The continuation of An historicall discourse of the government of England, untill the end of the reigne of Queene Elizabeth with a preface, being a vindication of the ancient way of parliaments in England / by Nath. Bacon of Grais-Inne, Esquire.

The continuation of An historicall discourse of the government of England, untill the end of the reigne of Queene Elizabeth with a preface, being a vindication of the ancient way of parliaments in England / by Nath. Bacon of Grais-Inne, Esquire.

Table of contents

Title page

The Contents of the severall Chapters of this Book.

A PREFACE, CONTAINING A Vindication of the Ancient way of the Parliament OF ENGLAND.

THE CONTINUATION OF AN Historicall Discourse of the Government of ENGLAND.

CHAP. I. A summ of the severall Reignes of Edward the Third, and Richard the Second.

CHAP. II. Of the State of the King and Parliament, in relation of it to him, and him to it.

CHAP. III. Of the Privy Councell, and condition of the Lords.

CHAP. IV. Of the Chancerie.

CHAP. V. Of Admiralls Court.

CAHP. VI. Of the Churchmens Interest.

CAHP. VII. Concerning Trade.

CHAP. VIII. Of Legiance, and Treason, with some Considerations upon Calvins Case.

CAHP. IX. Of Courts for Causes criminall, with their Lawes.

CHAP. X. Of the Course of Civill Justice, during these Times.

CHAP. XI. Of the Militia in these Times.

CHAP. XII. Of the Peace.

CHAP. XIII. A view of the summary Courses of Henry the Fourth, Henry the Fifth, and Henry the Sixth, in their severall Reignes.

CHAP. XIV. Of the Parliament, during the Reignes of these Kings.

CAHP. XV. Of the Custos, or, Protector Regni.

CHAP. XVI. Concerning the Privy Councell.

CAHP. XVII. Of the Clergie, and Church-government, during these times.

CHAP. XVIII. Of the Court of Chancery.

CHAP. XIX. Of the Courts of Crowne Pleas, and Common Law.

CHAP. XX. Concerning Sheriffs.

CAHP. XXI. Of Justices and Lawes concerning the Peace.

CHAP. XXII. Of the Militia during these times.

CHAP. XXIII. A Survey of the Reignes of Edward the Fourth, Edward the Fifth, and Richard the Third.

CHAP. XXIV. Of the Government in relation to the Parliament.

CHAP. XXV. The Condition of the Clergy.

CHAP. XXVI. A short summ of the Reignes of Henry the Seventh, and Henry the Eighth.

CHAP. XXVII. Of the State of the Crowne.

CHAP. XXVIII. Of the Condition of the Parliament in these Times.

CHAP. XXIX. Of the power of the Clergy, in their Convocation.

CHAP. XXX. Of the power of the Clergy, in their Ordinary Jurisdiction.

CHAP. XXXI. Of Judicature.

CHAP. XXXII. Of the Militia.

CHAP. XXXIII. Of the Peace.

CHAP. XXXIV. Of the generall Government of Edward the sixth, Queene Mary, and Queene Elizabeth.

CHAP. XXXV. Of the Supreme Power during these Times.

CHAP. XXXVI. Of the Power of the Parliament during these times.

CHAP. XXXVII. Of Jurisdiction Ecclesiastical in these last Times.

CHAP. XXXVIII. Of the Militia in these later Times.

CHAP. XXXIX. Of the Peace.

CHAP. XL. A summary Conclusion upon the whole matter.

A Table of the Principall Matters conteined in this Book.

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THE CONTINUATION OF AN HISTORICALL DISCOURSE, OF THE GOVERNMENT OF ENGLAND, Ʋntill the end of the Reigne of Queene ELIZABETH.

WITH A Preface, being a Vindication of the ancient way of Parliaments in ENGLAND.

By Nath: Bacon of Grais-Inne, Esquire.

LONDON, Printed by Tho: Roycroft, for Matthew Walbanck, and Henry Twyford, and are to be sold at Grais-Inne Gate, and in Vine Court Middle Temple, 1651.

The Contents of the severall Chapters of this Book.

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I. THe sum of the severall Reignes of Edward the third, and Richard the second. fol. 3.

II. The state of the King and Parliament, in relation of him to it, and of it to him. fol. 13.

III. Of the Privy Council and the condition of the Lords. f. 26.

IV. Of the Chancery. fol. 35.

V. Of the Admirals Court. fol. 41.

VI. Of the Church-mens Interest. fol. 45.

VII. Concerning Trade. fol. 64.

VIII. Of Treason and Legiance, with some considerations concerning Calvins Case. fol. 76.

IX. Of Courts for causes criminall, with their Laws. fo. 92.

X. Of the course of Civill Justice during these times. fo. 96.

XI. Of the Militia in these times. fol. 98.

XII. Of the Peace. fol. 108.

XIII. A view of the summary courses of Henry the fourth, Henry the fifth, and Henry the sixth, in their severall Reignes. fol. 115.

XIV. Of the Parliament during the Reignes of these severall Kings. fol. 127.

XV. Of the Custos, or Protector Regni. fol. 134.

XVI. Concerning the Privy Councell. fol. 141.

XVII. Of the Clergie and Church-government during these times. fol. 146.

XVIII. Of the Court of Chancery. fol. 162.

XIX. Of the Courts of Crown Plas and Common Law. fo. 165

XX. Concerning Sheriffs. fol. 168.

XXI. Of Justices and Lawes concerning the Peace. fol. 170.

XXII. Of the Militia during these times. fol. 175.

[Page] XXIII. A short survey of the Reignes of Edward the fourth, Edward the fifth, and Richard the third. fol. 181.

XXIV. Of the Government in relation to the Parliament. fol. 187.

XXV. Of the condition of the Clergie. fol. 191.

XXVI. A short sum of the Reignes of Henry the seventh, and Henry the eighth. fol. 194.

XXVII. Of the condition of the Crowne. fol. 202.

XXVIII. Of the condition of the Parliament in these times. fol. 223.

XXIX. Of the power of the Clergy in the Convocation. f. 229.

XXX. Of the power of the Clergy in their ordinary Jurisdiction. fol. 232.

XXXI. Of Judicature. fol. 241.

XXXII. Of the Militia. fol. 245.

XXXIII. Of the Peace. fol. 253.

XXXIV. Of the generall Government of Edward the sixth, Queen Mary, and Queen Elizabeth. fol. 259.

XXXV. Of the Supream power during these times. fol. 268.

XXXVI. Of the power of the Parliament during these times. fol. 277.

XXXVII. Of the Jurisdiction Ecclesiasticall during these last times. fol. 283.

XXXVIII. Of the Militia in these later times. fol. 290.

XXXIX. Of the Peace. fol. 297.

XL. A summary Conclusion upon the whole matter. fol. 300.

A PREFACE, CONTAINING A Vindication of the Ancient way of the Parliament OF ENGLAND.

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THE more Words the more Faults, is a divine Maxime, that hath put a stop to the publishing of this second part for some time; but observing the ordinary humor still drawing off, and passing a harsher censure upon my intentions in my first part, then I expected: I doe proceede to fulfill my course, that if censure will be, it may be upon better grounds, when the whole matter is before: Herein I shall once more minde, that I meddle not with the Theologicall right of Kings, or other Powers, but with the Civill right in fact, now in hand. And because some mens Pens of late have ranged into a denyall of the Commons ancient right in the Legislative power; and others, even to adnull the right, both of Lords and Commons therein, resolving all such power into that one principle of a King, Quicquid libet, licet; so [Page] making the breach much wider then at the beginning; I shall intend my course against both: As touching the Commons right, jointly with the Lords, it will be the maine end of the whole; but as touching the Commons right, in competition with the Lords, I will first endeavour to remove out of the way what I finde published in a late Tractate concerning that matter, and so proceede upon the whole.

The subject of that Discourse consisteth of three parts, one to prove that the ancient Parliaments, before the thirteenth Century, consisted onely of those whom we now call, the House of Lords; the other, that both the Legislative and Judiciall power of the Parliament rested wholly in them: lastly, that Knights, Citizens, and Burgesses of Parliament, or the House of Commons, were not knowne nor heard of, till punier times then these. This last will be granted, Viz. That these severall titles, of Knights, Citizens, and Burgesses, were not known in Parliament till of later times: Neverthelesse, it will be insisted upon, that the Commons were then there: The second will be granted, but in part, Viz. That the Lords had much power in Parliament in point of Jurisdiction, but neither the sole, nor the whole.

The first is absolutely denyed, neither is the same proved by any one instance or pregnant ground in all that Book, and therefore not cleerly demonstrated by Histories and Records beyond contradiction, as the Title page of that Book doth hold forth to the World. First, because not one instance in all that Book is exclusive to the Commons; and so [Page] the whole Argument of the Discourse will conclude, Ab authoritate Negativa, which is no argument in humane testimony at all.

Secondly, the greatest number of instances in that Booke, are by him supposed to concerne Parliaments, or generall Councils of this Nation, holden by the Representative thereof; whereas indeed they were either but Synodicall Conventions for Church matters, whereunto the poore Commons (he well knoweth) might not come, unlesse in danger of the Canons dint; or if they did, yet had no other worke there, then to heare, learne, and receive Lawes, from the Ecclesiasticks. And the Lords themselves, though present, yet under no other notion were they, then as Councell to the King; whom they could not cast out of their Councell till after Ages, though they often endeavoured it.

Thirdly, the Author of that Tractate also well knoweth, that Kings usually made Grants and Infeodations by advice of the Lords, without the ayde of the Parliament: And it is no lesse true, that Kings, with the Lords, did in their severall ages exercise ordinarily Jurisdiction, in cases of distributive Justice; especially after the Norman entrance: For the step was easie from being Commanders in Warr, to be Lords in peace; but hard to lay downe that power at the foot of Justice, which they had usurped in the rude times of the Sword, when men labour for life rather then liberty; and no lesse difficult to make a difference between their deportment in commanding of Souldiers, and governing of Countrey-men; till peace [Page] by continuance had reduced them to a little more sobriety: Nor doth it seeme irrationall, that private differences betweene party and party, should be determined in a more private way, then to trouble the whole Representative of the Kingdome, with matters of so meane concernment. If then those Councils mentioned by the Author, which concerne the Kings Grants, and Infeodations, and matters of Judicature, be taken from the rest of the Presidents, brought by him, to maintaine 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 Booke: And yet I deny not, but where such occasions have befalne 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 Clergy onely, and they might thinke 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 appeare they were in some of the particular instances ensuing, to which we come now in a more punctuall consideration.

The first of these by his owne words, appeare to be a Church-mote, or Synod; it was in the yeare 673. called by the Arch-Bishop, who had no more power to summon a Parliament, then the Author himselfe hath: And the severall conclusions [Page] made therein, doe all shew that the people had no worke there, as may appeare in the severall relations thereof, made by Matthew Westminster, and Sir Henry Spelman, an Author that he maketh 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 Councill was, its the lesse materiall, seeing the same Author recites a president of King A [...]thelbert, within six yeares after Austins entry into this Island, which was long before this Councill, which bringeth on the Vann of all the rest of the Opponents instances, which King called a Councill, styled, Commune Concilium tam Cleri quam Populi: Pag. 126. and in the conclusion of the same, a Law is made upon the like occasion, Si Rex populum Convocaverit, &c. in both which its evident, that in those times there were Councils holden by the People, as well as the Magnates, or Optimates.

His next instance is in the yeare 694. which is of a Councill holden by the Great Men, but no mention of the Commons, and this he will have to be a Parliament, albeit that he might have found both Abbatesses, or Women, and Presbyters, to be Members of that Assembly, and (for default of better) attested the conclusions of the same, notwithstanding the Canon, Nemo militans Deo, &c. But I must also minde him, that the same Author reciteth a Councill holden by King Ina, Suasu omnium Aldermannorum & Seniorum & Sapientum Regni: and is very probable, that all the Wise men of the Kingdome, were not concluded within the Lordly dignity.

[Page]The third instance can have no better successe, unlesse he will have the Pope to be allowed power to call a Parliament, or allow the Arch-Bishop power to doe that service by the Popes command, for by that authority; this (what ever it be) was called, if we give credit to the relation of Sir Henry Spelman, Concil. Britt. Pag. 212. who also reciteth another Councell within three leaves foregoing this, called by Withered at Barkhamstead, unto which the Clergy were summoned, Qui cum viris utique militaribus communi omnium assensu has leges decrevere: So as it seemeth in those times,Ibid. pa. 194. Souldiers or Knights were in the common Councels, as well as other Great Men.

In the next place, he bringeth in a Councill holden in the yeare 747. which (if the Arch-Bishop were then therein President,Ibid. pa. 242.245. as its sayd, in the presence of the King) was no Parliament, but a Church-mote, and all the conclusions in the same doe testifie no lesse; they being every one concerning Ecclesiasticall matters.

Pag. 219.And furthermore, before this time, the Author out of whom he citeth this Councill, mentioneth another Councill holden by Ina the Saxon King, in the presence of the Bishops, Princes, Lords, Earles, and all the wise old Men, and People of the Kingdome, all of them concluding of the intermarriage between the Brittons, Picts, and Saxons, which formerly, as it seemeth, was not allowed: And the same King by his Charter; mentioned by the same Penman, noteth that his endowment of the Monastry of Glastenbury, was made, not onely in the presence of the Great Men, but, Cum praesentia populationis; and he saith, that Omnes confirmaverunt, [Page] which I doe not mention as a worke necessary to be done by the Parliament, yet such an one as was holden expedient as the case then stood.

Forty yeares after, hee meeteth with another Councill, which he supposeth to be a Parliament also, but was none, unlesse he will allow the Popes Legate power to summon a Parliament: It was holden in the yeare, 787. and had he duely considered the returne made by the Popes Legate, of the Acts of that Councill, which is also published by the same Author, hee might have found,Pag. 300. that the Legate saith, that they were propounded in publike Councill, before the King, Arch-Bishop, and all the Bishops and Abbots of the Kingdome, Senators, Dukes, or Captaines, and people of the Land, and they all consented to keep the same.

Then he brings in a Councill holden in the year, 793. which he would never have set downe in the list of Parliaments, if he had considered how improper it is to construe, Provinciale tenuit Concilium, for a Parliament, and therefore I shall need no further to trouble the Reader therewith.

The two next are supposed to be but one and the same; and its sayd to be holden, Anno 974. before nine Kings, fifteene Bishops, twenty Dukes, &c. which for ought appeares, may comprehend all England and Scotland, and is no Parliament of one Nation, but a party of many Nations, for some great matter, no doubt, yet nothing in particular mentioned, but the solemne laying the foundation of the Monastry of Saint-Albans.

