the Life of Henry the Seventh in regard the advancements therein mentioned as the moving Cause are onely the advancements made by himself In regard of the person for all persons that received Advancements from him are not bound thereby namely those that come into such Advancement by purchase for Money Neither are Judges and other Officers excepted persons in the said Statutes If therefore Allegiance had been the ground of these Laws it had equally bound all who are under the Bond and no Equity could have given a general Rule of discharge unto such condition of men It had likewise bound as well formerly and afterwards as during this King's Reign and therefore whatever semblance is made therein concerning Allegiance there had been no need of such Law if Allegiance could have done the deed or if the power of Array had been of that large extent as it hath lately been taken In my conceit therefore these two Laws do hold forth-nothing that is new but a mind that Henry the Seventh had to fill his Coffers though his mind would not so fill He would have Souldiers but they must be his Patentees not for any skill or valour in them above others but he hoped they would compound with him for Licenses to absent rather than to adventure themselves and so he might get the more Money that could find pay for Souldiers more and better than they were or would be For otherwise the Patentees might by the Statute have been allowed to serve the King by their Deputies which would have done the King better service in the Wars than themselves could have done And for this very purpose much use was made of these Statutes as well by Henry the Seventh as Henry the Eighth both for Licenses and Pardons for composition in such Cases as their Records do plentifully shew Secondly Let the Claim of Kings be what they will yet the matter in fact shews plainly that they never had possession of what they claimed Both these Kings pretended a Foreign War each of them once against one and the same Nation and to that end advanced to one place with their Armies although the one went in good earnest the other in jest Their Armies were not gathered by Prerogative but of Voluntiers This not onely the Records but also the Statutes do clearly set forth Some Souldiers served under Captains of their own choice and therefore the Law inflicteth a Penalty upon such Captains as bring not their number compleat according to their undertaking other Souldiers are levied by Commission by way of Imprest which in those days were Voluntiers also and expecting favour from the Publick the rather because they devoted themselves thereto without relation to any private Captain they willingly therefore received Imprest-money And of this course the State saw a necessity both for the better choice of men and for the more publick owning of the Work. For such as had been usually levied by the Captains were fit onely to fill up room and make up the number and yet many times there was a failing in that also and this manner of raising the Infantry was continued by Henry the Eighth as by the like Law in his time may appear As touching the levying of the Horse although divers Statutes were made for the maintenance of the breed of Horses and Persons of all degrees of ability were assessed at the finding and maintaining of a certain number of Horses yet do none of them tell us that they shall find and maintain them armed compleatly for the Wars nor shall send them forth upon their own charge and therefore I suppose they were raised as formerly These two Kings had the happiness to be admired the one for his shrewd cunning Head the other for a resolute and couragious Heart And it was no hard matter to find men that loved to ingratiate themselves and endeavour to catch their favour though with the adventure of their Lives especially if they looked after Honour and Glory which as a Crown they say pitched at the Goal of their Actions Thirdly Concerning the Pay of the Souldier the Law was the same as formerly the same was ascertained by the Statute-Law the payment was to be made by the Captain under peril of Imprisonment and forfeiture of Goods and Chattels and the true number of the Souldiers to be maintained and listed under the like peril Fourthly As touching the Souldiers service the same course also was taken as before if they desert their Colours they should be punished as Felons and the manner of trial to be at the Common-Law Fifthly For Fortifications the power properly belongeth to the Supreme Authority to give order therein For the People may not fortifie themselves otherwise than in their particular Houses which are reputed every man's Castle because publick Forts are Enemies to the publick Peace unless in case of publick danger concerning which private persons can make no determination And furthermore no Fortifications can be made and maintained without abridgement of the Common Liberty of the People either by impairing their Free-hold or exacting their
totius Angliae Ecclesiarum vice nostra cum concilio Episcoporum Abbatum constituatis ubique quae justa sunt How the King took the conclusion I find not but he could never make better use than by way of estoppel unless he meaned to sacrifice his own right as a thank-offering to a shadow which I find not that he or his next Successors ever did But as touching the Laity Histories do not touch upon any conceit of withdrawing Monarchical power It 's true Kings had their excesses yet all was amended either by the body of the people when they pleased to examine the matter or by the Princes fair compliance when complaint was made and so the Law was saved And thus upon all the premises I shall conclude a Saxon King was no other than a primum mobile set in a regular motion by Laws established by the whole body of the Kingdom CHAP XVII Of the Saxon Nobility THe ancient Saxon Nobility in Germany were the chiefest in action both in War and in Peace That rank of men was continued by three means viz. by Birth or Blood by Valour and by Wisdom The first was rather at the first a stem arising out of the first two than a different degree or kind for Noble blood was at the first enobled by brave actions afterward continued in their honour to their Posterity till by as base courses it was lost as it was gained by worthy Atchievements these were called Adelingi The Nobility of Action consisted either in matters of War or of Peace Those of Peace arose principally from Wisdom which being gained for the most part by much experience were therefore called Aldermanni or elder men The Nobility of War arose somewhat from valour or courage with wisdom but more from good success for many brave and fortunate Commanders have not been very daring and the bravest spirits though wise have not been ever honoured with good success these were called Heretochii Nevertheless all these names or titles were used promiscuously in following times and all called Nobiles But both that and Duces Satrape and Comites were all of the Roman Dialect as the former were of the Saxon. Time also brought others into this honourable Band viz. The great Officers of the Kings Houshold and their attests are found amongst the Kings Charters amongst the Nobles and that much advanced the price of Kings for he that is worthy to be not onely Lord above Nobles but Master of some may by a little courtesie prevail over all This starry Heaven had several Orbs some so high as in common esteem they were next the Imperial Heaven having a tincture of Royal Blood and at the next door to the Throne Others though not of so clear light had nevertheless no less powerful influence upon the people but rather more by how much more nigher to them Their power in matters of Peace or Government of the Commonwealth was exercised either collectively or apart and severally In their meetings they ordered the smaller emergencies of the publick in convocating and directing the people De minoribus rebus consultant principes These minora are such as are subservient to the majora and pro hic nunc require suddain order touching any particular part or member of the Common-wealth At other times they visited their several Territories or Circuits hearing and determining matters of Controversie and executing Judgment according to the known Laws Principes jura per pagos vicosque reddunt Yet they had Comites of the Country joyned with them whereof afterward This was their course in German Saxony but in England the new stem of Kingly power arising higher than all the rest sucked much from them and kept them under for the judiciary power was in time drawn up into the Regal order and the Lords executed the same as Deputies from and under him designed thereto by Writs and Commissions as it is more particularly noted of King Alfred The Lords thus lessened in their judiciary power carried the less authority in their Votes and Consultations The King was a perpetual Moderator in that work and it was no small advantage he had thereby to sway the Votes Men that are advanced if they have any excellency soon gain admiration and it 's a hard thing for one that hath yielded his heart to admiration to keep it from adoration This hath mounted up Kings to the top more than their own ambition and made them undertake what they ought not because we esteem more highly of them than we ought I speak not against due but undue Obedience for had the Saxon Lords remembred themselves and the true nature of the authority of their King they needed not to be amazed at their check nor to give way to their passion as they did many times and advised others to do the like Nor had Kings by degrees become beyond controul and uncapable to be advised This errour the Lords espied too late and sometimes would remember their ancient right and power and did take boldness to set a Law upon the exorbitancy of their King as in that case of Aethelwolf and his Queen amongst others may appear but that was like some enterprizes that owe more to extremity of occasion than to the courage of the undertaker CHAP. XVIII Of the Freemen amongst the Saxons THe next and most considerable degree of all the people is that of the Freemen called anciently Frilingi or Free-born or such as are born free from all yoke of Arbitrary power and from all Law of compulsion other than what is made by his voluntary consent for all Freemen have votes in the making and executing of the general Laws of the Kingdom In the first they differed from the Gauls of whom it is noted that the Commons are never called to Council nor are much better than servants In the second they differ from many free people and are a degree more excellent being adjoyned to the Lords in judicature both by advice and power consilium authoritas adsunt And therefore those that were elected to that work were called Comites ex plebe and made one rank of Freemen for wisdom superiour to the rest Another degree of these were beholding to their Riches and were called Custodes Pagani an honourable title belonging to Military service and these were such as had obtained an estate of such value as that their ordinary Arms were a Helmet a Coat of Mail and a gilt Sword. The rest of the Freemen were contented with the name of Ceorles or Pagani viz. Rural Clowns who nevertheless were the most considerable party both in War and Peace and had as sure a title to their own liberties as the Custodes pagani or the Country Gentleman had CHAP. XIX Of the Villains amongst the Saxons THe most inferiour rank amongst the Saxons were those that of latter times were called Villains but those also antiently divided into two degrees the
enough to make and maintain a right and that it by Law was a right belonging to some persons before others and that this had been a custom before the former unjust customs crept into the Government of the Conquerour and principally of his Son Rufus And though it be questionable whether it setled first upon the Normans or the English yet it is manifest that if one people had it the other people now coming into union with that people could not in reason except against that custom which the other people had taken up upon so honourable grounds as reason of State which as the times then were was evident and superlative especially the customs being under the regulating of Law and not of any Arbitrary power and can be no Presidents of Relief Marriage and Wardship that after-ages usurped Tenants in Knight-service shall hold their Lands c. acquitted of all Taxes that they may be more able to provide Arms and be more ready and fit for the Kings service and defence of the Kingdom This Law whether it be a renewing of a former custom or an introduction of a new Law it is clear it was upon an old ground That Tenants by Knight-service must be ready for the service of their Lord and defence of the Kingdom whereof afterwards But the Law is that these men shall hold their Lands of that Tenure acquitted of all Taxes though legally imposed upon the body of the Kingdom which must be conceived to be for the publick benefit viz. either for the preparation or maintenance of publick War for in such cases it hath been in all times held unreasonable that those whose persons are employed to serve in the Wars should hold Lands doubly charged to the same service viz. to the defraying of their own private expences in the War and maintenance of the publick charge of the same War besides CHAP. LIII Of divers Laws made concerning the execution of Justice ALthough in proceedings in Cases of vindicative Justice Delinquents might seem to be left rather to the fury than mercy of the Law yet so long as men are under the Law and not without the Law it hath been always held a part of Justice to extend what moderation might possibly stand with the honour of the Law and that otherwise an over-rigid and fierce prosecution of the guilty is no less tyranny than the prosecution of the not-guilty and although violence was the proper vice of these times yet this point of honour must be given to the Normans That their Sword had Eyes and moved not altogether by Rage but by Reason No Sentence shall pass but upon averment of the complaint by Accuser or Witnesses produced Fine and Pledges shall be according to the quantity of the offence By these two Laws of Henry the first the Subjects were delivered from three great oppressions First in making them offenders without Complaint or Witness Secondly in imposing immoderate Fines Lastly in urging extraordinary Bail. Forfeiture of Felons Lands is reduced to a year and a day The Normans had reduced the Saxon law in this case unto their own Last which stretched their desire as far as the estate would bear but this being so prejudicial to the immediate Lords who were no offenders in this case and so contrary to the Saxon law it was both done and undone in a short space by the allowance of Henry the first Intent of Criminal offences manifested by Act punished by Fine or Mulct This by Alfred's Law was punished by Talioes Law but now by a Law of Henry the first reduced to Mulcts Mainperners are not to be punished as Principals unless they be parties or privies to the failing of the Principal This Law of Henry the first repealed the former Law of Canutus which must be acknowledged to be rigorous although not altogether without reason No person shall be imprisoned for committing of a mortal Crime unless first he be attained by Verdict of Twelve men By imprisonment is intended close imprisonment or imprisonment without Bail or Mainprize for otherwise it is apparent that as well by the Saxon as Norman Laws men were brought to Trial by restraint Appeals of Murder restrained within the fourth degree Before this Law Appeals were brought by any of the bloud or kin of the party slain but now by Henry the first restrained The ground seems to be for that affection that runs with the bloud grows so cold beyond the fourth degree that the death of the party is of so small account as it can scarcely be reputed a loss of such consequence to the party as to expose the life or price of the life of the Manslayer unto the claim of such an one And thus the Saxon law that gave the satisfaction in such case to the whole kinred became limited to the fourth degree as I conceive from the Ecclesiastical constitution concerning marriage Two things more concerning juridical proceedings may be noted the one concerning speedy course of Justice wherein they may seem to justifie the Saxon way but could never attain to their pace in regard they yielded so much time to Summons Essoyns c. The other concerns election of Judges by the parties for this we find in the Laws of Henry the first CHAP. LIV. Of the Militia during the Normans time THe power of Militia is either the Legislative or Executory power the Legislative power without contradiction rested in the grand Council of the Kingdom to whom it belonged to establish Laws for the government of the Kingdom in time of peace And this will appear in the preparation for War the levying of War and managing thereof after it is levied For the preparation it consisteth in levying men and munition or of money In all which questionless will be a difference between raising of War by a King to revenge a personal injury done to the King 's own person and a War raised by the whole Kingdom or representative body thereof which is commonly done in defence of publick interest and seldom in any offensive way unless in recovery of a right possession either formerly lost or as yet not fully setled Now although it be true that seldom do injuries reflect upon the King's person alone but that the Kingdom will be concerned therein to endeavour a remedy yet because it may fall out otherwise and Kings have taken occasion to levy War of their own accord in such case they could neither compel the persons of their Subjects or their Estates to be contributary And of this nature I take the War levied by Harold against the Conquerour to be wherein the greatest part of the Kingdom was never engaged nor therefore did it feel the dint of the Conquerour's Sword at all and in this case the Militia must be allowed to such as bear the purse nor can it be concluded to be the Militia of the Kingdom nor any part thereof although the Kingdom may connive thereat But to
Freemen in such cases it being contrary to the Grand Charter never asked by the Clergie formerly nor no complaint before now for denial for my part therefore I shall not apprehend it of a higher nature than the King 's Writ which in those days went forth at random if the 44th Article of the Clergies complaints foregoing be true It being so contrary to the common sence of Parliament to give the bodies of the Freemen to the will of the Clergie to whom they would not submit their Free holds But the Writ proceeds in enumeration of particulars Reparations and adornings of Churches and Fences of Church-yards Violence done to a Clerk Defamation to reform not to give damage Perjury oblations payments of Tythes between Rector and Parishioner Right of Tythes between two Rectors to a fourth part of the value Mortuaries due by custom A Pension from a Rector to a Prelate or Advocate The most of which were under the power of a prohibition in the time of Henry the Third who was King but yesterday as the Articles of complaint formerly set down do manifest Nor had the Clergie ever better Title than connivance of some such favourites as King Steven whose Acts may peradventure be urged against Kings but not against the people unless their own act can be produced to warrant them The learning in the Princes case will I suppose admit of a difference for it can never be made out that the King's Council in Parliament was the Magnum concilium Regni but onely the House of Lords and therefore whatever passed in Parliament by their onely advice might bind the King but could never reach the Commons nor their Liberties And thus the Grand Charter in the first conception was conclusive to the King but was not the act of the Parliament because the Parliament cannot grant a Charter to it self of that which was originally custom And therefore this Law however countenanced can never be concluded to be other than a Permission not onely because it was never the Act of the Commons of England but because it is contrary to the liberty of the Freemen And it is beyond all imagination that the Commons should out themselves from the protection of the Common-Law and yoke themselves their Free-holds and Estates under the bondage of the Canons nor ought such a construction to be admitted without express words to warrant it As for the conclusion it is worse and not onely dishonourable to the King in binding his Arms from protecting his Subjects by the Common Laws and so in some respects making them Outlaws but dishonourable to it self whilst it makes Prohibitions grounded upon Laws to be nullities by a late trick of non obstante which was first taken up by the Pope then by Henry the third and by this King granted to the Clergie and thus are all set at liberty from any rule but that of Licentiousness Nevertheless this Law did thrive accordingly for we find scarce any footsteps in story of any regard had thereof till it became grey-headed For it was not long e're the King stood in need of money and was necessitated to try the good wills of the Clergie more than once this occasioned them to be slow in answer and in conclusion to deny that they should aid the King with any more money Papa inconsulto The King hereupon disavows the Clergy and leaves them to the Romish oppressions which were many and then the Clergie rub up all old sores and exhibit their complaints to their holy Father to this effect 1. That the King's Justices intermeddle in Testamentary causes accounts of Executors and cognizance of Tythes especially to the fourth part of the Living 2. That the Clergie were charged to the King's Carriages That the King's Mills were discharged from paying of Tythes That Clerks attending on the Exchequer were necessitated to non-residency And that after their decease their Goods were seized till their acounts were made That Ecclesiastical possessions were wasted during vacancies 3. That Clerks were admitted to free Chappels by Lay men 4. That the King's Justices took cognizance of Vsury Defamation violence done to Clerks Sacriledge Oblations Fences of the Church-yards and Mortuaries 5. That prohibitions are granted without surmise 6. That Clerks are called to answer in the King's Court for crimes and being acquitted the Informers escape without penalty 7. That Clerks are not allowed their Clergie 8. That after purgation made Clerks are questioned in the King's Court for the same offence 9. That persons in Sanctuary are therein besieged 10. That the Writ de Cautione admittenda issueth forth although the Church be not satisfied and excommunicate persons being imprisoned are enlarged in like manner 11. That Debts between Clerks due are determined in the temporal Courts 12. That Bishops are compelled by Distress to cause Clerks to appear in Lay-courts without cause 13. That the Church loseth it's right by the ceasing of Rent or Pension by the space of two years 14. That Nuns are compelled to sue in the Lay-courts for their right in possessions befalling by decease of their Kinred 15. That Churches are deprived of their Priviledges till they shew Quo warranto they hold them 16. That Ecclesiastical Judges are stopped in their proceedings by Sheriffs and great men 17. That Bishops refusal of Clerks presented are examined in the Lay-courts 18. That Patrons of Religious Houses do oppress them by extream Quarter 19. That Bigamy and Bastardy are tried in Lay-courts 20. That the King suffers his Livings to be vacant for many years 21. That the Clergie are wronged by the Statute of Mortmain Here 's all and more than all that 's true and more than enough to let the Reader see that the Writ Circumspecte agatis was but a face put on for the present after laid aside and the Clergy left to the bare Canon They likewise shew what the Clergy aimed at and in that they did not obtain it was to be attributed to the resolution of the Laity and not any neglect in themselves for the Arch-bishop died in the service and it is thought that grief for these matters was no little cause thereof But the times within a while grew troublesome and the King in pursuit of the French Wars being unadvised in his way angred the people by his arbitrary levie of Men and Money as it brought forth a State-scoul little inferiour to a Quarrel And to pacifie the Clergie he granted them the Writ de consultatione habenda in all matrimonial and testamentary cases which were of their least doubted priviledges and this qualified the first Article of complaint next foregowing if such cause they had of complaint and this was all that the Clergie got at Edward the first 's hands Edward the second was a man that was neither well-affected to Rome nor weak in spirit and yet so unhappy that his way neither promised good success nor ever had it and so he became a Servant unto
legem apparentem se purgare nisi prius convictus fuerit vel confessus in curia and therefore no man ought to be urged upon such difficulties unless by the express Law of the Land. The old way of Trial was first to bring in a Complaint and Witnesses ready to maintain the same and therefore both Appeals and Actions then used to conclude their pleas with the names of Witnesses subjoyned which at this day is implied in those general words in their conclusions Et inde producit sectam suam that is he brings his sect or suit or such as do follow or affirm his complaint as another part also is implied in those words Et hoc paratus est verificare For if the Plaintiffs sect or suit of Witnesses did not fully prove the matter in fact the Defendant's Averment was made good by his own Oath and the Oaths of Twelve men and so the Trial was concluded No Free-man shall be imprisoned or disseised of his Freehold or Liberties outlawed or banished or invaded but by the Law of the Land and judgement of his Peers Nor shall Justice be sold delayed or denied This is a comprehensive Law and made up of many Saxon Laws or rather an enforcement of all Laws and a remedy against oppression past present and to come And concerneth first the person then his livelihood as touching the person his life and his liberty his life shall be under the protection of the Law and his liberty likewise so as he shall be shut into no place by Imprisonment nor out of any place by Banishment but shall have liberty of ingress and egress His Estate both real and personal shall also be under the protection of the Law and the Law also shall be free neither denied nor delayed I think it needless to shew how this was no new Law but a confirmation of the old and reparation added thereto being much impaired by stormy times for the sum of all the foregoing discourse tendeth thereto Merchants shall have free and safe passage and trade without unjust Taxes as by ancient custome they ought In time of War such as are of the Enemies Countries shall be secured till it appear how the English Merchants are used in their Countries That this was an ancient Law the words thereof shew besides what may be observed out of the Laws of Aetheldred and other Saxon Laws So as it appeareth that not onely the English Free-men and Natives had their liberties asserted by the Law but also Forreiners if Merchants had the like liberties for their persons and goods concerning Trade and maintenance of the same and were hereby enabled to enjoy their own under the protection of the Law as the Free-men had And unto this Law the Charter of King John added this ensuing It shall be lawful for every Freeman to pass freely to and from this Kingdom saving Fealty to the King unless in time of War and then also for a short space as may be for the common good excepting Prisoners Outlaws and those Country-men that are in enmity and Merchants who shall be dealt with as aforesaid And it seemeth that this Law of free passage out of the Kingdom was not anciently fundamental but onely grounded upon reason of State although the Freemen have liberty of free passage within the Kingdom according to that original Law Sit pax publica per communes vias and for that cause as I suppose it was wholly omitted in the Charter of Henry the Third as was also another Law concerning the Jews which because it left an influence behind it after the Jews were extinct in this Nation and which continueth even unto this day I shall insert it in this short sum After death of the Jew's debtor no usury shall be paid during the minority of the Heir though the debt shall come into the King's hand And the debt shall be paid saving to the Wife her Dower and maintenance for the Children according to the quantity of the Debtors Land and saving the Lord's service and in like manner of debts to others The whole doctrine of Vsury fell under the Title of Jews for it seemeth it was their Trade and their proper Trade hitherto It was first that I met with forbidden at a Legatine Council nigh 300 years before the Normans times but by the Confessor's Law it was made penal to Christians to the forfeiture of Estate and Banishment and therefore the Jews and all their substance were holden to be in nature of the King Villains as touching their Estate for they could get nothing but was at his mercy And Kings did suffer them to continue this Trade for their own benefit yet they did regulate it as touching Infants as by this Law of King John and the Statute at Merton doth appear But Henry the Third did not put it into his Charter as I think because it was no liberty of the Subjects but rather a prejudice thereto and therefore Edward the First wholly took it away by a Statute made in his time and thereby abolished the Jews Tenants Lands holden of Lands escheated to the King shall hold by the same services as formerly In all alienations of Lands sufficient shall be left for the Lords distress Submitting to the judgement of the learned I conceive that as well in the Saxon times as until this Law any Tenant might alien onely part of his Lands and reserve the services to the alienor because he could not reserve service upon such alienation unto the Lord Paramount other than was formerly due to him without the Lord's consent and for the same reason could they not alien the whole Tenancy to bind the Lord without his express license saving the opinion in the book of Assizes because no Tenant could be enforced upon any Lord lest he might be his Enemy Nevertheless it seemeth that de facto Tenants did usually alien their whole Tenancy and although they could not thereby bar the Lord's right yet because the Lord could not in such cases have the distress of his own Tenant this Law saved so much from alienation as might serve for security of the Lord's distress But Tenants were not thus satisfied the Lords would not part with their Tenants although the Tenants necessity was never so urgent upon them to sell their Lands and therefore at length they prevailed by the Statute of Quia emptores to have power to sell all saving to the Lords their services formerly due and thus the Lords were necessitated to grant Licenses of alienation to such as the Tenants could provide to buy their Lands Nor was this so prejudicial to the Lords in those days when the publick quiet was setled as it would have been in former times of War whenas the Lord's right was maintained more by might and the aid of his Tenants than by Law which then was of little power The 35th Chapter I have formerly mentioned in the Chapter concerning
espyed the danger and how necessary it was for the people to be well armed in these times of general broil and upon that ground allowed this Law to pass That all such as had Lands worth 20 l. yearly besides Reprizals should be ready not to be Knights nor under the favour of others is there any ancient precedent to warrant it but to find or to enter into the field with the Arms of a Knight or to provide some able person to serve in their stead unless they were under 21 years of age and so not grown up to full strength of body nor their Lands in their own possession but in custody of their Lords or Guardians Nevertheless of such as were grown to full age yet were maimed impotent or of mean estate and Tenants by service of a Knight it was had into a way of moderation and ordered that such should pay a reasonable fine for respit of such service nor further as concerning 〈◊〉 persons were they bound But as touching such that were under present onely and not perpetual disabilities of body upon them incumbent as often as occasion called they served by their deputies or servants all which was grounded not onely upon the Law of Henry the Second but also upon common right of Tenure The Arms that these men were to finde are said to be those belonging to a Knight which were partly for defence and partly for offence Of the first sort were the Shield the Helmet the Hauberk or Breast-plate or Coat of Mail of the second sort were the Sword and Lance and unto all a Horse must be provided These Arms especially the defensive have been formerly under alteration for the Breast-plate could not be worn with the Coat of Mail and therefore must be used as occasion was provided of either and for this cause the service of a Knight is called by several names sometimes from the Horse sometimes from the Lance sometimes from the Helmet and not seldom from the Coat of Mail. The power of immediate command or calling forth the Knights to their service in its own nature was but ministerial and subservient to that power that ordered War to be levied and therefore as in the first Saxon Government under their Princes in Germany so after under their Kings War was never resolved upon but if it were defensive it was by the Council of Lords if offensive by the general Vote of the Grand Council of the Kingdom So by vertue of such Order either from the Council of Lords or Grand Council the Knights were called forth to War and others as the case required summoned to a rendezvouze and this instrumental power regularly rested in the Lords to whom such service was due and the Lords were summoned by the Lord Paramount as chief of the Fee of which their Tenants were holden and not as King or chief Captain in the Field for they were not raised by Proclamation but by Summons 〈◊〉 forth to the Sheriff with distress and this onely against such as were within his own Fee and held of the Crown The King therefore might have many Knights at his command but the Lords more and if those Lords failed in their due correspondency with the King all those of the inferiour Orb were carried away after them so the King is left to shift for himself as well as he can And this might be occasioned not onely from their Tenures by which they stood obliged to the inferiour Lords but probably much more by their popularity which was more prevalent by how much Kings looked upon the Commons at a further distance in those days than in after-times when the Commons interposed intentively in the publick Government And thus the Horse-men of England becoming less constant in adhering to their Soveraign in the Field occasioned Kings to betake themselves to their Foot and to form the strength of their Battels wholly in them and themselves on foot to engage with them One point of liberty these Souldiers by Tenure had which made their service not altogether servile and that was that their service in the Field was neither indefinite nor infinite but circumscribed by place time and end The time of their service for the continuance of it was for a set time if it were at their own charges and although some had a shorter time yet the general sort were restained to forty days For the Courage of those times consisted not in wearying and wasting the Souldier in the Field by delays and long work in wheeling about and retiring but in playing their prizes like two Combatants of resolution to get Victory by Valour or to die If upon extraordinary occasions the War continued longer then the Tenant served upon the pay of the common Purse The end of the service of the Tenant viz. their Lord's defence in the defence of the Kingdom stinted their work within certain bounds of place beyond which they were not to be drawn unless of their own accord And these were the borders of the Dominion of the Crown of England which in those days extended into Scotland on the North and into a great part of France on the South And therefore the Earl-Marshal of England being by Edward the first commanded by vertue of his Tenure to attend in person upon the Standart under his Lieutenant that then was to be sent into Flanders which was no part of the Dominion of England refused and notwithstanding the King's threats to hang him yet he persisted saying He would neither go nor hang. Not onely because the Tenants by Knight-service are bound to the defence of their Lord's persons and not of their Lieutenants but principally because they are to serve for the safety and defence of the Kingdom and therefore ought not to be drawn into foreign Countries Nor did the Earl-Marshal onely this but many others also both Knights and Knights fellows having twenty pounds per Annum for all these with their Arms were summoned to serve under the King's pay in Flanders I say multitudes of them refused to serve and afterwards joyned with the rest of the Commons in a Petition to the King and complained of that Summons as of a common Grievance because that neither they nor their Ancestors were bound to serve the King in that Country and they obtained the King's discharge under his broad Seal accordingly The like whereunto may be warranted out of the very words of the Statute of Mortmain which was made within the compass of these times by which it was provided That in case Lands be aliened contrary to that Statute and the immediate Lords do not seize the same 〈◊〉 King shall seize them and dispose them for the defence of the Kingdom viz. upon such services reserved as shall suit therewith as if all the service of a Knight must conduce thereto and that he is no further bound to any service of his Lord than will consist with the safety of the Kingdom This was the Doctrine that the
sad experience of the latter Government of Kings in these times had taught the Knighthood of England to hold for the future Ages No Tenant in ancient Demesnes or in Burgage shall be distrained for the service of a Knight Clerks and Tenants in Socage of other Mannors than of the King shall be used as they have been formerly Tenants in ancient Demesne and Tenants in Burgage are absolutely acquitted from foreign service the one because they are in nature of the King's Husbandmen and served him and his Family with Victual the other because by their Tenure they were bound to the defence of their Burrough which in account is a Limb or Member of the Kingdom and so in nature of a Castle guard Now as touching Clerks and Tenants in Socage holding of a Subject they are left to the order of ancient use appearing upon Record As concerning the Clergy it is evident by what hath been formerly noted that though they were importunate to be discharged of the service Military in regard that their profession was for Peace and not for Bloud yet could they never obtain their desire for though their persons might challenge exemption from that work yet their Lands were bound to find Arms by their Deputies for otherwise it had been unreasonable that so great a part of the Kingdom as the Clergie then had should sit still and look on whilst by the Law of Nature every one is engaged in his own defence Nor yet did the profession of these men to be men for Peace hold always uniform some kind of Wars then were holden sacred and wherein they not onely adventured their Estates but even their own Persons and these not onely in a defensive way but by way of invasion and many times where no need was for them to appear Tenants in Socage also in regard of their service might plead exemption from the Wars for if not the Plough must stand still and the Land thereby become poor and lean Nevertheless a general service or defence of the Kingdom is imposed upon all and Husbandmen must be Souldiers when the debate is who shall have the Land. In such cases therefore they are evocati ad arma to maintain and defend the Kingdom but not compellable to foreign service as the Knights were whose service consisted much in defence of their Lord's person in reference to the defence of the Kingdom and many times policy of War drew the Lords into Arms abroad to keep the Enemy further from their borders and the Knights then under their Lords pay went along with them and therefore the service of Knighthood is commonly called servitium forinsecum Of these Socagers did arise not onely the body of English Foot-men in their Armies but the better and more wealthy sort of them found Arms of a Knight as formerly hath been observed yet always under the pay of the common Purse And if called out of the Kingdom they were meer Voluntiers for they were not called out by distress as Knights were because they held not their Land by such service but they were summoned by Proclamation and probably were mustered by the high Constables in each Hundred the Law nevertheless remaining still entire that all must be done not onely ad fidem Domini Regis but also Regni which was disputed and concluded by the Sword. For though Kings pretended danger to the publick oftentimes to raise the people yet the people would give credit as they pleased Or if the King's Title were in question or the Peoples Liberty yet every man took liberty to side with that party that liked him best nor did the King's Proclamation sway much this or that way It is true that precedents of those times cry up the King's power of arraying all Ships and men without respect unless of age or corporal disability but it will appear that no such array was but in time of no less known danger from abroad to the Kingdom than imminent and therefore might be wrought more from the general fear of the Enemy than from the King's command And yet those times were always armed in neighbouring Nations and Kings might have pretended continual cause of arraying Secondly it will no less clearly appear that Kings used no such course but in case of general danger to the whole Kingdom either from foreign Invasion as in the times of King John or from intestine Broils as in the times of Henry the third and the two Edwards successively And if the danger threatned onely one coast the array was limited onely to the parts adjacent thereunto Thirdly it seemeth that general arrays were not levied by distress till the time of Edward the first and then onely for the rendezvouze at the next Sea-coast and for defence against foreign Invasion in which case all Subjects of the Kingdom are concerned by general service otherwise it can come unto no other account than that Title Prerogative and therein be charactered as a trick above the ordinary strain Fourthly those times brought forth no general array of all persons between the ages of sixteen years and sixty that was made by distress in any case of Civil War but onely by Sheriffs summons and in case of disobedience by summons to appear before the King and his Council which sheweth that by the common Law they were not compellable or punishable Lastly though these arrays of men were sometimes at the charge of the King and sometimes at the Subjects own charge yet that last was out of the road-way of the Subjects liberty as the subsequent times do fully manifest And the like may be said of arrays of Ships which however under command of Kings for publick service were nevertheless rigged and paid out of the publick charge The sum of all will be that in cases of defence from foreign Invasion Kings had power of array according to the order of Law if they exceeded that Rule it may be more rightly said they did what they would than what they ought CHAP. LXXI Of the Peace WAR and Peace are two births by several venters and may like the day and night succeed but can never inherit each to other and for that cause they may claim to belong to one Father and that one and the same power should act in both and yet it is no good Maxime That he that is the chief Commander in War ought to be the chief in the order of Peace For it naturally befalls that War especially that which we call Civil War like some diseases in the body does rather breed ill humours than consume them and these must be purged by dieting the State and constant course of Justice unto which the rugged Waves of War have little or no affinity if they have not enmity Nevertheless the wisdom of our Ancestors thought it most meet to keep their Kings in work as well in time of Peace as of War and therefore as they anciently referred the principal care thereof to the Lords who together