What manner of Councill the next was, appeareth not, and therefore nothing can be concluded [Page] therefrom, but that it was holden in the yeare, 796.

That Councill which is next produced, was in the yeare, 800. and is called in great letters, Concilium Provinciale, which he cannot Gramatically construe to be a Parliament; yet in the Preface it is sayd, that there were, Viri cujuscunque dignitatis; and the King in his Letter to the Pope, saith concerning it,Pag. 321. Visum est cunctis gentis nostrae sapientibus; so as it seemeth by this, and other examples of this nature, that though the Church-motes invented the particular conclusions, yet it was left to the Witagen-mote to Judge and conclude them.

There can be no question, but the next three Presidents brought by the Opponent, were all of them Church-motes:Concil. Brit. Pag. 328. For the first of them, which is sayd to be holden in the yeare, 816. is called a Synod, and both Preists and Deacons were there present, which are no Members of Parliament, consisting onely of the House of Lords, and they all of them did, Pariter tractare de necessarijs & utilitatibus Ecclesiarum. The second of them is called a Synodall Councill, holden, Anno 822. and yet there were then present, Omnium dignitatum optimates, which cannot be understood onely of those of the House of Lords, because they ought all to be personally present, and therefore there is no Optimacy amongst them. The last of these three is called, Synodale Conciliabulum, a petty Synod in great letters;Concil. Brit. Pag. 334. and besides, there were with the Bishops and Abbots, many Wise men; and in all these respects it cannot be a Parliament onely of the great Lords.

[Page]The next Councill said to be holden in the yeare 823. cannot also be called properly a Parliament, but onely a consultation, between two Kings and their Councill, to prevent the invasion of the Danes; and the attests of the Kings Chapplain, and his Scribe, doe shew also that they were not all Members of the House of Lords.

The Councill cited by the Opponent in the next place, was holden, An: 838. being onely in nature of a Councill for Law, or Judicature, to determine the validity of the Kings Grant made to the Church of Canterbury; which is no proper worke for a Parliament, unlesse it befall during the fitting of the same.

The next is but a bare title of a Councill supposed to be holden, An. 850. And not worth its room, for it neither sheweth whether any thing was concluded, nor what the conclusions were.

The worke of the next Councill alleadged to be holden, An. 851. was to confirme the Charter of the Monastry of Croyland, and to determine concerning affaires belonging to the Mercinies and if it had beene a Parliament for that people, it might be worthy of inquiry how regularly the Arch-Bishop of Canterbury, and the Bishop of London, and the Ambassadors from the West Saxons could sit amongst them and attest the conclusions therein made, as wel as the proper members of that Nation.

He commeth in the next place to a Councill holden in the yeare, 855. which is more likely to be a Parliament then most of them formerly mentioned; if the Tithes of all England were therein given to the Church, but hereof I have set downe my opinion in [Page] the former part of the discourse. And though it be true, that no Knights and Burgesses are therein mentioned, as the Opponent observeth out of the Title; yet if the body of the Lawes be duly considered, towards the conclusion thereof it will appeare that there was present, Fidelium infinita multitudo qui omnes regium Chirographum Laudaverunt Dignitates vero sua nomina subscripserunt. Concil. Brit. Pag. 350. And yet the Witagen-motes in these times began to be rare, being continually inrerrupted by the invasions of the Danes.

The three next Councills alleaged▪ to be in the yeares 930. 944. 948. Were doubtlesse of inferiour value, as the matters therin concluded were of inferiour regard, being such as concerne the passing of the Kings Grants, Infeodations, and confirmations.

The Councill mentioned to be in the yeare 965. is supposed to be one and the same with the next foregoing,Concil. Brit. Pag. 480. by Sir Henry Spelman, which calls it selfe a generall Councill, not by reason of the generall confluence of the Lords and Laity, but because all the Bishops of England did then meet. The Primi and Primates were there, who these were is not mentioned; but its evident that the King of Scots was there, and that both he and diverse that are called Ministri Regis, attested the conclusions: It will be difficult to make out how these should be Members of the House of Lords, and more difficult to shew a reason why in the attesting of the acts of these Councills which the Opponent calls Parliaments, we finde so few of the Laity that scarce twelve are mentioned in any one of them, and [Page] those to descend so low as the Ministri Regis, to make up the number.

Five more of these instances remaine, before the comming in of the Normans.

The first of which was in the yeare 975. and in a time when no Parliament,Concil. Britt▪ Pag. 490. according to the Opponents principles could sit, for it was an Inter regnum.

The two next were onely Synods to determine the difference between the Regulers, and the Seculers, in the Kings absence, by reason that he was under age; and they are sayd to be in the yeares 977 and 1009. But its not within the compasse of my matter to debate their dates.

The last two were Meetings or Courts for Judicature, to determine the crime of Treason, which every one knowes is determinable by inferiour Courts before the high Steward or Judges, and therefore not so peculiar to a Parliament, as to be made an argument of its existence. And thus are we at an end of all the instances brought by the Opponent, to prove that Parliaments before the Norman times consisted of those whom we now call the House of Lords. All which I shall shut up with two other notes taken out of the Book of Councils, published by Sir Henry Spelman.

The first of which concerneth a Grant made by Canutus, Pag. 534. of an exemption to the Abby of Bury Saint Edmonds, in a Councill wherein, were present Arch-Bishops, Bishops, Abbots, Dukes, Earles. Cum quamplurimis gregariis militibus, cum populi multitudine copiosa votis regiis unanimiter consentientes. The other taken out of the confessors Lawes, which tells [Page] us that Tithes were granted to the Church, A Rege Baronibus & populo. Pag. 621. And thus shall leave these testimonies to debate with one another, whiles the Reader may judge as seemeth most equall to himselfe.

Being thus come to the Norman times, and those ensuing; I shall more summarily proceed with the particulars concerning them, because they were times of force, and can give little or no evidence against the customes rightly setled in the Saxon times, which I have more particularly insisted upon, that the originall constitution of this government may the better appeare. Now for the more speedy manifesting of the truth in the particulars following; I shall pre-advise the Reader in three particulars.

First, that the Church-motes grew more in power and honor, by the aide of the Normans Law, refusing the concurrence and personall presence of Kings, whom at length they excluded from their Councils with all his Nobles; and therefore it is the lesse wonder if we heare but little of the Commons joyning with them.

Secondly, that the Norman way of government grew more Aristocraticall then the Saxon, making the Lords the cheif Instruments of keeping Kings above and people underneath, & thus we meet with much noise of meetings betweene the King and Lords, and little concerning the grand meetings of the Kings, and the representative of the people; although some footsteps wee finde even of them also. For Kings were mistaken in the Lords; who meaned nothing lesse then to serve them with the peoples [Page] liberties, together with their owne which they saw wrapped up in the grosse.

Thirdly, by this meanes the Councils of the King and Lords grew potent, not onely for advise in particular occasions, but in matters of judicature, and declaring of Law, ordering of processe in Courts of Plees; which in the first framing were the workes of Wise and Learned men, but being once setled become part of the liberties of every Free-man. And it is not to be doubted but these Councills of Lords did outreach into things two great for them to mannage, and kept the Commons out of possession of their right, during the present heat of their ruffling condition, yet all this while could not take absolute possession of the legislative power.

I now come to the remainder of the particular instances produced by the Opponent, which I shall reduce into severall Categories, for the more cleere satisfaction to the Reader, with lesse tediousnesse.

First, it cannot be denied but the Councill of Lords gave advise to Kings in cases of particular immergency, nor is it incongruous to the course of government even to this day, nor meete that the Parliament should be troubled with every such occasion, and therefore the giving of advise to William the Conqueror, what course he should take to settle the Lawes of England according to the instances in Councills holden, An: 1060. And 1070. And to gaine favour of the great men according to that in An: 1106. and in the manner of endowment of the Abby of Battell, as in pag: 25. of the Opponents discourse: and what to do upon the reading of the [Page] Popes Letter, according to that in An: 1114. And whether the Popes Legate should be admitted, as in pag. 18. And how King Steven and Henry shall come to agreement, as An: 1153. And how to execute Lawes by Judges and Justices Itinerant, as An: 1176. And touching the manner of ingageing for a voyage by Croisado to Jerusalem, An: 1189. And to give answer to Embassadors of a forraine Prince, pag. 25. And how King John shall conclude peace with the Pope, An: 1213. Where neverthelesse Math. Paris saith,Pag. 23. was Turba multa nimis: I say all these might well be done by a Councell of Lords, and not in any posture of a Parliament; albeit that in none of all these doth any thing appeare but that the Commons might be present in every one, or many of them all.

Secondly, as touching judicature, the Lords had much power therein, even in the Saxon times, haveing better opportunites for Knowledge, and Learning, especially joyned with the Clergy, then the Commons in those times of deep darknesse, wherein even the Clergy wanted not their share, as in the first part of the discourse I have already observed. Whatsoever then might be done by Judges in ordinary Courts of judicature, is inferiour to the regard of the Parliament; and therefore the Plea between the Arch-Bishop and Aethelstan, concerning Land, instanced, An: 1070. And betweene Lanfranke and Odo, An: 1071. and betweene the King and Anselme, pag: 15, 16. and the determining of Treason of John (afterwards King) against his Lord and King Richard, pag: 23. And the difference concerning the title of a Barony between Mowbray and Scotvile, pag: [Page] 25. And giving of security of good behaviour by William Brawse to King John, pag. 26. All these might well be determined onely before the Lords, and yet the Parliament might be then sitting or not sitting, as the contrary to either doth not appeare, and therefore can these forme no demonstrative ground to prove that the Parliament consisted in those times, onely of such as we now call the House of Lords.

A third worke whereby the Opponent would prove the Parliament to consist onely of the House of Lords, is, because hee findeth many things by them concluded touching the solemnization, and the settling of the succession of Kings; both which, he saith, were done by the Lords in Parliament, or those of that House; and I shall crave leave to conclude the contrary: For neither is the election, or Solemnization of such election, a proper worke of the Parliament, according to the Opponents principles, nor can they prove such Conventions, wherein they were to be Parliaments. Not the election of Kings, for then may a Parliament be without a King; and therefore that instance concerning William Rufus, page 16. will faile, or the Opponents principles, who will have no Parliament without a King.

The like may also be sayde of the instance concerning King Steven, page 18. Much lesse can the solemnization of the election by Coronation, be a proper worke for the Parliament: Neverthelesse the Opponent doth well know that both the election of a King, and the solemnization of such election by Coronation, are Spiritlesse motions, without [Page] the presence of the people; and therefore though his instance, page 17. concerning the election of Henry the First, by the Bishops and Princes, may seeme to be restrictive as to them, yet it is not such in fact; if Matthew Paris may be beleeved, who telleth us, that in the Conventus omnium, was Clerus and Populus universus, Mr. Seldens Title of Honor. and might have been noted by the Opponent out of that Learned Antiquary, so often by him cited, if he had pleased to take notice of such matters.

A fourth sort of Instances, concerneth matters Ecclesiasticall, and making of Canons; and hereof enough hath been already sayd, that such worke was absolutely challenged by the Church-motes, as their proper worke; and therefore the Instance, page 16, 17. of the Councill in Henry the firsts time, and the Canons made by the Bishops there; and that other called by Theobald Arch-Bishop of Canterbury, and instanced by the Opponent, page 19. I say, both these doe faile in the conclusion propounded.

Fifthly, As touching the most proper worke of Parliaments, which is, the making of Lawes concerning the liberties and benefit of the people; the Opponent produceth not one instance concerning the same, which doth not conclude contrary to his proposall; for as touching those two instances in his thirteenth page, Anno 1060. they concerne not the making of Lawes, but the reviving of such as had been disused formerly, which might well enough be done by private Councell. But as to that in his fifteenth page, of the Law made by the Conquerour, concerning Remigius, Bishop of [Page] Lincolne, although it be true, that wee finde not the particular titles of Knights, Citizens, and Burgesses, yet besides the Councill of Arch-Bishops, Bishops, Abbats, and Princes, we finde the Common Councill; for so the words are, Communi Concilio, & Concilio Archiepiscopus, Episcopus, Abatus, & omnium Principum, although the Opponent would seeme to wave these words, Et Concilio, but putting them in a small Character, and the rest in a voluminous Letter, that the Readers eyes might be filled with them and overlook the other.

Secondly, as to the instance of the Councill at Clarindon, in his nineteenth page, which he citeth out of Matthew Paris, Matthew Westminster, and Hoveden, although he pleaseth to mention the severall rankes of Great Men, and those in blacke Letters of a greater size; and saith, That not one Commoner appeares, yet Master Seldens Hoveden, in that very place,Tit. Honor, Pag. 703. so often by the Opponent cited, tells him, that both Clerus and Populus were there.

Thirdly, The Opponent citeth an instance of Lawes made by Richard the First, in his twenty fourth page, and hee setteth downe the severall ranks of Great Men, and amongst the rest, ingeniously mentioneth, Milites, but it is with a Glosse of his owne, that they were Barons that were made Knights, when as formerly Barons were mentioned in the generall, and therefore how proper this Glosse is, let others judge; especially seeing that not onely Milites, and Milites Gregorij, but even Ministri, were present in such conventions, even in the Saxon times: And Master Selden in the [Page] former knowne place, mentioneth an Observation, that,Tit. Honor, Pag. 703. Ʋniversi personae qui de Rege tenent in Capite, sicut ceteri Barones debent interesse judicijs curiae Domini Regis cum Baronibus.

Fourthly, He citeth in his twenty fifth page, another instance in King Johns time, in which, after the assent of Earles, and Barons, the words, Et omnium fidelium nostrorum, are also annexed, but with this conceit of the Opponents, that these Fideles were those that adhered to the King, against his enemies; be it so, for then the Commons were present, and did assent; or they may be, saith he, some specially summoned as Assistants; take that also, and then all the true hearted in the Kingdome were specially summoned and were there, so as the conclusion will be the same.

In the fifth place, hee citeth a strange President (as he calls it) of a Writt of Summons in King Johns time, in his twenty seventh page, wherein Omnes miletes were summoned, Cum armis suis, and he concludes therefore the same was a Councell of Warr.

First, Because they were to come armed, its very true, and so they did unto the Councills in the ancient Saxon times, and so the Knights of the Counties ought to doe in these dayes, if they obey the Writte, Duos Milites gladijs cinctas, &c.

Secondly, He saith, That the Knights were not to come to Councill; that is his opinion, yet the Writt speakes, that the Discreti Milites were to come, Ad loquendum cum Rege ad negotijs regni: Its true, saith hee, but not, Ad tractandum & faciendum[Page]& consentiendum ▪ Its true, its not so sayd, 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 Arch-Bishops, Bishops, Abbots, Earles, and the greater Barons, unto such Conventions by speciall Writts, and that the Sheriffe shall summon promiscuously all others which hold in Capite; and thence hee 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 Councills were called of such persons as suited to the matter to be debated upon.