to take Arms from the King with their pay or otherwise they must fight without Weapons I am now come to the last general point which concerneth the executive power of matters concerning the peace within this Law touching which the Statute enforceth this That Constables in every Hundred and Franchise shall have the view of Arms and shall present defaults against the Statute of Justices assigned who shall certifie the same to the King in every Parliament and the King shall provide remedy Whereby it seemeth manifest that hitherto no Law or Custom was made against any for default of Arms but onely such as held by that Tenure and therefore they had a shift to cause them to swear to maintain Arms and so might proceed upon defaults as in case of perjury and that the Parliament was still loth to set any certain rule for penalty and absolutely declined it and left it under a general periculo incumbente which it is likely men would rather eschew by obedience than adventure upon out of a daring spirit unless their case was very clear within the mercy of common reason And therefore such cases were left to special order of the Parliament rather than they would deliver such a rod as determining power was over into any uncertain hand whatever It is very true that by the opinion of some this also hath been controverted as if all the executive power had been turned out of the Parliaments Order into the directory of Edward the First which thing reacheth far for then in order thereunto the whole Militia of the Kingdom must have been under his safe command And whether it ever entred into the conceit of that King I know not but somewhat like thereunto is not obscurely urged to nourish and suggest such a kind of notion and so derive it unto his Successors upon the words of a Statute de defensione portandi armorum the English whereof I shall render out of the French as followeth It belongeth to Vs viz. Edw. 1. and from Vs by Our Royal Seigniory to defend force of Arms and all other force against Our peace at all times that We shall please and to punish according to the Laws and Vsages of this Realm such as shall oppose and to this they viz. Lords and Commons are bound Vs to aid as their good Lord always when need shall be Two things are concurrant with this which is the body of the Statute if such it be The one is the Preface or the occasion And the second is the conclusion upon the whole body of the same The preface first sets down the inscription or direction of the Law not to the people but to the Justices of his Bench and so it is in nature of a Writ or Declaration sent unto his Judges Then it sets down the occasion which was a debate between Edw. 1. and his Lords with a Treaty which was had before certain persons deputed thereto and it was accorded that at the next Parliament Order shall be taken by common consent of the King the Prelates Earls and Barons that in all Parliaments Treaties and other Assemblies which shall be had in the Kingdom of England for ever after all men shall come thereto without force and without arms well and peaceably and thence it recites that the said meeting at Parliament was had and that there the Prelates Earls Barons and Commonalty being assembled to advise upon this matter nous eiont dit saith one Copy and noâ—â— eions dit saith another Copy so as whether this was the Declaration of the King unto the Parliament or of the Parliament to the King is one doubt and a principal one it is in such a case as this Then the conclusion of all is that the King commandeth these things shall be read before the Justices in the Bench and there enrolled and this is dated the 30th of October in the Seventh year of his Reign which was Ann. 1279. So as if it were the Declaration of the King then it implieth as if it were not very well accepted of the Parliament and therefore the King would have it rest upon Record in nature of a Claim or Protestando for saving the Prerogative of the Crown But if it were the Declaration of the Parliament the King held it so precious a flower that fearing it should fade set it in a private Garden of his own that it might be more carefully nursed against the blast of Time as if the Parliament had not assented thereto or if they did meaned not to hold it forth to the world for future times to be a constant rule but onely by way of concession to ease themselves of the present difficulty in making a Law against wearing of Armour in ordinary civil affairs and so referred it to the King's care to provide against emergent breach of the peace as an expedient for the present inconveniences in affairs And it will well suit with the posture of affairs then in course for the welsh-Welsh-Wars were now intermitted and a quiet of three years ensued in the midst of which Souldiers having liberty to do nothing and that is next to naught but recreate themselves used their wonted guise as if they were not dressed that day that they were not armed nor fit for counsel unless as their Ancestors with Weapons in their hands nor worthy of the presence of a King under other notion than as a General in the field and themselves as Commanders that are never A-la-mode but when all in Iron and Steel I say to make a Law that must suddenly bind men from riding or being armed when no man thought himself safe otherwise was in effect to expose their bare necks to the next turn of the Sword of a King that they did not over-much trust and the less in regard he trusted not them I do not wonder therefore if the Parliament liked not the work but left it to the King to provide for the keeping off breaches of the Peace and promised their assistance therein Lastly supposing all that is or can be supposed viz. that the Parliament had given up the power of the Militia unto Edward the First yet it was not to all intents nor did it continue for besides the Statute of Tornaments which sheweth plainly that the ordering of Armour was in the power of the Parliament and which in all probability was made after that Law last before-mentioned the Statute at Winton made after this Law nigh six years space ordereth the use of the Trained bands in maintaining the peace and reserveth the penalties to themselves for any default committed against the said Act. And therefore notwithstanding any thing that yet appeareth to me out of any Law or History the chief Moderatorship of War and Peace within the Realm of England resteth hitherto upon the Parliament next unto God and in the King no otherwise than in order to the Publick the rule whereof can be determined by no other Judge than that which can be
concerning Calvin's Case fol. 45 IX Of Courts for Causes criminal with their Laws fol. 54 X. Of the course of Civil Justice during these times fol. 56 XI Of the Militia in these times fol. 58 XII Of the Peace fol. 62 XIII A view of the summary courses of Henry the Fourth Henry the Fifth and Henry the Sixth in their several Reigns fol. 68 XIV Of the Parliament during the Reigns of these several Kings fol. 75 XV. Of the Custos or Protector Regni fol. 79 XVI Concerning the Privy Council fol. 83 XVII Of the Clergie and Church-government during these times fol. 86 XVIII Of the Court of Chancery fol. 95 XIX Of the Courts of Common-pleas and Common Law. fol. 97 XX. Concerning Sheriffs fol. 98 XXI Of Justices and Laws concerning the Peace fol. 99 XXII Of the Militia during these times fol. 102 XXIII A short Survey of the Reigns of Edward the Fourth Edward the Fifth and Richard the Third fol. 106 XXIV Of the Government in relation to the Parliament f. 109 XXV Of the condition of the Clergie fol. 112 XXVI A short sum of the Reigns of Henry the Seventh and Henry the Eighth fol. 113 XXVII Of the condition of the Crown fol. 118 XXVIII Of the condition of the Parliament in these times fol. 130 XXIX Of the power of the Clergie in the Convocation f. 134 XXX Of the power of the Clergie in their ordinary Jurisdiction fol. 136 XXXI Of Judicature fol. 141 XXXII Of the Militia fol. 143 XXXIII Of the Peace fol. 148 XXXIV Of the general Government of Edward the Sixth Queen Mary and Queen Elizabeth fol. 152 XXXV Of the Supream power during these times fol. 157 XXXVI Of the power of the Parliament during these times fol. 162 XXXVII Of the Jurisdiction Ecclesiastical during these last times fol. 166 XXXVIII Of the Militia in these later times fol. 168 XXXIX Of the Peace fol. 173 XL. A summary Conclusion of the whole matter fol. 174. THE CONTINUATION OF AN Historical and Political Discourse OF THE Laws Government OF ENGLAND THE former times since the Norman entry like a rugged Sea by cross Winds of Arbitrary Vapours in and about the Crown and by Forrein Engagements from the holy Chair made the true face of affairs cloudy and troublesome both for the Writer and the Reader Henceforward for the space of Three hundred years next ensuing Kings by experience and observation finding themselves unequal to the double chace of absolute Supremacy over the sturdy Laity and encroaching Clergie you will observe to lay aside their pretensions against the Peoples Liberties and more intentively to trench upon the Spiritualty now grown to defie all Government but that of Covetousness Nor would these times allow further advantage to Kings in this work they being either fainted by the ticklish Title of the Crown hovering between the two Houses of York and Lancaster or drawn off to forrein employments as matters of greater concernment for the present well-being of the Kingdom or for the spreading of the fame of such as desired to be renowned for valiant men It will be superfluous to recount the particular atchievements formerly attained by these Ecclesiastical men the former Treatise hath already said what was thought needful concerning that For the future I shall even premise this that the ensuing times being thus blessed with a Truce or stricter League between the Kings and Commons the errours in Government more readily do appear the corruptions in natures of men more frequently discover themselves and thereby the body of the Statute-Laws begins to swell so big that I must be enforced to contract my account of them into a narrower compass and render the same unto the Reader so far forth only as they shall concern the general stream of Government leaving those of privater regard unto every mans particular consideration as occasion shall lead him For whatever other men please to insist upon this I take for a Maxime That though the Government of a King is declared by his Actions yet the Government of a Kingdom is onely manifested by ancient Customs and publick Acts of Parliament And because I have undertaken a general Survey of the Reigns of thirteen several Kings and Queens of this Nation for I shall not exceed the issue of Henry the Eighth and to handle each of them apart will leave the Reader in a Wilderness of particulars hard to comprehend in the general sum I shall therefore reduce them all into three heads viz. Interest of Title Interest of Prerogative and Interest of Religion the last of which swayed much the three Children of Henry the Eighth the second as much in their two Ancestors viz. Henry the Eighth and Henry the Seventh and the first in the three Henries of Lancaster and three succeeding Kings of the House of York And because Edward the Third and his Grand-child Richard the Second do come under none of these Interests I shall consider them joyntly as in way of Exordium to the rest although the course of the latter was as different from the former as Lust falls short of a generous Spirit CHAP. I. A sum of the several Reigns of Edward the Third and Richard the Second SEveral I may well call them because they are the most different in their ways and ends of any two of that race that ever swayed their Scepter and yet the entrance of the first gave countenance to the conclusion of the last For the Scepter being cast away or lost by Edward the Second it was the lot of his Son Edward the Third a youth of Fifteen years of age to take it up he knowing whose it was and feeling it too heavy for him was willing enough it should return but being overswayed by Counsels drawn from reason of State and pressed thereto by those that resolved not to trust his Father any more he wisely chose to manage it himself rather than to adventure it in another hand But that is not all for as it is never seen that the Crown doth thrive after divorce from the Scepter but like a blasted Blossom falls off at the next gale of adversity such was the issue to Edward the Second his power once gone his Honour followeth soon after he had ceased to be King and within a small time did cease to be Edward His Son thus made compleat by his Fathers spoil had the honour to be the Repairer of the ruines that his Father had made and was a Prince which you might think by his story to be seldom at home and by his Laws seldom abroad Nor can it be reconciled without wonder that Providence should at once bestow upon England a courageous People brave Captains wise Council and a King that had the endowments of them all Otherwise it had out-reached conceit it self that this small Island wasted by the Barons Wars the people beaten out of heart by all Enemies in the time of the Father should nevertheless in the time of the Son with honour
and Masters under Cade and Straw that might have brought the Commonwealth into a hideous Chaos had not the Lords and Great men betimes bestirred themselves and the King shewed an extraordinary spirit or rather a kind of rage that put it self forth beyond the ordinary temper of his mind Much of this mischief was imputed to Wickliff's Doctrine for it is an ordinary thing to proclaim all evils concurring with the very joynt of Reformation to be the proper fruits thereof But I look upon it as a fruit of corruption that endeavours to stop the breath of Reformation in the birth And there is somewhat of a hidden influence from above in the thing for it was not onely the Cup of England to be thus troubled but France and other places had their portion suitable The King's minority rendred him unequal unto these contrary motions he was in his Eleventh year when he entred the Throne and which was worse his years came on faster than his parts but his work posted before them all The common help of Protectors left him yet more unhappy for they were prepossessed with strong engagements of particular Interests and so were either not wise enough or not good enough for all This brought forth a third inconvenience the change of Protectorship and that change of Affairs and Interests an uncertain good that brings forth a certain evil for variety of Instruments and Interests move several ways and though the end be one the difference concerning the way many times doth as much hinder the Journey as so many blocks in the way The Protectorship was thrice changed the King's Uncles had the first essay any one of them was big enough for one Kingdom but all of them together were too great to make one Protector The Duke of Lancaster would have done well alone if he had been alone and minded that work alone but he being somewhat engaged with the Wickliffists and so entangled with the Clergy and other restless spirits and drawn off by his private aim at the Crown of Castile saw this work too much and so he warily withdrew himself leaving the Directory to a Committee of Lords a soveraign Plaister questionless where the times are whole but not for these distractions wherein even the Committee it self suffered its share Thus the breach is made the wider and for a cure of all the Government is committed into one hand wherein the Earl of Warwick acquitted himself well for he was wise enough to observe such as the people most honoured And thus passed over the two first years of the King's Reign The remainder of the King's minority was rather in common repute than in true account For the King however young took little more from the Protector than he saw meet to colour his own commands with opinion of Regularity and so his Will came to full strength before his Wisdom budded Thus lifted up he sets himself above all interests of Parliaments Protectors Counsellors Uncles Wise men and Law leaving them all to be rules for those below And so long as the King's desire is thus served he is content to be reputed a Minor and be as it were under protection of others though not under their direction and is content to continue thus until his Two and twentieth year Some might think him very moderate had he been moderate but he forbears suing out his Livery so long as he may live without care and spend without controul For by this time the humour of his great Grandfather budded in him he pawned his Heart to young men of vast desires and some say so inordinately as he prostituted his Chastity unto them And it is no wonder if the Revenues of the Crown are insufficient for such Masters This the people soon felt and feared their own Free-holds for they are bound saith he not to see the Crown deflowred for want of maintenance it is very true nor to see the Crown deflowred of its maintenance A Parliament therefore is called in which divers Lords associate and prepare Physick for the King 's lavish humour which being administred wrought for Ten years after till it had purged him of his Life and the Kingdom of their King. It was an Act of Parliament that gave power to Fourteen Lords and others to regulate the profits and Revenues of the Crown and to do Justice to the people this was to continue for one whole year The Parasites no sooner found the effect hereof to their cost but the King grows sick of it and finds an Antidote to over-rule Acts of Parliament by Acts of Privy-Council declares this ill-favoured Commission void and the Contrivers Advisers and Enforcers Traytors To make it more Majestical he causeth the Judges to subscribe this Order and so it becomes Law in repute This foundation thus laid he buildeth in haste an Impeachment of these Commissioners of High Treason and supposing that they would not readily stoop himself stoops lower for he would put his Right to trial by Battle which was already his own by the judgement of the Masters of the Law For so they may be well called seeing they had thus mastered it In this the King had the worst for he lost his Honour and himself God hath a care of common Right even amongst Idolaters Then comes the Parliament of wonders wherein the Kings Party are declared Traytors and the chief Judges with their Law judged by another Law. The King not meddled with thinks it high time to come out of his Minority and assumes the Government of the Kingdom and himself to himself being now Three and twenty years of Age old enough to have done well if he had cared for it But resolving to follow the way of his own will at length it led him to his own ruine Onely for the present two things delayed it viz. the Authority Wisdom and Moderation of his Unkles especially of the Duke of Lancaster now come out of Spain and the great affection which the King pretended to the Queen who had also gained a good opinion amongst the people The benevolent aspect of the people not for their own advantage but for the publick quiet procured many Parlies and Interviews between the King and people and many Laws for the upholding of the Court and Government although both War Laws Justice and Councils all are faint as all is faint in that man that hath once dismann'd himself This he perceives well enough and therefore Peace he must have by any means The Queen dies himself being nigh Eight and twenty years old takes a Creature like a Wife but in truth a Childe of Eight years old and this is to get peace with France It is no wonder if now he hunts after unlawful game and that being ill taken brings all things out of order For abused Marrige never wants wo. Civil men are now looked upon as severe Cato's and his Unkles especially the Duke of Gloucester with a jealous eye which accomplished his death in
the point of encreasing and diminishing of the Crown in the sixth Section is captious and may sound as if there is a legal enlarging of the Crown whereof he that takes the Oath is to judge A matter which onely and properly concerns the Parliament to order and determine or else farewel all liberty of the people of England The second concerneth immediately the King in his politick capacity but trencheth upon all Laws of the Kingdom in the executive power and all the motions in the whole Kingdom either of Peace or War following in the Rear either immediately or mediately are under this notion interested into the transaction of the Privy-Council to debate and determine the King's Judgement therein unless it will determine alone And how easie a thing it is for such as have power of determining the Action by the Law to slip into the determining of a Law upon the Action and so to rule by Proclamation experience taught succeeding times sufficiently Nevertheless in these times Parliaments were every moment upon the wing and kept this Noble Band in awe by taking them into their Cognizance placing and displacing some or all of them directing and binding them by Oath as they saw occasion of which the Records are full and plentiful I say these times thus constituted added yet further encouragement to them by giving them powers by Statute-Law over and beyond what by ancient Custom they had obtained The King and Council of Lords had anciently a power of Jurisdiction that hath been in the first Part of this Discourse already observed yet it is very probable that it was not any select company of Lords but the whole Association For it is granted by all that they had originally a principal hand in the Jurisdiction and it is hard to conceive how any private number should catch such a power if not by usurpation But the manner of acquiring is less materal the principal consideration resteth upon the quality of this Jurisdiction For it is evident that much difference hath been both concerning the place and manner of exercising this Authority In general it must be granted that all Pleas Coram Rege were grounded upon Writs first purchased and returnable either in Banco or in Camera or in Cancellaria And no difference at all will be concerning the Jurisdiction in Banco for that was by the course of the Common-Law and the people held it one of their Liberties to have one known course of Law for determining matters of right and wrong As touching these Pleas which were holden by Writs returnable in Camera they were properly said to be Coram Rege Concilio whose meeting was in the Council-chamber in those days called the Star-chamber For other returns of Writs in the Star-chamber do not we find but such as were in Camera nor Prohibitions from thence but under the notion of the King's Council and this Camera as I said was the place of the joynt meeting of the Council as well of those of the Chancery and Benches as of those that attended upon matters of State. Now the influence of Society in point of Judicature principally aspected upon some Pleas belonging to the Crown although even these also properly were determinable in the King Bench. Nor can I observe any rule to bound the powers of these two Judicatories but this that the Council-Table would pick and chuse and prohibit the Kings Bench as they pleased and to that end would order Originals out of the Chancery as they thought most meet For it is observed by Fleta that the Kings-Bench hath no jurisdiction of it self but by special Warrant that is to say by Original Writs returned thither Nevertheless it may seem that such Crimes as are contrary to common honesty or the publick profit or peace in a more exemplary way than ordinary and therefore may be called Crimina laesi Regni or against the State these I say might more properly belong to the sublime Judicature of the Council-Table as knowing better how far the publick State was interested or endamaged in such Cases than the other Judges that were experienced onely in ordinary matters of a more private concernment To recite the particular Cases upon record concerning racing of Records Forgeries and other crimes of Falshood Conspiracies Combinations to abate and level the prices of Commodities Riots and such-like will be supersluous In all which and others of that Cognizance the Sentence exceeded not Fine and Imprisonment or Ransom Neither yet were the Common pleas so rural but the Council Table could relish them also and digest them well enough and therefore did not stick to prohibit the Courts of Common-Law under colour of a strange maxime That it is neither just nor honest for a man to be sued at the Common-Law for a matter depending before the King and his Council No though the Court of Common-law had the precedency And therefore although the right of Tythes being depending at the Common-Law the Archbishop in opposition to the Jurisdiction sueth before the Kings Council and the proceedings at the Law are thereby stayed And no wonder for the Council-Table challenged to hold the ballance of all Courts of Law within their own Order and so if any doubt concerning the Jurisdiction depended the Council-Table gave the word and all stooped thereto But enough of the Subject-matter the manner follows a new form of Process is taken up that the Common-Law and ancient Custom never knew and which grew so noisom to the people that complaints are made thereof as of common grievance and remedies are thereto applied by the Laws of these times For whereas by the Grand Charter nothing could be done in Judgement but according to the Laws of the Land and in affirmance thereof a Law was made in these times that no Accusation nor Attachment nor forejudging of Life or Member nor seisure of Lands Tenements Goods or Chattels should be against the form of the Grand Charter and Law of the Land This course of affairs grew so stale that amongst other innovations a trick of a new kind of Trial is brought forth by suggestions upon Articles exhibited against any man before the Council-Table and thereupon issued forth Attachments against the party complained of by means whereof and other courses for they could also sequester much vexation arose unto the people Hereunto upon complaints multiplied a remedial Law is made whereby it is Enacted That all such suggestions made shall be carried to the Chancellor Treasurer and the King 's Grand Council and the Informer shall find Surety to prosecute with effect and to incur the like penalty intended for the Defendant if the Plaintiff's proofs be not compleat and then the Process of Law shall issue forth and the Defendant shall not be taken against the form of the Great Charter that is he shall not be taken until first the fault appear upon Record by Presentment or by due Process or by original Writ
Legiance of the Subject This is the strength as nigh as I can collect of that which is set down as a sixth reason but I make it the fourth because the third as I conceive is but an illustration of the second and the fifth is upon a supposal of a Fides ficta whereas that Faith of an English Subject which is according to Law is the truer of the twain But to the substance of this fourth reason If the first be granted yet the Reporter cannot attain his conclusion for the King may in his Natural Capacity have right to the Crown by Inheritance and yet not right in the Legiance of his Subjects otherwise than in the right of the Crown As in the case of Lord and Tenant the Lord may inherit the Lordship in his Natural Capacity but the service is due to him as Lord and not as by Inheritance in the service in the abstract And though it be granted that the Legiance to a King is of a higher strain than that of a Tenant to his Lord fol. 4. b. 5. a. yet doth the Reporter bring nothing to light to prove them to be of a different Nature in this regard The fifth and last reason that cometh to consideration is from a Testimony of the Parliament for it is said That this damnable Tenet of Legiance to the King in his Politick Capacity is condemned by two Parliaments But in truth I can find but one under that Title that mentioneth this Opinion and that is called Exilium Hugonis which is sum is nothing else but Articles containing an enumeration of the particular offences of the two Spencers against the State and the Sentence thereupon The offences are For compassing to draw the King by Rigour to Govern according to their Wills for withdrawing him from hearkning to the advice of his Lords for hindring of Justice and Oppression and as a means hereunto they caused a Bill or Schedule to be published containing That Homage and Legiance is due to the King rather in relation to the Crown than absolutely to his Person because no Legiance is due to him before the Crown be vested upon him That if the King do not Govern according to Law the Lieges in such case are bound by their Oath to the Crown to remove him either by Law or Rigour This is the substance of the Charge and upon this exhibited in the Lords House the Lords super totam materiam banish them before their Case is heard or themselves had made many appearance thereto So as to the matter of this Schedule which contains an Opinion suitable to the point in hand with some additional aggravations the Parliament determineth nothing at all but as to the publishing of the same to the intent to gather a party whereby they did get power to act other enormities mentioned in the Charge And in relation to those enormities the Lords proceeded to sentence of Banishment all which was done in the presence of the King and by his disconsent as may appear by his discontent thereat as all Historians of those Affairs witness And it is not probable that the King would have been discontented with the proceedings of the Lords in asserting the Prerogative of a King in that manner of the Schedule if he had perceived any such thing in their purposes Add hereunto that the Lords themselves justified the matter of the Schedule in their own proceedings all which tended to enforce the King to govern according to their Counsels and otherwise than suited with his good pleasure By force they removed Gaveston from the King's presence formerly and afterward the Spencers in the same manner So they removed the King from his Throne and not long after out of the World. Last of all I shall make use of one or two Concessions which hath passed the Reporter's own Pen in this discourse of his for the maintaining that the Legiance of an Englishman is Neither Natural nor Absolute nor Indefinite nor due to the Natural Capacity but qualified according unto Rules The first is this Englishmen do owe to their Kings Legiance according to their Laws therefore it is not Natural or Absolute or Indefinite The inference is necessary for the latter is boundless and Natural the former is limited and by civil Constitution If any breach therefore of English Legiance be bounded by Law then the Legiance of an English man is circumscribed and not Absolute or Natural The major proposition is granted by the Reporter who saith that the Municipal Laws of the Kingdom have prescribed the order and form of Legal Legiance fol. 5. b. And therefore if by the Common Law the Service of the King's Tenant as of his Mannor be limited how can that consist with the absolute Legiance formerly spoken of which bindeth the Tenant being the King 's Subject to an Absolute and Indefinite Service Or if the statute-Statute-Laws have setled a Rule according to which each Subject ought to go to War in the King's service beyond the Sea as the Reporter granteth fol. 7. 8. then cannot the Legiance be absolute to bind the Subject to go to War according to the Kings own pleasure Secondly An English King's protection of his Subjects is not Natural Absolute Indefinite nor Originally extendeth unto them in their Natural Capacity therefore is not the Legiance of an English Subject to his King Natural Absolute Indefinite nor Originally extendeth to the King in his Natural Capacity The dependence of these two resteth upon the Reporters own words who tells us that Protectio trahit Subjectionem Subjectio Protectionem Protection draws with it Subjection and Subjection draws with it Protection so as they are Relata and do prove mutually one anothers Nature fol. 5. a. And in the same Page a few lines preceding he shews why this Bond between King and Subject is called Legiance because there is a reciprocal and double Bond for as the Subject is bound in Obedience to the King so is the King bound to the Subject in protection But the King is not Naturally bound to protect the people because this Bond begins not at his Birth but when the Crown settles upon him Thirdly This Protection is not absolute because the King must maintain the Laws fol. 5. a. and the Laws do not protect absolutely any man that is a breaker of the Laws Fourthly This protection is not Indefinite because it can extend no further than his power and his power no further than his Dominions fol. 9. b. The like also may be instanced in continuance of time Lastly The King's protection extendeth not originally to the Natural Capacity but to the politick Capacity therefore till a Foraigner cometh within the King's Legiance he cometh not within his protection And the usual words of a Writ of Protection shews that the party protected must be in Obsequio nostro fol. 8. a. The sum then is that as protection of an English King so neither is Legiance or Subjection of an Englishman Natural Absolute
not a Fine is set upon them if others run away from their Conduct a Writ issued to the Serjeant at Arms to apprehend them if they were not arrayed then the Recognizances of such as undertook the work are estreated All plunder or spoil committed by the Souldiers 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 defrayed sometimes by the County by virtue of Commissions that issued forth both for the raising and conducting of them yet was this no rule nor did Edward the Third claim 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 several Counties For to this end and for the safeguard of the Realm and for the maintenance of the Wars of Scotland France and Gascoign the King had supply from Aids Reliefs Wardshipâ— Marriages Customs and Escheats Nor did the Parliament grant any particular Aid by the Assessment or publick Tax but when they evidently saw the burthen of War to be extraordinary as it befel in the Conquest of so great and potent a Realm 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 endured them with much patience so long as the King lived Lastly in all these Cases of Foreign Wars 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 go out of his County But in case of defensive War the course was otherwise for all men in such cases are bound by the Law of Nature to defend their own Country from Invasion in order to the safety of their own 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 virtue of such Commissions they were drawn 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 wholly exempted the County 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 Counties a Statute is made that states the Case wherein such Array shall be the words whereof are variously set forth in the Books in print whether determinatively or carelesly I cannot tell but all of them to differ in sence one from another and from the Truth Some of the common Books have the words thus None shall be distrained to go out of their Counties unless for cause of necessity and of sudden coming of Strangers or Enemies into the Kingdom Others read it thus But where necessity requireth and the coming of strange Enemies into the Kingdom The Kings Answer to the Parliaments Declaration concerning the Commission of Array would read it thus Vnless in case of Necessity or of sudden coming of strange Enemies c. But the words in the Roll are these Et que nulls ne soient distresses d'aller hors de les Countees si non pur Cause de necessity de suddaine venue des Stranges Enemies en Reyaulme In English thus word for word And that none be distrained to go out of the Counties if not for cause of Necessity of sudden coming of strange Enemies into or in the Kingdom which words determine the point That none shall be by Commission of Array drawn out of their County but in case of necessity And secondly that this case of necessity is onely the coming of strange Enemies into or in the Kingdom so as probably the Invasion must be actual before they be drawn out of their Counties and not onely feared and it must be a sudden Invasion and not of publick note and common fame foregoing for then the ordinary course either of Parliament or otherwise must be used to call those that are bound by Statute or Tenures or Voluntiers to that service seeing every Invasion is not so fatal as to require a Commission for a General Array Against what hath been thus noted the judgement of Sir Edward Coke in Calvin's Case lies yet in the way who affirmeth that the Subjects of England are bound by their Legiance to go with the King in his Wars as well within the Realm as without and this Legiance he telleth us is that natural Legiance which he saith is absolute and indefinite c. and not local which if not so then were not the English bound to go out of England an inference that is neither necessary nor is the thing affirmed certain It is not necessary because English men may be bound to go out of England by vertue of their Tenures particular Contract or else by special Act of Parliament and not by vertue of that natural Legiance which in truth is nowhere Now for the maintenance of the point the Reporter alledgeth two Statutes affirming the thing and common practice and lastly Authorities of the Judges of the Common Law. As touching the Statutes one in Henry the Seventh's time and the other in Edward the Sixth's time I shall speak of them in the succeeding times when we come at them for they are no Warrant of the Law in these times whereof we now treat much less is the modern practice of these later days a demonstration of the Law in the times of Edward the Third nor of the nature of the Law in any time seeing that it is obvious to times as well as particular persons to do and suffer things to be done which ought not so to be and therefore I shall for the present lay those two Considerations aside But as touching the Opinions of the Judges of the Common Law two Cases are cited in the Affirmative which seem in the Negative and the rest conclude not to the point The first of the two Cases is the opinion of Justice Thirning in the time of Henry the Fourth word for word thus A Protection lies for the Defendant in a Writ upon the Statute of Labourers and yet the Defendant shall not have such matter by way of Plea viz. That the King hath retained him to go beyond the Sea for the King cannot compel a man to go out of the Kingdom that is as the Reporter saith Not without Wages intimating thereby that if the King shall tender Wages to
from the gripe of the Clergie on the other who hitherto held the Cognizance of the Markets in Weights and Measures to themselves This model so pleased all men that Richard the Second that was pleased with nothing but his own pleasure gave unto the Justices of Peace yet further power to execute the Statute at Northampton against riotous ridings and to settle the Wages of Labourers and Servants to punish unlawful Huntings by the meaner sort of people and regrators of Wool false Weights in the Staple unlawful wearing of Liveries and unlawful Fishings contrary to the Statute at Westminster 2. Thus was the power of Justices of Peace grown to that heighth in these and other things that it undermined not onely the Council-Table and Kings Bench but the Commissions of Gaol-delivery and of Oyer and Terminer so far forth as their work was much less than formerly For Neighbours in cases of crime are better trusted with the Lives and Estates of men than Strangers so as in all this the people are still the gainers The manner of Judicature by these Justices of the Peace still remains nothing appears by any Statute in these times that one Justice of the Peace might do alone but record a forcible Detainer although questionless in point of present security of the Peace and good Behaviour by the intent of the Statutes he might do many things but in Cases of Oyer and Terminer all must be done in publick Sessions which the Justices of the Peace had power to hold by Commission onely until the Thirty sixth year of Edward the Third and ever after that they held their Sessions by vertue of the Statutes and had power to determine divers things in their Sessions according to discretion These were remedies after the Fact now see what preventing Physick these times afforded One thing that much irritated the spirits of men into discontents was false News or slanderous reports raised and spread amongst the great men For in these Times the Lords were of such a considerable power as the vexation of one Lord proved the vexation of a multitude of the meaner sort And though the Statute of Westminster the 1. formerly had provided against such Tales yet it touched onely such as concerned discord between the King and people although by implication also it might be construed to extend further But Richard the Second willing to live in quiet that he might enjoy his pleasure would have the people know their duties in plain words and agreed to a Law That all such as published such false News tending to sow strife between the Great men should be imprisoned until the first mover was found and if he were not found then the Relator should be punished by advice of the Council So much power was then given to the Council whatever it was Thus the seed was choked or was so intended to be though every passion was not thus suppressed For some angers conquer all fear and will hold possession come what will. In the next place therefore provision is made against the first Actings in sorting of parties by Tokens and Liveries utterly inhibiting the meaner sort of the people from giving of Liveries to maintain quarrels upon pain of Fine and Imprisonment and the Trial to be before the Justices of Assize which it seems was in affirmance of former Laws as by the Preamble of the Statute doth appear though the Laws themselves are not extant About Fifteen years after it was by sad experience found that the Lords maintained quarrels by multitude of Liveries and therefore another Law was made inhibiting the Lords to give Liveries to any but their menial Servants and it is ordered that the Justices of the Peace shall make enquiry of such offences and punish them according to their discretion A third prevention was provided against gathering together of Parties after they are sorted For the humours may so abound as nothing will keep them in they must either break out into a sore or a long sickness of State will certainly follow To this end therefore the Statute made at Northampton is again revived expresly forbidding all persons to ride armed unless in some particular cases of executing Justice or guarding the person of the King or his Justices and suchlike And if men will be so adventurous as to outâ—dare Law by publick force Troopings together and riotous Ridings another course is taken not by Commission of the Peace but rather of War directed unto valiant persons in every County and they have power thereby to apprehend such Offenders and imprison them until the Gaol-delivery though no Indictment be found thereof until the Gaol-delivery shall be By this Commission therefore power is given of Posse Comitatus in nature of a Commission of Array with an additional power of fighting and destroying so as though the King granteth the Power by the Commission yet the Parliament giveth the Power to the Commission and be it a Commission for Peace or War it is originally from that power The fourth and last prevention was the taking away means of continuance and supporting such Riotous ways Viz. Castles and Gaols out of the Custody of private hands and restoring them to their Counties For Gaols and Castles are taken promiscuously for places of security in times of Peace to keep ill persons from going out and in times of War from getting in Amongst these some belonged to the King and were committed to such as he favoured who commonly in such times of Oppression and Violence grew too big for Justice usurping a Gaol delivery and making such places of strength many times even to the innocent a Prison to keep them from the Law but unto guilty persons an Asylum to defend them against the Law. And these thus belonging to the King were under no Law but of Prerogative whereas other Castles of private persons were under the yoke of the Statute 13 E. 1. For remedy of all which the Kings Castles are once more returned to the Sheriff's Custody by Act of Parliament who questionless have the power to dispose of all places of strength whether in order to Peace or War and could not dispose them into a more safe and indifferent hand than the Sheriff's who is as well the King's Officer as the Kingdoms Servant and much intrusted by the Law in the execution of its own power And thus is this Nation now prepared for a setled Peace a condition that is long in ripening and soon rotten unless it be well fenced and over-awed by a good Conscience But Richard the Second was neither so good nor so happy his Heart affected to be high but his Head could not bear it he turns giddy and runs far wide Those that would reduce him he enforces into Foreign Countries and himself holds on his career over Hedge and Ditch into Ireland where under pretension of holding possession of that Kingdom he lost England and whilst he plays
in the French Wars the Duke of Gloucester obtained the same power and place But Henry the Sixth added a further Title of Protector and Defender of the Kingdom 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 Gloucester And towards the latter time of Henry the Sixth it was granted by him to Richard Duke of York This Title carried along with it a power different from that of a King onely in honour and the person so adorned may be said to sway the Scepter but not to wear the Crown And therefore in the minority of Henry the Sixth whenas the Government was ordered by the Parliament and to that end a Protector was made and he well guarded with a Privy Council and they provided with Instructions one of them was That in all matters not to be transacted ordinarily but by the King 's express consent the Privy Council should advise with the Protector But this is not so needful in regard that it concerneth the power of executing of Laws 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 pass to the Legislative Power wherein it is evident that the Protector 's power was no whit inferiour to the King's power For First the Protector Ex Officio by advice of the Council did summon Parliaments by Writs even as the Kings themselves under their own Test and if they did not bear the Royal Assent yet did they direct the same and received Petitions in Parliament to them directed as to Kings and every way supplied the room of a King in order to the perfecting publishing and enforcing of Law to Execution Secondly the Parliaments holden by Protectors and Laws 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 Kingdom doth utterly vanish by the personal access of the King because in all places where the King is subservient to the Kingdom or the Commonwealth 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 Kingdom aâ—â— it holdeth in equal force with all other Laws 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 personal presence no more considerable than the presence of his shadow For the King spent three whole years in the French Wars and during that time never saw England where nevertheless in that interim three Parliaments had been holden one by the Duke of Bedford and two by the Duke of Gloucester in the last of which this Law was made And in truth if we look upon this Title of the Kingdoms Guardianship in its bare Lineaments without lights and shadows it will appear little better than a Crown of Feathers worn onely for bravery and in nothing adding to the real ability of the governing part of this Nation Neither were the persons of these Magnificoes so well deserving nor did the Nation expect any such matter from them Edward the First was a wise King and yet in his absence chose Edward the Second to hold that place he being then not above fourteen years of age Afterwards Edward the Second's Queen and the Lords of her party were wise enough in their way and yet they chose Edward the Third to be their Custos Regni then not fourteen years old his Father in the mean time being neither absent from the Kingdom nor deposed but onely dismissed from acting in the administration of the Government Edward the Third follows the same example he first makes his Brother John of Eltham Custos Regni and this he did at two several times once when he was but Eleven years old afterwards when he was about Fourteen Then he made his Son the Black Prince upon several occasions three times Lord-Warden of the Kingdom once he being about Nine years old and again when he was Eleven years old and once when about Fourteen years old Lastly Edward the Third appointed his Son Lionel Duke of Clarence unto this place of Custos Regni when as he was scarce Eight years old all which will appear upon the comparing their Ages with the several Rolls of 25 E. 1. 3 5 12 14 26. 19 E. 3. If therefore the work of a Custos Regni be such as may be as well done by the Infants of Kings as by the wisest Counsellor or most valiant man it is in my opinion manifest that the place is of little other use to this Commonwealth than to serve as an attire to a comely person to make it seem more fair because it is in fashion nor doth it advance the value of a King one grain above what his Personal endowments do deserve Hitherto of the Title and Power the next consideration will be of the original Fountain from whence it is derived wherein the Precedents are clear and plain that ordinarily they are the next and immediate Off-spring of Kings if they be present within the four Seas to be by them enabled by Letters-Patents or Commission But whether present or absent the Parliament when it sate did ever peruse their Authority and if it saw need changed enlarged or abridged both it and them Thus was the Duke of Gloucester made Lord Warden in the time of Henry the Fifth he being then in France in the room of the Duke of Bedford The like also in Henry the Sixth's time when as the King was young for then the Parliament made the Duke of Bedford Lord Warden and added unto that Title the Title of Protector Afterward at the Duke's going over into France they committed that service to the Duke of Gloucester if I forget not the nature of the Roll during the Duke of Bedford's absence and with a Salvo of his right Not unlike hereunto was the course that was taken by the Parliament in these sullen later times of Henry the Sixth whereof more hereafter in the next Paragraph Lastly The limitation of this high power and Title is different according to the occasion for the Guardianship of the Kingdom by common intendment is to endure no longer than the King is absent from the Helm either by voluntary deserting the work or employment in Foreign parts though united they be under the Government of the same King together
Liveries are all great though in themselves never so small and therefore are sure of Fine and Ransome and it is well if they escape a years imprisonment without Bail or Mainprize Lords may wear the King Livery but may give none Knights and Esquires may wear the Kings Livery in their attendance upon his person but not in the Country The King and â—â—ince may give Liveries to Lords and menial Servants The sum is that Liveries may be given by the more publick persons for state not to make parties and men may wear Liveries in token of Service in Peace and not in Arms. One thing must be added to all which may concern Trial in all Viz. A Law was made that Noble Ladies shall be tried by their Peers 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 than the Dutchess of Gloucester is first charged with Treason when that could not appear then for Necromancy very fitly that she might be tried by the Ecclesiastical way of Witnesses She is found guilty and a Sentance of Penance and Imprisonment or Banishment passed thereupon after such a wild way as both Nobles and Commons passed this Law for the vindication of that noble Sex from such hudling Trials 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 Arms And that which destroyed many a man was the principal means of his subsistence Otherwise it is clear that his Title was stark naught nor could he outface Mortimer's Title without a naked Sword which he used warily for he had Enemies enough to keep his Sword in hand and Friends enough to keep it from striking at random For coming in by the peoples favour he was obliged to be rather remiss than rigorous yet his manner of coming 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 entred 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 somewhat clear against it First Because Henry the Fourth De jure could not compel men to serve beyond the Seas but raised them by contract and therefore by Act of Parliament he did confirm the Statute 1 Edw. 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 Foreign Service were levied by Contract between them and the Captain who undertook to levy them by Wage so as none were then compelled to enter into Service by Imprest or absolute Command Nor is there any Authority amongst all those cited in Calvin's Case that doth mention any such thing but contrarily that Opinion of Thirning is express That the King cannot send men beyond Seas to Wars without Wages and therefore no man is bound to any such service by any absolute Legiance as the Reporter would understand the point but if he receiveth Wages thereto he by that Contract binds himself Secondly It seemeth also to be granted that such as went voluntarily in the Kings Service ever had the Kings Pray after they were out of their Counties if the King ruled by his Laws For by the Statute formerly mentioned the King did likewise confirm the Statute of 18 Edw. 3. Stat. 2. cap. 7. which is express in that point and the matter in fact also is evident upon the Records Thirdly Touching the arming of those that were thus levied as there was a certain Law by which all men were assessed to certain Arms either by the Service and Tenure of their Lands or by Parliament for such as were not bound to find sufficient Arms by their Tenure according as is contained in the Statute 25 Edw. 3. Stat. 5. cap. 8. So did Henry the Fourth by the Statute formerly mentioned to be made in his time confirm that Law of Edward the Third In the argument of Calvin's case it is much insisted upon to prove the Legiance of an English man to the King to be absolute because he hath power to send men to War at his pleasure and he hath the onely power to make War and if so then hath he absolute power in the Militia As touching the power of sending men to War hath been already spoken but as touching the power to make War there is no doubt but where a King hath made a League with another King he onely can break that League and so make War and that Opinion of Brian must be agreed for good in that sence But if a League be made by Act of Parliament or if the King will have War and the Parliament will make a League without him no Authority doth in such case avouch that it is the right of the King or that he hath a legal power to break that League as he pleaseth Neither in the next place hath the King any Right or legal Power to make War with his own Subjects as he pleaseth but is bound to maintain the Peace not onely by his Oath at his Coronatiion but also by the Laws whereto he is bound if he will reign in right of an English King. For every man knoweth that the grounds of the Statutes of wearing of Liveries was for the maintaining of the publick Peace And Henry the Fourth amongst other provisions made against that trick hath this That the King shall give onely his Honourable Livery to his Lords Temporal whom shall please him and to his Knights and Esquires menial and to his Knights and Esquires which be of his retinue and take of him their yearly Fee for term of Life and that no Yeoman shall take or wear any Livery of the King nor of none other Lord. And another Law was made within one year ensuing confirming the former and providing that the Prince may give Liveries to such Lords as he pleases and to his menial Gentlemen and that they may wear the same as in the Kings Case By both which the King and Prince are both in one Case as touching the power of giving Liveries if the one hath absolute power then hath the other the like if one be under the Directory of Law in that point then is also the other For it is clear that the King is intended by the Statute to be bound from giving Liveries and the people from wearing them
otherwise than in especial Cases And then the conclusion will be that if the King may not give Liveries to the prejudice of the Peace then may he much less break the Peace at his pleasure or levie Men Arms and War when he shall think most meet Take then away from the King absolute power to compel men to take up Arms otherwise than in case of Foreign Invasion power to compel men to go out of their Counties to War power to charge men for maintenance of the Wars power to make them find Arms at his pleasure and lastly power to break the Peace or do ought that may tend thereto and certainly the power of the Militia that remaineth though never so surely setled in the Kings hand can never bite this Nation Nor can the noise of the Commission of Array entitle the King unto any such vast power as is pretended For though it be granted that the Commission of Array was amended by the Parliament in these times and secondly that being so amended it was to serve for a Precedent or Rule for the future yet will it not follow that Henry the Fourth had or any Successor of his hath any power of Array originally from themselves absolutely in themselves or determinatively to such ends as he or they shall think meet First As touching the amendment of the Commission it was done upon complaint made by the Commons as a grievance that such Commissions had issued forth as had been grievous hurtful and dangerous And the King agrees to the amendments upon advice had with the Lords and Judges And if it be true that the amendments were in the material clauses as it is granted then it seemeth that formerly a greater power was exercised than by Law ought to have been and then hath not the King an absolute power of Array for the just power of a King can be no grievance to the Subject Secondly If the Commission of Array thus mended was to serve as a rule of Array for the future then there is a rule beyond which Henry the Fourth and his Successors may not go and then it will also follow that the power of Array is not originally nor absolutely in the King but from and under the Rule and Law of the Parliament which rule was not made by the Kings own directions but as we are told beyond expectation alterations were made in material parts of the Commission and the powers in execution there whereof no complaint of grievance had been made The issue then is If the King had an Universal power in the Array the Parliament likewise had a general liberty without any restriction to correct that power Lastly Suppose that this power of the Parliament is executed and concluded by the Commission thus amended and that thereby the Kings power is established yet can it not be concluded that this power is originally or absolutely in the King. It is not absolutely in him because it is limited in these particulars First It is not continual because it is onely in case of eminent danger Secondly It is not general upon all occasions but onely in cases of a Foreign and sudden Invasion and attempts Thirdly The powers are not undefined but circumscribed 1. To Array such as are armed so as they cannot assess Arms upon such 2. To compel those of able Bodies and Estates to be armed and those of able Estates and not able Bodies to arm such as are of able Bodies and not Estates but this must be Juxta facultates and salvo Statu 3. Whereas they strain 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 remedial in particular cases yet do 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 Kings 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 Reprizal granted to such of the people of this Nation as are pillaged by Sea by such as have the King's Conduct or publick Truce And by this Law the party pillaged had power 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 Chancellour 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 Foreigners were become bold to transgress and the English fearful in their own Charge and many laid aside their Trade by Sea and thereby the strength of the Kingdom was much impaired Nor is the equity of this Law to be questioned for if the Magistrate upon complaint made grants not relief the offence becomes publick 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 relief 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 general 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 Clothing 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 unless in case of sickness or other good cause testified and allowed by the Captain and such as shall do otherwise shall suffer as Felons Which Laws 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 personal 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
controul for when displeasure was like to ensue he could speak fair and feast and if need was kiss away all discontent Towards his end as stale drink he grew sowr For as in the first part of his Reign he had been supplied by good-will against Law so in his latter times he had gotten a trick of supply by Law against good-will This was by penal Laws which are a remedy if they be used Ad terrorem but if strained beyond that the Remedy proveth worse than the Disease In their first institution they are forms of courtesie from the people to the King but in the rigorous execution of them are trials of mastery of the King over the people and are usually laid up against days of reckoning between the Prince and them Those penal Laws are best contrived that with the greatest terrour to the Delinquent bring the least profit to the King's Coffers Once for all this King's Acts were many his Enterprizes more but seldom attaining that end which they faced He was a man of War and did more by his Fame than his Sword was no sooner resolved in good earnest but he died left a Kingdom unassured his Children young and many friends in shew but in truth very few Now if ever was the Kingdom in a Trance Edward the Fourth left a Son the Prima materia of a King and who lived long enough to be enrolled amongst English Kings yet served the place no further than to be an occasion to fill up the measure of the wickedness of the Duke of Gloucester and a monument of Gods displeasure against the House of Edward the Fourth whether for that breach of Oath or treachery against Henry the Sixth or for what other cause I cannot tell But at the best this Prince was in relation to his Uncle the Duke of Gloucester little other than as an Overseer to an Executor that might see and complain but cannot amend For the Duke ruled over-ruled and mis-ruled all under the name of Edward the Fifth and left no monument of good Government upon record till he changed both the Name and Person of Edward the Fifth to Richard the Third his Fame had lifted him up and might have supported him had he regarded it But as no man had more honour before he ascended the Throne so no man ever entred and sate thereon with less His proceedings were from a Protector to an Vsurper and thence to a Tyrant a Scourge to the whole Nation especially the Nobility and lastly an instrument of Gods Revenge upon himself a man made up of Clay and Blood living not loved and dying unlamented The manner of his Government was strained having once won the Saddle he is loth to be cast knowing himself guilty all over and that nothing could absolve his Fame but a Parliament he calls it courts it and where his Wit could not reach to apologize he makes whole by recompence takes away Benevolences he is ready to let them have their present desires what can they have more He promiseth good behaviour for the future which he might the better do because he had already attained his ends Thus in one Parliament for he could hold no more he gave such content as even to wonderment he could assoon find an Army in the field to fight for him as the most meritorious of his Predecessors Hiâ— ill Title made him very jealous and thereby taught his best Friends to keep at a distance after which time few escaped that came within his reach and so he served God's Judgement against his adjutants though he understood it not Amongst the rest against the Duke of Buckingham his great Associate both in the Butchery of the two young Princes and usurpation of the Royal Scepter He lived till he had laid the Foundation of better times in the person of Henry the Seventh and then received his reward But an ill Conscience must be continually fed or it will eat up its own womb The Kings mind being delivered from fear of the Sons of Edward the Fourth now dead torments himself with thoughts of his Daughter alive ashamed he is of Butchery of a Girl he chuseth a conceit of Bastardizing the Children of Elizabeth Gray that calleth her self Queen of England but this proved too hard to concoct Soon after that he goes a contrary way The Lady Elizabeth Gray is now undoubted Wife of Edward the Fourth and her eldest Daughter as undoubted Heir to the Crown And so the King will now be contented to adventure himself into an incestuous Marriage with her if his own Queen were not in the way onely to secure the Peace of the Kingdom which he good King was bound in Conscience to maintain though with the peril of his own Soul and in this zeal of Conscience his Queen soon went out of the way and so Love is made to the young Lady But Henry Earl of Richmond was there before and the Lady warily declined the choice till the golden Apple was won which was not long after accomplished the King losing both the Lady his Crown and own Life together put an end to much wickedness and had the end thereof in Bosworth-Field CHAP. XXIV Of the Government in relation to the Parliament THe seasons now in Tract were of short continuance lives passed away more speedily than years and it may seem useless to enquire what is the nature of the Government in such a time whenas the greatest work was to maintain Life and Soul together and when all is done little else is done For though the Title of the House of York was never so clear against that of Lancaster yet it had been so long darkned with a continual â—uccession of Kings of the Red Rose that either by their Merit had gained a Throne in the peoples Hearts or by their Facility had yielded their Throne up to the peoples will as it proved not easie to convince them that liked well their present Lot and were doubtful of change or to make them tender of the right of Edward the Fourth above their own quiet Above Threescore years now had England made trial of the Government of the Lancastrian Princes and thereof about Thirty years experience had they of Henry the Sixth they saw he was a gentle Price On the other side Edward the Fourth newly sprung up out of a Root watered with blood himself also a man for the Field This might well put the minds of the people to a stand what to think of this Man whose Nature and ends are so doubtful and brought nothing to commend him to the good wills of the people but his bare Title which the common sort usually judge of according as they see it prosper more or less Add hereunto that Divine Providence did not so clearly nor suddenly determine his secret purpose concerning this change by any constant success to either part by means whereof the one half of Edward the Fourth's Reign was spent while as yet Henry the
that Prince that will keep Guards about his Person in the midst of his own people may as well double them into the pitch of an Army whensoever he pleases to be fearful and so turn the Royal power of Law into force of Arms. But it was the French fashion and the King 's good hope to have all taken in the best sence His Title setting aside the saying of Philip the Hardy That Kingdoms onely belong to them that can get them would hardly endure the touch till Pope Innocent by his Bull confirmed the Crown to him to hold by a six-fold right Viz. Of Inheritance of War of Espousals of Election of Gift by Parliament and lastly of Pontifical Benediction which the King liked marvelous well and the rather because his Title by Marriage was buried up in the middle and so made the less noise For though it was his best guard yet he liked not that it should be so reputed lest his Title should seem rather conferred upon him than gained by him and so should hold by a Woman or at the best by the courtesie of England if the Peoples favour should so far extend the Law in that point by both which he holds the honour of a compleat King diminished His Title by Inheritance is much disputable if the right Heirs of John of Gaunt be enquired after And much more that of War for although that brought the Possession yet no right or Title but by wrong which may indeed be plaistered over by Election or Act of Parliament but then he must be Tenant to the People As touching the Pontifical Benediction himself took that but as a redundancy that might sway with the Clergie and do his Title no hurt Nevertheless what severally they cannot do by joynt concurrence he accounts so fully done as if he were a King against all the World and more Yet is he not sure enough but as one jealous is more tender so is his eye ever upon his Title there is his guard and regard as if it were the outworks of his Crown which once lost the Crown cannot hold out long In this work he minded so much his Greatness that he lost the repute of his Goodness Then casting his eye upon the Government and finding it of a mixt temper wherein if Royalty prevails not Popularity will like a good Souldier whilst his strength is full he sallies upon the peoples liberties in regard of their persons with such cunning conveyance as he taught the People to dance more often and better to the tune of Prerogative and Allegiance than all his Predecessors had done Nor did the People perceive it till they were over their Shoes and then they clearly saw their condition and that it was in vain for them to wrangle with their own acts of which more particularly in the next Chapter The Legiance of persons of the People once gained their Estates more easily follow And therefore though in the former he wrought by Ambuscado in this he may be more brave and charge them in the Van. Yet this he did also by degrees first by light skirmishes of borrowing smaller sums of money possibly when he had no need and paying them again thereby to gain credit for greater sums of which he intended not so sudden return Then he charges them home with Benevolences a trick gained in right of his Wife from her Father for he hoped that the person of Richard the Third was now become so abominable as his Laws would be the less regarded But in this course he gained nothing but Wind. Then as Edward the Fourth he falls upon Malevolences of Penal Laws things made in terrorem to scare men to obedience rather than to compel them but are now executed Ad angorem and the people find that he is but a word and a blow with them and thus serving his Prerogative with Power and his Purse with his Prerogative he made all serve his own turn Humanitatem omnem vincente periculo In the Field he always put his Wisdom in the Van for as he was parsimonious in expences of Money so much rather of Bloud if he could prevail by Wit. Generally he was the first in Arms to make men believe he was more ready to fight than they Thus he many times gained the advantage of his Adversaries and sometimes came off without blows In the Battle he did put on courage as he did his Armour and would dare to adventure just as far as a General should as if he had ever regard of his Crown rather than of the honour of a forward Souldier which nevertheless was also so dear to him as he is seldom found in the Rear although his Judgement commanded in chief rather than his Courage In the Throne he is much more wise because he was willing it should be known In doing Justice he is seldom suspected unless where himself is party and yet then he is also so shame-faced as he would ever either stalk behind some Law that had a semblance to his ends or when he meant to step out of the way he would put his Ministers before not so much that his fineness might be known but his Royalty For the Lion hunts not its own prey nor is it Regal for a King to be seen in catching of Money though he be understood Besides it was needless he had Lords Bishops Judges and other instruments of malevolent aspects as so many Furies outwardly resembling men for the Commonwealth but working for the common mischief like some Pictures one way looking right and another way looking wrong And thus the King comes lawfully by what he catched though his instruments did not and must be still holden for a good King though it be his hard hap to have ill servants Take him now amongst the people he is alike to all yea in some things that might seem to brush upon the King 's own train for he had some of his suit that were not altogether of his mind and these he would spare to the course of Justice if need were As it befel in the case of the Duke of Suffolk whom he suffered to be tried at the Kings Bench-bar for a Murder done upon a mean person and by such means obtained the repute of a zealous Justiciar as if Justice had been his principal vertue All this suited well with his main end for he that will milk his Cattle must feed them well and it encourages men to gather and lay up when they have Law to hold by what they have His Religion I touch upon in the last place as most proper to his temper for it was the last in his thought though many times the first in the acting But where it stood in his way he turned it behind him he made Church-men his instruments that the matter might better relish for who will expect ought save well from men of Religion and then if the worst come he was but misled by such as in common reason ought
and instruct them that knew too little and so in time he should pass for currant amongst them all It was no hard matter for the King to accomplish this the greater part of the Kindom being pre-ingaged unto his Title and of them many depending upon him for livelihood if he failed they must look to lose all But the present occasion urged more importantly the Title to the Crown was already put to the question by the pretentions of one that named himself Duke of York And it is now high time for the Law to declare it self to direct the people in such a Case What shall the people do where Might overcomes Right or if days come like those of Henry the Sixth wherein the Subjects should be between Two Mill-stones of one King in Title and another King in possession for whom must they take up Arms If for Edward the Fourth then are they Traitors to Henry the Sixth If for Henry the Sixth then are they Traitors to Edward the Fourth And so now if for Henry the Seventh then they may be Traitors to the Duke of York If for the Duke of York then are they Traitors to Henry the Seventh For though the Duke of York was said to be but a contrivance of the House of Burgundy yet a great part both of the great men and others were of another opinion and the King himself was not very certain of his condition for the space of six years thereby This puts the Title of Allegiance and that power of the Militia to the touch at length both King and Parliament come to one conclusion consisting of three particulars First That the King for the time being whether by right or wrong ought to have the Subjects Allegiance like to that of the wise Counsellor of that brave King of Israel Whom the Lord and his People and all the men of Israel chuse his will I be And this is not onely declared by the express words in the Preface of the Law but also by the Kings own practice For he discharged such as aided him against Richard the Third then King by pardon by Parliament but such as aided him being King by declaration of the Law. Secondly That this Allegiance draweth therewith ingagement for the defence of that King and Kingdom Thirdly That the discharge of this Service whereto the Subjects are bound by Allegiance ought not to be imputed unto them as Treason Nor shall any person be impeached or attained therefore The first and the last of these need no dispute The Second is more worthy of consideration in the particular words set down in the Statute viz. That the Subjects are to serve their Prince in his Wars for the defence of him and the Land against every Rebellion Power and Might reared against him and with him to enter and abide in Service in Battle Wherein two things are to be considered the Service and the time or occasion The Service is to serve the Prince in his Wars and with him to enter and abide in service in Battel which is the less to be stood upon because there is a condition annexed if the case so require which must be determined by some Authority not particularly mentioned Albeit that whatsoever is therein set down is onely by way of supposal in a Preface annexed to the Law by the King and permitted by the Commons that were as willing the same should be allowed as the King himself both of them being weary of Wars and willing to admit this Conclusion for the better security of them both in these doubtful times But to lay all these aside for the Case is not stated till the Cause be considered all this must be onely when and where the King's Person and Kingdom is endangered by Rebellion Power or Might reared against him So as the King's Person must be present in the War for the defence of the Kingdom or no man is bound by his Allegiance to hazard his own life And then this point of Allegiance consisteth onely in defending the King in the defence of the Land or more particularly in defending the King's Person he being then in the defence of the Land and defending him in order to the defence of the Land. So as no man can rationally infer from hence that the King hath an universal power of Array when he pleases because the King when he pleases may not levy War nor make other War than a defensive War when the Land is endangered or when need shall require as another Statute hath it But who shall determine this need or danger neither in these or any other Laws is mentioned either out of want of occasion or by reason of the tenderness of the times wherein both Prince and People were willing to decline the Question Secondly the persons that are to do this service are to be considered of and although they are indefinitely set down under the word Subjects it may be supposed that the word is not to be taken in so large a sence as to comprehend all of all Ages Sexes Callings and Conditions in regard that even by the Common-Law some of each of these sorts are discharged from such service But it may seem the King was neither satisfied with the expressions of this first Law concerning the occasion or time of this service nor did he see sufficient ground under the notion of bare Allegiance to desire more New ways are by him found out his Patentees were not a few and although few or none could ever boast much of any cheap Purchases gained from him for he was wont to be well paid beforehand for his Patents either by Money or that which was as beneficial to him yet he was resolved that their holding should be no less advantageous to him than their having And therefore in plain words he lets them know that notwithstanding former consideration upon which they had their Patents at the first they must fight for him if they will live upon him and either adventure their Lives or their Benefit chuse they which and if they find fault with their condition he touches them with the Law of their Allegiance And thus he makes way to intimate a claim of a more absolute Allegiance for being to shew the Equity of the Law in regard of their Allegiance he tells them That every Subject is bound by his Allegiance to serve and assist his Prince and Soveraign Lord at all seasons when need shall require General words that affirm nothing in certainty yet do glance shrewdly upon an absolute and universal assistance Then coming to drive the Nail home it is said that the Patentees are bound to give their attendance upon his Royal Person to defend the same when he shall fortune to go in his person to Wars for the defence of the Realm or against his Rebels and Enemies And as another Statute addeth Within the same Realm or without and according to their Allegiance and not to depart without especial License or
Labour or other Contribution none of which ought to be done but by publick Law. And therefore when the Inhabitants of the County of Cornwal were to make defence against Invasion and Piracy from the Coast of Little Britain in regard they were a long slender County and upon sudden surprizals People could not so readily flock together for their joynt defence they obtained an Act of Parliament to give them power to fortifie the Sea-coasts according to the direction of the Sheriff and Justices of the Peace Lastly Wars once begun must be maintained at the charge of the undertakers If they be the Kings own Wars he must maintain them out of his own Treasury till the benefit of them do prove to the common good and in such cases the charges have been sometimes provided before the work by Act of Parliament and sometimes after Henry the Seventh and Henry the Eighth both of them at their several times went to Boloigne with their Armies Henry the Seventh with an intent to gain profit to himself by an advantagious peace and had his ends therein and was ashamed to ask aid of the people towards the charges of that War. Henry the Eighth went upon his own charge also with his Army trusting to the Parliament for consideration to be had of his employment wherein his expectation did not fail and in his absence made Queen Katherine General of all the Forces of England in his absence and gave her power with other five Noble Personages to take up Money upon Loan as occasion should require and to give security of the same for the maintaining and raising of Forces if need should require as is more particularly set forth in the Patent-rolls of these times Nevertheless the War at Sea Infra quatuor Maria was ever reputed defensive as to the Nation and under the publick charge because no War could be there but an Enemy must be at hand and so the Nation in imminent danger and therefore the maintenance of the Navy-Royal in such cases was from the publick Treasury To conclude therefore if the Parliament and Common Law in all these Cases of Levies of men for War payment of Souldiers and their deportment in cases of Fortifications and of maintenance of Wars at Sea and the deportment of such as are employed therein I say if they give the Law and carry the Supream Directory then certainly the Law rules in that which seems most lawless and though Kings may be chief Commanders yet they are not the chief Rulers CHAP. XXXIII Of the Peace PEace and War originally depend upon the same power because they relate each to other as the end to the means and receive motion from one and the same Fountain of Law that ruleth both in Peace and War. It is very true that several Ages hitherto have been troubled with arbitrary Exhalations and these very times whereof we now treat are not altogether clear from such an air Two Kings we have at once in view both of them of an elate spirit one working more closely by cunning the other more openly by Command yet neither of them pretending so high as to do all or be all in all Peace suited more with Henry the Seventh than with his Son who delighted to be accounted terrible rather than good yet both of them were glad enough to be at peace at home and were industrious to that end though by several means Henry the Seventh pretended Justice and Peace a welcome news to a people that formerly accounted nothing theirs but by the leave of the Souldier and therefore sets upon the Reformation of the Sheriffs Courts in the entring of Plaints and making of Juries suitable to that present time wherein men of Estates were very scarce and much of the Riches of the Nation evaporated into the Wars both Civil and Foreign Although the continuance of that order concerning Juries in the succeeding times of opulency hath brought these Courts into contempt and made way thereby for the Kings Courts to swell in Glory and to advance Prerogative even above it self Secondly he reforms Goals as well in their number as their use During the Civil Wars every small party of men that could get a strong place made the same not onely a Castle but a Goal and usually imprisoned and ransomed at their own pleasure For remedy whereof Henry the Seventh restores all Goals to the Sheriffs saving such as hold by Inheritance and gives power to two Justices of the Peace one being of the Quorum to take Bail in cases bailable and Recognizances of the Peace to be certified at the next Sessions or Goal-delivery Thirdly both Kings concur in providing against such disorders as more immediately did trench upon the publick Peace and reached at the Crown it self by labouring to prevent by severe punishing and lastly by regulating the proceedings of Judicature in such cases These disorders were two inordinate wearing of Liveries and unlawful Assemblies The first being in nature of unlawful assembly of minds and spirits of men the second of their bodies and persons Both these had formerly been provided against but the Judges of the Common Law unto whose Cognizance these Crimâ— were holden did restrain their punishments to the rule of the Common Law then thought to be too facile and mean for disorders that did flie at so high a pitch and therefore they are reduced before a higher Tribunal as matter of State as hath been already mentioned The severity of punishment consisted not so much in aggravating the Pain as the Crime matters of injury being made Felonies and those Treasons This Crime of Treason at first it concerned matters acted against the Nation afterwards it reached to matters acted against the King now it reacheth even to the very thoughts and imaginations of the heart not onely of bodily harm to the King but of the Queen or their Heirs apparent or tending to deprive them of their Title of Name of Royal Estate This Crime was formerly made but Felony by Henry the Seventh and then onely extended to such offence committed by one of the Kings Houshold against the Person of the King or a Lord or any of the Council Steward Treasurer or Controller so as the Person of the Queen was not then in the case and yet then newly Crowned and at that instant bearing in her Womb the Royal Seed which was then the onely earnest of the stability and glory of England and therefore it is a subject of wonderment unless it were out of extremity of Jealousie lest he should seem to make too great account of her Title and thereby disparage his own And then is it a piece of wit but not without weakness for he that is jealous of the slightings of other men shews himself unresolved in his own pretensions Now Henry the Eighth not onely raised the price but added to the thing and not onely putteth the Queen but the Prince or Heir
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.