If for matters purely Ecclesiasticall, the King and his Councell of Lords, and the Church-men made up the Councill.

If for advice in immergencies, 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 Councill to ascertaine the sum, which was otherwise uncertaine.

If for matters that concerned the common liberty, all sorts were present,Littlet. lib. 2. cap. 3. as may appeare out [Page] of the very Charter of King John, noted in my former discourse,Britt. Pa. 122. page, 258. and also from an Observation of Cambden, concerning Henry the third, Ad summum honorem pertinet (saith he) Ex quo Rex Henricus tertius, ex tanta multitudine quae seditiosa ac turbulenta fuit optimos quosque ad Commitia 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; when as himselfe 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 generall 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 demurr upon the whole matter, and leave it to judgement upon the premises, which might have beene much better reduced to the maine conclusion, if the Opponent, in the first place, had defined the word PARLIAMENT: For if 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 Steven: And if sometimes a Parliament of Lords onely, may be against the King, and so without King or People; as in the Case betweene Steven and Maud the Empresse, [Page] and the case likewise concerning King John, both which also were formerly mentioned; possibly it may be thought as rationall for the Commons in after Ages, to hold a Parliament without King, or House of Lords; and then all the Opponents labour is to little purpose.

THE CONTINUATION OF AN Historicall Discourse of the Government of ENGLAND.

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THE former times, since the Norman entry like a rugged Sea, by crosse windes of arbitrary vapours, in, and about the Crowne; and by Forraine ingagements from the holy Chaire, made the true face of affaires cloudy and troublesome, both for the Writer and the Reader.

Hence forward, for the space of three hundred yeares next ensuing, Kings by experience and observation, finding themselves unequall to the double chace of absolute Supremacy, over the Sturdy Laity, and incroaching Clergy; you will observe, to lay aside their pretentions against the peoples Liberties, and more intentively to trench upon the Spiritualty, now growne to defie all Government, but that of Covetousnesse.

Nor would these times allow further advantage to Kings in this worke, they being either fainted by the tickle Title [Page] of the Crowne, hovering between the two Houses of Yorke and Lancaster, or drawne off to Forraine imployments; as matters of greater concernment for the present well being of the Kingdome, or for the spreading of the fame of such as desired to be renouned for valiant Men.

It will be superfluous to recount the particular atchievements formerly attained by these Ecclesiasticall men; the former Treatise hath already sayd what was thought needfull concerning that: For the future, I shall even premise this, That the insuing times being thus blessed with a truce, or stricter League between Kings and Commons; the errours in Government more readily doe appeare; the corruptions in natures of men more frequently discover themselves; and thereby the body of the Statute-Lawes begin to swell so bigg, that I must be inforced to contract my account of them into a narrower compasse; and render the same unto the Reader, so farr forth onely as they shall concerne the generall streame of Government; leaving those of privater regard, unto every mans particular consideration, as occasion shall lead him: For what ever 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 Kingdome is onely manifested by ancient Customes, and publique Acts of Parliament.

And because I have undertaken a generall Survey of the Reignes of thirteene severall Kings and Queenes 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 Wildernesse of particulars, hard to comprehend in the generall summ; 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 Yorke: And because Edward the Third and his Grandchilde [Page] Richard the Second, doe come under none of these Interests, I shall consider them joyntly, as in way of Exordium to the rest; although the course of the later was as different from the former, as Lust falls short of a generous Spirit.

CHAP. I. A summ of the severall Reignes of Edward the Third, and Richard the Second.

SEverall I may well call them, because they are the most different in their wayes 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 yeares of age, to take it up; he knowing whose it was, and feeling it too heavy for him, was willing enough it should returne; but being overswayed by Councels 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 himselfe, rather then to adventure it in another hand; but that is not all, for as its never seene that the Crowne doth thrive after Divorce from the Scepter, but like a blasted blossome, falls off at the next gale of adversity; such was the issue to Edward the Second, his Power once gone, his Honour followed soon after, he had ceased to be King, and within a small time did cease to be Edward.

His Son, thus made compleate by his Fathers spoyle, had the honour to be the Repairer of the ruines that his Father had made; and was a Prince which you might thinke by his story, to be seldome at home, and by his Lawes seldome abroad; nor can it be reconciled without wonder, that Providence [Page] should at once bestow upon England, a couragious People, brave Captaines, wise Councell, and a King that had the endowments of them all. Otherwise it had outreached conceit it selfe, that this small Island, wasted by the Barons Warrs, the people beaten out of heart by all Enemies, in the time of the Father, should neverthelesse in the time of the Son, with honour, wade through so many difficulties of mighty Warrs on every side abroad, and devouring Pestilence at home; and yet lay a platforme of an Epulent, wise, and peaceable Government, for future Generations.

Yet hee had his failings and misfortunes, a great part whereof may be attributed to infirmity of Age; which in the first part of his Reigne was too little, and in the later part too much. True it is, that Governours of the Persons of Kings, may in some measure supply defects of Non-age, but seldome where the Governours are many, and never if they be ambitious: And it was this Kings fate to miscarry in both; for he had in his Youth twelve Governours by constitution, and they, two supreame by usurpation, Viz. The Queen and Mortimer, till they were both consumed in the flame which themselves had kindled. And this disparity wrought somewhat unsuccessefully in the Kings first Warr: For the generosity of his spirit (himselfe being young and active) minded his Councell to advise him imployment in a Forraine Warr, rather then they would adventure its motion at home, least it might prove circular, which is most dangerous for Government, if the Prince be not under command of himselfe.

This first Warr was with Scotland, whose power was inferiour to that of France; the King young, and the danger neerer; and therefore though the last affront was from France, that more fresh in memory, and more peinant; yet the King was advised to give place, and speake faire, till he had tryed masteries with Scotland, and thereby secured his Rere: This he wisely hearkened unto, and met with such a successefull turne of Providence, that like an O Yes before [Page] a Proclamation gives warning to Scotland that the Wheele is turned upon them; and that there is somewhat more then 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 foyled his Father, and also put himselfe already once to the Retreat.

And yet there did concurr a kinde of necessity of second Causes; for, the King found the Crowne ingaged, and the minds of the Scots so elate, as the English mans case was not to live to Fight, but to Fight to live; and so imbittered against one another by the fierce Warrs under the Barrons, that nothing could quench the fire, but the withdrawing of the Brands into Forraine action, like some angry spirits that spoyle their owne bodyes, unlesse 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 renues the Warr, prevailes, and after ten yeares stirr (wherein hee became a trained Souldier against the Scots) hee wann the Crosse, and then goes to play his Prize in France, to compleat his Crowne with the Flower De lis: Which was the great worke of the rest of his Reigne; in which foure parts of five was Victorious; the fifth and last, was declining like some Gamesters, that winn at the first, and for want of observation of the turning of the Dice, come off loosers at the end.

For the King being rather satiated then satisfied with Victory and Honour, returned home to enjoy what he had, leaving his Son, the Black Prince, to pursue the Warr, and to act the Souldiers alone, who now began to honour his Valour above his Fathers. But, the Tyde is spent, the Prince of Chivalry dyes, the brave Commanders wasted; and the French too fickle to continue subject to the English, longer then needs must, tack about for another Adventure, and [Page] make it plaine, that France is too bigg to be Garrison'd by England, and that it will cost England more to hold it then to have it.

His Religion was more to the purpose, then of any of his Predecessors since the Norman times; he reflected upon God in common events,Antiq. Brit. more ordinarily then the generall streame of the Clergy did in those dayes: He loved, if not adored devout men and their prayers, and yet intentively disclaimed opinion of merits in the Creature: Hee saw the Pope through and through, loved him but little, feared him lesse, and yet lost neither Honour nor Power thereby.

His cheife 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 Wisedome: For he that shall preferr his owne wisedome above that of the Parliament, must needs thinke himselfe extreamly Wise; and so much the more, to know himselfe to be such: But the worst of his fate was, to live to his Winter age, and after fifty yeares Reigne, or more, to dye in his minority under the rule of a Woman of none of the best fame, after hee had so long enjoyed the honour of greatest note in the Christian World, in his dayes.

Rich. 2.Such was not Richard the Second, though the onely Son of that famous Cheiftaine, the Black Prince of Wales; (a renouned Son of a renouned Father) but (as a Plant transplanted into a Savage soyle) in degree and disposition wholly degenerate, retained a tincture of the light inconstancy of his Mother, and the luxuriousnesse of his Great Grandfather, Edward the Second, and running his course, came to his end.

The. lib. 4. Cap. 21.His entrance, however by colour of Inheritance, yet was a greater adventure then 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 [Page] troublesome, the Kingdome new wrapped up in a double Warr abroad, and (which is worse) flooded with distractions at home, contracted partly by his Predecessors weaknesses in his decrepit estate, partly by a new interest of Religion sprung up against the Papall Tyranny, from the Doctrine of Wickleiff; all which required a very wise Man, and a brave Commander, in both which the King fayled.

Religion now began to dawne through the foggs of Romish usurpations and superstitions, ayded thereto by a Scisme in the triple Crowne, that continued forty yeares, with much virulency abroad, and with as bad influence upon our Myters at home: Some of whom were called Clementines, others Ʋrbanists, and yet none of them all worthy of eyther of the Names, in their proper signification. The Laity, though lookers on, yet were not quiet: For though Liberty be a hopefull thing, yet its dangerous to them that are not a Law to themselves; especially in matter of Opinion; for that arraines the rule, and layes the way open to licentiousnesse. And now that the Liberty from the Keyes began to be taught as a duty of Religion, the inferiour sort meet with Doctrines of licentiousnesse, 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 and Masters, under Cade and Strawe; that might have brought the Common wealth into a hideous Chaos, had not the Lords and Great Men betimes bestirred themselves; and the King shewed an extraordinary spirit, or rather a kinde of rage, that put it selfe forth beyond the ordinary temper of his minde. Much of this mischeife was imputed to Wickleiffs Doctrine;Hist. Eccles. Ang. for it is an ordinary thing to proclaime all evills, concurring with the very joynt of Reformation, to be the proper fruits thereof; but I looke upon it as a fruit of corruption that indeavours to stopp 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 Cupp of England, to be thus [Page] troubled,Antiq. Brit. [...]62. but France and other places, had their portion sutable.

The Kings minority rendred him unequall unto these contrary motions; he was in his eleventh yeare, when he entred the Throne; and (which was worse) his yeares came on faster then his Parts, but his worke posted before them all. The common helpe of Protectors left him yet more unhappy, for they were prepossessed with strong ingagements of particular Interests; and so were eyther not wise enough, or not good enough for all. This brought forth a third inconvenience, the change of Protectorship; and that change of Affaires and Interests, an uncertaine good that brings forth a certaine evill; for variety of Instruments and Interests move severall wayes, 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 Kings Unkles had the first essay; any one of them was bigg enough for one Kingdome, 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 that work alone; but he being somewhat ingaged with the Wickleiffists, and so intangled with the Clergy, and other restlesse spirits, and drawne off by his private ayme at the Crowne of Castile, saw this worke too much, and so he warily withdrew himselfe, leaving the Directory to a Committee of Lords, a soveraine Plaister, questionlesse, where the times are whole, but not for these distractions, wherein even the Committee it selfe 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 Earle of Warwick acquitted himselfe well, for he was wise enough to observe such as the people most honoured: And thus passed over the two first yeares of the Kings Reigne.

The remainder of the Kings minority, was rather in common repute then in true account: For the King, however [Page] young, took little more from the Protector, then he saw meet to collour his own commands with opinion of Regularity; and so his will came to full strength before his wisdome budded. Thus lifted up, he sets himself above all interests of Parliament, Protectors, Councellors, Unkles, wise, Men and Law; leaving them all to be rules for those below. And so long as the Kings 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 untill his two and twentieth year: Some might thinke him very moderate, had hee been moderate; but he forbears suing out his Livery so long as he may live without care, and spend without controll: For by this time the humour of his great Grand-father budded in him; he pawned his heart to young men of vast desires, and some say so inordinately, as he prostituted his chastitie unto them. And its no wonder if the Revenues of the Crowne are insufficient for such Masters. Thi [...] the people soon felt, and feared their own Free-holds: for they are bound, saith he, not to see the Crowne deflowred for want of maintenance, its very true, nor to see the Crowne deflowred of its maintenance. A Parliament therefore is called; in which diverse Lords associate,11. Rich. 2. n. 8.13. and prepare Physick for the Kings lavish humour, which being administred, wrought for ten yeares after, till it had purged him of his life, and the Kingdome 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 Crowne, and to doe Justice to the People; this was to continue for one whole yeare. The Parasites no sooner found the effect hereof to their Cost, but the King growes sicke of it, and findes an Antidote to over-rule Acts of Parliament, by Acts of Privy Councell, declares this ill-favoured Commission voide; and the Contrivers, Advisers, and Inforcers, Traytors. To make it more Majesticall, he causeth the Judges to Subscribe this Order, and so it becomes Law in repute. This foundation thus laid, he buildeth in hast an Impeachment of these Commissioners of high Treason; and [Page] supposing that they would not readily stoope, himselfe stoopes lower; for he would put his Right to triall by battell, which was already his owne, 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 himselfe: (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 chiefe Judges with their Law, judged by another Law. The King not medled with, thinks it high time to come out of his Minority, and assumes the Government of the Kingdome and himselfe, to himself, being now three and twenty yeares of age; old enough to have done well if he had cared for it: But resolving to follow the way of his owne will, at length it led him to his owne ruine: onely for the present two things delayed it, Viz. The Authority, Wisedome, and Moderation of his Unckles, 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 owne advantage, but for the Publick quiet, procured many Parlies and interviewes between the King and People, and many Lawes for the upholding of the Court and Government, although both Warre, Lawes, Justice, and Councells, all are faint, as all is faint in that man that hath once dismanned himself. This he perceives well enough, and therefore Peace he must have by any means. The Queen dies, himselfe being nigh eight and twenty yeares old, takes a Creature like a Wife, but in truth a Childe of eight yeares old, and this is to get Peace with France. Its no wonder if now he hunts after unlawfull game, and that being ill taken brings all things out of order (For abused Marriage never wants woe:) Civill men are now looked upon as severe Cators; and his Unckles, especially the Duke of Glocester with a jealous eye, which accomplished his death in the conclusion. The Dukes of Lancaster and Yorke forsake the Court, Favorites [Page] step into their roomes: The old way of the eleventh yeare is re-assumed: Belknap and others are pardoned, and made of the Cabinet. The Pardon of the Earle of Arundell is adnulled, contrary to the advise of the major part, and the Arch Bishop, the Earles brother is banished. The Lords forsake the wilfull King, still the Kings jealousie swells; The Duke of Hertford is banished, or rather by a hidden Providence sent out of the way for a further worke. 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 Kingdome in correspondency. And he was ill requited, for all his Estate is seised 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 downe goes all the worke of the tenth and eleventh yeares Parliament, which had never bin, if that Parliament had continued by adjournment. The King raiseth a Power which he calleth his Cuard, of Cheshire men; under the terror of this displaying rod,21. Rich. 2. cap. 9. the Parliament & Kingdom are brought to Confession: Cheshire for this service is made a Principality; & thus goes Counties up, and Kingdoms down. The Kings Conscience whispers a sad Message of dethroning, and well it might be, for he knew he had deserved it. Against this danger he intrenches himself in an Act of Parliament, That made it Treason, To purpose and endeavor to depose the King, 21. Rich. 2. cap. 3. or levy War against him, or to withdraw his Homage, hereof being attainted in Parliament. And now he thought he was well guarded by Ingagement from the Parliament, but he missed the right Conclusion for want of Logique: For if the Parliament it self shall depose him, it cannot be made a Traytor, or attaint it selfe, and then hath the King gain'd no more then a fals 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 Kings [Page] assent thereto, and hinderers of the Kings proceedings, are adjudged Traitors. 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 its 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 Kings Justices, for offences by them committed in Parliament, without the Kings consent, and all gainsayers are Traitors. These and the like Aphorismes once Voted by the Cheshire men, assented unto by the Parliament, with the Kings Fiat, must passe for currant to the Judges, and if by them confirmed or allowed, will in the Kings opinion make it a Law for ever, That the King and all Parliaments is Dominus fac primum, and Dominus fac totum. But the Judges remembred the tenth yeare, and Belknaps intertainment, and so dealt warily; their opinion is thus set down, It belongeth to the Parliament to declare Treason, yet if I were a Peere, 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 Kings Bench, the first chief Justice of the Common-Pleas, and the second another Judge of the same Bench. The summe in plainer sense is, that if they were Peeres, they would agree; but as Judges, they will be silent. And thus the Parliament of England by the first of these foure last mentioned conclusions attainted themselves; by the second yeilded up their liberties, by the third their lives, and by the last, would have done more, or been lesse: 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 indeavor to repeal any of their determinations.