130 Torniament 63 Tunnage and Poundage 110 Trade 38 111 Treason 45 c. by Thoughts by Marriage and counterfeiture 149 150. tried where the King will 151. Petty Treason 55. W. WAles subdued by Henry the Fourth 69. Vnited to the English Crown by Henry the Eighth 141 War by advice of Parliament 58 102. Levying of men 59 103 145 167. Jurati obligati ad arma taken away 57. Arming of men ibid. 167. Conduct to their Rendezvouz 59. Running from their Colours ibid. 63 172. plunder satisfied 58. Their pay 103 148 169. Offensive and Defensive 167 Watches enquired into by Justices of the Peace 101 Wickliff 37 Wills probate 90 Witchcraft made Felony 150 174. FINIS Caes. com lib. 5. Tacit. Anal. 14. Amian lib. 15. Caes. com lib. 6. Tacit. Caes. com lib. 5. Lib. 6. Hieron Caes. com 6. Isa. 42. 4. 51. 5. 60. 9. 66. 19. Tertul. adv Judaeos Platina de vit Eleuthe Bedâ— l. 5. c. 25. Origen hom 4. Ezek. Psal. 2. 3. Tacit. Vit. Agric. Tacit. vit Agric. M. Westm. an 181. M. Westm. an 303. Cic Attic. 2. Concil Brit. 42. M. Westm. An. 446. Beda Lib. 1. cap. 17. Concil Brit. p. 49 62 382. Concil Brit. 385 Gildas Amian l. 16. Zossimus hist lib. 3. Amian lib. 28. 30. Suffrid Petrus Fris. antiquit lib. 3. cap. 1. Caes. Com. Histor. Germ. Plutarch vit Solon Lycurg Albinus Sax. 72. Xenophon Tacit. Emius Avent Anal. Bowr 1. 10. Beuter in Tac. 125 Amian Naucler 505. Greg. Epist. lib. 5. Epist. 59. Bed. hist. lib. 3. cap. 25. Bed. hist. lib. 1. cap. 23. Lib. 3. cap. 4. Bed. hist. lib. 1. cap. 27. Lib. 2. cap. 2. Greg. Epist. l. 7. Epist. 13. 7. Concil Brit. 92. Bed. hist. lib. 1. cap. 29. Bed. hist. lib. 1. cap. 25. Greg. Epist. lib. Epist. 59. 2 Thes. 2. Bed. hist. lib. 2. cap. 2. Concil Brit. fol. 111. Tacit. mor. Serm. Greg. Epist. ad Eulog Concil Brit. p. 258. An. 745. Mag. cent 3 cap. 7. Concil Brit. p. 190. An. 694. Ant. Brit. p. 55. Malmsb. lib. 1. cap. 2. Ant. Brit. p. 54. Ant. Brit. Concil Brit 133. Ant. Brit. 45. Ibid. 53. Concil Brit. 238 246 261. Mag. Cent. 7. cap. 7. Bed. hist. lib. 4. cap. 3. Concil Brit. 196. An. 697. Ibid. 329. An. 816. Conc. 8. gen Constant. can 14. Mag. cent 8. cap 9. Concil Brit. 128. An. 693. Ll. Sax. cap. 37. An. Aetheist cap. 11. Concil Brit Concil Brit. p. 197. An. 697. Concil Brit. p. 576. Concil Brit. p. 448. Ll. Aetheâ—st 13. Ibid. 406. Concil Brit. p. 273. Ll. Aethel c. 2. Ll. Canut c. 12. Mag. cent 8 cap. 9. Deacons Sub-deacons Acolites Exorcists Concil Brit. p. 54. Lecturers Ostiaries Concil Brit. 261. An. 750. M. Paris in vit Eadrick Abb. An. 1009. Concil Brit. 513. Ll. Aetheld 31. First-fruits Concil Brit. p. 185. An. 693. Concil Brit. p. 545. Tythes Concil Brit. p. 298. An. 787. Concil Brit. 259. Ingulfus Gest. pontif Lib. 2. cap. 2. An. 854. Concil Brit. p. 392. An. 905. Ibid. 527. An. 1009. Luminaries Concil Brit. p. 377. Ibid. 545. An. 1032. Plough-alms An. 905. An. 1009. Soul-shot Concil Brit. p. 571. An. 1009. Glebe Concil Brit. 260. An. 750. Peter-pence Concil Brit. p. 230. An. 725. Concil Brit. p. 311. An. 791. Ibid. 313. An. 847 Ibid. 6. 1. Vit. Offae 19. Concil Brit. p. 445. 545. Concil Brit. p. 621. Fox Maryâ— p. 340. Brit. Ant. p. 18. Malms gest Reg. lib. 1. c. 4. Bed. hist. lib. 1. cap. 29. Malmsb. loco citat Vit. Offae Malmsb. Concil Brit. 133. Antiq. Brit. Antiq. Brit. p. 54. M. Westm. An. 775. Ll. Edw. conf cap. 31. Lindwood l. 1. de constit c. 1. Malmesh gest pontif lib. 3. fo 263. Baronius An. 930. Malmesb. gest pontif lib. 3. p. 263. An. 680. Concil Brit. p. 191. 310. 318. Ibid. 316. 318 387. Concil Brit. 245. 317 387. M. Westm. An. 955. 958. Concil Brit. 479. Ibid. 337. Ibid. 319. 332. Concil Brit. p. 334. Mag. cent 8. cap. 9. Heresie An. 446. Beda hist. l. 1. Blasphemy Concil Brit. p. 341. An. 840. Apostacy An. 314. Concil Brit. 41. Ibid. 367. False Worship Canon Apost cap. 10. Bed. hist. lib. 3. cap. 26. Mag. Cent. 7. cap. 6. Concil Brit. p. 306. Tacit. Mor. Germ. Concil Brit. 246. An. 745. Ibid. 377. Ibid. 405. An. 928. Perjury Ll. Sax. fol. 4. An. 9 28. Sacriledge Concil Brit. p. 127. An. 610. Ibid. 265. Simony Concil Brit. 163. Matrimonial Causes Beda hist. l. 1. cap. 27. Concil Brit. 219. Concil Brit. p. 427. An. 944. Bastardy Incest Concil Brit. p. 392. An. 905. Adultery Fornication Concil Brit. p. 558. Tythes Synod Durien cap. 7. An. 785. Rabban Epist. ad Hadubrand Concil Brit. p. 277. Concil Brit. p. 254. An. 747. Malmesb. gest pontif lib. 3. An. 680. Bonis epist. ad Cutbertum An. 745. Concil Brit. p 379. Concil Brit. p. 248 253. An. 747. Cantab. 10. 200 263. Witik in gest Saxon. lib. 1. M. Westm. An. 672. M. Westm. An. 912 919. Tacit. Cragius Mag. cent 8. cap. 2. An. 747. Tacitus Tacitus Concil Brit. p. 397. Ll. Inae Lamb. Miror cap. 1. Sect. 1. Wigorn. An. 1016. Tacitus Ll. Sax. Ed. cap. 17. M. Westm. An. 756. 758. Wigorn. An. 755. Concil Brit. 340. Tacitus Tacitus Mir. 101. 298. Ll. Edw. c. 4. Malmesb. gest pontif lib. 3. gest Reg. lib. 1 cap. 4. M. Paris An. 1095. Concil Brit. p. 614. An. 1066. Canâ—â— cap. 67. Ll. Edw. cap. 35. Nitard lib. 4. Tacitus Tacitus Tacitus Miror cap. 5. Sec. 1. Concil Brit. p. 333. M. Westm. An. 854. Caes. Com. lib. 6. Tacitus Lamb. in 4. fol. 72. Tacitus Tacitus Tacitus Malmesb. gest Reg. lib. 2. cap. 9. Lib. 5. An. 978. Tacitus Tacitus Concil Brit. 126. Ll. Sax. Lamb. Cantab. fol. 2. Ibid. fol. 22. Ibid. fol. 53. Concil Brit. p. 219. Ll. Lamb. Cantab. fol. 36. Ll. Edw. Lamb. Cant. fol. 139. Antiq. Brit. p. 51. Concil Brit. 127. Ibid. 321. Ibid. 332. Cap. 1. Sec. 3. Sec. 2. Cap. 4. Sec. 11. Tacitus Plut. Lycurg Thucyd. lib. 1. de Lacedem Tacitus An. 1158. Concil Brit. p. 127. Ll Canut p. 2. cap. 79. Ll. Ed. cap. 35. Ll. Sax. Lamb. p. 1. Concil Brit. 219. Ingulfus Mag. cent 8. cap. 9. An. 712. Concil Brit. p. 189. An. 694. Tacitus Ll. Ed. cap. 35. Tacitus Ll. Sax. Lamb. Cantab. 10. Concil Brit. p. 528. An. 1009. Tacitus Ll. Ed. cap. 35. Ll. Canut c. 58. Seld. Tit. Hon. M. Westm. An. 794. Sheriffs Ll. Edw. c. 35. Coroners Miror cap. 1. Sect. 13. Miror p. 300. Fitz N. Br. 163 164. Folkmote or County-court Miror p. 147. Ll. Canut Miror cap. 1. Sec. 15. Miror cap. 5. Sec. 1. Ll. Canut Ll. Edgar Concil Brit. p. 197. tit 22. Ll. Edw. cap. 35. Ll. Edw. cap. 35. Ll. Edw. cap. 4. Sheriffs Torne Miror cap. 1. Sec. 16. Ll. Edgar cap. 5. Ll. Edw. cap. 35. Ll. Canut p. 2. cap. 17. Tacitus Cluer lib. 1. cap. 19. Malmesb. Reg. gest p. 54. Ll.
an issue of the Neighbouring Nations from the German and Belgick shores induced hereto partly by the vicinity of the Names of he People Cities or Towns and Places but more of their Manners and Customs both in Religion and Civil Government Barbarians they were and so esteemed by the Romans that were but refined Barbarians themselves and yet they worshipped an Invisible Infinite Omnipotent God by Sacrifices but the greatest part of their reverence fell short and rested upon their Priests whom they accounted the only Secretaries that God had on earth feared their interdict worse than death itself and in these times of uttermost darkness held them forth to neighbouring Nations to instruct them into an higher excellency than that of brutish men In their civil Government they allowed preeminence of their Magistrates rather than Supremacy and had many chiefs in a little room the Romans called them little Kings for the greater renown of their Empire But others of more sobriety account them no better than Lords Of liberties not much exceeding those of a City and these though in time of peace independant upon each other yea perpetual Enemies yet in time of Forreign War joyned together to chuse one Head to command them all according to the custom of the Germans as Caesar noteth But that which yet cleareth the matter is the testimony of Dion in the Life of Severus the Emperour who expresly saith That in Britain the People held the Helm of Government in their own power So as these were not Kings nor their Government Monarchical and yet might be regular enough considering the rudeness that in those days overspread the world True it is that by a holy man this Nation was in latter times of Barbarism called Tyrannorum gens the word being taken mitiori sensu or from a common repute of excessive cruelty or oppression by Superiours As touching their Cruelty I find no footsteps in story Somewhat reflecteth upon their Sacrifices as if they offered Mans flesh but that was common to the Gauls who borrowed their Religion from Britain and it might be founded rather upon an error in judgment than savageness of nature Much less cause doth appear of any cry of oppression upon inferiours but rather against that as the multitude of Kings or Lords do manifestly witness who being observed in the time of Julius Caesar continued in Tiberius his time and afterwards until in the Reign of Claudius 't is said that Caractacus ruled over many Nations For it is a certain Maxim that though great Nations may be upholden by power small Territories must be maintained by justice without which the door will be soon set open to the next passenger that comes especially where the people are bent to war as these were and therein had attained such exquisite perfection of skill in Chariot-service as must needs convince us of their much experience against themselves in regard that to other people it was scarce known no nor yet to Caesar himself that had been practised in the Wars of all Nations And this is all that I can produce out of story touching the Government of Britain before the entry of that light that lightneth every one that cometh into the world CHAP. II. Concerning the Conversion of the BRITONS unto the Faith. IT was long before the Son of God was inwombed and whiles as yet Providence seemed to close only with the Jewish Nation and to hover over it as a choice picked place from all the earth that with a gracious eye surveying the forsaken condition of other Nations it glanced upon this Island both thoughts and words reflected on Isles Isles of the Gentiles Isles afar off as if amongst them the Lord of all the earth had found out one place that should be to him as the Gemme of the ring of this Terrestrial Globe and if the ways of future providence may be looked upon as a gloss of those Prophecies we must confess that this Island was conceived in the womb thereof long before it was manifested to the world To recover the forgotten ways of past providence is no less difficult than to search out the hidden bowels of future promises and therefore I shall not busie my self to find out the particular instruments that brought Gods presence into this dark corner but only glance at the time and manner that it may appear we were not forgotten nor yet lost or least in mind at that time of the dispensation of this grace unto all men I dare not instance as Gildas the certain time of six years yet I may say that no sooner was the Scepter departed from Judah but with a swift pace both it and the Law-giver came hither like an Arrow flying through other Countries but sticking with a ne plus ultra in this Island then a People rather than a Commonwealth as if we were the onely White that then was in God's aim It 's probable in the highest degree that the work was done within the first Century and very nigh about the Apostolick times for that in the second Century Britain was a Church of Fame and known to the Fathers that dwelt afar off even to Tertullian and Origen and in short time had outreached the Roman confines in that Island which had cost them above two Hundred years Travel and was grown to the state of the first Christian Kingdom that ever was Unto which if we shall allow time for the gathering and growth thereof unto this Royal pitch proportionable to the half of that which afterward was spent in the like work upon the Saxon and Danish Kings we must in reason conclude that the work was first ordered by Apostolical direction or some of their Emissaries Customs also do not obscurely declare Ages For before that Pius Bishop of Rome began to speak in the big Language of Decrees it was indifferent to keep Easter either upon the day observed by the Roman Church or on the day according to the Jews custom and although the Roman Church began within fifty years after the death of John the Evangelist to stickle to impose their custom upon other Churches yet the Church of Britain conformed not to that course by the space of five Hundred years after that time which reflecteth probability that the Church was there setled in times of indifferency not by Roman Order but by some other purposed Messenger The manner yet is more remarkable for that not onely Principalities and Powers and Spiritual Wickednesses in high places which are but Stumbling-blocks but also natural wisdom of the Druides who were Masters of the Consciences of the Britons and their high conceit of their excellency above the ordinary strain of men and unto which the Cross of Christ is meer foolishness and above all the deep obligement of the People unto these their Rabbies in a Devotion beyond the reach of other Nations All these I say stood in the way and rendred the people
set this consideration aside as not co-incident at all with the Norman engagements after they were crowned and to take all the subsequent Wars to be meerly defensive of the right of the Crown as in sober construction they will appear to be as touching the levying of money 't is evident that it lay onely in the power of the grand Council of the Kingdom for otherwise the Laws were setled that no Tax should be made or taken but such as were due in the Confessor's time as formerly hath been shewed Secondly for the preparing of men and munition it was done either by Tenure or by special Law. As touching Tenure it was provided by way of contract that those that held by Knight-service should be ready with their Arms to assist the King for the defence of the Realm So as they were not bound by their Tenure to aid him in any other cases Others were also by especial Law of the Land bound to be ready for their service in that kind For all the Inhabitants of this Kingdom held their Estates under a general service which by common right they are bound to perform viz. in time of danger to joyn in defence of their Country This is the common Fealty or Allegiance which all men owe and which if neglected or refused renders the party guilty of Treason against his Country and his Estate under the penalty of forfeiture according to the old Saxon Law revived and declared by Henry the first Thus the Law made preparation for the War both of Men and Arms. Castles and Forts were likewise either first made by the order of the grand Council or otherwise allowed by them for the defence of the Commons and the Kingdom so was the Law of William the first The levying and managing of the War must not be denied de jure to belong to the representative body so far as may consist with the directory part for that it is a main part of the Government of the Kingdom in times of War And therefore Henry the first amongst his Laws made in the ordinary course of Law-making provideth for the ordering of men in the Army in the field and established a Law that such as forsook their Colours or Associates in the field during the Battle should be punished with death and forfeiture of his whole Estate Nor yet can it be denied but that de facto Kings of their own accord and by secret Council did direct therein either in the vacancy of Parliament which was the general case of the first times of the Norman Conquerour and the whole Reign of William Rufus or by connivance of the grand Council while they saw nothing done but what was well done Nor can it be rationally said that Kings by such advice as they have in the recess of the grand Council levying War in defence of the publick according to rules do otherwise than their duty or if the grand Council look on see nothing misgoverned and say nothing that they do other than is meet For it must be remembred that Kings in their first original were rather Officers for War than Peace and so are holden by all Antiquity and as Generals in War were called Reges or Imperatores by the Grecians Romans and Germans And at such times as War was concluded at the general meeting of the people they chose their Dux or Rex call him which you please and he being chosen all bound themselves to be at his command and to defend his person So as while a King keepeth within his place in time of danger it is his duty first to stir himself and stir up the rest to lead them and order them as may be most for the publick defence and to govern the Army by such Laws as are or shall be established by order of the publick Meeting and in case of sudden exigencies to use his own wits and in all this is the common liberty no whit infringed in regard that all is for the publick defence to which the Knights are bound by their Tenures and all others by the Law. And this was this Kingdoms case in the Normans time that both Leaders and Souldiers whether by election of the people or prescription yet all served for the defence of the Kingdom Nor were they compellable to any other service inconsistent therewith nor to stand to any judgement in such cases differing from or contrary to that of the Parliament it self CHAP. LV. That the entry of the Normans into this Island could not be by Conquest THat in point of fact the entry of the Normans into England was not by Conquest will sufficiently appear from what hath been already noted I shall make one step further and shew that as affairs then stood with the Conquerour it was impossible for him to merit that name against the stream of Providence that had pre-engaged him to three sorts of men viz. the Normans the Clergie and the Commons of England It must be taken for a ground that Duke William must give all fair correspondency to the Normans considering they are Members of his own Body and the Arm of his Strength without which he could do nothing And it is not less certain that however the Sea divided the two Countries yet long before the arrival of the Army the Normans and Saxons were so well acquainted by the latter access of the Danes that partly by marriage and other interests the Normans made so great a party in England as that party merited no less from the Duke in his entrance than those he brought with him And therefore both they and their Allies in all reason must expect such reward of their faithfulness to him as the other had nor could the Duke deny the same unless he had disclaimed his own interests whereof he had none to spare Secondly their merit from the Duke was accompanied with no less mutual relation to his Army being of the same blood with themselves and of ancient acquaintance and as impossible it was for the Duke to keep them from consociation with the mixed people as to abstract the mixed people each from other one or both of which must be done and the Conquerours must be kept from incorporating with the conquered or else the Law of Conquest cannot hold Thirdly if these two had failed yet had the Duke by his manner of rewarding his Army disabled himself from holding however he might seem to have by conquest Thus was his gift of Mannors Lands and Franchises unto his Souldiers compleated with their ancient Rights and Priviledges in free service otherwise it had been little better than a Trap to bring his own men into bondage who lately were free Souldiers under no better than a Duke of their own election And their Government in their own Country however big yet had not brought forth a Soveraignty into the World their Duke no compleat King nor themselves so mean as Vassals and it was equally difficult for him to get
Franchises were sometimes in the Saxon more generally in the Latine but seldom or never in the Norman Dialect and that Pleadings and Indictments were entred in like manner in the Latine Tongue as formerly by an old custom brought in by the Clergie was used for the Clergie who had gotten the Key of Knowledge and Law into their own custody laid it up it that Language whereof the Commons had little knowledge that they might thereby be enforced to depend upon these men for Justice as well as for Piety The Normans therefore either found it too hard to alter the former custom in such cases or else thought it the wisest way to chuse the Latine as a third Language indifferent as well to the Normans as Saxons and best understood of any foreign Tongue besides and yet endeavoured to bring both Peoples into one Language as they were intended to be one People and to press the use of the Norman Tongue in publick affairs so far as might consist with good Government and Justice leaving time and occasion to work the issue which doubtless was much and had been more had the Norman Race continued in the Throne But falling out otherwise the English bloud prevailed in the head and the Language continued possession mixed onely with some Norman words as the people also were a mixed people So as the Language was not changed though it was altered Lastly it is affirmed that the Normans did impose a new custom called Coverfeu and it is thought by some to be a meer Vassalage that every man at the noise of the Bell every night must put out both Fire and Candle and yet it is a matter of so small concernment that being in its own nature convenient Scotland received it without such coercion and it can be reputed for no other than a seasonable advice which any Corporation in time of danger might order within their own Precinct without transgressing the Liberty of the Subjects Of less consequence is that change which is alledged was brought in by the Normans in the sealing of Deeds of Conveyance by setting a print upon Wax annexed to the Deed which formerly was wont to be by setting a print upon the blank at the end of the Deed and yet it is looked upon by some as a Trophy of Conquest or absolute Government Concerning which I will not dispute whether the Normans first brought in this course but shall rest in this That the King being about to compleat the unity of the Laws in the superstructure as well as in the fundamentals if herein and in some other particulars the English submitted to the Normans they likewise stooped to the English Law in other things And therefore such Concurrences ought not to be imputed unto a conquering power but unto moderation amongst a company of wise men Thus having glanced at the changes of Property Laws Tenures Language and some Customs we come to that which is the main occasion of all these Complaints I mean unlawful Taxes Afforrestings and other such Oppressions upon the Estates of the People concerning which I purpose not to contend for much thereof is like to be true The Norman Kings especially the two Williams were under continual occasion of Expence many Wars more Provocations which kept them ever in Action and that wrought their spirits into an immoderate heat little inferiour unto Rage and so they might soon out-reach their bounds and sit heavie on the People and in such occasions no man escaped Norman nor English Clergie-man nor Lay-man nor did the Kings themselves come off such gainers but that they might sometimes put up their gettings into their own eyes and see never a whit the worse And yet to do them right they were not always of such sad influence but had their lucida intervalla especially he that had the least cause I mean the Conquerour who certainly was a man of a serious regard and did not onely remit sometimes his Rigour in exacting where he ought not but also forbear to require that which he had some colour to demand For whereas the Dane-guelt was left unto him in the nature of an Annuity he was contented to turn it into a sum in gross and to demand it onely Cum ab exteris gentibus bella vel opiniones bellorum insurgebant and it was then done consultis magnatibus These things thus considered might have mollified somewhat the Pens of angry Writers and where they fail may be caution to Readers to consider occasions and dispositions of Princes and so long as Laws hold in Title to construe the irregularities of Princes to be but as steps out of the path to avoid a little dirt that a man may get home the more cleanly and therefore rightly can derive no other Title of absolute Soveraignty to their successours than to hold by infirmity And thus the Government under the Normans at the worst was but like that of childhood following sudden and present desires not wise enough to plot for absolute Monarchy nor to keep off a Polity which still rooted underneath though the fruit while it was now green was harsh and unpleasant I shall conclude this Norman Discourse with this Advertisement That notwithstanding the words Conquerour and Conquest have often fallen from my Pen and hereafter may do the like yet can I see no reason why divers succeeding Kings coming to the Crown by argument of the Sword and not by right of Descent may not deserve the Laurel as well as the first Norman King onely because Fame hath fancied him that Title under a kind of prescription I do the like CHAP. LVII Of the Government during the Reigns of Steven Henry the 2. Richard the 1. and John. And first of their Titles to the Crown and dispositions in Government I Have cut out this Portion of One hundred twenty and five years containing the Reigns of these Kings apart from their Successours in regard of their Titles all of them being under one general Climate and breathing one air of Election and Compact between them and the People Now was the Issue male of the Stock of Normandy quite wasted I mean in relation to succession by inheritance for although it was the lot of Henry the first to have many Children yet it was not his happiness to have many Lineal nor to hold what he had nor of them all was there left above one that might pretend to the Crown and it a Daughter who was the great Grandmother to all the succeeding Kings till this day Onely King Steven like an unruly Ghost coming in upon the Stage troubled the Play during his time This Daughter of Henry the first was married to the Emperour Henry the fourth and surviving him was in her Father's life-time acknowledged to be his Heir the Sea having formerly swallowed up the remainder of his hope Unto her the Lords sware Fealty as to the next Successour in the Throne after the decease of her Father being led thereto by the
because the Ecclesiastical Judge for the most part favoured them As an expedient to all which this Law was made and so the Clergy was still left to their Clergy and Justice done upon such as sought their bloud Clergy-men shall not be holden to trial by Battle It was an ancient Law of the Saxons and either by neglect worn out of use or by the valour of the Clergie laid aside as resolving rather to adventure their own bloud than to end their quarrel before the Lay-Judge by Plea but grown weary of that course and likely also put hard to the pinch upon Complaints made by them against Clerk-slayers they are fain to have recourse to their ancient Priviledge Hitherto therefore it is manifest the Clergie were in their growing condition notwithstanding the policy and power of Henry the second who was the Paragon of that age After him reigned Richard the first that must expiate his disobedience to his Father by obedience to his ghostly Father the Pope in undertaking the holy War and being gone left the Government in his absence so deeply intrusted to the Clergy as they could lose nothing of what they had gained unless they would and might have gained much more than they did or should had not the Bishop that was the overseer of the whole Kingdom been drunken with vanity and spued out his own shame However the success was it was not contrary to the principles of those times for Richard had experience in the Emperour Frederick and his Father's example that the Pope and Clergie were too hard for all the Potentates in Europe and therefore might most safely trust them with all he had at home whilst he was in their service abroad Nor were they short of what was intrusted to them but stuck close for the maintenance of his right to the Crown and emptied themselves even to the very consecrated Vessels and procured the Laity of all sorts to do the like to save the Kingdom from the rape of strangers and usurpers who esteemed the King dead in Law and as one buried alive Thus passed they to King John the Government supposing themselves well enough assured of what they had gotten by their several atchievements had under the Reigns of three several Kings successively And King John might well enough have understood the times if he had seriously considered them but being heightned all his life-time with lawless Government wherein he was trained up in Ireland he knew not how to stoop till he stooped so low as the Legat's Knee and his Crown at the Pope's Foot leaving an example to posterity to beware of striving with the Clergie If then these sparks of ambition were so violent being alone certainly in their joynt consultations much more They had long striven now since the Conquest to have excluded the Laity from their Synods and about these days effected it And yet about Henry the second 's time it may be supposed the thing either was not yet done or so lately that the Law was not clear in that point for Petrus Blecensis who was Arch-deacon of Bath about those times in his Epistle to the Arch-bishop of York concerning the restraint of the growing Sect of the Publicans he adviseth in these words Accipite clerum congregate populum ex eorum communi deliberatione qui Spiritum Domini habent terribilis constitutio promulgetur c. And if the Historian doth not mistake the proceedings against that Sect being onely for errours in Religion was in a Council of Bishops and Lords Nevertheless whether present or absent the Laity sate there as Cyphers making the number great but not valuable by themselves For even in the Norman times they were brought so low as the Constitution made by the Clergie wrought more upon them than civility it self can work upon professors of Religion in these days For it seems excess of long Hair was grown to that measure that the Synod cried out against it and decreed that men should cut their Hair so as their Eyes and laps of their Ears might be seen and the King himself I mean Henry the first submitted to this cut and made all his Knights to do the like and exposed themselves to the then-odious by-names of Clowns or Priests like to the round-heads of these days who formerly marched under the title of Criniti or Ruffians This did but touch the Hair but they went to the quick when they decreed that Lords should not sell their Villains and that Outlawries should pass in certain particular cases as in the Constitutions of Archbishop Anselm may appear Afterwards in these Kings times they flew at the Throat of the Government got all places of honour or profit or power whether for Peace or War under their gripe deposed and advanced as they pleased even to the Royal Throne it self and that not onely out of a sudden passion of State but advisedly concluded for a maxime That the election of the King belonged to them as in the case of the election of Maude the Empress they did hold forth to all the World and in which the King also then flattered them as holding their Election so necessary that he kept the whole Synod in duress to have their votes for the election of his Son to be his Successor CHAP. LX. Of the English Commonalty since the Normans time THe dignity of the English Crown thus deflowred by the great men was no loss to the Common people For as in all decays of Monarchy the great men get nothing if they please not the people so the King can hold nothing if they be not contented And yet contented or not contented they could not gain much for as affairs stood then in the Christian world the Politicians discourse of three kinds of Government proved idle neither could Monarchy Aristocracy nor Democracy attain any semblable condition in any place so long as the Church held its design apart and prevailed to have the greatest share in all not now by the favour either of great or small but by a pretended divine right through which they now had gotten to their full pitch of Lordship in the Consciences of men It must be acknowledged that this was a distemper in Government yet such it was as kept humours low and restrained the inordinate excesses that in all kinds of Government are subject to break forth so as neither King nor Lords nor People could swell into larger proportion than would suit with the ends of the Church-men But to mind the matter in hand somewhat the Commons gained in these stormy times The Taxes that they were charged with were rather perswaded than imposed upon them and generally they were sparing in that work and it is noted for the honour of King Steven that though he was seldom without War yet he not onely never charged the people with any Tax but released that of Dane-gelt and acquitted the Subject for ever of that Tax which former Kings challenged as their right all
which shew him to be a brave King if he was not a very rich man. Henry the second was more heavy because he had more to do yet find we but one assessment which was Escuage unless for the holy War which was more the Clergy-mens than his Richard was yet a greater burthen his Reign was troublesome to him and he deserved it for from the beginning thereof to the ending could never the guilt of his disobedience to his Father be blotted out but it was more troublesome to the people because it cost so much treasure was managed by such ill Governours except the Archbishop of Canterbury and was unsuccessful in most of his undertakings yet never invaded the liberties of the Commons by any face of Prerogative But what wanted in him was made compleat and running over in his Successor John who to speak in the most moderate sence of his Government being given over to himself when he was not himself robbed the Lords of their authority bereaved the Church of its Rights trod under foot the Liberties of the people wasted his own Prerogative and having brought all things into despair comes a desperate cure the head is cut off to save the body and a president left for them that list to take it up in future ages And thus that which Steven gave Henry the second lost Richard the first would not regain and John could not and so all were gainers but the Crown CHAP. LXI Of Judicature the Courts and their Judges IT is no silent argument that the Commons gain where Laws grow into course and it was the lot of these troublesome times to lay a foundation of a constant Government such as all men might learn which formerly was laid up onely in the breasts of wise experienced men The two most considerable points in Government is the Law and the Execution the latter being the life of the former and that of the Common-wealth I say not that the Law was augmented in the body of it or that the Execution had a freer course than in the best of the former times but both were more and more cleared to the world in many particulars as well touching matters concerning practice of the Law as touching rules of righteousness For the first whereof we are beholding to Glanvil in Henry the second 's time and for the latter to King John or rather the Barons in his time in the publishing of the Grand Charter or an enumeration of the Liberties or Customes of the people derived from the Saxons revived continued and confirmed by the Normans and their Successors which for the present I shall leave in lance dubio to stand or fall till occasion shall be of clearing the point in regard that King John soon repented of his Oath the Bond of his consent and to heal the Wound got the Pope's pardon and blessing thereupon so easie a thing it was for a Son of the Roman Church to pass for a good Catholick in an unrighteous way The execution of the Law was done in several Courts according to the several kinds of affairs whereof some concerned matters of Crime and Penalty and this touched the King's honour and safety of the persons of himself and his Subjects and therefore are said to be contra coronam dignitatem c. The second sort concern the profits of the Crown or treasure of the Kingdom The third concern the safety of the Estates of the people These three works were appointed unto three several Courts who had their several Judges especially appointed to that work Originally they were in one viz. in the supream Court of Judicature the Court of Lords whereof formerly was spoken but after through increase of affairs by them deputed or committed to the care of several men that were men of skill in such affairs and yet retained the Supremacy in all such cases still And because that which concerned the publick Treasure was of more publick regard than the other the deputation thereof was committed probably to some of their own members who in those days were Barons of the Realm and afterwards retained the Title but not the Degree and therefore were called for distinction-sake Barons of the Exchequer The particular times of these deputations appear not clearly out of any monument of antiquity nevertheless it is clear to me that it was before Henry the second 's time as well because Henry the first had his Judex fiscalis as Glanvil so frequently toucheth upon the King's Court of Pleas which cannot be intended at the Court of Lords for that in those days was never summoned but in time of Parliament or some other special occasion But more principally because the Historian speaking of the Judges itinerant reciteth some to be of the Common-pleas which sheweth that there was in those days a distinction of Jurisdiction in Judicatures And it may very well be conceived that this distinction of Judicature was by advice of the Parliament after that the Grand Council of Lords was laid aside by Kings and a Privy-Council taken up unto whom could not regularly belong any juridical power because that remained originally in the grand assembly of the Lords Over these Courts or two of them one man had the prime Title of Chief Justice who then was called Lord Chief Justice of England and whose office was much of the nature of the King's Lieutenant in all causes and places as well in War as Peace and sometimes was appointed to one part of the Kingdom and by reason thereof had the name onely of that part and some other of the other parts The greatness of this Office was such as the man for necessity of state was continually resident at the Court and by this means the King's Court was much attended by all sorts of persons which proved in after-times as grievous the King as it was burthensome to the people Other Judges there were which were chosen for their learning and experience most of them being of the Clergie as were also the under-Officers of those Courts for those times were Romes hour and the power of darkness Other Courts also were in the Country and were Vicontiel or Courts of Sheriffs and Lords of Hundreds and Corporations and Lordships as formerly and these were setled in some place But others there were which were itinerant over which certain Judges presided which were elected by the Grand-Council of Lords and sent by Commission from King Henry the second throughout the Kingdom then divided into Six Circuits unto each of which was assigned Three Justices so as the whole number of Justices then was Eighteen The office was before the coming of the Saxons over hither but the assignation was new as also was their Oath for they were sworn But the number continued not long for within four years the King re-divided the Land into four Circuits and unto each Circuit assigned five Justices making in the whole the number of Twenty and one Justices for the Northern
saith That he will set down frequentius usitata and it is past question but that the tryal by twelve men was much more ancient as hath been already noted One thing more yet remaineth concerning the Widow of the Tenant whose Dower is not onely provided for but her reasonable part of her Husband 's personal Estate The original hereof was from the Normans and it was as popular as that of Wardships was Regal and so they made the English women as sure to them as they were sure of their Children The Justices shall by Assize try Disseisins done since the King 's coming over Sea next after the peace made between him and his Son. This is called the Assize of Novel disseisin or of disseisins lately made It seems that the limitation was set for the Justices sake who now were appointed to that work which formerly belonged to the County-courts and to prevent intrenchments of Courts a limitation was determined although the copy seemeth to be mistaken for the limitation in the Writ is from the King 's last Voyage or going into Normandy Justices shall do right upon the King 's Writ for half a Knights Fee and under unless in cases of difficulty which are to be referred to the King. The Justices itinerant ended the smaller matters in their Circuits the other were reserved to the King in his Bench. Justices shall enquire of Escheats Lands Churches and Women in the King's gift And of Castle-guard who how much and where So as the Judges itinerant had the work of Escheators and made their Circuits serve as well for the King's profit as justice to the Subjects They used also to take Fealty of the people to the King at one certain time of the year and to demand Homage also These matters of the King's Exchequer made the presence of the Judges less acceptable and it may be occasioned some kind of oppression And as touching Castle-guard it was a Tenure in great use in these bloody times and yet it seemeth they used to take Rent instead of the personal service else had that enquiry how much been improper Of a Tenants holding and of several Lords That one man may hold several Lands of several Lords and so owe service to them all is so common as nothing can be more nevertheless it will not be altogether out of the way to touch somewhat upon the nature of this mutual relation between Lord and Tenant in general that the true nature of the diversity may more fully appear The foundation or subject of service was a piece of Land or other Tenement at the first given by the Lord to the Tenant in affirmance of a stipulation between them presupposed by the giving and receiving whereof the Tenant undertook to peform service to the Lord and the Lord undertook protection of the Tenant in his right to that Tenement The service was first by service solemnly bound either by Oath which the Lord or his Deputy by the Common-Law hath power to administer as in the case of Fealty in which the Tenant bound himself to be true to the honour and safety of his Lords person and to perform the service due to the Lord for the Tenement so given or otherwise by the Tenants humble acknowledgment and promise not only to perform the services due but even to be devoted to the Lords service to honour him and to adventure limb and life and be true and faithful to the Lord. This is called Homage from those words I become your man Sir and yet promiseth upon the matter no more but fealty in a deeper complement albeit there be difference in the adjuncts belonging to eách For though it be true that by promise of being the Lord's man a general service may seem to be implied yet in regard that it is upon occasion only of that present Tenure it seemeth to me that it is to be restrained only to those particular services which belong to that Tenement and therefore if that Tenement be holden in Socage although the Tenant be bound to homage yet that homage ties not the Tenant to the service of a Knight nor contrarily doth the homage of a Tenant in Knight-service tie him to that of Socage upon the command of his Lord though he professeth himself to be his man. Nor doth the Tenant's homage bind him against all men nor ad semper for in case he holdeth of two or divers Lords by homage for several Tenements and these two Lords be in War one against the other the Tenant must serve his chief Lord of whom the Capital house is holden or that Lord which was his by priority who may be called the chief Lord because having first received homage he received it absolutely from his Tenant with a saving of the Tenant's Faith made to other Lords and to the King who in order to the publick had power to command a Tenant into War against his own Lord. If therefore he be commanded by the King in such cases unto War he need not question the point of forfeiture but if he be commanded by a chief of his other Lords into War against a party in which another of his Lords is engaged his safest way is to enter upon the work because of his Allegiance to that Lord yet with a salvo of his fealty to that other Lord. But in all ordinary cases Tenants and Lords must have regard to their stipulation for otherwise if either break the other is discharged for ever and if the fault be in the Tenant his Tenement escheats to his Lord and if the Lord fail he loses his Tenure and the Tenant might thenceforth disclaim and hold over for ever Nevertheless the Lords had two Priviledges by common custom belonging to their Tenures which although not mentioned in the stipulation were yet more valuable than all the rest the one concerning matter of profit the other of power That of profit consisted in aids and relief The aids were of three kinds one to make the Lords eldest Son Knight the other to marry his eldest Daughter the third to help him to pay a relief to his Lord Paramount which in my opinion sounds as much as if the Tenants were bound by their Tenures to aid their Lord in all cases of extraordinary charge saving that the Lord could not distrain his Tenant for aid to his War and this according to the Lords discretion for Glanvil saith that the Law determined nothing concerning the quantity or value of these aids These were the Norman ways and savoured so much of Lordship that within that age they were regulated But that of reliefs was an ancient sacrifice as of first-fruits of the Tenement to the Lord in memorial of the first Lords favour in conferring that Tenement and it was first setled in the Saxons time The Lords Priviledge of power extended so far as to distrain his Tenants into his own Court to answer to himself in all causes that concerned his