The Common-wealth thus underneath, the King tramples [Page] 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 Farme, subject to strip and waste by mean men; and crosses the Irish Seas, with an Army. This was one of Englands Climactericall 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 ere the winde of affaires changed, the King now in Ireland, another steps into the Throne; the noise hereof makes him return, afarr of inraged: but the nigher he comes the cooler he growes, his conscience revives, his courage decayes, and leaving his Army, his Lordship, Kingdome, and Libertie, behinde, as a naked man submits himself to release all homage and fealtie; to resigne his Crown and Dignitie, his Titles and Authoritie; to acknowledge himself unworthy and insufficient to reign; to swear never to repent of his Resignation; & thus if he will have any quiet, this wilfull man, he must be content for the future, neither to will nor desire: And poore England must for a time bee contented with a dolefull condition, in which the King cannot rule, and the Parliament will not, and the whole body like a Chäos 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 excellencie of Dignitie, and the excellencie 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[Page]Thornes; 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 Kingdome in generall. The King, though higher then all the people by the head, and so hath the Prerogative of Honour as the most worthy, yet his strength and abilities originally doe rise from beneath, otherwise, he is but like a Generall without an Army, the Title big, but aiery; and many times his person subject to so much danger, that in stead 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 respect he may be said to be lesse his own man, and more the Kingdomes then any of the inferiour sort. This befell in both these Kings in a speciall manner; each entering upon the grand government of a Kingdome before they were able to understand the work, or govern themselves: and therefore were under power of Protectors for the guard of their Persons and their Education, and of the Parliament for Councell and Direction in Cases relating to the Kingdome. The chide of a mean man when its Parents are dead, is Filus Amici, but of a King, is Filius Populi, to be by them trained up in such manner, that he may be Pater populi, when he is come to age. In the mean time though he be a King, yet his Person like a precious Jem must not out of the ring, but must be directed by Councell, though under some kind of restraint,1 E. 3. Stat. 1. & the Councellors all the while no Offenders in such Cases against the Prerogative Royall. And therefore though it be true that Kings grow faster then other men, and sooner come to full age then they, yet Edward the third now in his sixteenth yeare might not passe over Sea into France, though it were for restoring of Peace, but by direction of the Parliament: nor is it meet in such Cases that Kings should stand upon the Prerogative of a Negative. Secondly, it may likewise be said, that his Family is lesse his owne as he is a man, then another mans. For private Families are no further under the publique Law, then [Page] in relation to the publique Peace, to punish after breach made. But the Families of Kings are looked upon by all in relation to the honour and profit of the Publique; not onely because the Kings servants have by their nigh attendance upon his Person a more powerfull influence into his actions, which may reflect a malevolent aspect upon the whole course of affaires, if they be not better ordered that are so nigh him. But more especially in regard that the government and order of the Royall Family trencheth deep upon the Honor of the Kingdome, and purses of the People, who are concerned to see the same accommodated sutable to the State and Port, which the Nation would bear forth to the World. And therefore for the Parliament to intermeddle in the Kings Family, is not forrain nor new: Alice Piers was a Familier, if not of the Family of Edward the third, yet both her selfe and others of that Family were complained of as a grievance. Richard the second, was once a young man, and ever a young King; and what Edward the third wanted onely in his youth, and in his infirme old age, this man ever wanted: for he that knew not how to govern himselfe, how much lesse could he govern his Family: And if in this condition the Parliament become his Stewards, to set a yearely Survey and Check upon his Servants and Family,9 Rich. 2. n. 31. 11 Rich. 2. n. 23. in order to good order of the same, and Kingdome, otherwise men must conclude, it did that which was just: though Richard the second, and those of his minde thinke not so. But this is not all; Kings have not onely such as serve the outward man, but some that serve their Consciences, of old time called Confessors; in those dayes without name, for feare of Superstition, yet the thing remaineth still in some well favored Chaplain, and their work is to lead the Kings Conscience in dark wayes, or rather into them; commonly he hath a devout outside, and that is the Kings Idol: but if while his eye be towards Jerusalem, his minde be towards the dead Sea, the King is his; and then the blinde leads the blinde: Like some Ignis fatuus, to such as know it not: No man is so well knowne by his company as Kings are by these men, and these [Page] men by their Actions. Although some have bin so witty as to cheat the whole generation of Mankinde, by entertaining holy men to be their Chaplains: themselves the mean time, without any sparke of that holy Fire. Yet this King was not so cunning, he had a Confessor of his own choice, and according to his owne heart, who was complained of as a grievance,5 Rich. 2. n. 17, 18. and the Parliament removed him: So nigh they adventured, even to invade the Kings owne conscience, if it may be called conscience, that will acknowledge no Law, but that of its owne minde.

Thirdly, The Kings Revenue was under the check and controll of the Parliment, for it befalls some Princes, as other men, to be somtimes poore in abundance, by riatous flooding treasure out in the lesser currents; and leaving the greater channells dry. This is an insupportible evill, because it is destructive to the very being of affaires, whether for Warr or Peace. For the Kings treasure is of a mixt nature, much of it being intended for publique service, as himselfe is a publique person. And for this cause he hath Officers of severall natures attending upon this treasury. Some for land, some for Sea, some for the generall treasure of the Kingdome, some for that of the houshold, and some for the privy purse: the common end of all, being to maintaine state in time of peace, and strength against time of Warr: because its no easie matter to maintaine the just proportions for each of the said ends, it is the lesse wonder that such a brave Prince as Edward the Third should Labour under want for maintenance of the Warrs; and so lavish a Spendthrift as Richard the Second; should Labour under more want to maintaine his port and countenance in peace. And therefore, though it be true that the publique treasure is committed to the King as the cheife Steward of the Realme, yet it is as true that he is but a Steward; and that the supreame survey of the Treasure resteth in the Parliment, who are to see that the treasure be not irregularly wasted, to reduce the same into order; and for that end to call the Treasurers and Receivers to account, to see to the punishing of such as are unfaithfull, [Page] and encouraging of others that are faithfull; for when by extravagant courses, the Treasure is wasted; by extraordinary courses it must be supplied, which ever is out of the Subjects purses. And in such cases it is great reason that they should observe which way the course lies of such expenses. If then in such cases, sometimes the Parliament hath stayed the issuing out of the Kings Revenue for some time,2 Kich. 2. n. 12. 9 Rich. 2. n. 4. or. 41. 14 E. 3. n. 6. 27 E. 3. n. 8. 9 R. 2. n. 40. 15 E. 3. n. 16. or otherwise viewed and examined the same, charged it with conditions, 22 E. 3. n. 29.14 R. 2. n. 15. limitted it to certaine uses, and in case of misuser refused to levy or make payments, the case will be without dispute, that the Parliament ordered the publique treasure as they saw most need. But much more if wee consider how the greatest part of this treasure was raised. Viz. Not from the old Revenues of the Crowne, but by new impositions, levies, and assesments, layd upon the people, even what they pleased, and in what manner they thought meet, and not otherwise. Aydes are lawfull if they be legally given by common consent of Parliament: Taxes if legally given by Parliament,14 E. 3. cap. 20. are no lesse lawfull, yet they must be collected in such manner and by such means as the Parliaments Order doth direct: Loans of monys to the King may be made by them that will, but the King must not demand them, because the subject hath no means to recover the debt.25 E. 3. n. 16. This trick had been lately tryed by Edward the Second, much mony he got, and it was repaied by the order of the Parliament. But of all the rest, nothing shewed more absolute authority in the publique Revenue, then the care that was had of the Demesnes of the Crown,1 E. 3. vet. 1. for whereas the expenses of Kings grew so vast, that neither the yeerly Revenue could suffice; nor aides, assesments, and taxes could satisfie, however ordinary they in these times were become; rather then Kings would contiane themselves they would invade their own Demesnes, by pauning, selling, and giving them a way, either for love or mony; and thus was poverty treasured up against the future, both for King and Crown. The Parliament, espying this leake that was like to undoe all, applyed a speedy remedy, undoing what was [Page] done, and undoing some by an act of Resumption, and thereby taught Kings to looke to their honor better for the future;1 Rich. 2. n. 48. and people also to take heed of medling with such considerated matters, and to know that he that hath such in his possession, hath them by a cract title that cannot bee amended but by Act of Parliament.

Fourthly, An English King is no Out-law, nor can he do any wrong, though the man may: he hath a double relation, one as a King, the other as a man, and the uniting of both in one Person, hath cheated many a man of his judgement in the Case of Prerogative: he hath a double will, and these many times contrary, equally as in other Relations; and in this contrariety, sometimes the King overcomes the man, and sometimes the man the King; so as if any man, the King hath much more cause to cry out, O miserable Man: These divers wills are generally led by diverse rules. One of a man, wch many times reacheth no higher then the Affections; and if the man be weak they deserve little better name then Lusts. The rule of a King is Law, or Councells, of these in place; and unto these in all prudentialls, he must submit his judgement and will, as he is a King: nor can he doe otherwise, unlesse he will presume to be wiser then his Councell: Sutable hereunto doth that clause in one of the Statutes of these times conclude,25 E. 3. Provisor. Viz. That the King is bound by his Oath, to passe all Lawes that are for the good of the Kingdome: For were the power of election, or determination of the Point onely in the King, then were the Oath in vain, nor is the Parliament at all (in case of the Kings dissent) to judge of the convenience or inconvenience of Proposalls made for the good of the whole body,21 E. 3. n. 64. 3 Rich. 2. n. 83. 2 Rich. 2. n. 38. according to that power which it exercised in these times: Nor is it irrationall to inferre here from that, if Law and Councell be the rule of a King, then the obedience of the people unto this King must be in order to Law and Councell, otherwise the disobedience cannot be determined to be against the King, but against the Man; and though against the private will of the Commander, yet not against the Law, nor therefore can it be said illegall [Page] or unjust. The Parliament in these times held forth this Doctrine plainly to the World, that it is their proper work in Cases needfull to doe right to such as are wronged by the King: his command is no Warrant in such Cases.15 E. 3. n. 6, 7. If a man be wrongfully imprisoned by him,1. E. 3. Ver. 1. 15 E. 3. cap. 3. 11 Rich. 2. n. 11.12.15.17. he shall be released and set at liberty by them: Let his Act be never so authenticall under the Broad-Seale, it can take no mans right away. Richard the Second, did his utmost to satisfie and quiet the tumultuous rabble under Cade and Straw; and granted store of Manumissions to the Bond-men by Declaration, and by his Letters Patents, but not one of them good enough to deprive any one of the meanest of the Free-men of their rights in those Bond-men. The priviledge of shewing mercy,5 Rich. 2. n. 8.12.13. and granting pardon hath beene antiently betrusted to the King, as to an Overseer of the execution of Law, yet he hath not that Prerogative, To have mercy on whom he will have mercy. Ever since this Narion had learned to read the Bible, Murder hath been excepted from mercy, nor did the Law ever allow any King any Prerogative to pardon that. Edward the Third, did not challenge any such, not onely bound thereto by his Coronation Oath,10. E. 3. cap. 2. 14 E. 3. c. 15. 2 E. 3. cap. 2. but by publique Acts of State, declaring the same; yet because the Parliament was not alwayes sitting, and Kings were ever subject to this Temptation, to favour Servants, by granting mercy to Malefactors; a generall rule of Inhibition is made against all pardon to be granted by the King, in Case of Fellony, but onely in Cases allowed by advise of the Councel. Its true that in the first times of Richard the Second, he liked not to be thus girt in his power, which he pretended was more at liberty in his Predecessors; possibly he meaned King John and Edward the Second, who many times did what they listed; yet under his favour, no Law was so shamelesse,13 Rich. 2. Sr. 2. cap. 1. as to hold forth such a power, till Richard the Seconds Law countenanced it: But why doe I call it a Law, which is onely a Declaration by consent of the Lords, such as then were▪ 11 Rich. 2. n. 3.6. 21 Rich. 2. n. 35. the Commons would never owne such an opinion; and therefore it soone proved abortive; for within three or foure yeares, by publique [Page] Act of Parliament, its peremptorily declared, that the Kings Pardon shall not extend to murther: So as upon the whole matter its plain that it is not the Kings will, though supported by the Councell of Lords, and backed by the opinion of the Judges, that must be a rule for the government of this Kingdome, nor doth any Allegience binde obedience thereunto, in Case where Justice, or the liberty of the People is concerned.

Three things yet remain which Kings have claimed to be their own, Viz. Conferring Titles of Honour, and places of Trust, and the Legislative power. The first is but a Feather, and not worthy of regard, yet it is plain that these times produce many presidents of Dukes, Marquesses, and Earles, made in Parliament, and possibly it may be apparent that the first motion of any such Title of Honour, did first fetch its Originall thence, if not in the field. But its not worthy of the labour. The second is more considerable, Viz. The power of conferring places of Publique Trust: This, Kings have pretended unto, although in course of Congruity, it will be thought more meet that it belongeth rather to that cheife and grand Trust of the whole Kingdome 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 Privie-Councell, whose advise in course toucheth first upon the Kings Person, but by reflexion worketh strong impressions upon the People, so far as the influence of the Kings power extends. And therefore its not beyond the Sphear of the Parliament to interpose and qualifie that influence, so as it may be for the generall good of the whole Kingdome: For many times Kings are either above or beneath themselves; and in such Cases if the Councell be of the Kings suite, he is of the deeper die, and proves more Malignant to the People. Edward the Third, growing into great opinion in the World, his Proportion exceeds his own Portion,14 E. 3. n. 55. and the Peoples good wills to boote▪ they think the fault is in the privy Councell, and an Inquisition set upon it: [Page] So also they doe in his fiftieth yeare when he growes downward.50 E. 3. n. 10. 1 Rich. 2. n. 5 [...] And the like in the beginning of Richard the Seconds Reigne, 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 judgement, or Resolution, or inordinate in his Affections:3 Rich. 2. n. 34. 5 Rich. 2. n. 17, 18.28. 6 Rich. 2. n. 19. But more especially where they observe the Major, or more considerable part of the Councell to draw towards a designe; in such Cases as these, the Parliament as its own duty undertooke to settle a good Councell about the Kings Person, that might advise him during their Recesse. For the Privy Councell is never more it selfe then when it is an Epitome of the Common Councell of the Kingdome. In like manner such Officers as concern Execution of Law, and Councell, are as narrowly to be inquired into: for if their motion be irregular, its lesse materiall what the rule be: the Parliament therefore held it their duty to interpose in the Election of grand Officers of the Kingdome; such as are the Chancellors, Judges, and Justices, or to confirm or displace them, or binde 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 mutuall 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, its 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 Kings 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 Kings wisedome, care, or fidelity, yet even these have passed with the Royall Assent, though the full Assent or good will of the Person of the King was [Page] not correspondent thereto: as in these Cases formerly noted, where Subsidies were given with Limitations and Conditions, and upon rendering account to the People. And it is as evident, that where the Kings Person is disabled to understand (as in Case of Infancy) there the Royall Assent can bear litle weight with it;37 E. 3. n. 34. 1 Rich. 2. n. 5. 5 Rich. 2. n. 75. but most of all in the Kings absence, where either the Assent is put thereto by Commissioners, that know not the Kings particular minde, or the Act is done onely by the Houses, in nature of Ordinances; and yet these of force to binde all Parties, but the King. But nothing more debased the Royall Assent in these times, then a trick that Edward the Third plaid in the middest 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 advise in laying out, nor of equity in levying and collecting money for the nerves of War. This forward Warrier in the heat of his Atchievements, findes his strength benummed for want of money, he leaves off, comes home, rages against his A. Bishop, to whom he had committed the care of Provision for his War, and the A. Bishop, as hotly falls upon some of the Treasury in the Army on the one side, and upon others in the Countrey; whose oppressions, saith he, in stead of bringing in money,15 E. 3. c. 3. 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,Antiq. Britt. Eccles. and thereupon ensues a calme. After the Parliament ended, the King repeats the matter, it makes his heart sick, he disgorgeth himself by a Proclamation made by advise 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 minde, 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,15 E. 3.50. or indeavoured 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 3. his [Page]dissembling assent makes a Law. Lastly, Whether by a Proclamation, by advise of Nobles and Wise men, he can Declare that he dissembled with his Parliament, and therein not dissemble the Royall Assent, so as to bring all the Lawes made in any Kings time into question at least during his life. However the result may be, its evident the Royall Assent gets no honor hereby, and the Statute as little, that hath suffered this Proclamation all this time to passe among the number of the Statutes in Print as a Law, when as many Statutes that are Lawes of note are left out as uselesse.

Although in the generall, the two Houses joyned in every Act, Ad extra, yet, Ad intra, and in relation one to another, they had their severall 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 mutuall aspect from both: In matters of judicature, much rested with the Lords, and therefore it is ordained, that,15 E. 3. c. 1. 15 E. 3. c. 3, 4. The House of Lords shall remedy all offences contrary to the Law of Magna Charta: And in cases where no remedy is left, nor judgment by the Law, the matter shall be determined in Parliament, and the King shall command execution to be done according to the judgment of the Peeres: Which Lawes seeme to bee but declarative of the former Lawe, and in the nature of reviving that power into Act which was formerly layd asleep, and doth strongly implye that the ultimate act in judicature rested with the Lords, in relation not onely to the House of Commons, but also in relation to the King, whose work in such cases, is, not to judge above, or with the Peers, but to execute their sentence: and that carries with it a list, whereby the power of a King may appeare not to be so supreame in making of the Law, as some would have it; for if his Judgement and Conscience be bound by the Votes of the Peers in giving a Law, in Case of a particuler person, where the Law was not formerly known: Let others judge of the value of this Negative Vote, in giving Law to the whole Kingdome. Its true that this Parliament was quarrelled by the King, and he kept it at a bay by a Proclamation [Page] that pretended Revocation, as far as a Proclamation could revoke an Act of Parliament; but it effected nothing, nor did the contest last long: Now though this Jurisdiction thus rested in the House of Lords, in such Cases, as well as in others; yet is it not so Originally in them, as to be wholly theirs, and onely as they shall order it; for the Commons of England have a right in the course and order of Jurisdiction, which (as the known Law) is part of their liberty: and in the speedy execution of Justice, as well as they have right to have Justice done: and therefore whereas in Cases of Error, and delayes, the Appeale was from the inferiour Court to the Parliament, which immediately determined the matter,14 E. 3. cap. 5. and now the trouble grew too great by the increase of Pleas: For remedy hereof, a kind of Committee is made of 1 Bishop, 2 Earls, 2 Barrons, who by the advice of the Chancellor, Treasurer, and the Judges, shall make good judgement in all Cases of Complaint of delay in Judgement, which Committee is not made by Order of the Lords alone, which they might have done in case Jurisdiction had bin wholly and onely shut up in their custody, but by Act of Parliament, and joynt concurrence of the Commons with the Lords: For as the Commons challenge speedy Execution of Justice, as one of their liberties: So also to be under the jurisdiction of such Judges, and Courts, as the Lawes (in the making whereof themselves challenge a Vote) do establish & appoint.

I will conclude this Chapter with the Constitution of the Parliament in these times. For, the difficulties that befell between the Kings and their people, or Houses of Parliament, wrought two sad effects, Viz. A propensity to decline calling of Parliaments, so often as was used and exspected; and when it assembled, as great a propensity in the Members to decline their attendance,Walsing: An. 1315. by means whereof, as the Historians tell us, the Parliament was somtimes inforced to adjourn it self for want of number sufficient: the first of these arose from want of good will in the Kings, the other from want of courage and zeale in the people. The first of these was fatall and destructive to good Government; for though in [Page] distempered Parliaments its good to withdraw, yet in distempered times its necessary to meete, and gain a right understanding of all parties; and therefore these times were so happy as to binde themselves by publique Acts of State to recontinue the Assembling of Parliaments. For the face of the Times represented unto all, that Agitations were like to be quick, violent, and to continue for some succession of Time: Its therefore safe, if not necessary, that every eye should be open, and Counsells ready for every Occasion. A law at length is agreed upon, that A Parliament shall be holden once every yeare, or more if need be. 4 E. 3. cap. 14. But in thirty yeares the power of this Law is wasted out of minde, and the evill reviving, revives also the Statute,36 E. 3. c. 10. and yet they had thirteen or fourteen Parliaments in thirty yeares space, and not above three, or but once foure yeares distance of time between any two of them in Succession. This was the sense of the Members of the Houses in their meeting, but at home, they had homely conceits, and its found no lesse difficult to bring them to the meeting, then to continue the meeting according to the Law, being either loath to adventure their thoughts into the troublesome affaires of the Publique, or their Persons to expence and hazard: But the Publique must be served, and therefore an Act of Parliament is made,1 Rich. 2. c. 4. That all such Members as decline their appearance at the Parliament, after Summons made, shall be amerced, and the Sheriffes likewise that shall neglect return of Summons: And the Statute implyeth that it was no Introduction of a new Law, but a reviving of former Law now or lately difused, or a Custome now out of Custome. And to take away all Objection in point of charges and expences, another Law was made to establish the assessments, and levying of their Wages,12 Rich. 2. cap. 12. upon the Lands that anciently were chargeable therewith, in whose hands soever the same shall come.

I shall conclude with this, that the Parliament, though like a Garment, it sometimes covers the goodly feature and proportion of a well composed body, yet it keepes the same warme, and as a Sheild is first in all dangers, and meets [Page] with many a knock which the body feels not: This is their worke and reward; Its true, that in the wearing it is felt heavy, but it is the easier born, if it be duely considered, that it is better to be so clothed, then to be naked.

CHAP. III. Of the Privy Councell, and condition of the Lords.

THe later must make way for the former, for according to their Personall esteeme in their own Countries, such is their Authority at the Board in joynt Councells: And it was one point of happinesse in a sad time of Warre, that all men looked one way. The Lords were much addicted to the Feild, and could doe much with Edward the Third, who was a brave Leader, and more with the People, who had bin so long time used to the rough trade of Souldiery, that they loved not to be at home about matters of Husbandry, wherein they had so little experience. And having so fair a Garland in their eye as France, its no wonder if Domestick designes seemed meaner, or more dangerous. Thus did God doe England a good turn, although it was made for the present thereby neither so rich or populous, as it might have bin in a time of Peace. This French Heate wasted many a tumultuous Spirit, and Innobled the Fame of the King and Lords, not onely abroade, but won them much Honour and Repute of those that remained at home; and so by congregating Homogenealls, and severing Heterogenealls, rendered the body of the People more Univecall; which tended much to the settling of the joynts of this distracted Nation. A timely birth hereof doubtlesse was the peaceable entry of Richard the Second, upon the Throne, and quiet sitting there; whiles as yet he was but a Childe, the Princes of the blood many; and they of generous, Active, and daring Spirits: yet doe we not meete with a whisper in Story of any turbulent [Page] or aspiring humor in them or the People, during those tenderer times of that Kings reigne. But after that he came to know more in himselfe then was to be found; and to outreare his abilities, having some of the Lords ready at his elbow to help him: these changed the Kings course, although the generall part of that Noble Band kept still their Array; and retaining the body of the People in due composure, thereby declared themselves to be the Kings Friends, though the others were Richards Favorites, so as he was fain to stoop to occasion, and submit to be a King, that would have otherwise beene more or lesse. And thus the Lords were become Supporters to the Crown, Studds to the Throne, and a Reserve to the People, against the violent motions of an unbridled minde in their King; who seeing them so united, and indeavouring to break them into parties to obtain his desire, lost both it and himselfe. It is a degree of cleanly modesty to impute the miscarriages of unruly Kings, to their Councell: For however during their minority, Councellors are more rightly Officers of State; yet when Kings will be their owne Men, their Councellors are no other then the breath of the Kings owne breast; and by which a King may be more truely discerned then any man, by his bosome Friends. Edward the Third, was a man of a publique Spirit, and had a Councell suitable to his aime: Richard the Second, a man that desired what him pleased, would have what he desired; and a Councell he had that served him in all: for God answers the desires of mens hearts in Judgement as well as in Mercy; and a sore judgement it is both to King and People, when the corrupt desires of the King are backed by a flattering Councell.

It must be granted that the Privy Councell of Kings, hath been an old ginne of State, that at a sudden lift could doe much to the furthering of the present Estate of publique Affaires: Neverthelesse, through the Riot of Kings, their Designes generally tended to make more worke for the Parliament, then to dispatch; to doe much, rather then well; like workes for sale, rather then for Master-peice, and sometimes [Page] to undermine, yea, to outface the Parliament it selfe; like some unruly servants that will put away their owne Masters: Nor can it otherwise be expected, unlesse the Kings elected ones be turned into the Parliaments Committee; or that constant annuall Inquisition by Parliament, be made into their Actions: for occasionall inquiries breed ill blood, though no attainder be; nor are they easily undertaken, whereas constancy in such Cases makes the worst to be resolved but into a matter of common course.

The naturall and originall power of the Privy Councell, is very obscure, because there are severall Degrees of them that occasionally have beene used, all of whom may deserve the name of Privy Councell, in regard of the Parliament, which is the most publique Councell of all the rest, and alwayes hath a generall interest in all Causes in the Kingdome.

The first of these, is that which was called, The Grand Councell of the King, which as I thinke, was not the House of Lords, who are called by Summons, and were onely to attend during the Parliament; but a body made up of them: and other wise men of his owne retinue: and of this it seems there was a constant body framed, that were sworn to that service;16. E. 3. Memb. 5. in Dors. for some in these times were sworne both of the Grand Councell, and the Privy Councell, and so entered upon Record.

The second of these Councells was also a great Councell, and probably greater then the other; but this was called onely upon occasion, and consisted of all sorts, like a Parliament, yet was none: An example whereof we have in the Ordinances concerning the Staple, which at the first were made by the King, Prelates, Dukes, Earles, Lords, and great Men of the Kingdome, one out of every County, Citty, and Burrough,27 E. 3. Stat. 2 28 E. 3. cap. 13. called together for that end; their results were but as in point of triall for sixe moneths space, and then were turned into Statute-Law by the Parliament. These two are Magna Concilia, yet without power, further then as for advise; because they had no ancient foundation, nor constant [Page] continuance. Another Councell remaineth more private then the other, of more continuall use, though not so Legally founded, and this is called the Kings Privy Councell, not taking up a whole House, but onely a Chamber, or a Table, signifying rather communication of Advice, then power of Judicature, which more properly is in Banco ▪ And yet the power of this grew as virile and royall, as it would acknowledge no Peere but the Parliament, and usurped the representative of it as that had bin of the whole Kingdome. The ambition thereof hath ever bin great, and in this most notoriously evident, that as it had swallowed up the grand Councell of Lords, it seldome can endure the mention of a Parliament, but when Kings or Affairs are too rugged for their owne touch. The platform of their power you may behold in this their Oath.