right and so the Lord became both Judge and Party which was soon felt and prevented as shall appear hereafter Another priviledge of the Lords power was over the Tenants Heir after the Tenants death in the disposing of the Body during the minority and marriage of the same As touching the disposing of the Body the Lord either retained the same in his own power or committed the same to others and this was done either pleno jure or rendring an account As concerning the marriage of the Females that are Heirs or so apparent the Parents in their life-time cannot marry them without the Lords consent nor may they marry themselves after their Parents death without the same and the Lords are bound to give their consent unless they can shew cause to the contrary The like also of the Tenants Widows that have any Dowry in the Lands of such Tenure And by such-like means as these the power of the Barons grew to that height that in the lump it was too massie both for Prince and Commons Of the power of the last Will. It is a received opinion that at the common-Law no man could devise his Lands by his last Will. If thereby it be conceived to be against common reason I shall not touch that but if against custom of the ancient times I must suspend my concurrence therewith until those ancient times be defined for as yet I find no testimony sufficient to assert that opinion but rather that the times hitherto had a sacred opinion of the last Will as of the most serious sincere and advised declaration of the most inward desires of a man which was the main thing looked unto in all Conveyances Voluntas donatoris de caetero observetur And therefore nothing was more ordinary than for Kings in these times as much as in them did lie to dispose of their Crowns by their last Will. Thus King John appointed Henry the Third his Successour and Richard the first devised the Crown to King John and Henry the first gave all his Lands to his Daughter and William the Conqueror by his last Will gave Normandy to Robert England to William and to Henry his Mothers Lands If then these things of greatest moment under Heaven were ordinarily disposed by the last Will was it then probable that the smaller Free-holds should be of too high esteem to be credited to such Conveyances I would not be mistaken as if I thought that Crowns and Empires were at the disposal of the last Will of the possessor nor do I think that either they were thus in this Kingdom or that there is any reason that can patronize that opinion yet it will be apparent that Kings had no sleight conceit of the last Will and knew no such infirmity in that manner of conveyance as is pretended or else would they never have spent that little breath left them in vain I have observed the words of Glanvil concerning this point and I cannot find that he positively denyeth all conveyance of Land by Will but only in case of disherison the ground whereof is because it is contrary to the conveyance of the Law and yet in that case also alloweth of a disposing power by consent of the Heir which could never make good conveyance if the Will in that case were absolutely void and therefore his Authority lies not in the way Nor doth the particular customs of places discountenance but rather advance this opinion for if devises of Lands were incident to the Tenure in Gavel-kind and that so general in old time as also to the burgage Tenures which were the rules of Corporations and Cities Vbi Leges Angliae deperiri non possunt nec defraudari nec violari how can it be said contrary to the common Law And therefore those Conveyances of Lands by last Will that were in and after these times holden in use seem to me rather remnants of the more general custom wasted by positive Laws than particular customs growing up against the common rule It is true that the Clergy put a power into the Pope to alter the Law as touching themselves in some cases for Roger Arch-bishop of York procured a faculty from the Pope to ordain that no Ecclesiastical persons Will should be good unless made in health and not lying in extremity and that in such cases the Arch-bishop should possess himself of all such parties goods but as it lasted not long so was himself made a president in the case for being overtaken with death e're he was provided he made his Will in his sickness and Henry the Second possessed himself of his Estate And it is as true that Feme coverts in these days could make no Will of their reasonable part because by the Saxon Law it belonged joyntly to the Children Nor could Vsurers continuing in that course at the time of their death make their Will because their personal Estate belonged to the King after their death and their Lands to their Lords by escheat although before death they lie open to no censure of Law but this was by an especial Law made since the Conquerour's time for by the Saxon-Law they were reputed as Out-Laws Nevertheless all these do but strengthen the general rule viz. That regularly the last Will was holden in the general a good conveyance in Law. If the Will were only intended and not perfected or no Will was made then the Lands passed by descent and the goods held course according to the Saxon Law viz. the next Kinsmen and Friends of the intestate did administer and as administrators they might sue by Writ out of the Kings Court although the Clergy had now obtained so much power as for the recovery of a Legacy or for the determining of the validity of the Will in its general nature it was transmitted to the Ecclesiastical Court. CHAP. LXIII Of the Militia of this Kingdom during the Reign of these Kings I Undertake not the debate of right but as touching matter of fact shortly thus much that from the Norman times the power of the Militia rested upon two principles the one the Allegiance for the common defence of the King's person and honour and Kingdom and in this case the King had the power to levy the force of the Kingdom nevertheless the cause was still under the cognizance of the great Council so far as to agree or disavow the War if they saw cause as appeared in the defections of the Barons in the quarrel between King Steven and the Empress and between King John and his Barons The other principle was the service due to the Lord from the Tenant and by vertue hereof especially whenas the liberty of the Commons was in question the Militia was swayed by the Lords and they drew the people in Arms either one way or the other as the case appeared to them the experience whereof the Kings from time to time felt to their extream prejudice and the Kingdoms
damage Nor did the former principle oversway the latter although it might seem more considerable but only in the times of civil peace when the Lords were quiet and the people well-conceited of the Kings aims in reference to the publick which happiness it was Henry the Second's lot to enjoy for he being a Prince eminent amongst Princes both for endowments of mind and of outward estate not only gained honour abroad but much more amongst his own people at home who saw plainly that he was for Forraign employment of honour to the Kingdom and not only contented with what he had in England but imbarqued together with the Laity against the growing power of the Clergy for the defence and honour of the priviledges of the Crown wherein also the Liberties of the people were included They therefore were secure in the Kings way and suffered themselves to be engaged unto the Crown further than they or their Ancestors formerly had been out of pretence of sudden extreme occasions of the Kingdom that would not be matched with the ordinary course of defence For the King finding by former experience that the way of Tenures was too lame a supply for his acquests abroad and that it had proved little better than a broken reed to the Crown in case of dispute with the people aimed at a further reach than the Lords or Commons foresaw and having learned a trick in France brought it over although it was neither the first nor last trick that England learned to their cost from France which was a new way of levying of Men and Arms for the War by assessing upon every Knights Fee and upon every Free-man of the value of sixteen Marks yearly their certain Arms and upon every Free man of ten Marks yearly value their certain Arms and upon every Burgess and Free-man of an inferiour value their certain Arms. 2. That these should be ready prepared against a certain day 3. That they should be kept and maintained from time to time in the Kings Service and at his command 4. That they should not be lent pledged sold or given away 5. That in case of death they should descend to the Heir who if under age should find a man to serve in his stead 6. That in case the owner were able he should be ready at a certain day with his Arms for the service of the King ad fidem Domini Regis Regni sui 7. That unto this every man should be Sworn I call this a new way of levying of Arms and Men not but that formerly other Free-men and Burgesses found Arms albeit they held not by Knight service for it was so ordained by the Conquerors Laws formerly used but now the King thrust in two clauses besides the altering of the Arms the one concerning the Oath whereby all men became bound the other concerning the raising and ordering of Men and Arms which here seems to be referred to the King only and in his service and this I grant may imply much in common capacity viz. that all the power of the Militia is in Henry the Second But this trick catched not the people according to the Kings meaning for the words ad fidem Regis Regni still left a muse for the people to escape if they were called out against their duty to the Kingdom and taught the doctrine which is not yet repealed viz. That what is not according to their Faith to the Kingdom is not according to their Faith to the King. And therefore they could find in their hearts sometimes to sit still at home when they were called forth to War as may appear in one passage in the days of King John who had gathered together an Army for the opposing of foraign Power at such time as the Pope had done his worst against him and the whole Kingdom which Army was of such considerable strength as I believe none since the Conquest to this day exceeded or parallell'd it But the King 's mean submission to the Pope's Legat so distasted the Nobles and People as they left him to his own shifts and that in such manner as although afterwards he had advantage of them and liberty enough to have raised an Army to have strengthned himself against the Nobles yet the Lords coming from London brought on the sudden such a party as the King was not able to withstand and so he came off with that conclusion made at Renny mead which though in it self was honourable yet lost the King so much the more because it was rather gained from him than made by him CHAP. LXIV Of the Government of Henry the third Edward the first and Edward the second Kings of England And first a general view of the disposition of their Government ONe hundred and ten years more I have together taken up to add a period to this first part of discourse concerning English Government principally because one spirit of arbitrary rule from King John seemeth to breath throughout the whole and therewith did expire The first that presents himself is Henry the third begotten by King John when he was in the very first enterprize of oppression that occasioned the first Barons bloudy Wars and which this King was so miserable as to continue for the greatest part of his Life and Reign and yet so happy as to see it ended about four years before he died Although the soul be not ingendred from the parent yet the temperature of the body of the Child doth sometimes so attemper the motion of the soul that there is in the Child the very image of the Father's mind and this Henry the third lively expressed being so like unto his Father John in his worst course as if his Father 's own spirit had entred into him and animated him in all his ways He brought in with him the first president of Conscience in point of Succession by inheritance in the English Throne for the stream of probabilities was against him He was a Child and the times required a compleat man and a man for War. He was the Child of King John whose demerits of the State were now fresh in the minds of all men He was also designed to the Throne by his Father's last Will which was a dangerous president for them to admit who had but even now withstood King John's depositing of the Crown in the Pope's hands as not being in the power of a King of England to dispose of his Crown according to his own will. Yet leaping over all these considerations and looking on Henry the third as the Child of a King that by good nouriture might prove a wise and just King they closed about this spark in hope it might bring forth a flame whereby to warm themselves in stormy times Nor did their hopes soon perish for during his minority the King was wise to follow good Counsel and by it purged out all the ill humours that the Kingdom had contracted in the rash distempers of his
Fathers government Nor did he onely follow the counsels of others herein but even at such times as their counsels crossed he chose those Counsels that suited with the most popular way as is to be seen in the different counsels of the Archbishop of Canterbury and William Briware And yet two things troubled much those times one that they were times of parties the other that the Protector was somewhat too excellent to be a meer servant and it is hard for the English Nobility to endure him to be greater although it may seem reasonable that they that are thought worthy to govern a King should be much more worthy to govern themselves But the Pope put an end to all occasion of question hereabout for by his Brief he declares the King to be sixteen years old and of age to govern himself and therefore all Castles are forthwith to be rendred up into the King's hands This proved the rock of offence whilst some obeyed the Pope and were impugners of those that put more confidence in the Castles than in the Kings good nature Hence first sprang a civil broil thence want of money then a Parliament wherein the Grand Charter of Englands Liberties once more was exchanged for a sum of Money Thus God wheeled about successes But the King having passed over his tame age under the Government of wise Counsellors and by this time beginning to feel liberty it was his hard condition to meet with want of Money and worse to meet with ill Counsellors which served him with ill advice that the Grand Charter would keep him down make him continually poor and in state of pupillage To this giving credit it shaped an Idea in his mind that would never out for forty years after and thus advised he neglects his own engagement defies the Government that by his Royal word and the Kings his predecessors in cool bloud had been setled and that he might do this without check of Conscience he forbad the study of the Law that so it might die without heir and he have all by Escheat This sadded the English and made them drive heavily the King to add more strengh brought in Foraigners and foraign Councils and then all was at stand The Councils were for new ways The great designe was to get money to supply the King's wants and as great a designe was to keep the King in want otherwise it had been easie for those at the helm to have stopped the concourse of Foraigners other than themselves from abroad the confluence of the Queens poorer Allies lavish entertainment profuse rewards cheats from Rome and all in necessitous times But strangers to maintain their own interests must maintain strangeness between the King and his Subjects To supply therefore these necessities all shifts are used as revoking of Charters displacing of Officers and fining them Afforestations with a train of oppressions depending thereon Fines and Amercements corrupt Advancements Loans and many tricks to make rich men offenders especially projects upon the City of London Nevertheless all proved infinitely short of his disbursements so as at times he is necessitated to call Parliaments and let them know his wants At the first the people are sensible and allow supply but after by experience finding themselves hurt by their supplies to the King they grant upon conditions of renewing the power of the Great Charter and many promises pass from the King to that end and after that Oaths and yet no performance This makes the people absolutely deny supplies Then the King pretends Wars in France Wars in Scotland and Wars against the Infidels in the Holy-land whither he is going the people upon such grounds give him aids but finding all but pretences or ill success of such enterprizes they are hardned against supplies of him for the Holy War. Then he seems penitent and pours out new promises sealed with the most solemn execration that is to be found in the Womb of Story and so punctually recorded as if God would have all generations to remember it as the seal of the Covenant between the King of England and his people and therefore I cannot omit it It was done in full Parliament where the Lords Temporal and Spiritual Knights and others of the Clergy all standing with their Tapers burning The King himself also standing with a chearly contenance holding his open hand upon his brest the Archbishop pronounced this Curse ensuing By the authority of God omnipotent of the Son and of the Holy Ghost and of the glorious Mother of God the Virgin Mary and of the blessed Apostles Peter and Paul and of all the other Apostles and of the Holy Martyr and Archbishop Thomas and of all the Martyrs and of the blessed Edward King of England and of all Confessors and Virgins and of all the Saints of God. We Excommunicate and Anathematize and sequester from our holy Mother the Church all those which henceforth knowingly and maliciously shall deprive or spoil Churches of their right And all those that shall by any art or wit rashly violate diminish or change secretly or openly in deed word or counsel by crossing in part or whole those Ecclesiastical liberties or ancient approved customs of the Kingdom especially the Liberties and free Customs which are contained in the Charters of the common Liberties of England and the Forests granted by our Lord the King to the Archbishops Bishops Prelates Earls Barons Knights and Freeholders And all those who have published or being published have observed any thing against them or their Statutes or which have brought in any customs or being brought in have observed and all Writers of Ordinances or Councils or Executioners or such as shall judge by such things All such as are knowingly guilty of any such matters shall ipso facto incur this Sentence such as are ignorantly guilty shall incur the same censure if being admonished he amend not within fifteen days after admonition In the same censure are comprehended all perturbers of the peace of the King and Kingdom for everlasting memory whereof we have hereunto put our Seals And then all throwing down their Tapers extinguished and smoaking they said So let all that shall go against this curse be extinct and stink in Hell. The King all the while continuing in the posture above-mentioned said So God me help I will observe all these things sincerely and faithfully as I am a Man as I am a Christian as I am a Knight as I am a King crowned and anointed If we shall pare away the superstitious ceremonies and consider divine providence we may search into all Histories of all ages and we shall not find a parallel hereunto so seriously composed solemnly pronounced with an Amen from the representative body of the whole Kingdom put in writing under seal preserved to posterity vindicated by God himself in the ruine of so many opposers And yet the dust of time hath almost buried this out of the thoughts of men so as few
even of such as know it do seriously consider how far it may yet and even now be charged upon the account of this Nation Serious as it was it was soon forgotten nor would the King be long holden with promises some unhappy Star struck him in his birth he had been too hard for his promises and now having the Pope at his Elbow he can dispence with his Oath and bid defiance to an Execration and in flat defiance of the Grand-Charter professeth oppression accumulates forreign Counsellors and forreign Guards contemns his own people ushers in the Pope's Extortions upon them to fill up the measure thrives in nothing but in the match of his Son and Successor with a Sister of Spain and yet that also helps to hasten on the publick poverty and that a Parliament that brought forth a bloudy issue although not by any natural power but occasionally For the Barons mean now no longer to trust to promises strangers are banished the Realm and others of the English bloud stepped into their places and Revenues But this was not all the King must confirm the Grand-Charter and thereto he addeth not onely his own Oath but causeth the Prince his Son to confirm the same in like manner It is likewise propounded to him that the chief Officers of the Kingdom may be chosen such as the Parliament shall like of And that other Laws meet for the government of the Kingdom might be established of all these the King made no bones And to make men believe that he was in good earnest he was contented to disrobe and disarm himself and invest the Barons both with Sword and Scepter retaining nothing but the Crown for himself This had been safety enough for the Kingdom but that it was a conclusion without an agreement for as it was on the King's part made from a principle of shame and fear so it was determined in anger for after that the King had been thus drest and girt for the space of Four or Five years whatsoever he thought all the while it is no matter he began first to stretch his Conscience and having the Pope's Dispensation to help soon makes his Oath to fly assunder although his Son had for the present more Conscience But the other girt held more stoutly for the Lords had the Sword chained to their Arm by the King 's own grant Liceat omnibus in regno nostro contra nos insurgere ad gravamen nostrum opem operam dare ac si nobis in nullo fenerentur and the Lords maintained their hold though not without some jealousies amongst themselves And it is very probable had the King been a little longer breathed with patience he might have had his will upon easier terms for the Lords were not so jealous of one another as the Commons were jealous of the Lords that they meaned to rule onely for themselves But the King now being in a wood and bemired so as he must now resolve to get all or lose all and so either satisfie his natural desires or the remainder of his politick power entred the field with the aid of those Commons that chose rather to be oppressed by one King than many Lords And thus the Lords received the first blow and gave the first foil Afterwards being worsted by their own divisions and jealousies they left a victory to the King that might have made him absolute if he had been moderate but pursuing revenge too far he was distasted of his own party that looked on him as a Polyphemus that intended to devour the Enemy first that he might more freely feast upon themselves in the issue This made victory follow the King afar off and taught the King that the end of Civil War must be attended with moderation in the Conquerour so far as may stand with publick safety or otherwise he that is Conquerour to day by Sword may be conquered to morrow by Jealousie Thus many humours consumed and all parts tired after four years continual War the State cometh to its right Wits The King's gains in all this bloudy sweat may be summed up in two heads First that he had liberty to chuse his principal Officers of State by advice of the Lords and them also to displace by like Counsel Secondly in that he gained though at a dear rate wisdom to observe the state of affairs and to apply himself according to occasion so lived Henry the third for three or four years after these troubles long enough to let the World know that he was able to govern like an English King and to teach his Son by his own late experience to be a wise governour betimes For Edward the first being trained up in the Tragedy of a Civil War wherein he was one of the chief actors and having expiated the bloudy way of his riotous youth by his Holy War as they called it now he betakes himself to amends making by Justice in Government having found by his Father's experience that a Kingdom well governed like good husbandry preserves the owner but being neglected destroys both He came over in his third year in August was crowned in September summoned a Parliament in February following but adjourned it till after Easter and then it is found that the Church of late had been ill governed the Clergy-men grieved by many ways the people otherwise handled than they ought to be the Peace ill kept the Laws less used and Delinquents less punished than was meet and in the sence of these inconveniencies were the Laws of Westminster the first made wherein the world may see the great difference between the Prince and the King in one and the same man. The most part of those Laws were little other than plaisters applied to particular botches of those times wherein the King dealt with a tender hand as if he feared to ulcerate any part and especially the Clergie and therefore delivered the last Law in a petitionary way to the Clergie because it concerned the execution of Justice in prohibited times and yet bound up all with a salvo to himself and his prerogative like a wise King that would neither lose right nor do rong nor yet stickle to debate with his Subjects now whenas his eye was upon a further mark For Leolin the Prince of Wales had affronted him and though he could not endure affronts yet could he dissemble them for advantage and so he suffered the Parliament to run its course that he might have done the sooner Otherwise he had a seed of his Father's conceit that Laws are not made for Kings as appeared afterward for after he had gotten his Army into the field he took a fifteenth which was granted to his Father and this was inaudito more but there was no disputing with power and therefore the Subject must be contented rather to score it up against the future than require present pay so dangerous a thing it is for England that Kings should have occasion to
gather Armies though for never so honourable employment The Welsh chase is hotly pursued yet it did not rid much way for it cost the English a voyage of nine years travel before they could attain the shore although it had been often within their view It may be the King found it advantageous for his Government to maintain an Army in the field under the colour of the Welsh War that he might more bow his Subjects to his own bent for during these Wars the King made many breathings and took time to look to the husbanding of his own Revenue as those Ordinances called Extenta manerii and Officium Coronatoris do witness and the Statute of Bigami But the people were not altogether yet tamed for the times being still in Wars and they occasioning much waste of Treasure put the King to the utmost pitch of good Husbandry and one degree beyond the same so as under colour of seizing his own he swept up also the Priviledges and Liberties of his Subjects some Authors reciting the complaints of the Church-men others of the Laity so as it seemeth the King was no respecter of persons but his own This and others not unlike had almost occasioned another Combustion had not the meeting at Gloucester setled things for the present by referring the right of Franchises to debate in the Eyer and ordering reseizure of such Liberties into the Subjects hands whereof they had been dispossessed by Quo warranto and Quo jure under colour of the fourth Chapter of the Statute of Bigami Nevertheless however debonair the King seemed to be the sore between him and his Subjects was not fully cured nor did the Lords trust him further than needs must for whether they served in the Field or met at Council still they were armed and during this daring of each other were many profitable Laws made whilst neither party durst venture bloodshed in touching too nigh upon the Priviledges of each other principally because the affairs in Wales were but laid asleep and upon reviving might turn the ballance to either side The Wars awake again and therein are consumed nigh five years more of the King's Reign so as whatever his intent was he could have hitherto little opportunity to effect any thing for the advancement of the Prerogative of the Crown at home Nor had he scarcely breathed himself and Army from the Welsh Wars but he found both France and Scotland his Enemies at once The King faced onely the first and fought the second which held him work the remainder of his days and at the same time also he arrayed both the Clergy and Laity at his own home as if Providence had given him security for the good behaviour and yet it failed him in the issue and left him to the censure of the World whether his Justice was spontaneous or by necessity for as yet he held the Grand Charter at parley and therefore was rather eyed than much trusted Albeit he was put upon confidence in the Subjects discretion for aid of him in his continual undertakings nor did they disclaim him herein however chargeable it was for all seem willing he should be employed any where so as not within the four Seas It is probable the King knew it and therefore having made a Voyage into France he changed the Scene of War but to the other side as it were of a River in hope his Lords would follow but it would not be This angred him and he them nor would his Clergy allow him any aid Papa inconsulto and therefore he outs them from his protection These and his irregular preparations by War by summons not onely of his Knights but all other that held Land worth 20 l. per annum and Taxes imposed by an arbitrary way increased Rancor into a kind of State-scoul little better than a Quarrel For appeasing whereof the King granted a consultation upon a prohibition and unto both Clergy and Laity a confirmation of the Grand Charter at the long run and allowed it as the common Law of the Kingdom and seconded the same with many succeeding confirmations in the twenty seven and twenty eighth years of his Reign as if he had utterly renounced all thought of a contrary way But the Statute in his 28th year had a sting in the tail that was as ill as his saving of ancient aids and prisals which was in the Statute of confirmation of the Charters though it were omitted in this Statute for the saving was of such a sence as time and occasion would move the King's heart to make it and thus this Statute became like a Hocus Pocus a thing to still the people for the present and serve the King's turn that he might more freely intend the conquest of the Scots which once done he might if he would try masteries with England But God would not have it so the King in Scotland had power to take but could not overtake and the Scots like birds of the prey had wit enough to fly away and courage enough to return upon advantages and so the King was left to hunt the wind which made him to return He might now expect the applause of his people for his good success and the terrour of those that had stopped the broad way of his extravagant Prerogative and therefore looks big rubs up old sores and having his Army yet in the field sends for those Lords that would not follow him in his Wars in Flanders All come and submit and as it were in so many words let the King know that all England is now tame and like to be ridden at his discretion And now there 's nothing in his way but the fatal execration which he feared not in relation to God's anger but rather to the exasperated Clergie and the dread of the Pope's direful Thunder-bolt To avoid this storm he procures a Dispensation from Rome to perjure and oppress without sin a trick that he learned of his Father and hid it within his breast till now about two years before his end he brings it forth to tell all the world that hitherto he had been just against his will. But having obtained his purpose he nevertheless misseth of his end for a new King of Scots our old good enemies by divine providence suddenly crossed his way before him and now it boots not to contend for arbitrary rule in England and lose the Crown of Scotland which he once thought he had sure he faces about therefore and having spoken fair to his people for Scotland he goes Thus if all were not in a Parenthesis the King intended a good period but God onely knows what his furthest reach would have been if he had returned for he was taken out of this world in Scotland and so left this his government somewhat like an imperfect sentence His Son Edward should have compleated it but that he wanted his Father's sence and had too much of his Grandfather's superbient humour that meeting
with a stiff spirit and a weak mind brought sudden fire into the course of government till it consumed it self in its own flame For this King having newly slipt out of a bondage of wise Government under his Father ran the wild chase after rash desires spending his former time in inordinate love and his latter time upon revengeful anger little inferiour to rage and so in his whole government was scarce his own man. His love was a precedent of a strange nature that commanded him from all the contentments of his Kingdom to serve one man a stranger and prostitute to all manner of licentiousness meerly for some personal endowments It shews that his judgement was weak and his affections strong and in that more weak because he discovered it before he was crowned like some of the weakest of the weaker Sex the birth of whose minds are born assoon as they are conceived and speak assoon as they are born It is true that the bravery of spirit may work after absoluteness in Kings under the colour of some kind of wisdom But it is one thing to rule without Law and another to live without Rule the one dashes against the Law of an English King and may put on the name of Policy but the other destroys the Law of mankind and can bear no better name than of brutish desire All the while Gaveston was in view we find nothing concerning Commonwealth or monument of Parliament saving two Ordinances made by the King and such Lords as suted to the King's way rather than to his wants The first was that de militibus the other de frangentibus prisonam for all the King's labour was to royallize Gaveston into as high a pitch as he could and so to amaze his own eye-sight with contemplating the goodliness of his person So as Gaveston is become the Image of the King and presents his beams and influence into all parts of the Kingdom and according to his Aspect they often change and wane and yet at the best were but as in a misty night The Barons liked not this condition of State-Idolatry they were willing to adore the King but they could not bow to an Image they desired nothing more than that their King might shine in his proper glory Thrice is Gaveston banished thrice he returns the last occasioned another Civil War wherein Gaveston lost his head Thus the Lords removed the Eclipse but little the better thereby they find it a vain labour to compel the Sun to shine by force when it hath no light Though Gaveston be gone the mist of foreign Councils prevail this was bred in the Bloud fed with Bloud and ended in Bloud Through the Glass of foreign Councils all things seem of foreign colour the King to the People and the People to him The King at length begins to see himself undervalued and that it began in himself ventures himself into the Wars with Scotland to win honour goes with much splendour but returns with the greatest blot that ever English King suffered confounded abroad and slighted at home For the bravest men by ill success are lost in common opinion or to speak in a higher strain where God doth not bless man will not The King thus almost annihilated catches hold of Rome fawns on the Clergy passes to them the Ordinances of Articuli Cleri and de prisis bonis Cleri which lost the Free-men no Right although it concluded the Crown And to caress the Commons made the Statute de Vice-comitibus and the City of London likewise by the Statute de Gavelletto But God saw all sorts of men run at riot and sends in upon the Nation Plague Famine and other extraordinary Testimonies of his displeasure even to the wonderment of other Nations and this brought a kind of sobriety into Affairs made all sorts tame and for the present onely prepared them for better times For the King's time of longing again is come and he must have new Play-fellows finds the Spencers or rather was found of them they grow in honour almost beyond the reach of the Nobles but not beyond their envy and are more secure than Gaveston in this that in their first sprouting the King's Council served himself and them to keep in with the Commons by making good Laws such as the Statutes at York of Essoyns Attaints of Jurors Levying of Fines and Estreats into the Exchequer c. all of them promising good Government The Barons nevertheless liked not the Spencers greatness and being by several occasions exasperated joyn in one and occasion a new War The King aided by the Commons who yet thought better of the King than of the Barons whom they saw prejudiced rather out of self-apprehensions than the publick good prevailed against the Barons and made them the first president of death upon the Scaffold Now the Spencers are Lords alone thinking themselves above the reach of the once formidable Barons and the Commons too inferiour for their respect Thus lifted up they take a flight like that of Icarus They had so much of the King's heart as they could not spare any part thereof to the Queen and she being as loth to spare so much for them as they had retired with the Prince to a relief which they brought from beyond Sea and with whom both Lords and Commons joyn The favourites missing of their wonted wings come down faster than they ascended and together with them the King himself all of them irrecoverably Thus favourites instead of Cement between Prince and people becoming rocks of offence bring ruine sometimes to all but always to themselves The King foresaw the storm and thought it safest first to cry truce with the people and come to agreement with them by common consent for the extent of his Prerogative in certain particular cases questionable and this summed up became a Statute for future times to be a ne plus ultra between the King and people The like agreement likewise was concerning services of Tenants to their Lords and an Oath framed to vindicate them from all encroachments And something was done to calm the Clergie for the demolishing of the Templar-Knights but the wound was incurable words are not believed if actions do not succeed nor will Oaths now made to bind Kings Bishops Counsellors of State Sheriffs Mayors Bailiffs or Judges to justice nor directions for regulating of Courts nor Ordinances against false Moneys and Weights nor all of them settle the people but they adhere to the Queen burning with jealousie against the King and both her self and the Lords with rage against the Spencers The King flies and being forsaken of the people the Lords the Clergie his own Son and the Wife of his own bosom and of God himself as the most absolute abject that ever swayed the Scepter lost the same and being made a monument of Gods revenge upon inordinate desires in a King and of the English people being enraged not long surviving his
demise he died a death meet to be for ever blotted out of the thoughts of all Subjects but to be had in everlasting remembrance of all Kings For if a Kingdom or Parliament misleads the King at the worst he is but misled by his Council but if he be drawn aside by favorites he must thank his own lust in the one he hath but the least share in the burthen in the other he must bear the whole CHAP. LXV Of the condition of the Nobility of England till the time of Edward the Third NOw was Prerogative mounted up to the highest pitch or endeavoured so to be either through the weakness or power of these Kings of whom the first and last had little to ground upon but their own will and the other I mean Edward the first had more wisdom and power but was otherwise distracted by foraign and more urgent employments so as the work fainted before it came to its full period The contest was between the King and Barons who till those days were rather the great and richer sort of men than Peers although they also were of the number I am not so sharp-sighted as to reach the utmost intentions of the Lords but their pretences are to such publick nature as it is plain that if their private interest was wrapped up therein they were inseparable And I shall never quarrel the Lords aim at private respects whenas it is plain the publick was so importantly concerned and yet I will not justiâ—ie all that I find written concerning their Words and Actions The Speech of the E. of Cornwal to his his elder Brother and King Henry the Third I will neither render up my Castle nor depart the Kingdom but by the judgment of the Peers and of Simon the E. of Leicester to the same King that he lyed and were he not a King the Earl would make him repent his word and of the Lords that they would drive the King out of his Kingdom and elect another and of the E. Marshal to Edward the first that he would neither go into Gascoine nor hang and such other do savour of passion especially that of the E. of Leicester and the Lords and may seem harsh and unmannerly and yet may admit of some allay if the general rudeness of the time the King 's injurious provocations and the passions of cholerick men be weighed together Yet will not all these trench upon the cause nor render the state of the Lords too high or disproportionable to their place in the policy of the Kingdom of England as things then stood I say it was not disproportionable for where the degree of a King was mounting up to such a pitch as to be above Law the Lords exceeded not their places in pressing him with their Counsels to conform to the Laws and in maintaining that trust that was reposed in them in keeping off such sinister Counsels and invasions as might violate the Laws and Liberties or hinder the current of Justice concerning which I shall shortly state the case and leave it to the censure of others The Government of the people of this Nation in their original was Democratical mixt with an Aristocracie if any credit be to be given to that little light of History that is left unto us from those ancient times Afterwards when they swarmed from their hive in Forreign parts and came over hither they came in a warlike manner under one conducter whom they called a King whose power whatever in the War yet in time of peace was not of that height as to rule alone I mean that whereas the Lords formerly had the principal executory power of Laws setled in them they never were absolutely devested of that power by the access of a King nor was the King ever possessed of all that power nor was it ever given to him but the Lords did ever hold that power the King concurring with them and in case the King would not concur the people generally sided with the Lords and so in conclusion the King suffered in the quarrel From this ground did arise from time to time the wandrings of the people in electing and deposing their Kings during the Saxon times Nor did nor could the Norman Williams shake off this co-partnership but were many times as well as other ensuing Princes perswaded against their own minds and plotted desires Nor can it otherways be supposed where Councils are setled for whereto serve they if notwithstanding them the King may go the way of his inordinate desire If the Lords then did appear against these Kings whereof we treat in cases where they appeared against the Laws and Liberties of the people it was neither new nor so heinous as it is noised for them who are equally if not more entrusted with the Common-wealth than the King by how much the Counsellors are trusted more than the Counselled to be true for the maintenance of their trust in case the King shall desert his But the greater question is concerning the manner by Threats and War. It is as probable I grant that the Lords used the one as the other for it was the common vice of the times to be rugged yet if we shall add to what hath been already said first that Knight-service was for the defence of the Kingdom principally Secondly that the greatest power of Knight-service rested with the Lords not only in propriety and ownership but in point of direction for the benefit of the Commonwealth and lastly that the state of the times now was such as the Kingdom was oppressed by strangers Counsels and the Counsels of the Kingdom rejected that instead of Law Garrisons of strangers ruled that no man could own his own that the Subjects were looked upon as enemies and of all this the King made the principal instrument who had ruled and over-ruled in this manner and so was resolved to continue I shall leave it to the better judgement of others what other healing plaister was to be had for such a sore Albeit it cannot be denied that more due respects might have been tendred to Kingly dignity than was in those times practised And yet there was a difference also in the occasions of War for certainly that last War with Edward the second was more fatal and yet less warrantable and in the issue declared that there was more of the Queen therein than of the Lords who knew a way of removing Favourites from the King without removing the King from the Kingdom or driving him out of the World. In all which nevertheless it cannot be concluded that the Lords party was encreased more than in the former Kings times for the loss of the field in Henry the Thirds time against the Prince kept them in awe all the succeeding Reign although they were not then tongue-tyed and their second loss against Edward the Second which was yet more sharp questionless quelled their spirits although they lost no right thereby and encreased the Kings party much