1. That well and lawfully they shall councell the King according to their best care and power, Mag. Cart. Vet. and keep well and lawfully his Councels.

2. That none of them shall accuse each other, of any thing which he had spoken in councell.

3. And that their lawfull Power, Aid, and Councell, they shall with their utmost diligence apply to the Kings rights.

4. And the Crowne, to guard, and maintaine, save, and to keepe off from it, where they can without doing wrong.

5. And where they shall know of the things belonging to the Crowne, or the rights of the King, to be concealed, intruded upon, or substracted, they shall reveale the same to the King.

6. And they shall enlarge the Crowne, so far as lawfully they may, and shall not accouncell the King in decreasing the rights of the Crowne, so farre as they lawfully may.

[Page]7. And they shall let for no man (neither for love nor hate, nor for peace, nor strife) to doe their utmost (as far as they can, or doe understand) unto every man in every Estate, Right, and Reason, and in Judgement, and doing right shall spare none, neither for riches nor poverty.

8. And shall take of no man without the Kings leave, unlesse meat or drinke in their journey.

9. And if they be bound by Oath formerly taken, so as they cannot performe this without breaking that, they shall informe the King, and hereafter shall take no such Oathes, without the Kings consent first had.

All which in a shorter summe, sounds in effect, that they must be faithfull Councellors to the Kings Person, and also to his Crowne; not to decrease the true Rights, but to inlarge them, yet all must be done lawfully. And secondly, that they shall doe right in Judgement to take no Fees, nor any other Oath in prejudice of this.

The first of these concerne the Publique onely at a distance, and yet the point of increasing and diminishing of the Crowne in the sixth Section is captious, and may sound as if there is a Legall enlarging of the Crowne, whereof he that takes the Oath is to judge. A matter which onely and properly concerns the Parliament to order and determine, or else farewell all liberty of the People of England.

The second concerneth immediately the King in his politique capacity, but trencheth upon all the Laws of the Kingdome, in the executive power; and all the motions in the whole Kingdome, either of Peace or Warre, following in the reare, either immediately, or mediately, are under this notion interested into the transaction of the Privy Councell, to debate and determine the Kings judgement therein, unlesse it will determine alone. And how easie a thing it is for such as have power of determining the Action by the Law, to slip into the determining of a Law upon the Action, and so to [Page] rule by Proclamation; experience taught succeeding times sufficiently: Neverthelesse these times wherein Parliaments were every moment upon the wing, and kept this Noble Band in awe, by taking them into their Cognisance, placing and displacing some or all of them, directing and binding them by Oath, as they saw occasion, of which the Records are full and plentifull. I say, these times thus constituted added yet further incouragement to them, by giving them powers by Statute-Law, over and beyond what by ancient Custome they had obtained. The King and Councell of Lords had anciently a power of Jurisdiction, that hath bin in the first part of this discourse already observed; yet its very probable that it was not any select company of Lords, but the whole Association; for its granted by all, that they had originally a Principall hand in the jurisdiction: And its hard to conceive how any private number should catch such a power, if not by usurpation. But the manner of acquiring, is lesse materiall; the principall consideration resteth upon the quality of this Jurisdiction. For it is evident that much difference hath bin, both concerning the place and manner of exercising this Authority. In generall, It must be granted that all Pleas, Coram Rege, were grounded upon Writs first purchased, and returnable, either in Banco, or in Camera;20. Ass. pl. 52. or in Cancellaria. And no difference at all will be concerning the Jurisdiction in Banco, for that was by the Course of the Common Law; and the people held it one of their liberties to have one known course of Law, for determining matters of right and wrong. As touching these Pleas, which were holden by Writs returnable in Camera, they were properly said to be Coram Rege & Consilio, whose meeting was in the Councell Chamber, in those dayes called the Star-Chamber.41 E. 3. Rat. Clau [...]. For other returns of Writs in the Star-Chamber doe not we finde, but such as were in Camera, 16 Rich. 2. Memb. 11. in Dors. nor Prohibitions from thence, but under the notion of the Kings Councell; and this Camera, as I said, was the place of the joynt meeting of the Councell, as well of those of the Chancery and Benches, as of those that attended upon matters of State. Now the [Page] influence of Society in point of Judicature, principally aspected upon some Pleas belonging to the Crowne: although even these also properly were determinable in the Kings Bench; nor can I observe any rule to bound the powers of these two Judicatories; but this, that the Councell Table would pick and chuse, and prohibite the Kings Bench as they pleased: and to that end would order Originalls out of the Chancery, as they thought most meet: for it is observed by Fleta, Fleta, li. 2. cap. 34. that the Kings Bench hath no Jurisdiction of it selfe, but by speciall Warrant; that is to say, by Originall Writs returned thither: Neverthelesse, it may seeme that such Crimes as are contrary to common honesty, or the publique profit or peace, in a more exemplary way then ordinary; and therefore may be called, Crimina laesi Regni, or against the State: These, I say, might more properly belong to the subline Judicature of the Councell Table; as knowing better how far the publique State was interested, or indammaged in such Cases, then the other Judges that were experienced onely in ordinary matters of a more private concernment.

38 E. 3. Rot. Pat. Ps. 1. Memb. 13. 39 E. 3. Ps. 1. M. 13.42. E. 3. Rot. claus. Memb. 8. in Dors. 2 Rich. 2. Rot. Pat. Ps. 1. 12 Rich. 2. cap. [...].43. Ass. pl. 38.To recite the particular Cases upon record, concerning racing of Records, Forgeries, and other crimes of falshood, conspiracies, combinations, to abate and levell the prices of Commodities, Ryots, and such like, will be superfluous. In all which and others of that Cognisance, the Sentence exceeded not Fine, and Imprisonment, or ransome; Neither yet were the Common Pleas so rural, but the Councel Table could rellish them also, and digest them well enough, and therefore did not stick to prohibite the Courts of Common Law, under colour of a strange maxime. That it is neither just nor honest for a man to be sued at the Common Law, for a matter depending before the King and his Councell: No, though the Court of Common Law had the precedency; and therefore although the right of Tithes being depending at the Common Law,Co. Instit. 4. c. 5. 22 Ass. pl. 75. the Arch-Bishop in opposition to the jurisdiction, sueth before the Kings Councell, and the proceedings at the Law are thereby stayed; and no wonder, for the [Page] Councell Table challenged to hold the ballance of all Courts of Law within their owne Order: and so if any doubt concerning the Jurisdiction depended,13 Rich. 2.12. Tit. Prohibition. the Councell Table gave the word, and all stooped thereto: But enough of the Subject matter, the manner followes; a new form of Processe is taken up, that the Common Law and ancient Custome never knew, and which grew so noisome to the People, that complaints are made thereof as of common greivance, and remedies are thereto applyed by the Lawes of these times.5 E. 3. cap. 9. For whereas by the Grand Charter nothing could be done in Judgement, but according to the Lawes of the Land, and in affirmance thereof a Law was made in these times, that no Accusation, nor Attachment, nor forejudging of Life, or Member, nor seisure of Lands, Tenements, Goods, or Chattels, should be against the form of the Grand Charter, and Law of the Land: the course of affaires grew so stale, that amongst other innovations, a trick of a new kind of triall is brought forth, by suggestions upon Articles exhibited against any man before the Councell Table; and thereupon issued forth Attachments against the party complained of, by meanes whereof, and other courses (for they could also sequester) much vexation arose unto the People. Hereunto upon complaints multiplied, a remediall Law is made; whereby it is Enacted, that all such suggests made,37 E. 3. c. 17. shall be carried to the Chancellor, Treasurer, and the Kings Grand Councell; and the Informer shall finde surety to prosecute with effect, and to incurre the like penalty intended for the Defendant, if the Plaintiffes proofes be not compleat; and then the Processe of Law shall issue forth, and the Defendant shall not be taken against the form of the great Charter; that is, he shall not be taken, untill first the fault appear upon Record,25 E. 3. c. 4, 5. 42 E. 3. c. 3. & 4. by Presentment, or by due Processe, or by originall Writ, according to the Ancient Law of the Kingdome: Either therefore the Privy Councell had no power to hold any Pleas at all, or else no power of triall:1 Rich. 2. n. 87. The first of these was concluded in open Parliament, and the second, as good as so: for if the first, then the second will come on undeniably. But [Page] suppose all this be given up, yet was this Liberty to hold Pleas so qualified, that the person could not be touched, till the thing did appear by Inquisition, and then in a Legal way: such proceedings was had upon suggestion made against the City of London, Fabian. Vit. Hen. 3. ann. 1141. in Henry the Thirds time, for one of the Judges was first sent into the City to finde the suggestion by a Jury, and then the Lord Maior appeared before the Lords, and traversed the matter, and in a manner appealed, or rather demanded to be tryed, according to the custome of the City.43. Ass. pl. 38. And the like course doe we finde observed in our Law Reports of these times, in a Case concerning the price of Wooll, by a false Report. The foote of the whole account will be this, That the work of Judicature of the Privy Councell in these times in Cases of Crimes, was to receive Articles, and award Inquisitions, and after return in nature of a Grand Inquest, to recover, Traverse, and to order triall at the Common Law;43. Ass. pl. 38. and upon Verdict returned, to Fine and Ransome. In other Cases either of right or equity in matters of private property, they were determined, either by Judges of the Bench, or Chancery, although possibly the suite was Coram Concilio, for that all the said Judges were of the Kings Councell: And yet, as I dare not affirme, so I cannot deny, but it might also be possible that some matters, especially these of a greater consequence, either in their own nature, or in regard of the persons whom they concerned, were determined by the major Vote of the whole Councell, in a prudentiall or rather Arbitrary way: But this was, Invita minerva, and used so rarely, as the Path is growne out of view, saving some few footsteps here and there remaining, which shew that the Grand Councell of Lords had been there.

[Page]

CHAP. IV. Of the Chancerie.

IT is the birth of the Kings Power in Judicature, and may deserve the name of the first born. For though it had no better Title in these later times, then Officium;Miror. cap. 4. Sect. 2. Fleta. lib. 2. cap. 13. because amongst other of the Kings Escripts, it formed Writs remediall for such as had received wrong; yet even by that work, it was in repute for so much skill in the Law of the Land; that by the consent of all, it was as well able to advise a remedy, as to advise the Complainants where to have it: and yet it had one adventage further, that it was an Office of remembrance to the King, who is a Person of great trust in the Law, and gave such credit to all Acts done before him, as being entred into the remembrance, became of the highest nature of Record, against which no Plea did lie. Amongst these, matters of debt and contract coming into the account, this Office taking notice of the Record, tooke Cognisance of the thing, and for the executing thereof: and thus in these, and such like Cases, granted Judiciall Writs, and so found out a way of Judicature,Fleta, lib. 2. cap. 13. Sect. 8. to as many Causes as the State would trust it with: and because it pretended Cognisance onely of matters of Record before them, they found out a way of examining of witnesses by Commission, and returning their Depositions in writing, which being become a Record before them; they gave their Sentence upon the whole matter, without the ancient ordinary tryall, Per pares: It becomes a kinde of Peculiar, exempting it selfe from the ordinary course in manner of triall, and from the ordinary rules of Law, in giving of Sentence, and as a back doore for the Kings Arbitry, in case of Judicature in matters of Common Pleas, as the Councell Table was in Crowne Pleas, they both are looked upon with a very pleasing eye of Majesty, which loves not to be straite laced; yet all is imbattelled under the colours of Equity, Honor, Conveniency, and Conscience, like a Monopoly that is bred [Page] under the wings of the Publique, but feeds it selfe upon it.

That this had attained the Title of a Court so anciently, as in K. Stevens time (as the Honorable Reporter noteth) I much question,Instit. 4. c. 8. fol. 78. by the Title that Fleta gives it in later times, nor under his favour, will that Testimony cited out of the History of Ely warrant it, but upon a mistaken ground of misplacing the note of distinction: for I take the words to be thus translated, King Etheldred determined and granted, that the Church of Ely should for ever in the Kings Court hold the dignitie of the Chancery, and not hold the dignitie of the Kings Court of Chancery: Neverthelesse, its clear that these times brought it to that condition that it might well carry that name, if formerly it had not; For it grew very fast both in honour and power, and this not by usurpation, (though it did exceed) but by expresse donation from the Parliament. Yet is this power much darkned in the limits and extent thereof, chiefly in regard that the Chancellor is betrusted with many things, whereof there is no evidence for the Chancery to claim any Cognisance. For he was in these times a person of many interests and relations, being one of the Quorum, in the Star-Chamber, of the Kings Councell, chief in the Chancery, most commonly a Clergy man, and therewith Legate è latere, and in these severall Relations might act directly, and yet in severall Courts. And therefore, though he had power with others, to punish neglects of Execution of the Statutes of Wines,4 E. 3. cap. 12. 9 E. 3. cap. 1. 14 E. 3. cap. 5. by Act of Parliament, and also of the Statute concerning Victuall, and to determine matters of controversie between parties in Cases depending before the Parliament, and in some matters that concern the Kings Revenue; yet cannot these be said to be the proper worke belonging to the Cognisance of the Chancery, but to the Chancellor by speciall Commission in another relation: Allbeit I cannot deny but the Court it selfe had Cognisance in matters of as strange a nature,27 E. 3. cap. 26. 36. E. 3. c. 9. & cap. 13. Viz. To punish disturbances of Merchants in their trade, to see to the executing of the Statutes of Purveiors, and to remedy greivances contrary to other Statutes [Page] (which generall words let in a wilde liberty to that Court to intermeddle in Lawes which were never intended for their touch) to punish Nusances according to discretion,12 Rich. 2. c. 12. 27 E. 3. c. 24. to give remedy to Merchants upon the Statute of Staple; so that its clear enough the Parliament intended it should be a Court, and gave their Seale to their power of Judicature. Nor as it seemeth, was this any regret to the Courts of Common Law, but as a thing taken for granted. For the Reports tell us, that if the King grants Tythes, arising from without the bounds of any Parish, the Patentee shall sue in the Chancery by Scire Facias, and shall there proceed to issue or demurrer,22 Ass. pl. 25. and then to the common Law; where upon triall, if the Defendant make default, the Plaintiffe shall have Judgement,Bro. scire fac. 154. 24 E. 3.73. and Execution. And if the Heire be in Ward to the King, the Mother shall sue and recover her Dower in the Chancery. And they tell us that it had power to prohibite Spirituall Courts, and Courts of common Law, yea, to over-rule or reverse judgements: and yet the common Law held its ground when it was concerned: for neither were all suites there by Bill, as in cases of Equity, nor determined according to such rules,43 Ass. pl. 32. 24, E. 3. pl. 35. 39 E. 3. fo. 14. 21 E. 3. fo. 47. nor did the power of Judicature rest in the breast of one Chancellor, but in him joyntly with other Councell of the King, which were also learned Judges of the Law. For the Report informeth that Edward the Second, had granted a Rent in Taile to the Earle of Kent, who dying, his Sonne under age, and Ward to the King, Edward the Third, seised, amongst other Lands, the rent, and granted it to Sir John Molins: Upon Petition, the King refers the matter to the Arch Bishop, and others of the Councell, calling to them the Chancellor: A Scire Facias goes forth to Sir John Molins; he upon appearance, pleaded to the jurisdiction, as a case belonging to the common Law; but it would not be allowed, because it was to repeale the Kings Charter.