renitente and appeared either personally or by proxie Others came as parties to give and receive direction or hear Sentence in matters tending to spiritual regards And for this cause issued Summons even to Kings as at the Council of Lyons aforesaid it is said that the Pope had cited Regis terrae alios mundi principes dictum principem meaning Henry the third the matter was for assistance to the holy War and to determine the matter between Henry the third and his Clergie men And as in that case so in others of that kind Kings would send their Embassadors or Proctors and give them power in their Princes name interessendi tranctandi communicandi concludendi First of such matters quae ad reformationem Ecclesiae universalis in capite membris then of such as concern fidei orthodoxae fulciamentum Regumque ac principum pacificationem or any other particular cause which occasionally might be inserted So long then as Kings had their votes in the general Councils they were engaged in the maintenance of their decrees and by this means entred the Canon-law into Kingdoms Nor was the vote of Kings difficult to be obtained especially in matters that trenched not upon the Crown for the Pope knowing well that Kings were too wise to adventure their own persons into foraign parts where the general Councils were holden and that it was thrift for them to send such Proctors that might not altogether spend upon the King's purse allowed Bishops and Clergy-men to be Proctors for their Princes that in the Negative they might be pii inimici and less active but in the Affirmative zealous and so make the way wider by the Temporal and Spiritual vote joyned in one Neither did Kings onely save their purse but they also made their own further advantage hereby for by the engagement and respect which these their Proctors had in Councils they being for the most part such as were had in best esteem obtained better respect to the cause that they handled and speedier dispatch Nevertheless the case sometimes was such as could not expect favour and then as the King's temper was they would sometimes ride it out with full sail and to that end would either joyn with their Ecclesiastcal Proctors some of the Barons and great men of their Realm to add to the cry and make their affairs ring louder in the ears of fame although the Pope had the greater vote or otherwise would send an inhibition unto their Proctors and their assistants or an injunction to look to the rights of the Crown as Henry the Third did at the Council at Lyons and this sounded in nature of a Protest and within the Realm of England had the force of a Proviso or Saving But if the worst of all come to pass viz. that the Council passed the cause against Kings without any Inhibition or Injunction yet could it not bind the Law of the Land or Kings just Prerogatives no not in these times of Rome's hour and of the power of darkness For at a Synod holden by Arch-bishop Peckham An. 1280. the Acts of the Council of Lyons were ratified and amongst others a Canon against non-residency and pluralities and yet neither Council nor Synod could prevail for in Edward the Second's time an Abbot presenting to a Church vacant as was supposed by the Canon of pluralities the King whose Chaplain was disturbed enjoyned the Abbot to revoke his presentation upon this ground Cum igitur c. in English thus Whereas therefore that Decree bindeth not our Clerks in our service in regard that the Kings and Princes of England from time to time have enjoyed that liberty and prerogative that their Clerks whilst they attend upon their service shall not be constrained to undertake holy things or to be personally resident on their Benefices c. And if this present Law be considered whereof we now treat which took leave to enact a sence upon a former Canon so long since made and which is all one to makâ— a general Council will or nill it to tread in the steps of an English Parliament or which is more mean to speak after the sence of an English Declaration that had not yet attained the full growth of a Statute as was then conceived it will evidently appear that the power of a council made up of a mixture of a few votes out of several Nations or the major part of them being unacquainted with the Laws and Customs of Nations other than their own was too mean to set a Law upon any particuler Nation contrary to its own original and fundamental Law. And as the Voters sent to the grand Councils from England were but few so neither were the Proctors as may appear from this that Pope Innocent out of his moderation if we may believe it and to avoid much expence as he saith did order that the number of Proctors in such cases should be few But in truth the times then were no times for moderation amongst Popes and their Officers and therefore it was another thing that pinched for multitude of Proctors if their number had not been moderated might perhaps if not prevail yet so blemish the contrary party that what the Pope should get must cost him loss of spirits if not bloud And although the Bishops being fast Friends to the Pope by vertue of their Oath did prevail in power and the Pope had the controul of the Council yet the exceeding number of the Proctors on the contrary might render their conclusions somewhat questionable in point of honesty as being made against the mindes of the greater number of persons present though their votes were fewer To avoid this difficulty therefore for more surety-sake the Popes enlarged the number of Voters for whereas it seemeth to be an ancient rule that onely four Bishops should go out of England to the general Council in after-ages not one Bishop could be spared unless in cases of great and emergent consequence as may appear by the Pope's Letter to Henry Third and the case required it for the oppressions of the Pope began to ring so loud as the holy Chair began to shake Neither did Kings confine themselves to any certain number of Proctors notwithstanding the Pope's moderation but as the case required sent more or less as unto the Council at Pisa for the composing and quieting that great Schism in the Popedom Henry the Fourth sent solemn Embassadors and with them nigh eighty in all But unto the Council at Basil Henry the Sixth sent not above twelve or thirteen as Mr. Selden more particularly relateth And unto the Council at Lyons formerly mentioned the Parliament sent but six or seven to remonstrate their complaints of the extortions of the Court at Rome their Legates and Emissaries The sum of all will be that the Acts of general Councils were but Counsels which being offered to the sence of the Parliament of England might grow up
to the degree of Laws if the Parliament liked them Nevertheless National Synods in England undertook the quarrel of general Councils for Arch-bishop Peckham in a Synod 1280. enjoyned the Constitutions made in the Council at Lyons to be observed under a curse without consultation first had with the Parliament or before he knew whether they would be right or wrong And before him Boniface made Constitutions in opposition to the customs of the Kingdom so as the matter was now come to a kind of contest whether Synods or Parliaments should hold supremacy in doubtful cases concerning the limits of the Ecclesiastical and Temporal power For henceforth Kings must bid adieu to the Synods and sit no more amongst them and Synods now think themselves free to consult and determine what they please without speaking under correction nor was there other remedy left to Kings but threats by Writs directed to the Bishops firmiter inhibendo quod sicut Baronias quas de Rege tenent diligunt nullo modo praesumant concilium tenere de aliquibus quae ad coronam Regis attinent vel quae ad personam Regis vel statum suum vel statum concilii sui contingunt quod si fecerint Rex inde se capiat ad Baronias suas And this prevailed so effectually that the Bishops durst not adventure too far lest they should go beyond their guard and therefore they come and ask leave of the Parliament in cases that trenched upon the Law of the Kingdom as they did in the case of Bastardy wherein they would have had their consent That Children born before Marriage might be made legitimate by the Marriage subsequent And yet they could not prevail for they were answered Nolumus leges Angliae mutari notwithstanding that the Canon-law and the Laws of the Normans sided with them And so they obtained not their desire although they still retained the Tryal of general Bastardy unto themselves Nevertheless the times were such as Kings being too weakly assisted by the people and the Clergie strongly seconded by the Pope they took advantage of those times of distraction so as to hold themselves no farther obliged to the King than the Pope and their own covetousness would allow them and to make all sure they had setled it so far as they were able by a Constitution that the Clergie were not bound to aid the King Papa inconsulto and they put it in practice in a Synod under Arch-bishop Winchelsie Anno 1295. in the time of Edward the First and although the King prevailed in the conclusion at that time yet from the times of Henry the Third the Clergie for future times granted their aids to the King by themselves and apart from the rest of the body of the Kingdom and held themselves not bound by any aid granted by the Parliament albeit that their own aids granted in their Synods were not obligatory unto the body of the Clergie in this Kingdom unless first allowed and confirmed by the Parliament And thus is England become like a two-bodied monster supported with one pair of Legs CHAP. LXVII Of the condition of the Free-men of England of the Grand Charter and other Statutes during the Reigns of these Kings SHattered asunder by broyls of Civil Wars the Freemen having laid aside that regard of the ancient mutual covenant and bond of Decenners are now become weak and almost enthralled to the lust of Kings Lords Pope and English Clergie and therefore it is no wonder if Taxes and Tributes were many and new although most of them deserved not to march under any banner but the colours of oppression nor did any thing save them from the worst Tenure of all but the several interests of those superiour powers which oftentimes did justle with one another and thereby gave the Commons liberty to take breath so as though for the present they lost ground and hunted upon a cool scent yet they still retained the prey within their view Sometimes they were cast far behind other times they recovered themselves a Truce is cried and Laws are made to moderate all and determine the bounds of every one and thus comes the Grand Charter upon the publick Theatre The Historian saith it was the same with that of King John's framing and yet by comparing them together we find them disagreeing both in words and sence and therefore shall sum the same up as shortly as I can observing the difference of the two Charters as I pass along The First Chapter concerned the Church of which sufficient hath been spoken The Freemen shall enjoy these Liberties to them and their Heirs for ever The Heir in Knight-service shall pay the ancient relief That Reliefs were setled by the Saxons hath been already shewed and also that they were continued and confirmed by Henry the First onely in those times they were paid in Horses Arms c. But in after-times all was turned into money which was more beneficial for all Lords shall have their Wards bodies and Lands after homage received until the full age though the Ward be formerly Knighted The Law of Wardship may seem more anciently seated in this Kingdom than the Normans times for if the Statutes of Scotland bear any credit that Law was in Scotland before those times The Lords were not to have the Wardship before they were possessed of the Tenure because it was theirs as a fruit of the Tenure according to the Saxon Law concerning distress that it could not be in the power of the Lord to distrain till he was possessed of the service And if by fraudulent conveyance the Heir did hold the Lord out of possession a Writ of Ward did lie against him and if he did not appear the Lord might seize the Lands unless in case of Wardship per cause de guard And in case the Lord would hold the Wardship longer than the full age of the Heir an Assize did lie against the Lord for the Heir could not enter without Livery But if the Heir were of full age at the time of the Ancestor's death the Lord could not enter the Lands and yet he should have a Relief and the primer seisin And if the Heir entred the Lands before Homage done he gained no Free hold though he were Knighted before as this Law provideth For it may seem that these times of Civil War brought forth a trick of Knighting betimes as an honourable encouragement for young sparks to enter the field before they were compleat men of discretion to know whether the cause of War was good or evil And yet reason might induce a conceit that he that was thought meet to do Knight-service in his own person might expect the maintenance fit for the ability of the person and honour of the service Grantees or their Assigns or Committees of Wardships shall preserve the Land c. from Waste and the Tenants from extortion They shall yield up the same stocked
wade through so many difficulties of mighty Wars on every side abroad and devouring Pestilence at home and yet lay a platform of an opulent wise and peaceable Government for future Generations Yet he had his failings and misfortunes a great part whereof may be attributed to infirmity of age which in the first part of his Reign was too little and in the latter part too much True it is that Governours of the persons of Kings may in some measure supply defects of Non-age but seldom where the Governours are many and never if they be ambitious And it was this King's fate to miscarry in both for he had in his Youth Twelve Governours by constitution and they two supream by usurpation viz. the Queen and Mortimer till they were both consumed in the flame which themselves had kindled And this disparity wrought somewhat unsuccessfully in the King 's first War For the generosity of his spirit himself being young and active minded his Council to advise him employment in a forrein War rather than they would adventure its motion at home lest it might prove circular which is most dangerous for Government if the Prince be not under command of himself This first War was with Scotland whose power was inferiour to that of France the King young and the danger nearer and therefore though the last affront was from France that more fresh in memory and more poinant yet the King was advised to give place and speak fair till he had tried masteries with Scotland and thereby secured his Rear This he wisely hearkned unto and met with such a successful turn of Providence that like an O Yes before a Proclamation gives warning to Scotland that the Wheel is turned upon them and that there is somewhat more than humane motion in the matter that exasperates the English upon an enterprize so often crossed by Providence hitherto and the King also being but a Souldier in hope as yet to dare against those that had so shamefully foiled his Father and also put himself already once to the Retreat And yet there did concur a kind of necessity of second Causes for the King found the Crown engaged and the minds of the Scots so elate as the English-man's case was not to live to fight but to fight to live and so imbittered against one another by the fierce Wars under the Barons that nothing could quench the fire but the withdrawing of the Brands into Forreign action like some angry spirits that spoil their own bodies unless they chide or fight it out with others In the first brunt with Scotland the King gained nothing but understanding of the humours of some of his great Lords which once purged out he renews the War prevails and after ten years stir wherein he became a trained Souldier against the Scots he wan the Cross and then goes to play his Prize in France to compleat his Crown with the Flower-de-luce Which was the great work of the rest of his Reign in which four parts of five were victorious the fifth and last was declining like some Gamesters that win at the first and for want of observation of the turning of the Dice come off losers at the end For the King being rather satiated than satisfied with Victory and Honour returned home to enjoy what he had leaving his Son the Black Prince to pursue the War and to act the Souldiers alone who now began to honour his Valour above his Father's But the Tide is spent the Prince of Chivalry dies the brave Commanders wasted and the French too sickle to continue subject to the English longer than needs must tack about for another adventure and make it plain That France is too big to be Garrison'd by England and that it will cost England more to hold it than to have it His Religion was more to the purpose than of any of his Predecessors since the Norman times He reâ—lected upon God in common events more ordinarily than the general stream of the Clergie did in those days He loved if not adored devout men and their prayers and yet intentively disclaimed opinion of merits in the Creature He saw the Pope through and through loved him but little feared him less and yet lost neither honour nor power thereby His chief policy at home was to be much at home great with his People and they great with him what the Parliament did he accounted well done he never questioned their power though he was over-reached in questioning their Wisdom For he that shall prefer his own wisdom above that of the Parliament must needs think himself extreamly wise and so much the more to know himself to be such But the worst of his fate was to live to his Winter-age and after fifty years Reign or more to die in his minority under the rule of a woman of none of the best fame after he had enjoyed the honour of greatest note in the Christian world in his days Such was not Richard the Second though the onely Son of that famous Chieftain the Black Prince of Wales a renowned Son of a renowned Father but as a Plant transplanted into a Savage soyl in degree and disposition wholly degenerate retaining a tincture of the light inconstancy of his Mother and the luxuriousness of his great Grandfather Edward the Second and running his course he came to his end His entrance however by colour of Inheritance yet was a greater adventure than his Predecessors that came in by Election upon the designation of his Father by his last Will say some For this man came in upon many disadvantages both of time and person The times were very troublesome the Kingdom new wrapped up in a double War abroad and which is worse flouded with distraction at home contracted partly by his Predecessor's weaknesses in his decrepit estate partly by a new interest of Religion sprung up against the Papal Tyranny from the Doctrine of Wickliff all which required a very wise Man and a brave Commander in both which the King failed Religion now began to dawn through the foggs of Romish Usurpations and Superstitions aided thereto by a Schism in the Triple Crown that continued forty years with much virulancy abroad and with as bad influence upon our Myters at home Some of whom were called Clementines others Vrbanists and yet none of them all worthy of either of the names in their proper signification The Laity though lookers on yet were not quiet For though Liberty be a hopeful thing yet it is dangerous to them that are not a Law to themselves especially in matter of Opinion for that arraigns the Rule and lays the way open to licentiousness And now that the Liberty from the Keys began to be taught as a duty of Religion the inferiour sort meet with Doctrines of licentiousness upon mistake of the notion and will acknowledge no rule now they must be all at liberty And thus sprang up the insurrection of the Servants and Bond-men against their Lords
the conclusion The Dukes of Lancaster and York forsake the Court Favourites step into their rooms The old way of the eleventh year is re-assumed Belknap and others are pardoned and made of the Cabinet The pardon of the Earl of Arundel is adnulled contrary to the advice of the major part and the Archbishop the Earl's Brother is banished The Lords forsake the wilful King still the King's Jealousie swells The Duke of Hertford is banished or rather by a hidden Providence sent out of the way for a further work The Duke of Lancaster dies and with him all hope of moderation is gone for he was a wise Prince and the onely Cement that held the Joynts of the Kingdom in correspondency And he was ill requited for all his Estate is seized upon The Duke of Hertford and his party are looked upon by the people as Martyrs in the Common Cause and others as Royalists Extremities hasten on and Prerogative now upon the wing is towering above reach In full Parliament down goes all the work of the tenth and eleventh years Parliament which had never been if that Parliament had continued by adjournment The King raiseth a power which he calleth his Guard of Cheshire-men under the terrour of this displaying Rod the Parliament and Kingdom are brought to Confession Cheshire for this service is made a Principality and thus goes Counties up and Kingdoms down The King's Conscience whispers a sad message of dethroning and well it might be for he knew he had deserved it Against this danger he entrenches himself in an Act of Parliament that made it Treason To purpose and endeavour to depose the King or levy War against him or to withdraw his Homage hereof being attainted in Parliament And now he thought he was well guarded by engagement from the Parliament but he missed the right conclusion for want of Logick For if the Parliament it self shall depose him it cannot be made a Traytor or attaint it self and then hath the King gained no more than a false birth But the King was not thus quiet the sting of guilt still sticks within and for remedy he will unlaw the Law and gets it enacted That all procurers of the Statute of 10 Richard the Second and the Commission and procurers of the King's assent thereto and hinderers of the King's proceedings are adjudged Traytors All these reach onely the Branches the Root remains yet and may spring again and therefore in the last place have at the Parliament it self For by the same it is further declared That the King is the sole Master of the Propositions for matters to be treated in Parliament and all gainsayers are Traitors Secondly That the King may dissolve the Parliament at his pleasure and all gainsayers are Traitors Thirdly That the Parliament may not proceed against the King's Justices for offences by them committed in Parliament without the King's consent and all gainsayers are Traitors These and the like Aphorisms once voted by the Cheshire-men assented unto by the Parliament with the Kings Fiat must pass for currant to the Judges and if by them confirmed or allowed will in the King's opinion make it a Law for ever That the King in all Parliaments is Dominus fac primum and Dominus fac totum But the Judges remembred the Tenth year and Belknap's entertainment and so dealt warily their opinion is thus set down It belongeth to the Parliament to declare Treason yet if I were a Peer and were commanded I should agree So did Thorning under-write and thereunto also consented Rickill and Sir Walter Clopton the last being Chief-Justice of the King's Bench the first Chief-Justice of the Common-pleas and the second another Judge of the same Bench. The sum in plainer sence is that if they were Peers they would agree but as Judges they would be silent And thus the Parliament of England by the first of these four last-mentioned conclusions attainted themselves by the second yielded up their Liberties by the third their Lives and by the last would have done more or been less And to fill up the measure of all they assigned over a right of Legislative power unto six Lords and three Commons and yet the King not content superadded that it should be Treason for any man to endeavour to repeal any of their determinations The Commonwealth thus underneath the King tramples upon all at once for having espied the shadow of a Crown fleeting from him in Ireland he pursues it leaves the noble Crown of England in the base condition of a Farm subject to strip and waste by mean men and crosses the Irish Seas with an Army This was one of England's Climacterical years under a Disease so desperate that no hope was left but by a desperate Cure by sudden bleeding in the Head and cutting off that Member that is a principle of motion in the Body For it was not many Moneths e're the wind of affairs changed the King now in Ireland another steps into the Throne The noise hereof makes him return afar off enraged but the nigher he comes the cooler he grows his Conscience revives his Courage decays and leaving his Army his Lordship Kingdom and Liberty behind as a naked man submits himself to release all Homage and Fealty to resign his Crown and Dignity his Titles and Authority to acknowledge himself unworthy and insufficient to reign to swear never to repent of his resignation And thus if he will have any quiet this wilful man must be content for the future neither to will nor desire And poor England must for a time be contented with a doleful condition in which the King cannot rule and the Parliament will not and the whole body like a Chaos capable of any form that the next daring spirit shall brood upon it CHAP. II. Of the State of the King and Parliament in relation of it to him and him to it A King in Parliament is like the first-born of Jacob The excellency of Dignity and the excellency of Power but alone unstable as water Examples of both these we have in these two Kings Whereof the first was Crowned by the Parliament and Crowned it the latter also Crowned it but with Thorns and yet the Parliament in all held on that wise way that it neither exceeded its own bounds nor lost its own right I shall enter into the consideration of particulars under these heads First In relation more immediately to the interest of the King Secondly To the interest of the Kingdom in general The King though higher than all the people by the head and so hath the Prerogative of Honour as the most worthy yet his strength and abilities originally do rise from beneath otherwise he is but like a General without an Army the Title big but airy and many times his person subject to so much danger that instead of drawing the Eyes of all the people to look upon him with admiration they are drawn to look to him with observation and in this
and grand Trust of the whole Kingdom committed to the Parliament And the practice of these times is not much discrepant whether we regard such as are for advice or execution Of the first of these are those whom we commonly call the Privy Council whose advice in course toucheth first upon the King's Person but by reflection worketh strong impressions upon the People so far as the influence of the King's power extends And therefore it is not beyond the Sphear of the Parliament to interpose and qualifie that influence so as it may be for the general good of the whole Kingdom For many times Kings are either above or beneath themselves and in such cases if the Council be of the King's suit he is of the deeper dye and proves more Malignant to the People Edward the Third growing into great opinion in the World his proportion exceeds his own portion and the Peoples good wills to boot they think the fault is in the Privy-Council and an Inquisition is set upon it So also they do in his fiftieth year when he grows downward And the like in the beginning of Richard the Second's Reign he being now a Youth and therefore unstable in his Resolutions and unable to make Election So as upon the whole matter if the King fall short in point of Judgment or Resolution or inordinate in his Affections but more especially where they observe the major or more considerable part of the Council to draw towards a designe in such cases as these the Parliament as its own duty undertook to settle a good Council about the King's person that might advise him during their recess For the Privy-Council is never more it self than when it is an Epitome of the Common-Council of the Kingdom In like manner such Officers as concern execution of Law and Counsel are as narrowly to be enquired into for if their motion be irregular it is less material what the rule be The Parliament therefore held it their duty to interpose in the Election of grand Officers of the Kingdom such as are the Chancellors Judges and Justices or to confirm or displace them or bind them by Oath The Rolls of the eighth fourteenth fifteenth and thirty-sixth years of Edward the Third and the sixth tenth and eleventh years of Richard the Second do manifest this sufficiently I have done with the Subject-matter or work of the Parliament in the mutual relation of the King and it the manner of proceeding was either joyntly with the King or without him and either joyntly with the two Houses or severally and either immediately by themselves or their Committees As touching the first it is evident that in all matters wherein gain ariseth to the Crown from the people by Subsidy or otherwise the strength of the Grant by Act of Parliament resteth in the two Houses and that the King's Assent is but pro forma as touching that matter and therefore such Grants have been made as tended in some measure to derogate either from the King's Wisdom care or fidelity yet even these have passed with the Royal Assent though the full Assent or good will of the person of the King was not correspondent thereto as in these Cases formerly noted where Subsidies were given with Limitations and Conditions and upon rendring account to the people And it is as evident that where the King's person is disabled to understand as in case of Infancy there the Royal Assent can bear little weight with it but most of all in the King's absence where either the Assent is put thereto by Commissioners that know not the King 's particular mind or the Act is done onely by the Houses in nature of Ordinances and yet these of force to bind all parties but the King. But nothing more debased the Royal Assent in these times than a trick that Edward the Third plaid in the midst of the fullest strength of his Government It was in time of War which never is time of good Husbandry and laying up nor of sober advice in laying out nor of equity in levying and collecting moneys for the Nerves of War. This forward Warrier in the heat of his Atchievements finds his strength benummed for want of money he leaves off comes home rages against his Archbishop to whom he had committed the care of provision for his War and the Archbishop as hotly falls upon some of the Treasury in the Army on the one side and upon others in the Country whose oppressions saith he instead of bringing in money made the people to give a stop thereto A contest hereupon thus had it was concluded by the power of the Parliament that such men should be questioned and that the Parliament from time to time should call all Officers of State to account and thereupon ensues a calm After the Parliament ended the King repeats the matter it makes his heart sick he disgorgeth himself by a Proclamation made by advice of Nobles and Wise men as he saith and tells all the World he dissembled with his Parliament and what he did was done by duress of mind to please for the time and to gain his ends which being now had he by his Proclamation revokes what he had done in Parliament or endeavoured it And thus is England put to School to learn to dissolve three hard knots First Whether a King can dissemble with his Parliament Secondly Whether Edward the Third his dissembling assent makes a Law Lastly Whether by a Proclamation by advice of Nobles and Wise men he can declare that he dissembled with his Parliament and therein not dissemble the Royal Assent so as to bring all the Laws made in any Kings time into question at least during his Life However the result may be it is evident the Royal Assent gets no honour hereby and the Statute as little that hath suffered this Proclamation all this time to pass among the number of the Statutes in Print as a Law whenas many Statutes that are Laws of not are left out as useless Although in the general the two Houses joyned in every Act Ad extra yet Ad intra and in relation one to another they had their several operations the House of Commons intermedled more in the matter of Fact the House of Lords in matter of Right although in either of these there is a mutual aspect from both In matters of Judicature much rested with the Lords and therefore it is ordained that The House of Lords shall remedy all offences contrary to the Law of Magna Charta And in cases where no remedy is left nor Judgement by the Law the matter shall be determined in Parliament and the King shall command execution to be done according to the Judgement of the Peers Which Laws seem to be but declarative of the former Law and in the nature of reviving that power into Act which was formerly laid asleep and doth strongly imply that the ultimate act in
way is different from the common Road both in it's original and in the course of proceedings nor could it otherwise be considering the condition of the Nations and the people of the same interested in common Traffique The people thus interested as much differed from the other sort of Dry men if they may be so called as Sea from Land and are in nature but as March-men of several Nations that must concentre in some third way for the maintenance of Commerce for peace-sake and to the end that no Nation may be under any other Law than its own The condition of the Nations in the times when civilized Government began to settle amongst them was to be under the Roman Emperours who having setled one Law in the general grounds throughout all Nations made the Sea likewise to serve under one rule which should float up and down with it that men might know upon what terms they held their own wheresoever they went and upon what terms to part with it for their best advantage In its original therefore this Law may be called Imperial and likewise in the Process because it was directed in one way of Trial and by one Law which had its first birth from the Imperial power and probably it had not been for the common benefit of Europe to have been otherwise at other time or by other directories formed Nevertheless this became no Gem of Prerogative to the English Crown for if England did comply with forrein Natives for its own benefit it being an Island full of the Sea and in the common Road from the most parts of Europe that border upon the Sea and of delight in Merchandise it is but suitable to its self and it did so comply as it saved the main Stake by voluntary entertaining those Laws without being imposed upon by Imperial power For the Saxons came into this Kingdom a free people and so for ought yet appeareth to me continueth to this day I say that in those first times they did take into the consideration of Parliament the regulating of the fluctuating motions of Sea-laws nor were they then or after properly imposed by the King's Edict For though it were granted that Richard the First reduced the Sea-Laws in the Isle of Oleron yet that the same should be done without advice of Parliament in his return from the Holy land is to me a Riddle considering what Histories do hold forth concerning his return through Germany nor can that be good evidence to entitle Kings of England to a power to make and alter Laws according to their private pleasure and interest Nor doth that Record mentioned in the Institutes warrant any such matter but rather on the contrary groundeth the complaint upon Laws Statutes Franchises and Customs established and that this Establishment was by the King and the Council This Law was of a double nature according to the Law of the Land one part concerning the pleas of the Crown and the other between party and party for properly the King's Authority in the Admiralty is but an Authority of Judicature according to Laws established which both for process and sentence are different from the Common-Law as much as the two Elements do differ yet not different in the power that made them I shall leave the particulars to be enquired into by them that shall mind it elsewhere and only touch so much as shall reflect upon the main Government This power was executed by Deputies diversly according as the times and opportunities were for War or Peace and either transitu or portu What was done in time of War or whilst the Ship is out of the English Seas comes not to our purpose and therefore I shall not meddle with that further than this that in the first times Kings were wont to divide the work of Judicature and of War into several hands The power of War and Peace they committed unto men of approved Courage and Skill in that service and therefore generally not to the men of highest rank who had neither Mind nor Skill for a work of such labour dyet and danger This power passed under divers names sometimes by grant of the custody of the Sea-coasts sometimes of the parts and Sea coasts sometimes by being made Captain of the Sea-men and Mariners and sometimes Admiral of the Ships It was a great power and had been 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 shores and under the Title of Admiral in the times of Edward the First and forwards who brought that Title from the Holy Land. Nevertheless about the end of the times whereof we now Treat the custody of the whole Sea began to settle in one hand under the Title of Admiral of the English Seas and the place was conferred upon men of the greatest rank and so continued ever afterward The power of Jurisdiction or Judicature all this while remained distinct and it seems was setled in part in the power of the Sheriff and Justices For by the Law the Sheriff and Justices had cognizance of matters between the high water and the low water mark and what was done Super altum mare was within the directory of the Admiral these were but few things and of small consideration the principal of them being concerning War 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-affairs worthy of the best of their Rank and were pleased with the Title of Admiral whilst they left the work to others and so the Admiral became a person of more honour and less work than he had been formerly The greatness of the honour of this place thus growing soon also began to contract greatness of power beyond what it had formerly and this was principally in matter of Jurisdiction For not contented with the power of a chief Justice of War and Peace within the Seas which was his proper dominion the Lord Admiral gained the same within the low water mark and in the main streams below the next Bridge to the Sea and in all places where Ridels were set and yet these places were within the body of the County Nor did he endeavour less to gain in matters of distributive Justice for although he had a legal Jurisdiction in things done upon the Sea so far as to defend order determine and cause restitution to be made in cases of damage done unjustly yet was it no less difficult to keep
going out and nothing coming in he had a rule upon his private expences a good gloss upon the publick and a platform for the augmenting of the Treasure of the Kingdom as well for the benefit of the people as of the Crown In order to the first it is considerable that the Royal Family was great and numerous above all his Predecessors that besides the King and Queen who were of a gallant and accomplisht deportment they had a Son a Prince of as great renown as ever Prince had and he also a Family suitable to his generosity that they had other Children every one like their Father both for War and Peace and that for the maintenance of all these the expences must be in reason larger than formerly they were wont to be Nevertheless because purveyance for the King had already swelled so big that all other oppressions seemed to be swallowed up into that one the King to moderate the rigor thereof made nigh twenty Statutes first excluding all servants at wages and Horses and Dogs which were put to board with the Sheriffs then reducing the purveyance only to the Families of himself his Wife and Children then to the Families of himself the Queen and Prince and in the levy hereof some mens Estates were absolutely priviledged and some kind of Goods as Sheep before shearing and Trees about the dwelling house Nor is the setling of the manner less considerable It must be levyed by Authority in writing under the Seal and it must not be taken against the owners will or upon malice nor must be spared for reward the price must be the same with the true Market-price the measure according to the common measure stricked and the payment must be immediately if the price be under Twenty shillings if above it must be made in a quarter of a year and no man must charge more carriage than is necessary And thus was this wild Ivy of Purveyance that like some kinds of Plants spreads over all by rooting up and cutting down brought into some kind of fashion that if it did no good it might do the less hurt unto the people Secondly Although it be true that Edward the Third was a King of many Taxes above all his Predecessors yet cannot this be imputed as a blot to the honour of the Law or Liberty of the people for the King was not so unwise as either to desire it without evident cause or to spend it in secret or upon his own private interests nor so weak and irresolved as not to employ himself and his Souldiers to the utmost to bring to pass his pretentions nor so unhappy as to fail of the desirable issue of what he took in hand So as though the people parted with much money yet the Kingdom gained much honour and renown and becoming a terrour to their Neighbours enjoyed what they had in fuller security and so were no loosers by the bargain in the conclusion Secondly although they parted with much yet nothing to Prerogative but in a Parliamentary way and so it was not taken but given Thirdly though the Taxes were frequent yet but light for frequent light Taxes steal insensibly without regret and as they grow into matters of course so they meet with acceptance of course Two things made them of light account First they were not Taxes altogether of Money in kind but of Goods such as the Sheaf and Fleece and such-like things whereof the ownership is visible whereas many are supposed to have Money which have it not but must borrow it or sell their goods at an under-rate many times to accomplish it for the payment of their Taxes Secondly these Taxes are assessed by the Neighbourhood and not upon extremity of Survey by Commissioners who many times are subject to miscarry upon grounds of private Interest or for want of due information or by making more haste than good speed These Taxes likewise were reduced to the ancient rule according to the Statute of Westminster the first And thus did this King shew himself truly Royal in demanding his Taxes upon evident grounds of State levying them with a tender hand and employing them to their right end Thirdly that which digested all and bred good bloud was in that the people had quid pro quo by the advance of Trade wherein the King shewed himself the Cape-Merchant of the world Certainly mens parts in these times were of vast reach that could manage such Wars settle such a Government and lay such a foundation of a Treasury by Trade a thing necessary to this Island next unto its own being as may appear not only in regard of the Riches of this Nation but in regard of the Strength thereof and in regard of the maintenance of the Crown the two latter of which being no other than a natural effluence of the former it will be sufficient to touch the same in order to the thing in hand Now as touching that it is evident that the riches of any Nation are supported by the Conjuncture of three regards First That the natural Commodities of the Nation may be improved Secondly That the poorer sort of people be set a work Thirdly That the value of money be rightly balanced For as on the one part though the people be never so laborious if the natural Commodities of the Island be not improved by their labour the people can never grow much richer than barely for subsistence during their labour so neither can the improvement of the natural Commodity inrich the Kingdom so long as many mouths are fed upon the main stock and waste the same by idleness and prodigality Nor though both these should concur yet cannot the Kingdom be said truely to be rich unless by intercourse and Traffick there be an emptying out of the superfluity of such Commodities by way of Barter or otherwise for such Forein Commodities whereof this Nation slandeth in most need for supply of all occasions For God hath so attempered the whole Regiment of the earth in such manner that no one Nation under Heaven can well and comfortably subsist in and by it self but all must give and receive mutual Commodity from each other otherwise superfluity would make any Commodity though in it self never so precious vile and little conducible to the inriching of the Nation Now for the compassing of all these the Wise men of these times first took into their consideration the principal Commodities of this Kingdom and because they found them impounded in the Staple they set all at liberty to buy and sell the same as they pleased And thus began a Free Trade of Wool throughout the Realm and matter for employment by every man that would but this continued not long The people soon had Commodity enough for work and Kings liked too well of the restraining of that liberty in order to their own benefit and soon found out occasions to reconcile the reason of State with their own Interests and
the issue will be And therefore though it in the general be more beneficial that all Exportation and Importation might be by our own Shipping yet in regard times may be such as now they were that the Shipping of this Nation is more than ordinarily employed for the service of the State And that every Nation striveth to have the benefit of Exportation by Vessels of their own And Lastly in regard the case may be such as Importation may be at a cheaper rate by forein Vessels and Exportation likewise may for the time be more prejudicial to this Nation if done by our own Shipping than those of other Nations Therefore the course must be changed so far forth as will stand with the occasions of the State and common profit of this Nation And for these causes and such-like in the times whereof we now treat the Laws often varied Sometimes no Staple-Commodity must be Exported in English bottoms sometimes all must be done by them and within a year again that liberty was restrained and after that liberty given to Foreiners to Export as formerly The third and last Consideration is as necessary as any of the former for if Trade be maintained out of the main Stock the Kingdom in time must needs be brought to penury because it is their Magazine And for this cause it was provided That all Wool should remain at the Staple 15 days to the end it might be for the Kingdoms use if any one would buy they must do it within that time otherwise it might be exported The sixth means of advancement of Trade was the setling of the Staple for as it was an encouragement to the first establishing of the Manufacture that the Staples were let loose so when the Manufactures had taken root the Staple especially now fixed to places within this Kingdom brought much more encouragement thereto First For preserving a full Market For whilst the Commodity lies scattered in all places the Market must needs be the leaner partly in regard the Commodity lies in obscurity and partly because when it is known where yet it is not easily discovered whether it be vendible or not and besides small parcels are not for every man's labour and the greater are not for every man's money Secondly Staples are convenient for the slating of the general price of the Commodities in regard the quantity of the Commodity is thereby the more easily discovered which commonly makes the price And the quantity of the Commodity thus discovered will not onely settle the price to it self but also ballance the price of the Manufacture Thirdly The Staple having thus discovered the quantity of the Commodity will be a ready way to settle the quantity of the main Stock that must be preserved and regulate Exportation as touching the overplus But it cannot be denied that the first and principal mover of the making of the Staple was the benefit of the Crown For when the Commodity was gone beyond the Sea it importeth not to the Subjects in England whether the same be sold at one place or more or in what place the same be setled until the Manufacture was grown to some stature and then the place became litigious The benefit of Exportation pretended much interest in the setling thereof beyond the Sea but in truth it was another matter of State. For when it was beyond Sea it was a moveable Engine to convey the King's pleasure or displeasure as the King pleased for it was a great benefit to the Countrey or place where-ever it setled or else it moved or stayed according to the inclination of the People where it was either for War or Peace But on the contrary the Interest of the people began to interpose strongly And for these causes the Parliament likewise intermeddled in the place and thus the Scene is altered Sometimes it is beyond the Seas in one place or in another sometimes in England In Edward the Third's time we find it sometimes at Calis sometimes in England In Richard the Second's time we find it again beyond the Seas at Middleburgh thence removed to Calis and after into England Where at length the people understood themselves so well that the Parliament setled the same it being found too burthensome for the Manufactures to travel to the Staple beyond the Seas for the Commodity that grew at their own doors besides the enhansing of the price by reason of the Carriage which falling also upon the Manufactures must needs tend to the damage of the whole Kingdom This was one way indeed and yet possibly another might have been found For if a Computation had been made of the main Stock and a Staple setled within the Kingdom for that and the overplus exported to a Staple beyond the Sea it might have proved no less commodious and more complying It is very true that there are many that call for the Liberty of the people that every man may sell his own Commodity as he pleases and it were well that men would consider themselves as well in their Relations as in their own Personal Respects For if every man were independent his liberty would be in like manner independent but so long as any man is a Member of a Common-wealth his liberty must likewise depend upon the good of the Common-wealth and if it be not good for the Nation that every man should sell his own Commodity as he pleaseth he may claim the liberty as a Free-man but not as an English-man Nor is that liberty just so long as his Country hath an interest in his Commodity for its safety and welfare as in his own person I do not assert the manner of buying the Staple-Commodities by Merchants of the Staple to sell the same again in kind for their private advantage Divers limitations must concur to save it from an unlawful ingrossing nor doth it appear to me that the Staplers in these times used such course or were other than mere Officers for the regulating of the Staple in nature of a Court of Piepowders belonging to some Fair or Market Nevertheless I conjecture that it may well be made evident from principles of State that Marts Markets and Staples of Commodities that are of the proper Off-spring of this Nation are as necessary to Trade as Conduits are to places that want Water The seventh and last means that was set on foot in these times for the advance of Trade was the regulating of the Mint and the current of Money This is the life and soul of Trade for though exchange of Commodities may do much yet it cannot be for all because it is not the lot of all to have exchangeable Commodities nor to work for Apparel and Victual Now in the managing of this trick of Money two things are principally looked unto First That the Money be good and currant Secondly That it should be plentiful As touching the excellency of the Money several Rules were made as against
to the Customs or Laws of the place yea contrary to them which I believe the Reporter never intended to affirm Thirdly The Reporter salleth upon the matter in fact and tells us that the King of England did many times De facto grant Protections to persons in places out of the English Consines and it will not be denied But never was any absolute and indefinite Protection so granted for the Protection extends to defence from injury and all injury is to be expounded and judged according to the Laws of the place Nor do any of the Precedents vouched by the Reporter clear that the King of England did grant as King of England Protection to any Englishman in any parts of the King's Dominion beyond the Seas which was not qualified according to the Laws and Customs of that place Especially it being apparent that an English King may hold Dominion in Foreign parts in Legiance under a Foreign King as Edward the Third held the Dutchy of Guien and therefore cannot grant absolute Protection in such place nor receive absolute Legiance from any person there being Fourthly The Reporter saith That the King of England hath power to command his Subjects of England to go with him in his Wars as well without the Realm of England as within the same therefore the Legiance of an Englishman to his King is indefinite and not local or circumscribed by place or within the Kingdom of England Although the first of thâ—se be granted yet will not the inference hold for possibly this may arise from the constitution of a positive Law and not from natural or absolute Legiance nor doth any Authority by him cited justifie any such Legiance But I cannot agree the first for it is not true that the King hath any such power from his own personal interest nor doth the authority of former Ages warrant any such matter For a fuller disquisition whereof I shall refer the Reader to the Eleventh Chapter ensuing because the whole matter concerning the Militia cometh there to be handled in course Fifthly To close up all the rest the Reporter brings The Testimony of the Judges of the Common Law out of the Testimony of Hengham wherein an Action was brought by a French woman against an English man who refused to answer because the Plaintiff was a French woman and not of the Legiance or Faith of England This was disallowed by the Judges because Legiance and Faith was referred to England and not to the King. Thereupon the Defendant averred that the Plaintiff is not of the Legiance of England nor of the Faith of the King And upon this Plea thus amended the Plaintiff gave over her Action The Reporter from hence observeth that Faith and Legiance is referred to the King indefinitely and generally and therefore it is so due to him The reason might have had more force had the Object of Allegiance or the nature thereof been the point in question but neither of them coming to debate and Allegiance being subjected to England and Faith to the King I see not what more can be concluded from hence but that Allegiance from an English man is due to England and Faith to the King which I suppose must be intended to be in order to that Allegiance because by the former Plea England had them both and the King was wholly left out in the Case Nevertheless I rather think that the present point in controversie will receive little light herefrom on either part We are now come to the fourth property of English Legiance that it is due to the King 's Natural Capacity and not to his Politick Capacity or due to the Office of a King in regard of the Person of the Man and not to the Person in regard of the Office fol. 20. And because this is of no small importance neither easily understood nor granted Therefore he backeth his Opinion by many reasons First he saith that the King sweareth to his Subjects in his Natural Capacity therefore the Subjects swear to him in his Natural Capacity This reason was intended to be taken from Relatives and then it should have been thus A King doth swear to his Subjects in their Natural Capacity therefore Subjects swear to a King in his Natural Capacity But it being otherwise it is mistaken and proves not the Point Yet if we should take the Reporter in sano Sensu there is no question but the Oath is made to the Natural Capacity yet not Terminativè more than the Oath of the Tenant to his Lord which this Author pleaseth to couple with the mutual dependence between King and Subject fol. 4. b. 5. a. Nor doth the Oath of an Englishman bind him to the Obedience of all or any Commands which the King shall give in relation onely to his Natural Capacity or in opposition to his Politick Capacity Nor will the Reporter himself allow that the Politick Capacity of the King can be separate from his Natural Capacity fol. 10. And yet it is evident that a King may in his Natural Capacity command that of which his Politick Capacity cannot give Allowance The second reason of this Opinion is taken from the nature of Treason which saith the Reporter is committed against the Natural Person of the King and this is against due Legiance according to the form of Indictments in that Case provided This is not demonstrative because that crime which is done against the Natural Person of a Man may as well extend to it in relation to his Place or Office and so may Treason be plotted against the Natural Person of a King as he is King neither is there any other difference between the murther of a King and a private Man but only in regard to the Place and Office of a King which makes the murther of him Treason For which cause all Indictments that do conclude Contra Legiantiae debitum do as well also conclude Contra Coronam Dignitatem c. The third reason is this A body politick can neither make nor take Homage 33. H. 8. Bro. tit Fealty Therefore cannot the King in his Politick Capacity take Legiance The first must be granted only sub modo for though it cannot take Homage immediately yet by the means of the Natural Capacity it may take such service And therefore that Rule holds only where the Body Politick is not aggregate and not one Person in several Capacities for the Tenant that performs his service to his Lord performs the same to his Lord in his Natural Capacity but it is in relation to his Politick Capacity as he is his Lord. For Lord and Tenant King and Subject are but Notions and neither can give nor take service but that Man that is Lord or Tenant or King or Subject may even as the power of protection is in a King not as he is a Man but as a King. The fourth reason is this The King 's Natural Person hath right in the Crown by Inheritance therefore also in the
are not of the Legiance of the King of England but as Lord of that Territory The other matter to be observed concerning pleading in the Courts of Civil 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 believe rather supposed than felt For though some kind of knowledge of Law-terms may be encreased thereby yet unless that shall be professedly studied it will breed nothing but Notions and they an over-weening conceit which many times sets men to Suits in Law to their own loss like some weak influence of the Celestial Bodies that are strong enough to stir up humours but not to expel 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 Gilgal CHAP. XI Of the Militia in these times WAR is ever terrible but if just and well governed Majestical the one may excite resistance and defence but the other conquers before blow given because it convinceth the Judgment and so prevails upon the Conscience For that heart can never be resolute in its own defence that is at War with its own understanding nor can such a heart consider such a War otherwise than as Divine and bearing the face of an Ordinance of God and then how can the Issue be unsuccessful It is no strange thing for Kings to miscarry in their Wars because it is rarely seen that they are under good Counsel but if a Christian Counsel miscarry we may conclude it extraordinary in the efficient cause and no less 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 fundamental Laws of War against time of War as of Peace in time of Peace Neither was England deficient herein saving that antient times were more obscure in the particulars and these days 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 nevertheless received the same submitting both it and himself to the Directory of the Parliament in making a War with France which was three to one against him in very respect but in the Title besides the disadvantage from Scotland that lay continually beating upon his Rear The like may be observed of his War with Scotland in both which he evidently telleth the World that he held it unreasonable to enter upon the managing of an offensive Foreign War without the concurrence of the common consent of the People and that not onely for the thing it self but also for his own Personal Engagement in the Service For a King though he be the Generalissimo yet is he so from the People and his Person being of that high value is not to be exposed to every occasion that may provoke War without due advice first had with the publick Council because in his Person the People adventureth as well as himself And in this manner were the Wars in France by Edward the Third and in Scotland concluded upon debate In the next place as touching the Arrays of Men for War I find 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 War. But in case of publick defence against Foreigners 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 dishonourable to the King. In foreign service the course was no less regular if the War was by special 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 express words of the Statute said to be granted by the Knights and Burgesses But if it was onely upon the King 's particular instigation and not by order or consent of the Parliament the King in such case being Voluntier all the Souldiers were in like manner unless some particular Law or Tenure otherwise obliged them As touching the arming of Souldiers the Law was yet more certain 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 virtue of their Tenures The first of these is confirmed by Edward the Third in Parliament wherein he willeth that no man shall be urged to arm himself otherwise than he was wont in the times of his Ancestors Kings of England The two latter were likewise confirmed by another Law made in the same Kings time whereby it was ordained That no Man shall be constrained to find Men of Arms Hoblers nor Archers other than those which hold by such services if it be not by common consent and grant made in Parliament By Men of Arms meaning those which we now call Curiassieres or compleat armed by Hoblers meaning those now called light Horse-men The Archers served on Foot and were principally armed with Bows although they had also Swords or other such offensive portable Weapons The first of these concerneth onely the arming of a man 's own person the other the finding of Souldiers and arming of them and both together sufficient for the safeguard of the Rights and Liberties of the People invaded in those times by Commissions of Array and such other expressions of Prerogative Royal for as touching the arming of a man 's own person the Statute of 1 Edward 3. formerly mentioned is clear in the point And though the Statute of 25 Edward 3. doth not in the latter direct as touching the finding Arms for others as is urged in his Majesty's Answer to the Declaration of the Parliament concerning the Commission of Array July 4. 1642. yet is it therein granted that a compleat 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 clear to me that the Statute must intend the arming of him with compleat Arms and not the armed person of the man. The Souldiery thus arrayed they are in the next place to be called to their Rendezvouz the Knights by Summons sent to the Sheriff but the rest by Proclamation If the Knights appear
till by Laws Enacted in Parliament they lost their Liberties of bearing Office Ministerial or of Judicature of holding Castle of Convention without the Kings License yea of Purchase and by degrees were brought down from the height of a Free Principality to be starved in their power and inferiour to a Free People And thus the Welsh on the one side the discontented Lords on the other and Mortimar's Title in all so busied the King as though he lopped off the Tops as they sprang up yet they sprang forth as they were lopped nor was it the Kings lot all this while to find out the root of All or to strike at that Lastly when time had made all Troublers weary yet he still sits upon Torns he was jealous of his Subjects jealous of his Son yea jealous of himself it being ever the first and last of his thoughts how to keep his Crown For the most part of his Reign he was troubled with the walking Ghost of Richard the Second ever and anon he was alive he was here he was there and so the peoples minds were always kept at random but when all these Spirits are conjured down Richard the Second's Ghost is yet within Henry's own breast So ruled Henry the Fourth an unhappy confident man that durst undertake more than he would did more than he ought was successful in what he did yet never attained his end to be sure of his Crown and quiet of mind For a Plaister to this Sore he turned somewhat towards Religion but shewed it more in zeal to Church-men than in works of Piety and therefore may be thought to regard them rather as his best Friends in right of Archbishop Arundel than as in relation to Religion Yet as if he overlooked that he desires their Prayers becomes a strict observer of superstitious Rites is fiery zealous against the Lollards intends a Journey into the Holy Land and War against the Infidels the common Physick of guilty Kings in those days Briefly he did will to do any thing but undo what he had done and had done more had his Journey to the Holy Land succeeded But whether hastned or delayed by a Prophecie of the ending of his days falls not within my Pen to censure entring upon the Work he died in the beginning of his purposes in the midst of his fears never came to the Holy Land and yet yielded up his last breath in Jerusalem The Parliament was then sitting and was witness of the death of Henry the Fourth as it had been of his entrance upon the Throne as if purposed to see the course of the Crown in the doubtful current between the two Houses of Lancaster and York and to maintain their own Honour in directing the Scepter according to their warranty upon a late Intail by Act of Parliament Yet did not all rest upon this for the Heir of Henry the Fourth was a Man every inch of him and meant not to Moot upon the point His Father died a King and he his Heir had the Crown and was resolved to hold it A rough young man he had been formerly and bold enough to out-face small doubts in point of Succession for he could for need out-face common Civility it self This might have lien in his way for he that cannot govern himself can much less govern a Kingdom Yet a hidden providence concluded quite contrary and rendred him a clear Testimony of a strange change by the anointing Oyl like that of Saul that forthwith had the Spirit of another man. So though not hammered thereto by Affliction as was Edward the First yet was he his parallel in Government and superiour in Success Being seated in the Throne all men thought it dangerous to abide the adventure of the Turn of this Kings Spirit The Clergie had but yesterday tried the Mastery with the Laity and gained it but by one Vote there was no dealing with the Clergie whilst Archbishop Arundel lived nor with him whilst Henry the Fourth lived or his Merits were in memory but now they both are dead the Clergie and the Laity are upon even ground This might make the Clergie now not over-confident The Lords looked on the King as a man like enough to strike him that stands next The wise men saw he would be doing all men were tired with Intestine Quarrels and jumped in one That he that would be in action should act abroad where he might get Renown and a Purchase big enough for his Spirit Scotland was a Kingdom yet incompetent to the King's Appetite France was the fairer Mark and better Game and though too big for the English gripe yet the Eagle stooped and sped himself so well as within six years he fastned upon the Sword and Scepter and a Daughter of France and might have seized the Crown but chose to suffer a blur to lie upon his Title derived from Edward the Third rather than to incur the censure of Arrogancy over a stooping Enemy or to pluck the fruit from the Tree before it was fully ripe which in time would fall â—nto his lap by a better Law than that of the Sword Otherwise it might be well conceited that he that hath both Right and Power and will not seize disclaims Besides the King was as well Inheritor to his Father's Fate as Crown still he had success but the end was so far distant that he died in the way thereto The brave Dauphine of France maintaining War after his Father the French King had yielded up the Bucklers to Henry the Fifth till Henry the Fifth died and the English did forgo what they had formerly gotten in France by the Sword of that great Commander Nor did the English gain any thing in the conclusion of this War but an honourable windy repute of being one of the five Chief Nations of Christendom if honour it be to be reputed amongst the Nations a Conquerour of France the chief Leader unto the dethroning of three Popes at once the Election of Pope Martin and of giving a Cure to that deadly Wound of the Popedom which had spent the bloud of two hundred thousand mens lives lost in that Quarrel These Foreign Engagements made the King less sollicitous of the point of Prerogative at home and the rather because he knew the way to conquer his private Enemies Arms and his Subjects Hearts without loss of Honour in the one or Reverence in the other He loved Justice above the rank of his Predecessors and in some respects above himself for he advanced Gascoign for doing Justice though to the King 's own shame He liked not to intrude himself into Elections and therefore though requested by the Monks of Canterbury he would not nominate a Successour to Archbishop Arundel but left the whole work to them In the Authority of his place he was moderate and where his Predecessors did matters without the Lords consent when he made his Unkle the Marquiss of Dorset Duke of Exeter and had given
faithfully carried on by him that Justice it self could not touch his person unjustice did and he received this reward from his Nephew Henry the Sixth that he died in the dark because the Cause durst not endure the light Now is Henry the Sixth perswaded that he is of full Age he had laid aside his Guardian the Duke of Gloucester but forgetting to sue out his Livery he betakes himself from the Grace of God into the warm Sun as the Proverb is changing the Advice of a faithful experienced wise Counsellour for the Government of an Imperious Woman his Queen who allowed him no more of a King than the very Name and that also she abused to out-face the World. And after she had removed the Duke of Gloucester out of the way undertook the sway of the Kingdom in her own person being a Foreigner neither knowing nor caring for other Law than the Will of a Woman Thus the Glory of the House of Lancaster goes down and now a Star of the House of York appears in the rising and the people look to it The Queen hereat becomes a Souldier and begins the Civil Wars between the two Houses wherein her English party growing wise and weary she prays Aid of Ireland a Nation that like unto Crows ever wants to prey upon the Infirmities of England The Wars continue about sixteen years by â—its wherein the first loss fell to the English party the pretensions being yet onely for good Government Then the Field is quiet for about four years after which the clamour of ill Government revives and together therewith a claim to the Crown by the House of York is avouched Thereupon the Wars grew hot for about four years more and then an ebb of as long Quiet ensues The Tide at last returns and in two years War ends the Quarrel with the death of Fourscore Princes of the Bloud-Royal and of this good man but unhappy King. Unhappy King I say that to purchase his Kingdoms Freedom from a Foreign War sold himself to a Woman and yet lost his Bargain and left it to Observation That a Conscientious man that marries for by-regards never thrives For France espied their advantage they had maintained War with England from the death of Henry the Fifth with various success The Duke of Bedford being Regent for the English for the space of fourteen years mightily sustained the fainting condition of the English Affairs in those parts and having crowned his Master Henry the Sixth in Paris in the ninth year died leaving behind him an honourable Witness even from his Enemies That he was a brave Commander a true Patriot and a faithful Servant to his Lord and Brother Henry the Fifth and to his Son Henry the Sixth But now the Duke of Bedford is dead and though France had concluded a Peace with the English yet they could not forget the smart of their Rod but concluded their Peace upon a Marriage to be had with a Woman of their own bloud and interest And what they could not effect by Arms in thâ—â—r own Field they did upon English ground by a Feminine Spirit which they sent over into England to be their Queen and in one Civil War shedding more English bloud by the English Sword than they could formerly do by all the men of France were revenged upon England to the full at the English-mens own charge For what the English gain by the Sword is commonly lost by Discourse A Kingdom is never more befooled than in the Marriage of their King if the Lady be great she is good enough though as Jezabel she will neither reverence her Husband obey her Lord and King nor regard his people And thus was this Kingdom scourged by a Marriage for the sin of the wise men that building upon a false Foundation advised the King in the breach of Contract with the Earl of Arminiack's Daughter And thus the King also for that hearkning to such Counsel murthered the Duke of Gloucester that had been to him a Father yielded up his Power to his Queen a masterless and proud woman that made him like a broken Idol without use suffered a Recovery of his Crown and Scepter in the Parliament from his own Issue to the Line of York then renewing the War at his Queens beck lost what he had left of his Kingdom Country and Liberty and like the King that forgot the kindness of Jehojada lost his Life by the hand of his Servant CHAP. XIV Of the Parliament during the Reigns of these Kings THe Interest of the Parliament of England is never more predominant than when Kings want Title or Age. The first of these was the Case of Henry the Fourth immediately but of them all in relation to the pretended Law of the Crown but Henry the Sixth had the disadvantage of both whereof in its due place The pretended Law of the Crown of England is to hold by Inheritance with power to dispose of the same in such manner by such means and unto such persons as the King shall please To this it cannot be denied divers Kings had put in their claims by devising their Crown in their last Will but the success must be attributed to some power under God that must be the Executor when all is done and which must in cases of Debate concerning Succession determine the matter by a Law best known to the Judge himself Not much unlike hereunto is the Case of Henry the Fourth who like a Bud putting up in the place of a fading Leaf dismounts his Predecessor First from the peoples regard and after from his Throne which being empty sometimes he pretended the resignation of his Predecessor to him other whiles an obscure Title by descent his Conscience telling him all the while that it was the Sword that wrought the work But when he comes to plead his Title to Foreign Princes by protestation laying aside the mention of them all he justifies upon the unanimous consent of the Parliament and the people in his own onely person And so before all the World confessed the Authority and Power of the Parliament of England in disposing of the Crown in special Cases as a sufficient Bar unto any pretended Right that might arise from the House of Mortimar And yet because he never walks safely that hath an Enemy pursuing him still within reach he bethinks himself not sure enough unless his next Successours follow the dance upon the same foot To this end an Act of Parliament leads the Tune whereby the Crown is granted or confirmed to Henry the Fourth for life and entailed upon his Sons Thomas John and Humphrey by a Petition presented 5 Hen. 4. Thus Henry the Fourth to save his own stake brought his Posterity into the like capacity with himself that they must be Kings or not subsist in the World if the House of York prevails And so he becomes secured against the House of York treading on his heels unless the Parliament of England shall
Peace for whilst Henry the Sixth was in France which was in his Tenth year from St. George's day till February following the Scots propound terms of Peace to the Duke of Gloucester he being then Custos Regni which he referred to the Order of the Parliament by whom it was determined and the Peace concluded in the absence of the King and was holden as good and effectual by both Kingdoms as if the King had been personally present in his full capacity CHAP. XXIII A Survey of the Reigns of Edward the Fourth Edward the Fifth and Richard the Third THe Reign of Henry the Sixth was for the most part in the former parts of it like Fire buried up in the Ashes and in the latter parts breaking out into a Flame In the heat whereof the Duke of York after Fealty given by him to Henry the Sixth and Dispensation gotten from the Pope to break his Faith lost his life and left his Son the Markgrave to pursue his Title to the Crown which he claimed by Inheritance but more especially by Act of Parliament made upon the agreement between Henry the Sixth and his Father This was Edward the Fourth who nevertheless reserved himself to the Election of the Lords and was by them received and commended to the Commons in the Field By which means he gaining the possession had also encouragement to maintain the same yet never held himself a King of full Age so long as Henry the Sixth lived which was the one half of his Reign Nor did he though he held many Parliaments scarce reach higher than at reforming of Trade which was a Theam well pleasing to the people next unto their Peace which also the King carefully regarded For although he had been a Souldier of good experience and therewith successful yet as one loath to trust too far either the constancy of the people of his own Opinion or the fortune of War with his neighbouring Princes he did much by brave countenance and discourse and yet gained repute to the English for valour after the dishonourable times of Henry the Sixth He had much to do with a wise King of France that knew how to lay out three or four calm words at any time to save the adventure of his peoples bloud and make a shew of money to purchase the peaceable holding of that which was his onely by force until the wind proved more fair to bring all that continent under one head In his Government at home he met with many cross Gales occasioned principally by his own rashness and neglect of the Earl of Warwick's approved friendship which he had turned into professed enmity and so weakned his own cause thereby that he was once under water his Kingdom disposed of by new intail upon the Heirs of Duke Clarence and so the Earl of Warwick remained constant to the House of York though this particular King was set aside Nor did he in all this gain any thing but a Wife who though his Subject and none of the greatest Family neither brought any interest unto her Lord and Husband amongst Foreign Princes brought nevertheless a Pearl which was beyond all which was the purchase of the Union between the two Houses of York and Lancaster and a peaceable succession in the Throne for a long while to come It must be granted that there fell therewith an unhappy inconvenience in the raising of a new Nobility of the Queens Kindred of whom the ancient Stock of Nobility thought scorn and yet they were so considerable as to be envied A Wound hard to be cured and yet easily avoided by such as know how to deny themselves And therefore can be no prejudice unto that conclusion That for an English King to marry his own Subject is more safe for the King and beneficial for the Kingdom than to marry a Stranger But Edward the Fourth did not long lie underneath upon the next fair Gale he comes from beyond the Sea and like his first Predecessor of the House of Lancaster claims onely his Dutchy which no man could in reason deny to be his right and therefore were the sooner engaged with him in that accoust This was an act that in the first undertaking seemed modest but when it was done appeared too bold to adventure it upon the Censure of Henry the Sixth and therefore they were not more ready to engage than slack to dis-engage till they were secure in the Kings Interest which not long after ensued by the death of Henry the Sixth Thus Edward the Fourth recovered the Crown to save his Dutchy His Government was not suitable for he came in by the People but endeavoured to uphold himself by Foreign Dependencies as if he desired to spread his Roots rather wide than deep How ill this Choice was the event shewed for Plants that root wide may be strong enough against an outward Storm but they soon grow old barren and rot irrecoverably from beneath Such was the end of this mans Government himself lived and died a King and left Issue both Male and Female the one tasted the Government the other kissed it but neither of them ever enjoyed further than a bare Title Nor was the Government of Edward the Fourth so secured by the Engagements of Foreigners for as he sought to delude so he was deluded both by Burgundy and Scotland to the prejudice of all three Towards his own people his carriage was not so much by Law as by Leave for he could fetch a course out of the old way of rule satisfie himself dissatisfie others and yet never was called to account What was done by Entreaty no man could blame and where Entreaties are countenanced by Power no man durst contradict Thanks to his Fate that had brought him upon a People tired by Wars scared by his success and loth to adventure much for the House of Lancaster in which no courage was left to adventure for it self The greatest errour of his way was in the matter of Revenue the former times had been unhappy in respect of good Husbandry and Edward the Fourth was no man to gather heaps His occasions conduced rather to diffuse and his mind generally led the way thereto so as it is the less wonder if he called more for accommodations than the ordinary Treasury of the Crown could supply Hereto therefore he used expedients which in his former times were more moderate for whilst Henry the Sixth lived he did but borrow by Privy Seal and take Tunnage and Poundage by way of hire Afterwards when no Star appeared but what was enlightned from his own Sun he was more plain and tried a new trick called Benevolence Unwelcome it was not onely in regard of its own nature but much more in the end for it was to serve the Duke of Burgundy in raising a War against France in the first view but in the conclusion to serve his own Purse both from Friends and Foes And yet this also passed without much
them to put up beyond his place and to bid adieu to the advice of all the rest but he gets the uppermost seat in the King's Head makes a Foot-stool of the King's Heart and then it is two to one that the people in such cases must bear the greater burthen For whoever first said it he said most true That Prerogative in the hand of a King is a Scepter of Gold but in the hand of a Subject it is a Rod of Iron The Reign of this King Henry the Eighth serves us with much experience of this kind for if the consideration of the Affairs of this Government should be divided the same would be double the one under the Regiment of Cardinal Wolsey the other of the King by Cromwel Cranmer Gardiner and others interchangeably I call that of Wolsey a Regiment for he was in the nature or condition of a Pro-Rex during the Kings Juvenility This fortune thus super-induced upon a Cardinal raised from mean degree to be Legate à Latere courted by Foreign Princes slattered by the Emperour with Titles of Son and Cousin made him lead a dance that the King however active he was is put to his career to hold him company which the King perceiving tripped up his heels and left the Archbishop the Chancellour the Cardinal the Legate and many more with him lying on the ground No pride like to that of the Clergie whose parts are more sublime and apprehensions clear If God addeth not a superiour Work to rule over all a little honour will blow up all with powder The King having thus matched the Cardinal forgot his former natural pace and once in a heat could cool no more till death cooled him He knew by experience that the Cardinal could over-awe the people why should not the King do as much if the Lords stooped to the Cardinal why not much rather to the King The Cardinal pulled down reared up turned square to round why should he be less than his Subjects Such conceits as these soon wound up the Kings mind to that height that it is death to him to stoop one inch lower to more moderate advice though he loved their persons never so well but all must be content with the weight of his arm though it were no small one and yet in point of Religion affairs tended to a kind of Reformation all this while CHAP. XXVII Of the State of the Crown THat the Crown of England now abounded more in Flowers than Crosses the Face of Story doth hold forth to ordinary Observation and yet few are satisfied either in the true nature of the particular advantages or in the manner how they were obtained or in the continuance I must therefore make a little stop upon them because in the true discerning of them the discovery of the nature of the Government in latter days doth much depend Hitherto the Crown came short of absolute power over the people upon two grounds in observation one relating to the Clergie the other to the Laity The Church-men were heretofore under a Foreign power and a Foreign Law against which Kings durst not deeply engage either not being assured of their own Title or employed in pursuit of other game or being of a weak Spirit were scared with the Thunder-bolt of the Pope's Curse But the Laity were under another Law and such an one as by clear and unquestionable Custom had established bounds between the way of Kings and the Rights of the People Neither did Kings directly invade those Borders either led thereto by a kind of Conscience in such of them as were morally enclined or in others by a kind of fear of raising up Earthquakes from beneath which commonly do overthrow high Towers sooner than Winds from above But now such interests are laid aside fast asleep by two Kings Whereof one cared not much for Fear and neither of them for Conscience For Henry the Seventh having leisure to study the Nature and contemplate the Fashion of the English Crown dislikes the Model in some particulars It was not rich enough nor well poised to his mind which ever was not to be poor but towards his latter time to be exceeding rich as supposing that to be the onely way to be more desirable to Friends formidable to Enemies and absolute over his People And this opinion of his missed in the main end though it attained his immediate desire For by mistaking the right way it made a rich King but not a rich Crown He delighted more in the riches of his People than in a rich People And this bred no good blood because the People thought that the Law was not on his side in that matter They suffered him to visit their Purses but are loth it should prove customary lest they should lose their Common Right They therefore chose rather to give him power by Act of Parliament to revoke Letters-Patents and Grants and make resumptions of Offices Fees Annuities and the like that he might rather repossess his own than possess theirs Many Penal Laws likewise of a limited and Temporary regard are made and as Cheese after a full Dinner they close up all with Subsidies For it was evident to all men that the Royal mind of the King served no further than to take what was given provided that the People would give what else would be taken By this means Henry the Seventh left rich Coffers to descend to Henry the Eighth but the Crown was still the same in price In this Act of the Play the People carry away the plaudite The second Act was the point of Allegiance wherein both parts carry themselves so cunningly as it is hard to adjudge the Garland yet it may be thought the King observed it rather because he offered all the play whilst the People did onely lie at their close guard The whole project consisted in this to gain a more absolute Allegiance from the English to their King. And because this is exemplified partly in War and partly in Peace that part which concerneth War will more properly fall under the consideration of the Militia and therefore I shall refer the same to that head in the 32 Chapter ensuing and will come to the second consideration of Allegiance in relation to Peace and therein touch upon the Kings power in making of Laws and of Judicature according to those Laws As touching the making of Laws the ingenuity of Henry the Seventh could not suffer him to make any claim thereto in any positive way yet his actions declare that his heart was that way For being beset with troubles he could often fancy dangers and arm himself then call a Parliament who were wise enough to grant as readily as he asked rather than to be compelled thereto So he had Laws made according to his own Will though he made them not The matter of Judicature comes next and therein he made his Judges appear and not himself though they did not onely represent his person but his mind
the people for the present must endure In deposito of the King and other persons that a kind of Interim might be composed and the Church for the present might enjoy a kind of twilight rather than lie under continual darkness and by waiting for the Sun-rising be in a better preparation thereunto For the words of the Statute are That all must be done without any partial respect or affection to the Papistical sort or any other Sect or Sects whatsoever Unto this Agreement both parties were inclined by divers regards For the Romanists though having the possession yet being doubtful of their strength to hold the same if it came to the push of the Pike in regard that the House of Commons wanted Faith as the Bishop of Rochester was pleased to say in the House of Lords and that liberty of Conscience was then a pleasing Theme as well as liberty of Estates to all the People These men might therefore trust the King with their interests having had long experience of his Principles and therefore as Supream Head they held him most meet to have the care of this matter for still this Title brings on the Van of all these Acts of Parliament On the other side that party that stood for Reformation though they began to put up head yet not assured of their own power and being so exceedingly oppressed with the six Articles as they could not expect a worse condition but in probability might find a better they therefore also cast themselves upon the King who had already been baited by the German Princes and Divines and the outcries of his own People and possibly might entertain some prejudice at length at that manner of Worship that had its original from that Arch-enemy of his Head-ship of the Church of England Nor did the issue fall out altogether unsuitable to these expectations For the King did somewhat to unsettle what was already done and abated in some measure the flame and heat of the Statute although nothing was established in the opposite thereto but the whole rested much upon the disposition of a King subject to change As touching the constitution of this Law that also shews that this was not derived from the ancient Right of the Crown now restored but by the positive concession of the People in their representative in regard it is not absolute but qualified and limited diversly First This power is given to this King not to his Successors for they are left out of the Act so as they trusted not the King but Henry the Eighth and what they did was for his own sake Secondly They trusted the King but he must be advised by Counsel of men of skill Thirdly They must not respect any Sect or those of the Papistical sort Fourthly All must be according to Gods Word and Christs Gospel And Lastly Nothing must be done contrary to the Laws and Statutes of this Realm And thus though they trusted much yet not all nor over-long For it was but a temporary Law and during the present condition of affairs Nor did the King or People rest upon this Law for within three years following another Law is made to confirm what was then already done by the King and a larger power granted to the King to change and alter as to his Wisdom shall seem convenient Thus the Kings Injunctions already set forth were established all opposal to them inhibited and the King hath a power of Lawing and Unlawing in Christ's Kingdom 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 gainsay it as Cranmer said The King loves his Queen well but his own opinion better For new things meeting with new love if it be once interrupted in the first heat turns 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 than any of his Predecessors ever attained was nevertheless not enough till his Title was as compleat The Pope had fashioned him one now above twenty years 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 Royalizing of that of Ireland amongst the rest A third Prerogative concerned the Kings power in temporal matters And now must England look to it self 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 than all his Predecessors A King that feared nothing but the falling of the Heavens the People contrarily weary of Civil Wars enamoured with the first tastes of Peace and Pleasures whiles as yet it was but in the blushing child-hood over-awed by a strange Giant a King with a Pope in his belly having the Temporal Sword in his hand the Spiritual Sword at his command Of a merciless 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 will be soon swallowed up into the hungry maw of Prerogative To set all on work comes Steven Gardiner from his Embassage to the Emperour sad apprehensions are scattered that the motions abroad are exceeding violent and sudden that the Emperour 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 affairs 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 sudden exigencies and for some small time during the juncture of these important affairs that seeing likewise at home the point concerning Religion is coming to the Test the minds of men are at a gaze their Affections and Passions are on their Tiptoes It is reason the King should steer with a shorter Rudder that this care might meet with every turn of Providence which otherwise might suddenly blow up the Peace and good Government of this Nation These and the like represented a fair face to that