And whereas it was objected that the reference was to the Arch Bishop, and others, and therefore the cause ought not to be determined in the Chancery; it was resolved that it did properly belong to the Chancery, by the Law: And in the [Page] Argument of the case, it appeares clearely that the Kings Councell there,43. Ass. pl. 35. were learned in the Law. And the same is yet more evident by the Title of Bills in those dayes exhibited in the Chancery, which was directed to the Chancellor, and the Kings Councell, and the rule given, Per tout les Justices; which I rather note for the shortnesse of the forme of Bills in those dayes, farre different from these times, wherein the substance of the complaint, however small in it selfe, is oftentimes blowne out into so great a bubble, that it breakes to nothing: And the Statutes formerly mentioned do assert the same thing, as touching the Kings Councell. For though they speake of the Councell or Chancery in the English Tongue, yet in the Originall the words are, Conceill en Chancery.

Having thus touched upon the matters under the Judicatory of the Chancery, and Judges in the same: in the next place, the manner of proceedings comes to consideration. For it seems they had been formerly very irregular, and that contrary to the Grand Charter, upon a bare suggestion in the Chancery, the party complained of was imprisoned, and no proceedings made thereupon: for remedy whereof, it was ordained, that upon suggestions so made, the complainant was to finde Sureties to pursue the suggestions, and that the processe of Law should issue forth against the party without imprisoning him, and that if the suggestions were not proved true, the complainant should incur the like penalty, that the Defendant should have done,37 E. 3. cap. 27. in case be had beene found guilty: but afterwards this later clause was altered by another Statute, because it was full of uncertainty; and it was ordained, that in such case the Complainant shall be imprisoned,38 Ed. 3. c. 9. untill he shall satisfie the Defendant of his damages: And furthermore, shall make Fine and Ransome to the King. But because that the Defendant many times held his advantage, even to extremity; this course lasted not long, but a new Law was made,17 Rich. 2. cap. 6. which put the power of awarding damages in such cases into the Chancellor, to doe according to his discretion: And thus the Chancery obtained power to [Page] award damages, which they never had formerly, and the Chancellor, a Precedency both in the Chancery,43 Ass. pl. 32. and of the Councell in the Court of Starre-Chamber, and in many cases in the Exchequer: by the first he had a power in matters of meum and tuum; by the last in matters, Mei and Regis; and by the other in matters Mei and Regni. A considerable man certainly he was in the motions of Government; but how much more if he be made Arch Bishop of Canterbury, Cardinall, and Legate è Latere; or Arch Bishop, Lord Treasurer, and Legate è Latere; as these dayes had divers times seen. Extraordinary advancements bestowed upon the Nobility, brings Honour to the Throne, but if they be not men of noted worth, and uprightnesse, they make the Scepter stoope, by stirring up of envy in the Nobility, and indignation from the People. For seldome is it seene, that Advancements are fed from the Crowne, though they be bred from thence; but either maintained by new supplies from the Peoples purses, or the ruine or decay of some Offices more ancient then themselves, or both: And such was the condition of the Chancellor, he sucked fat from beneath, and blood and Spirits from the Grand chiefe Justiciar of England, and so reduced that Honourable Potentate, unto the Degree of chiefe Justice of the Kings Bench, leaving scarcely unto him the name or title of Lord. One thing more remaineth touching the election, or nomination of this Great man. At the first, he was no better then a Register, or the Kings remembrancer, or Secretary, having also the Honour to advise the King in such matters as came within the circuite of the Writings in his custody; and questionlesse, Eo usque, its sutable to all the reason in the World, that he should be of the Kings sole Nomination and Election: But when it befalls, that in stead of advising the King, his word is taken to be the rule, and a Judicatory power put upon that; and unto this is superadded that Honourable trust of keeping and governing the great Seale of the Kingdome, with the continuall growing power occasionally conferred upon him by the Parliament: He is now become [Page] no more the Kings Remembrancer, but the Lord Chancellor of England, and Supreame Officer of State. And it seemes but reasonable that he should hold his place by publique Election, as well as the Grand Justiciar, (whose Plumes he borrowed,) and other Grand Officers of State did before him. For he that will have his Servant to worke for another, must give the other that Honour of Electing him thereto; nor was this laid aside or forgotten by these times, but a claim was put in for the Election or allowance of this principall Officer amongst others,15 E. 3. n. 10.15. 15 E. 3. c. 3. 10 Rich. 2. n. 16.10. the Parliament obtaining a judgement in the case by the Kings Confession, and so the thing is left to the judgement of future Ages, Viz. Whether a King that can do no man wrong, can dissemble the Royall Assent in Parliament, or declare himselfe Legally in that manner by Proclamation?

CHAP. V. Of Admiralls Court.

THis is a third Court that maintained the Kings judicatory power, in a different way from that which is commonly called the Common law, and by many is therefore supposed, to advance the Kings Prerogative, but upon mistaken grounds: It is very true, that the way is different from the common rode, both in its originall, and in the course of proceedings; nor could it other 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 severall Nations, that must consenter 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 then its owne. The condition of the Nations in the times when civillized government began to settle amongst [Page] them, was to be under the Roman Emperours, who having setled one Law in the generall grounds throughout all Nations, made the Sea likewise to serve under one rule which should float up and downe with it, that men might know upon what tearmes they held their owne, wheresoever they went; and upon what tearmes to part with it for their best advantage: in its originall therefore this Law may be called Imperial, and likewise in the process, because it was directed in one way of triall, and by one law, which had its first birth from the Imperiall 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. Neverthelesse this became no Gemm of Prerogative to the English Crowne, for if England did comply with forraine Natives for its owne benefit, it being an Iland full of the Sea, and in the common rode from the most parts of Europe that border upon the Sea, and of delight in Merchandise, it is but sutable to it selfe; and it did so comply, as it saved the maine Stake by voluntary entertaining those Laws without being imposed upon by Imperiall power: for the Saxons came into this Kingdome 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 Kings 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 advise of Parliament in his returne from the holy Land, is to me a riddle, considering what Histories doe hold forth concerning of his returne through Germany, nor can that be good evidence to intitle 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 Customes, Estabilished,Instit. 4. cap. 22. fol. 142. & 144. and that this Estabilishment was by the King and the Councell.

[Page]This Law was of a double nature according to the Law of the Land, one part concerning the Pleas of the Crowne, and the other between party and party; for properly the Kings authority in the Admiralty is but an authority of Judicature, according to Laws established, which both for processe 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 inquired into, by them that shal minde it elsewhere, and only touch so much as shall reflect upon the maine Government. This power was executed by Deputies diversly, according as the times and opportunities were, for Warr or peace, and either transitu or partu. What was done in time of Warr, or whiles this Shipp is out of the English Seas, comes not to our purpose, and therefore I shall not meddle with that, further then this, that in the first times Kings were wont to divide the worke of judicature, and of Warr into severall hands. The power of Warr and Peace they committed unto men of approved courage and Skill in that service, and therefore generally, not to the men of highest ranke, who had neither minde nor Skil for a worke of such labour, dyet, and danger: this power passed under divers names, sometimes by grant of the custody of the Sea coasts, somtimes of the parts and Sea coasts, somtimes by being made Captain of the Sea men, and Marriners, and somtimes Admiral of the Ships. It was a great power, and had bin much greater but that it suffered a double diminution; the one in the time, for three or four years commonly made an end of the command of one man, and at the best it was, quam diu Regi placuerit;Gloss. fol. 16. the other diminution was in circuit of the power, for all the Maritine coasts were not ordinarily under the power of one man, but of many; each having his proper precinct upon the South, or North, East, or Western shotes: and under the title of Admirall in the times of Ed. the first and forwards, who brought that title from the holy Land; neverthelesse about the end of the times, whereof we now treat; the custody of the whol Sea began to settle in [Page] one hand, under the title of Admirall of the English Seas, and the place was conferred upon men of the greatest ranke, and so continued ever afterward. The power of jurisdicton, or judicature all this while remained distinct, and it seemes was settled in part in the power of the Sheriffe and Justices. For by the Law the Sheriff and Justices had cognisance of matters betweene the high water and the low water marke, and what was done, Super altum mare, was within the directory of the Admirall, these were but few things, and of small considerablenesse: the principall of them being concerning Warr or peace, and those only within the English Seas. But after Edward the third had beaten both the French and Spaniards at Sea, the people grew much more towards the Sea, and became so famous, that the greatest Lords thought the Regiment of Sea affaires worthy of the best of their ranke, and were willing with the title of Admirall, whiles they left the worke to others; and so the Admirall became a person of more honour and lesse worke then he had been formerly. The greatnesse of the honour of this place thus growing, soone also began to contract greatnesse of power beyond what it had formerly; and this was principally in matter of jurisdiction. For not contented with the power of a cheife Justice of Warr and Peace within the Seas, which was his proper dominion: the Lord Admirall gained the same within the low water marke, and in the maine streames below the next Bridge to the Sea,15 Rich. 2. c. 3. Dier. 15. & 16. El. mic. pl. 2. 8 E. 3. Coronn. 199. and in all places where Ridells were set; and yet these places were within the body of the County. Nor did he indeavour lesse to gaine in matters of distributive justice, for although he had a legal jurisdiction in things done upon the open Sea, so farr as to defend, order, determine, and cause restitution to be made, in cases of damage done unjustly; yet was it no lesse difficult to keep this power within its own bounds, then the watry Element upon which it floated; but it made continual waves upon the franchise of the Land; and for this cause, no sooner had these great men savored of the honour and authority of that dignity, but comes a Statute [Page] to restrain their Authority in the Cognisance of Cases onely, unto such matters as are done upon the main Sea,13 Rich. 2. cap. 5. as formerly was wont to be: and within two yeares after, that Act of Parliament is backed by another Act to the same purpose, in more full expressions,15 Rich. 2. cap. 5. saving that for Man-slaughter, the Admiralls power extended even to the high water marke, and into the main streams. And this leadeth on the next consideration, Viz. What is the subject matter of this Jurisdiction, and Authority: I shall not enter into the depth of particulars, but shall reduce all to the two heads of Peace and Justice.

The Lord Admirall is, as I formerly said, a Justice of Peace at Sea, maintaining the Peace by Power, and restoring the Peace by setting an Order unto matters of Difference, as well between Forrainers, as between the English and Forrainers; as may appeare by that Plea in the fourth Institutes formerly mentioned.

Secondly, That point of Justice principally concerneth matters of Contract, and Complaints for breach of Contract; of these the Admirall is the Judge, to determine according to Law and Custome. Now as subservient unto both these, he hath authority of command over Sea men, and Ships that belong to the State, and over all Sea men and Ships in order to the service of the State, to arrest and order them for the great voyages of the King, and the Realme, and during the said voyage;25 Rich. 2. cap. 3. but this he cannot doe without expresse Order, because the determining of a voyage Royall, is not wholly in his power.

Lastly, the Lord Admirall hath power, not onely over the Sea men serving in the Ships of State,2 Rich. 2. cap. 4. but over all other Sea men, to arrest them for the service of the State; and if any of them run away without leave from the Admirall, or power deputed from him, he hath power by inquiry to make a Record thereof, and certifie the same to the Sheriffs, Maiors, Bayliffs, &c. who shall cause them to be apprehended and imprisoned. By all which and divers other Lawes, not onely the power of the Admirall is declared, but the originall from [Page] whence it is derived, namely from the Legislative power of the Parliament, and not from the single Person of the King, or any other Councell whatsoever. But enough hath been already said of these Courts of State, in their particular Precincts One generall interest befalls them all, that as: they are led by a Law much different from the Courts of Common Law, so are they thereby the more indeared to Kings, as being subservient to their Prerogative, no lesse then the Common Law is to the Peoples liberty: in which condidition being looked upon as Corrivalls, this principall Maxime of Government will thence arise, That the bounds of these severall Lawes are so to be regarded, that not the least gap of intrenchment be laid open each to other, least the fence once broken, Prerogative or Liberty should become boundlesse, and bring in confusion in stead of Law.

CAHP. VI. Of the Churchmens Interest.

BUt the Churchmens interest was yet more tarte, standing in need of no lesse a lay, then that of the Kings Authority; for that the King is no lesse concerned therein, then the People; and the rather, because it was now growne to that pitch, that it is become the Darling of Kings; and continually henceforth courted by them; either to gaine them from the Papall Jurisdiction, to be more ingaged to the Crowne, or by their means to gaine the Papall Jurisdiction, to be more favourable and complying with the Prerogative Royall. The former times were tumultuous, and the Pope is gained to joyne with the Crowne to keep the people under, though by that means, what the Crowne saved to it selfe from the people, it lost to Rome: Henceforth the course of Affairs grew more civill, or (if you will) graced with a blush of Religion: and it was the pollicy of these times, [Page] whereof we now Treat, to carry a benigne aspect to the Pope, so farre onely as to stave him off from being an enemy, whiles Kings drove on a new designe to ingratiate and ingage the Churchmen of their owne Nation unto its owne Crowne. This they did by distinguishing the Office, or Dignity of Episcopacy, into the Ministeriall, and Honourable parts; the later they called Prelacy, and was superadded for incouragement of the former, and to make their work more acceptable to men for their Hospitalities sake; for the maintenance whereof, they had large Endowments, and Advancements: And then they reduced them to a right understanding of their Originall, which they say, is neither Jus Divinum, 25 E. 3. Stat. 6. nor Romanum, but that their Lordships, Power, and great Possessions, were given them by the Kings, and others of this Realm. And that by vertue thereof, the Patronage and custody of the Possessions in the vacancy ought to belong to the Kings, and other the Founders; and that unto them the right of Election into such advancements doe belong, and not unto the Pope, nor could he gain other Title unto such power, but by usurpation, and incroachment upon the right of others. But these Great men were not to be wonne by Syllogismes; Ordinarily they are begotten between Ambition and Covetousnesse, nourished by Riches, and Honour; and like the Needle in the Compass, turn ever after that way. Edward the Third, therefore labours to winne these men, heaped Honour and Priviledges upon them, that they might see the gleanings of the Crowne of England, to be better then the vintage of the triple Crown. Doubtlesse, he was a Prince that knew how to set a full value upon Churchmen, especially such as were devout; and it may be, did somewhat outreach in that course: For though he saw God in outward events, more then any of his Predecessors; and disclaiming all humane merits, reflected much upon Gods mercy, even in smaller blessings: yet we finde his Letters reflect very much upon the Prayers of his Clergy, and loved to have their Persons nigh unto him, put them into places of greatest Trust, for Honour, and Power, in Judicature; [Page] that not altogether without cause, he had thereby purchased unto his Kingdome, the name and repute of being a Kingdome of Preists. But all this is but Personall, and may give some liking to the present Incumbents, but not to the Expectants; and therefore the Royall Favor extended so far in these times, as to bring on the Parliament to give countenance to the Courts and Judiciary power of the Ordinaries, by the Positive Law of the Kingdome, although formerly the Canons had already long since made way thereto by practice: I shall hereof note these few particulars ensuing.