in their Original Bishops were meerly Donatives from the Crown being invested by delivery of the Ring and Pastoral Staff and until King John's time the Canonical way of Election was disallowed yet King John by his Charter De communi consensu Baronum granted that they should be eligible which also was confirmed by divers publick Acts of Parliament in after-times and now by this Law last recited and with this way the King was contented for the space of Six years for the Reformation intended by the King was not done at once but by degrees and therefore though this course of Conge d'eslire was brought into use yet the Parliament being of Six years continuance a necessary thing in times of so great change of Policy began this course of Election by giving the King power to nominate and allowing of the Pope power to grant to such his Bulls or Pall at his own will otherwise they should be Consecrated by Commission without his consent And thus at the first the Pope's Concurrence was not excluded though his Negative was In this posture of affairs comes Cranmer to be consecrated Archbishop And being nominated thereunto by the King the wily Pope knowing the Kings aim meaned not to withstand lest he should lose all but granted the Pall as readily as it was desired so as Cranmer is thus far Archbishop of Canterbury without all exception yet he must go one step farther and take the old Oath to the Pope which the King allowed him to do Pro more and which he did renitente Conscientia say some and with a Salvo say others and all affirm it was done Perfunctorie like some worn Ceremonie or civil Complement Nevertheless it was not so soon turned over the Archbishop loved not the Office the King loved not Partnership in this matter and it was evident to all that no man could serve these two Masters any longer an agreement is soon concluded in Parliament to exclude the Popes Power quite out of this game and all is left to be done by the King and his Commissioners by the Law formerly propounded In all this the Pope is loser the English Clergie the savers for the Pall cost Cranmer Nine hundred Marks And the Crown is the great gainer for hereby the King got the men sure to him not onely by their own acknowledgement and submission but also by a Statute-Law And lastly by Oath which to make sure was treble twined once upon their first submission in the Kings Twentie second year when they had been under Praemuniri Secondly Soon after the decease of Queen Katherine Dowager in the Twentie sixth year which Oath was more compleat than the former containing First A Renunciation of all Fealty to the Pope or any Foreign Power Secondly An Obligation to adhere to the Cause of the King and his Successors Thirdly A Disavowing of the Pope otherwise than as another Bishop or fellow hrother Fourthly An Engagement to observe all Laws already established against the Pope's power Fifthly A Disavowing of all appeals to Rome Sixthly An Engagement to inform the King of all Messages or Bulls sent from Rome into England Seventhly An Engagement not to send or be privy to the sending of any Message to Rome for any such purpose The third Oath was that of Fealty which anciently was due to Kings and now revived to be taken by all Bishops upon their admission And thus the English Prelacie having been sworn Slaves to the Papacie ever since Becket's time are now preferred to a more Royal Service and the pursuit by Kings after their right being laid aside by the space of 300 Years is now renewed and the prey seized upon by the Lion who found it upon a better Title and in better condition by much than when at the first it was lost For it was upon some semblance of Reason that the Archbishop and Clergie gained it but being afterwards dispossessed thereof by the Pope and yet without any other shadow of Title but the power of his own gripe for the present he is the Occupant and becomes Proprietor by prescription till now the Felon being apprehended the stolen Goods are the Kings in Right and by Remitter whereunto the Parliament by the Statute adding their Conveyance establishes the same by an unquestionable Title Nevertheless their service is no less servile to this Crown than it had been to the Romish Miter formerly they asserted the Pope's Infallibility now the King's Supremacy They are now called by the King made by the King sent by the King maintained by the King whatsoever they are whatsoever they have all is the King 's He makes Bishops he makes new Bishopricks and divides or compounds the old as he pleaseth by a power given to Henry the Eighth by Parliament Which Oath was never in any Prince before or after him that I can find so as the Crown had it not but the man and it died with him The King thus loaden with Power and Honour above all his Predecessors if without proportionable Maintenance to support the one and act the other must needs consume himself as one in a Tympanie by growing great For though he was left rich by his Father's Treasure yet his Zeal to Rome in its now poor captivated condition under the Imperial power stirring up in him great undertakings abroad besides his own Pleasures and Gallantry at home exhausted that and doubtless had starved these his grand designs had he not found the hidden Treasures of the Cells and Monasteries the sight whereof so rouzed up his Spirits that he adventured upon the purchase though he knew difficulties enough to have stopped his undertakings if he had not resolved both against fear and flattery It was not done without deliberation for the thing was felt as a grievance before the Norman times and complained of in Parliament above a hundred and forty years ago and divers times since but Kings either understood not or believed not or durst not give remedy or had much else to do But now the King is beyond all his Predecessors he knows much dares do more and is at leisure He will go as far as Emperour or French King and beyond them also but would not try masteries with either for they were all Cocks of the game The first occasion that discovered the work feasible was a president made by Cardinal Wolsey whose power was enough to dissolve some petty Cells and no opposition made The King might well expect the work would be as lawful for him and not much more difficult or if any Storms ensued the people that had so long complained and felt the burthen of these excrescences of the Clergie would soon find out a way to calm them the King need do no more than speak and the people will do This opened the door but that which brought the King in was the hold the Pope had in this Kingdom by these Cloistered people who were persons dead in Law and dead to all Law but the
Canon And upon this account the King's Ancestors had possessed themselves of the Cells in the hands of Foreigners in times of War and now a deadly feud is stirred between Henry the Eighth and the Pope their holy Father The Children cannot expect to thrive whenas their Father is cast out of doors and so all must out together Yet the manner is observable they must not be cast out but must go out the inferiour and greater part are dead persons have learnt obedience they can neither bark nor bite and therefore they may sleep and what is done must be done with such of them as are alive Upon a Visitation these are brought under the Test and found in such a condition that they had better give way and voluntarily surrender than abide the Trial. Once more the smallest are picked out whilst the greater stand by and wonder but either do not foresee or in despair of altering the King's Resolution do nothing but expect the sad hour which within Four years comes upon them all every one of them chusing rather to surrender and expect the King's Mercie for maintenance during life than adventure against the dint of his Justice and Power and so lose all for they were ill befriended amongst all sorts of the people Thus came the personal Estate and Stock of these Houses to the Kings immediate Treasury and their yearly maintenance to the disposing of the Crown Which might have advanced the same well-nigh to the value of Two hundred thousand pounds yearly but that the King intended to let the people enjoy the fat as well as he that they might be mutually engaged to maintain hold of the Prey that they had joyntly gotten Out of all which nevertheless the Crown had a small rent or service annual for the acknowledgement of their Tenure besides the First-fruits of Spiritual Dignities and the Tenths both which he formerly had already obtained The first whereof was but casual and occasional in the payment arising onely at the entrance of the party into his Promotion and which was gained by the Pope from Edward the First although at his Parliament at Carlisle in his Thirty fourth year he withstood the same This was above Three hundred and twenty thousand pounds in the whole sum The latter was Annual and amounted to above Thirty thousand pounds And thus the Popes Usurpations are turned into duties to the Crown but were much lessened in regard that these Cells and Monasteries were accounted amongst these Ecclesiastical Promotions which by their dissolution fell off in that account Nevertheless the advancement that might by a parcimonious King have been made of the fall of this Cedar was such that the Crown might have been rendred of it self absolute and all-sufficient But Henry the Eighth was not thus minded the Affairs of Europe were gotten into a high pitch Princes generally over-active Henry the Eighth inferiour to none of them what comes in goes out and he is a rare example of that divine Proverb As Riches increase so do the Mouths of them that eat he still stands in need of his peoples Love Purses and Power So Divine Providence orders the matter that Kings can never attain further end of their undertakings without the aid of the people than their labour lest they should be too big to be Christians and the people too mean. CHAP. XXVIII Of the condition of the Parliament in these Times THey are no good Expositors that consider their Text by piece-meal onely nor they good Historians that will tell you the bare Journal of Action without the Series of Occasion Such as these will speak much of the actions of Henry the Eighth what advancement he brought to the Crown and make a compleat Monarchy wherein the King may act what he resolveth resolve what he pleaseth and please what he lusteth whenas in truth the thing is nothing so For though many of his actions in relation to particular persons cannot be justified by any Law so in truth did they never proceed from any Law but meerly from the passion or will of the man and connivance of the people who could bear that from this King that their Ancestors would never endure under any other And yet in all the grand concernments of the Nation the Law kept still upon the top nor did the King enter into any competition therewith or lead the way thereunto other than by especial allowance of the Parliament For first It is evident though the King was Supream Head of the Church yet this was not like the head of a mad man led by phancy without the Law of reason or reason of Law But it was defined circumscribed and formed thereby with Qualifications and Limitations as hath been already expressed in the former Chapter Seondly It is no less clear that the Legislative Power rested in the Parliament and not in the King when he was in his greatest height For as Head of the Church he had no such power in Church-matters or if he had such a right it was taken away by the Acts of Parliament Nay when the Pope was yet possessed of this Headship the Parliament did determine the manner of the Worship of God in some particular cases as in the keeping of the Lord's Day the Statute of Edward the Fourth to the Honour of God did provide for the observing thereof and to the Honour of God it was taken away by a Statute in the time of Henry the Eighth if the words of either Statute may be believed But more especially after that this Headship was translated to the King the Parliament provided that the Canons should be examined and allowed by the King and Thirty two persons one part of the Clergie the other of the Temporalty chosen by the King. And those that shall be assented unto and confirmed by the King and the Thirty two persons or the Major-part of them shall be obeyed and put in execution the residue shall be void Provided nothing shall be done against the Kings Prerogative or the Laws and Customs of this Realm So as the King had much but he had not all and what he had the Parliament gave him by a Law that was executory all the days of Henry Eighth by divers continuances and was not any power devolved to the Crown under the Title of Supremacie nor by vertue of the Act of Parliament concerning it but by the continual influence from the Parliament upon the Crown as well before that Act as after derived upon it The King hath then this right of Law making but it is with the Thirty two he hath it but not his Successors And lastly he hath it but by a derivative power from the Parliament and a Committee for that service And in a word he hath the Power but the Parliament hath still the Law of that Power The second Priviledge of the Parliament hitherto concerneth onely Laws concerning Church-Government In the next place cometh to be considered
affection or now much less finding his Body diseased and his Mind lingering after unlawful game On the other side the King not finding that content in her Person especially after her supposed Conception that he expected looked to his own Interest apart from hers and thereby taught her to do the like And this she thought cost England the loss of Callis and he Spain the loss of many advantages that might have been obtained and was expected from this Conjunction Thus by the several Interests between the King Regnant and the Queen Regent the Government of England became like a Knot dissolving neither fast nor loose Towards the People she might well be reserved if not rigid for she knew her entry was not very acceptable though accepted and that her Design was contrary to her Engagements and therefore it was vain to think to please her self and pleasure them Nor did she much busie her thoughts therewith that abominated trick of Impost upon Merchandize she brought into fashion which had by many publick Acts been damned for the space of two hundred years This was done without either shame or fear for if the People turned head she knew she had a good reserve from Spain and the People might very well consider of that though for her part she desired not much to improve that Foreign Interest because she might well see that Spain designed to keep England so far beneath that France might not get above And that Philip neither loved the double Crown of England no nor the Triple Crown at Rome otherwise than in order to that of Spain This distance between her and her King wrought her to a more nigh dependency upon her Council and English Nobility and so became less discerned in her Government although questionless she did much and wanted not Wisdom or Courage to have done more but that she was not wholly her own Woman All men do agree that she was devout in her kind of Profession and therein as deeply engaged as her Brother Edward had been in his though it may be he out of tenderness of Conscience but she out of a Spanish kind of gravity that endures not change and whereunto she was well aided by her Clergie who were her beloved for her Mothers sake and now also so much the more sowre by how much the nigher to the bottom It is the less wonder therefore if the Zeal of these times burnt into a flame that at length consumed even those that kindled it In one thing more above all the rest she acted the part of her Sex rather than that of her Place and the same contrary to the advice of her Ghostly Fathers and all Rules of Policy and the Agreement between her King and self upon Marriage which was the engaging of England in the War at St. Quintins against the French contrary to the National League formerly made Nevertheless the Issue was but suitable for though the English obtained their part of the Honour of that day yet in the consequence they lost Callis the last foot that the English had in France henceforth England must be content with a bare Title As this was deserved so was it also reserved by the Queen to make the world believe that she died for grief therefore as a Mother of her Country although her bodily Disease contracted by a Conception wherein she beguiled both her self and the world concurred thereto In sum the worst that can be said of her is this That she was ill-principled and the best That she acted according to her Principles And so lived an uncomfortable Life shaped a bloudy Reign and had but a dim Conclusion The Night was now spent and Queen Elizabeth like the Morning-Star rising into the Throne sent forth the benignant Influence of both her Predecessors and many ways excelled them both She was begotten in a heat against Rome wherein also she was born and trained up by her Father and Brother Edward's Order and saw enough in her Sisters course to confirm her therein for Queen Mary was not very Catholick in her Throne though she was in her Oratory Nevertheless Queen Elizabeth's course hereunto was very strange and might seem in outward respects to lead her quite wide for her youth was under a continual yoke her Mother dead whiles she was at the breast her Father owning her no further than as his Child born of a rebellious woman never intending her for the Crown so long as any hope was left of any other With her age the Yoke grew more heavy her Brother Edward being but of the half-bloud except in point of Religion might respect her at a distance beyond his Mothers Family But this lasted not long her Sister Mary comes next of a stranger bloud to her than her Brother was looking ever back upon her as one too nigh her heel and more ready to tread upon her Train than support it The difference in Religion between them two added yet further Leven and this occasioned from her Sister to her many sowre reflections bitter words harsh usage concluding with Imprisonment and not without danger of Death All which Queen Elizabeth saw well made the less noise in Religion walked warily and resolved with patience to endure the brunt For she might perceive by her Father's Will that her way to the Crown if ever she arrived at the end must be through a Field of Bloud and though she knew her change of Religion might make the way more plain yet God kept her in a patient waiting until the set time was come Thus passing over her Minority with little experience of youthful Pleasures she had the happiness to have the less sense of youthful Lusts which meeting with natural Endowments of the larger size rendred her the goodliest Mirrour of a Queen Regent that ever the Sun shone upon God adding thereto both Honour and Continuance above all that ever sate in that Throne Her entrance was with more joy to others than her self for she kept her pace as treading amongst Thorns and was still somewhat reserved even in matters of Religion though she was known to be devout She had observed that the hasty pace both of her Brother and Sister brought early Troubles before either of them were well setled in their Throne And therefore whereas her Sister first set up the Mass and then endeavoured to settle it by Disputes she contrarily first caused the point to be debated and thereby gained liking to lay it aside It is true the Moderatorship in that Dispute was imposed upon a Lay-man as their term is but his work being to hold the Disputants to order in debate and not to determine the point in Controversie which thing was left to the Auditory might therefore more rationally be done by him than censured by an Historian that shall undertake to judge them all The first step thus made one made way for another till the whole became levened Her proceedings against Opposers were with much lenity rather overlooking than
power of Excommunication it self notwithstanding that the Church held it by way of reservation or saving and not by donation from the Parliament by any express Act yet was that saving with such limitations as that it received but a lame power in comparison of what it claimed and exercised in former times For whereas formerly the Church-men had the Writ De Excommunicato Capiendo at their own beck now it will not come but upon Articles and certain Conditions 1. In cases of Heresie 2. Of deserting of the Sacrament 3. Deserting of publick Worship 4. Maintenance of Error 5. Incontinency 6. Vsury 7. Simony 8. Perjury 9. Idolatry In other matters the Spiritual Sword must find or make their own way or else be quiet Secondly The Church was now no less under the Chair and Throne than under power of the Parliament nor is it a wonder if it could not thrive when it was so over◠dropped for Prelacie by the King's arms is lifted up so high above the other Clergie that the rest of the Clergie are as much underlings to the Prelacie as the Prelates are to the King. They dare not offend the Crown lest they should lose their Honours nor the inferiour Clergie them lest they should lose their Livings and Liberties and so the Prelates speak the sense of the Clergie and make the Crown their Oracle Thus in the Church-matters the Crown is all in all CHAP. XXXVII Of the Militia in these latter Times IT cannot be denied but as in the sober Government of this 〈◊〉 there is a Supremacy of Command so also in the rudest times of War and wheresoever the same is setled there must the Militia also be The word Militia is a general notion sufficient enough for a name or title but not to define the thing I take it for nothing else but the Government of the Commonwealth when it is in danger or War or in order thereunto It consisteth in the raising arming ordering and paying of the Souldiery The title of the Supream Power in all this work hath been of late put to the question and brought us to this sad condition of trial by Battle and by Fighting to find out who had the chief power to fight A Lesson that might have been learned from former Generations foregoing at a far cheaper rate when England is well in its wits Where the Law of Peace is setled there also is the Law of War and in what condition the Crown standeth in relation to the Legislative power in time of Peace may be seen in the foregoing Discourse In War the King is the peoples General by his place yet if any impediment do befal either by natural disabilities or civil to render the person incapable of managing of the Service there is no question but the people may order the matter as they please With examples hereof these times are full wherein we have a Child a Virgin and a Married Woman to sway the Work all of them in a very unmeet condition for such a Trust and yet by the help they had they managed it well enough The power of him as King or General in the Army is all one but before it is imbodied as a King onely he may do some things in order thereto according to the Law and Custom of the Nation yet this falls under a double consideration of the time and occasion In the recess of the Parliament he is the first mover and ought to move by the advice of his Council if occasion do provoke to Arms but if the same befal the Parliament then sitting no History or Record do mention that ever he moved but by their concurrent advice and direction The occasion either provoketh offensive or defensive War with other Nations or with the people of his own Nation in the case of Insurrection Examples of War with other Nations that may be called offensive Wars we have but two one in Edward the Sixth's time with Scotland and which was but in pursuance of a War begun by his Father and wherein the Kingdom stood ingaged in a case that concerned the publick good and safety viz. The Marriage of their King refused after promise made The other was in the time of Queen Mary with the French which somewhat reflected also upon the publick safety but more upon the dishonour of the same I◠none of these did either of the Supream Powers array or raise men by Prerogative but onely such as were Voluntier in that work And because the people were ill principled in Edward the Sixth's time in regard of the change of Religion he was induced to hire Foreign aid out of Germany The Wars in the time of Queen Elizabeth were in order to the defence of this Nation being ever under a malignant Aspect from abroad especially from Spain in Ireland France and the Low Countries Yet were these Wars served onely by Voluntiers nor did any Commission give power of impresting men to serve against their wills in any Expedition made to any of those places as the Commissions upon Record do testifie If any Levies of men were otherwise made or compulsory means used for such ends they are to be reckoned up amongst the errata whereof the Parliament took no notice in regard it saw the ends and issues of such Reflections in Government to be successful and honourable and that all was done by Council and a Woman popularly affected and therefore they less feared Invasion upon their Liberties Or otherwise they are to be imputed to the condition of those places being Members of the Commonwealth as the cautionary Towns in the Low Countries and the Irish Plantations were and so befel under another consideration of a defensive War in case of Invasion and common danger thereby or by Intestine broils during which condition as it is the King's duty to levy and array men so is it the duty of the people to be ready to assist one another in all such exigencies and to defend the publick Liberty Nevertheless these Arrays are not left wholly at the Will of the King but to discretion of the Council how far the same shall extend For never were general Arrays made where but one Coast was in danger and where no Conquest is in pretence but onely Piracy or Plunder But if the disease were general as in the year 88 the Array was general and yet it was of none but those that were of the Trained-bands besides such as were Voluntier Secondly The arming of these men was also diversly there was no general Rule or Law for the arming of men since the time of Edward the First to the time of Queen Mary but the Statute at Winton the course of Tenures I mean of such men as were of the Militia of this Kingdom So as when they were raised they were raised in their own Arms. But for such men as passed the Seas for Foreign Service as they were Voluntiers or sent over by the Parliament these were armed according to special contract
the Summons to the Parliament doth hold for this Quae de communi consilio ordinari contigerint and the words in the Coronation-oath Quas vulgus elegerit do speak no less whether they be taken in the â—â—eter perfect-tense or the Future-tense the conclusion will be the same True it is that in all Kings are supposed as present yet is not that valuable in the point of Council which is the foundation of the positive Law. For as the best things under heaven are subject to infirmity so Kings either short or beyond in Age or Wit or possibly given over to their lusts or sick or absent in all which the name of a King adds little more to the Law than a sound yet all the while the Government is maintained with as much honour and power as under the most wise and well-disposed King that ever blessed Throne This is done in the Convention of States which in the first times consisted of Individuals rather than Specificals The great men doubtless did many things even before they saw the English shore that Tacitus noteth yet in the publick Convention of all did nothing alone till of one House they became two The particular time of the separation is uncertain and the occasion more It may be the great Lords thought the mysteries of State too sacred to be debated before the vulgar lest they should grow into curiosity Possibly also might the Commons in their debates wish the great men absent that themselves might more freely vote without angering their great Lords Nevertheless the Royal assent is ever given in the joynt Convention of all But how a double Negative should rest in the house of Lords one originally in themselves the other in the sole person of the King whenas in no case is any Negative found upon Record but a modest waring the answer of such things as the King likes not is to me a mystery if it be not cleared by Usurpation For it is beyond reach why that which is once by the Representative of the People determined to be Honestum should be dis-determined by one or a few whose Counsels are for the most part but Notionary and grounded upon private inconveniencies and not upon experimentals of most publick concernment or that the veult or Soit fait which formerly held the room onely of a Manifesto of the Regal Will to execute the Law then made as his Coronation-Oath to execute all Laws formerly established should be taken to be a determination of the justness or honesty of the thing When as this Royal Assent is many times given by a King that knows no difference between good and evil and is never competent judge in matters that in his opinion do fall into contradiction between his own private interest and the benefit of the people However unequal it may seem yet both that and other advantages were gained by the House of Lords after the separation was once made as many of the ancient Statutes by them onely made do sufficiently hold forth which although in the general they do concern matters of Judicature wherein the Lords originally had the greatest share yet other things also escaped the Common Vote which in after-ages they recovered into their consideration again And the condition of the people in those times did principally conduce hereunto For until the Norman times were somewhat setled the former Ages had ever been uncertain in the changes between War and Peace which maintained the distance between the Lords and their Tenants and the authority of the one over the other savouring of the more absolute command in Law. And after that the Sword was turned into the Plough-share the distance is established by compact of Tenure by Service under peril of default although in a different degree for the Service of a Knight as more eminent in War so in Peace it raised the mind to regard of publick Peace but the service of the Plough supporting all is underneath all yet still under the common condition of Free-men equally as the Knight Peace now had scarcely exceeded its minority before it brought forth the unhappy birth of Ambition Kings would be more absolute and Lords more Lordly the Commons left far behind seldom come into mention amongst the publick Acts of State and as useless set aside This was the lowest ebb that ever the Commonage of England indured which continued till Ambition brought on Contention amongst the great men and thence the Barons Wars wherein the Commons parting asunder some holding for the King who promised them Liberty from their Lords others siding with the Lords who promised them Liberty from the King they became so minded of their Liberties that in the conclusion they come off upon better advantage for their Liberties than either King or Lords who all were losers before their reckoning was fully made These Wars had by experience made the King sensible of the smart of the Lords great interest with the people and pointed him to the pin upon which the same did hang to take which away a design is contrived to advance the value of the Commoners and to level the Peerage that they both may draw in one equal yoke the Chariot of Prerogative The power of the Commons in publick Councils was of some efficacy but not much honour for their meetings were tumultuary time brought forth a cure hereof the flowers of the people are by election sent to be the Representative and so the Lords are match'd if not over-match'd the people less admiring the Lords and more regarding themselves This was but a dazle an Eclipse ensues for Kings having duly eyed the nature of Tenure between the Lords and Commons look upon it as an Out-work or Block-house in their way of approach Their next endeavour is therefore to gain the Knighthood of England within the compass of their own Fee and so by priority to have their Service as often as need should require by a trick in Law as well for their own safety in time of War as for their benefit in time of Peace This was a work of a continuing nature and commended to Successors to accomplish by degrees that the whole Knighthood of England is become no more the Lords till the Kings be first served And thus the power of the People is wholly devolved into the King's Command and the Lords must now stand alone having no other foundation than the affections of the People gained by beneficence of Neighbourhood and ordinary Society which commonly ingratiates the inferiour rank of men to those of higher degree especially such of them as affect to be popular Henry the Seventh found out this Sore and taught his Successors the way to avoid that occasion of Jealousie by calling up such considerable men to attend the Court without other Wages but fruitless hopes or under colour of honour to be had by Kings from the presence of such great men in their great Trains or of other service of special note to be done onely by
men of so high accomplishment And by this means Lordship once bringing therewith both Authority and Power unto Kings before Kings grew jealous of their greatness in these latter days 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 Laws and every one the publick good of the people No man's work is beneath no man 's above it the best honour of the Kings work is to be Nobilis servitus as Antigonus said to his Son or in plain English Supream Service above all and to the whole I now conclude wishing we may attain the happiness of our Forefathers the ancient Saxons Quilibet contentus sorte propria A VINDICATION Of the ancient way of PARLIAMENTS In ENGLAND THe more Words the more Faults is a divine Maxime that hath put a stop to the publishing of this Second Part for some time but observing the ordinary humour still drawing off and passing a harsher Censure upon my intentions in my First Part than I expected I do proceed to fulfil my course that if Censure will be it may be upon better grounds when the whole matter is before Herein I shall once more mind that I meddle not with the Theological Right of Kings or other Powers but with the Civil Right in Fact now in hand And because some mens Pens of late have ranged into a denial of the Commons ancient Right in the Legislative power and others even to adnul the Right both of Lords and Commons therein resolving all such power into that one principle of a King Quicquid libet lìcet so making the breach much wider than at the beginning I shall intend my course against both As touching the Commons Right joyntly with the Lords it will be the main end of the whole but as touching the Commons Right in competition with the Lords I will first endeavour to remove out of the way what I find pulished in a late Tractate concerning that matter and so proceed upon the whole The subject of that Discourse consisteth of three parts one to prove that the ancient Parliaments before the thirteenth Century consisted onely of those whom we now call the House of Lords the other that both the Legislative and Judicial Power of the Parliament rested wholly in them Lastly that Knights Citizens and Burgesses of Parliament or the House of Commons were not known nor heard of till punier times than these This last will be granted viz. That their several Titles of Knights Citizens and Burgesses were not known in Parliament till of latter times Nevertheless it will be insisted upon that the Commons were then there The second will be granted but in part viz. That the Lords had much power in Parliament in point of Jurisdiction but neither the sole nor whole The first is absolutely denied neither is the same proved by any one instance or pregnant ground in all that Book and therefore not clearly demonstrated by Histories and Records beyond contradiction as the Title-page of that Book doth hold forth to the World. First because not one instance in all that Book is exclusive to the Commons and so the whole Argument of the Discourse will conclude Ab Authoritate Negativa which is no Argument in humane testimony at all Secondly The greatest number of instances in that Book are by him supposed to concern Parliaments or General Councils of this Nation holden by the Representative thereof whereas indeed they were either but Synodical Conventions for Church-matters whereunto the poor Commons he well knoweth might not come unless in danger of the Canons dint or if they did yet had they no other work there than to hear learn and receive Laws from the Ecclesiasticks And the Lords themselves though present yet under no other Notion were they than as Counsel to the King whom they could not cast out of their Council till after-ages though they often endeavoured it Thirdly The Author of that Tractate also well knoweth that Kings usually made Grants and Infeodations by advice of the Lords without the aid of the Parliament And it is no less true that Kings with the Lords did in their several Ages exercise ordinarily Jurisdiction in cases of distributive Justice especially after the Norman entrance For the step was easie from being Commanders in War to be Lords in Peace but hard to lay down that power at the Foot of Justice which they had usurped in the rude times of the Sword when men labour for Life rather than Liberty and no less difficult to make a difference between their deportment in commanding of Souldiers and governing of Countrymen till Peace by continuance had reduced them to a little more sobriety Nor doth it seem irrational that private differences between Party and Party should be determined in a more private way than to trouble the whole Representative of the Kingdom with matters of so mean concernment If then those Councils mentioned by the Author which concern the King's Grants and Infeodations and matters of Judicature be taken from the rest of the Precedents brought by him to maintain the thing aimed at I suppose scarce one Stone will be left for a Foundation to such a glorying Structure as is pretended in the Title-page of that Book And yet I deny not but where such occasions have befaln the Parliament sitting it hath closed with them as things taken up by the way Fourthly It may be that the Author hath also observed that all the Records of Antiquity passed through if not from the hands of the Clergie onely and they might think it sufficient for them to honour their Writings with the great Titles of men of Dignity in the Church and Commonwealth omitting the Commons as not worthy of mention and yet they might be there then present as it will appear they were in some of the particular instances ensuing to which we come now in a more punctual consideration The first of these by his own words appear to be a Church-mote or Synod it was in the year 673 called by the Archbishop who had no more power to summon a Parliament than the Author himself hath And the several Conclusions made therein do all shew that the People had no work there as may appear in the several Relations thereof made by Matthew Westminster and Sir Henry Spelman an Author that he makes much use of and therefore I shall be bold to make the best use of him that I can likewise in vindicating the truth of the point in hand For whatever this Council was it is the less material seeing the same Author recites a Precedent of Aethelbert within six years after Austin's entry into this Island which was long before this Council which bringeth on the Van of all the rest of
And thus the Free-men yielded up their liberty of Election to the Free-holders possibly not knowing what they did nevertheless the Parliament well knew what they did this change was no less good than great For first These times were no times for any great measure of Civility The Preface of the Statute shews That the meanest held himself as good a man as the greatest in the Country and this tended to Parties Tumults and Bloudshed Secondly Where the Multitude prevail the meaner sort are upon the upper hand and these generally ignorant cannot judge of persons nor times but being for the most part led by Faction or Affection rather than by right Understanding make their Elections and thereby the general Council of this Nation less generous and noble Thirdly There is no less equity in the change than policy For what can be more reasonable than that those men onely should have their Votes in Election of the Common-Council of the Kindom whose Estates are chargeable with the publick Taxes and Assessments and with the Wages of those persons that are chosen for the publick Service But above all the rest this advancing of the Free-holders in this manner of Election was beneficial to the Free-men of England although perchance they considered not thereof and this will more clearly appear in the consideration of these three particulars First It abated the power of the Lords and great Men who held the inferiour sort at their Devotion and much of what they had by their Vote Secondly It rendred the Body of the People more brave for the advancing of the Free-holder above the Free-man raiseth the spirit of the meaner sort to publick regards and under a kind of Ambition to aspire unto the degree of a Free-holder that they may be somewhat in the Commonwealth And thus leaving the meanest rank sifted to the very bran they become less considerable and more subject to the Coercive power whilst in the mean time the Free-holder now advanced unto the degree of a Yeoman becomes no less careful to maintain correspondency with the Laws than he was industrious in the attaining of his degree Thirdly But this means now the Law makes a separation of the inferiour Clergie and Cloistered people from this service wherein they might serve particular ends much but Rome much more For nothing appeareth but that these dead persons in Law were nevertheless Free-men in Fact and lost not the liberty of their Birth-right by entring into Religion to become thereby either Bond or no Free Members of the people of England Lastly As a binding Plaister above the rest First a Negative Law is made that the persons elected in the County must not be of the degree of a Yeoman but of the most noted Knights Esquires or Gentlemen of the County which tacitly implies that it was too common to advance those of the meaner sort Whether by reason of the former wasting times Knights and Esquires were grown scant in number or by reason of their rudeness in account or it may be the Yeomanry grew now to feel their strength and meant not to be further Underlings to the great Men than they are to their Feathers to wear them no longer than they will make them brave Secondly the person thus agreed upon his Entertainment 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 especial manner for as their work is full of reflection so formerly they had met with many sad influences for their labour And therefore a penal 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 uniform Government in future times than England hitherto had seen CHAP. XV. Of the Custos or Protector Regni KIngs though they have vast Dimensions yet are not infinite nor greater than the bounds of one Kingdom wherein if present they are in all places present if otherwise they are like the Sun gone down and must rule by reflexion as the Moon in the night In a mixt Commonwealth they are integral Members and therefore regularly must act Per deputatum when their persons are absent in another Legialty and cannot act Per se Partly because their Lustre is somewhat eclipsed by another Horizon and partly 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 Vice-gerents in their absence giving them several Titles and several Powers according as the necessity of Affairs required Sometimes they are called Lord Warden or Lord Keeper of the Kingdom and have therewith the gegeral power of a King as it was with John Warren Earl of Surrey appointed thereunto by Edward 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 Foreigner had the like power given him by Edward the Second over England to the reproach of the English Nobility which also they revenged afterward Sometimes these Vice-gerents are called Lieutenants which seemeth to confer onely the King's power in the Militia as a Lieutenant general in an Army And thus Richard the Second made Edmund Duke of York his Lieutenant of the Kingdom of England to oppose the entry of the Duke of Hertford afterwards called Henry the Fourth into England during the King's absence in Ireland And in the mean while the other part of the Royalty which concerned the Revenues of the Crown was betrusted to the Earl of Wiltshire Sir John Bush Sir James Baggot and Sir Henry Green unto whom men say The King put his Kingdom to farm But more ordinarily the Kings power was delegated unto one under both the Titles of Lord Guardian of the Kingdom and Lieutenant within the same such was the Title of Henry Lacy Earl of Lincoln and of Gilbert de Clare Earl of Gloucester and of Audomar de Valentia Earl of Pembrooke all of them at several times so constituted by Edward the Second as by the Patent-Rolls appeareth So likewise did Edward the Third make his Brother John of Eltham twice and the Black Prince thrice and Lionel Duke of Clarence and his Brother Thomas each of them once in the several passages of Edward the Third beyond the Sea in the third fifth twelfth fourteenth sixteenth nineteenth and thirty third years of his Reign concerning which see the Patent-Rolls of those years And Henry the Fifth gave likewise the same Title and Authority to the Duke of Bedford upon the King's Voyage into France and afterward that Duke being sent over to second the King