Ordinaries shall not be questioned in the Kings Court for Commatation, Testamentory Matters,15 E. 3. cap. 6.or Matrimoniall Causes, nor other things touching Jurisdiction of Holy Church.

Things formerly bred by the Canon, nourished by continuall practise, allowed by Ordinance of Parliament, or Grant from Kings in Parliament, are now confirmed by solemne concurrence of the whole representative Body of the Kingdome, to have and to hold with Warranty. And yet the sense is not so generall as the words, nor doth it seeme much other, then a Confection made for the Arch Bishops appetite, to cure a distemper between him and the King:22 Ass. pl. 70. 45 E. 3.24. Fus. consultat. 5. for the Civill Judge lost nothing hereby, nor would the Crowne, as may appear by a Law of equall Authority with the former: for though an Executor or Administrator may cheat, yet it tells us that Ordinaries onely can oppresse and extort from dead men;31 E. cap. 4. and therefore in such cases doth provide remedy by inquiry,25 E. 3. Stat. 3. cap. 9. and Indictment before the Kings Justices.

They shall have Cognisance of Ʋsury, during the Delinquents life, and the King after the Delinquents death. 15 E. 3. c. 5.

The difference ariseth from the different end; the first being to reforme the Person by Church-censures, and to urge [Page] him to restitution;Miror. Just. cap. 5. Sect. 1. 51 H. 3. petit. cleri. Artic. 16. 50 E. 3. n. 158. 6 Rich. 2. n. 57. 14 Rich. 2. n. 24. Instit. 3. cap. 70. 6 Ed. 3. coram Rege, Rot. 130. Porff. the latter is for the Kings Fine or Forfeiture: For as touching the Usurers estate, the offence was in the nature of Felony, forfeiting both Lands and goods to the King, after the Delinquents death: And it seemeth the manner was to Indict the Delinquent during his life, and that stuck to him as a deadly arrow in his side, till he died. Nor did it lye in the power of the Ordinary, by Ecclesiasticall censure, so to reforme the Offender, as to cleare him to the King, unlesse the party offending, made his peace with the King by Composition: and thus the Law continued, for ought appeareth to mee, till the time of Henry the Eighth.

25 E. 3. c. 8. pro clero. [...]8 E. 3. cap. 2. [...]5 E. 3. St. 2. 9 Rich. 2. c. 4. They shall have Cognisance of avoydance of Benefices of Right: They shall certifie Bigamy; and Bastardy had beyond the Sea; and whether a Prior be perpetuall, or dative.

The first of these concerning avoydance of Churches, it seemeth was somewhat doubtfull in point of Practice, for that the Civill Judge used to determine all manner of avoydances, as well in Fact, as of right; but by this Statute they are restrained onely unto avoydances in Fact, so as after this Statute it is holden, that avoydances by death shall be tried by the Countrey; but if the avoydance be by Deprivation, Resignation,Bro. quar. imp. 85. Creation, or otherwayes, it shall be tried by the Ordinary: because by common intendment he is more connusant of the thing, then Countrey people. But as touching the point of Bigamy, the matter is more doubtfull, in regard that commonly the marriage of a second Wife, or Widow, is a matter in Fact, done in the face of the People; and of which they take notice, especially where the life of man is concerned, which rather requireth the judgement of his Peires, then where the outward maintenance onely is ingaged. Neverthelesse because the main point is, whether the Party be a Clerk or not, and the same anciently rested upon the Certificate of the Ordinary: Its by this Law again allowed to him to try and certifie this point of Bigamy also, [Page] although the Statute of Bigamists, might seeme to Intitle the civill Magistrate thereto,8 E. 3. 8. as the Law was holden to be before this Statute was made. In the next place, although it cannot be denied, but the triall of Bastardy beyond the Sea, might as well lye in the Cognisance of the Lay Magistrate, as in that of the Ecclesiasticall; yet seeing the Clergy had already attained the Cognisance of the thing, the place proved but a matter of Circumstance, especially they having the advantage of the Civill Magistrate in this, That in regard the Ecclesiasticall Persons beyond the Sea, had also obtained the Cognisance of that matter amongst themselves, their Testimony or Certificate would come with more credit to the Clergy in this Kingdome, then to the Civill Magistrate; whose Cognisance in such Cases they did disallow.

Lastly, concerning Priories, whereas some were presentative, and filled by Induction from the Ordinary; and others were Donative, having their Priors meerly at the will of the Abbot, to be placed and displaced as he thought most expedient: if then the point in Issue depends upon this knot, this Law referreth the triall unto the Ordinary, who by common Presumption best knowes whether any Institution and Induction had passed his Registry, and Seale, or not. And thus, though a kinde of Judiciall power seemeth to be carried along herewith, yet is all in a ministeriall and subservient way, unto the Civill Magistrate; and neverthelesse with such credit and authority, that the main hinge of the Judicatory, in such cases, depends upon the dash of their Penne.

No Bishop, nor Archbishop, 18 E. 3. cap. 1. shall be impeached before the Civill Magistrate, without the Kings expresse Warrant.

The former particulars, concerned matter of Authority; this and others insuing, concern matter of immunity, which, or most of which were formerly for a long time within the Fancy of the Canon, but never came to the height of Parlimentary approbation or authority till now, that it comes in [Page] as a Peace-offering to pacifie the quarrell between the Arch-Bishop Stratford, and the King: For he being ingaged in the French Warres, so resolved to continue; and therefore to maintain distempers at home, he held neither Honourable, nor safe.

14 E. 3. cap. 2. Their Temporalties shall not be wasted, during the Vacancy: Nor shall they be seised, but by Judgement of the Court.

The first of these was an ancient Law, grounded upon great reason; although dulled by time, and by covetousnesse of the needy Patrons, next to laid aside, if not quite put out of countenance: So as a new Law must be made to revive it, and to abolish that corrupt custome, or practice of depredating those Possessions given to a holy use in common supposall, contrary to the trust by them undertaken, and the use still continuing. But the second Branch is in nature of a Law of Restraint, set upon the Common Law: for the persons of these Spiritualized men, were of so aiery constitution, as they could not be holden by hands made out of the Clay, such as the rude Laity were; and therefore the Civill Magistrate, upon all occasions used to lay hold upon that, whereof there was some feeling, which were called Temporalties, and thereby drew them to appearance at the Lay Courts; for however Spirituall the Clergy were, they would not easily part with their Lay Fees. But now by this Law, the times are so▪ attenuated, that the very Temporalties are made so Spirituall, as not to be medled with by the Lay Magistrate, unlesse upon judgement first obtained against them. And sutably thereunto within twelve yeares following, another Law was made more punctuall,25 E. 3. c. 6. that their Temporalties should not be seised upon for contempts, but that their Persons should be seised; yet within twenty yeares after that, this Law begins to be out of Countenance, and the Opinions of the Judges began to grow bold upon the ancient rule, that their Temporalties were Temporall, though their Persons were Spirituall; and that it was more dangerous to imprison [Page] the person of a Clergy man, then to attache his Possessions: And therefore they held,44 E. 3. fol. 35, 36. Per Thorpe. 7 H. 4. fol. 41. Per Gascoigne. that if the Ordinary remove not the Incumbent when the Kings Writ commands him so to doe, his Temporalties should be seised. And if the Ordinary should certifie one to be a Clerke which is none, the like course is to be taken.

They shall depute the next and most lawfull Freinds, 31 E. 3. c. 11. of the Intestate to Administer his goods.

The Statute at Westminster the second,West. 2. cap. 19. having given formerly a kinde of allowance▪ that the Ordinary should be Administrator to the Intestate, so far as to answer the Intestates debts, lent him thereby an opportunity to possesse himself of the whole, to all intents and purposes; which being observed by the Parliament, by this Law they made way for Administration, to fall through the hands of the Ordinary, into the lap of Administrators, made by the Authority of the Parliament; but of the Ordinaries nomination, according to the authority hereby to him given. These Administrators thus made, had a greater power then ever the Ordinary had, or could give. For though the Ordinary by the Statute at Westminster, was bound to pay the Debts of the Testator, yet could he never bring Action as the Administrator to all intents by this Law is inabled to doe: And though it be true, that the Administrator is by this Law ordered to account to the Ordinary, yet doth not that intitle the Ordinary to any interest in the personall Estate; but onely gives him a bare authority to take the account, without any compulsory power by Ecclesiasticall censures, to inforce him thereto.

Secondly, it is such an account, as is no Evidence in any Court of Record: And Lastly, if upon the foot of the account, any arreare remained, or surplusage of Estate; the Ordinary could neither recover, nor order the same; because by the Law anciently, the next freinds had the sole interest therein: and being by this Statute made Administrators, [Page] the whole power of ordering the Estate is vested in them.

To conclude, this Statute was made in favour, and for the ease of the Ordinaries, if they would please so to take it, for they could get no benefit by executing the Administration in their owne Persons, if they intended to Administer according to the Law.

5 E. 3. c. 5. The Persons of the Clergy are priviledged from Arrests, during the Holy Actions of their Officiating.

This was plotted since Anselmes time, he and his Successors, indeavoured by Constitution, and Canon, continually to minde the Civill Magistrate thereof, but could never nurse it up to the Degree of a Law, till now; they gained the advantages of the times, growing into a more tender apprehension of Devotion, then formerly, The penalty of transgressing this Law is left in generall, and therefore did the lesse scare, but within three yeares after, it was confirmed with a certain penalty of Fine,1 Rich. 2. c. 15 and Imprisonment, as to the Kings suite, and dammages to the party offended: and the Priviledge was inlarged, for, and during their continuance in the Consecrated ground, in order to such Services, and not upon Fraud, or Collusion to avoyde Arrests: But by neither of these Lawes was the Arrest, (although contrary to them) made voyde, as touching the Process.

14 E. 3. Stat. 3. cap. 1. The goods of the Clergy, are discharged from Purveyance, and their Houses from Quarter.

The later of these was an Incroachment upon the greater Clergy men: For under the Title of Hospitality, which the Prelates were obliged to by their great Possessions, and Revenues, conferred upon them to that end, Kings used to quarter Messengers, to and from Scotland; The Kings Horses, Dogs, and Haukes, &c. But the point of Purveyance, was an ancient Prerogative belonging to Kings, and by no Custome were the goods of any man discharged therefrom, [Page] till it was by act of grace first confirmed by Edward the first,Westm. 1. cap. 1. Stat. de prisis. and afterwards by grant of Edward the second, yet by reason of the rudenesse of the times, did not those acts prevaile to that settlement that was promised; till now Edward the third renued the Law: nevertheless could not this Law of Edward the third perfect that worke, because it was but a bare command till Richard the second made a remediall Law,1 Rich. 2. c. 3. giving thereby the Clergie that were wronged a right of action of trespass against the Purveyors, and to recover treble damages, whereas formerly they were liable only to a fine to the King, which many times was as soone pardoned as asked.

These condiscentions might have wedded the English Clergy to the English Crowne, but that it was coy and expected further gratuities: besides they beheld their old Stepdame Rome, now in its full Splendor and power, and deeply interested in the sway of affaires in this Kingdome, and above all the rest, the nigh affinity between the Prelate and the Pope was such, that they sucked one milke, breathed one aire, and like the Philosophers twinns, lived in each other: The later of these was not discerned by those dim sighted times, and therefore they could do nothing towards the dissolution of that knot, but left it to future times, who found no other way then to cut it asunder: But Edward the Third and his successor espied the first, felt the inconvenience thereof, and applyed themselves to such remedy as they found most ready at hand. All things that are subject to time are also subject to change, which comes comonly slower upon Governments that are less Eclesiastical, for Churches continue longer in a growing condition then in their compleat estate, like a Christian that seldom endures long after his full ripenesse. Thus England; its hitherto above a thousand yeares since the Gospel came to the Saxons, and well nigh a thousand yeares since the Pope set his foot amongst us; ever approaching nigher the Throne, and ascending thereunto; but finding it full of a King that would not remove, he sits downe in his lapp; a heavy burden questionlesse [Page] he was, considering his claime of jurisdiction, his provisions, pensions, exemptions, impositions, and such like oppressions; and therefore its no wonder if the King feeling the incumbrance, gives a lift at the Popes power, by stoping the currant of mony from England Rome-wards:4 E. 3. cap. 6. 5 E. 3. cap. 3. To this end the Statute made at Carlile is revived, wherby the Clergy are inhibited from conveying treasure beyond the Seas; but the Pope knew how to ride, and will not so easily forego his saddle. The Roman Eagle had made many a faire flight in England, and had not yet fully gorged himselfe; he grants ten thousand Marks yearly out of taxes layd upon the Church livings in England, unto two Cardinals, neither of which did, nor, by the Canon, could live in England; the treasurership of Yorke also to another Cardinall, after that the King had conferred the same else where. He proceeds also further to invade the undoubted rights of the Crown, by making an election of the B. of Norwich, and causing him to be invested, Rege renitente: the King spent eight yeares in the recovery of his right, and was deluded in the conclusion; he now sees it bootelesse to stand alwayes upon his defence, and receive affronts; he resolves therefore to enter the lists;Rot. Parl. 10. E. 3. Arch. Reg. 18 E. 3. tit. 38. Fox. 388, 25 E. 3. Stat. 5. cap- 22. Fox. Sect. 1. and maketh seisure of the Deanery of York, which formerly by usurpation, the Pope had conferred upon a Cardinall; and of all Church livings given by the Pope to aliens: Then a Law is made more sharp then those in the eighteenth yeare, wherein Provisors of Abbies and Priories are made lyable to a Praemuniri, and Provisors of other Ecclesiasticall Livings and Dignities, whereby the presentation of the rightfull Patron is disturbed, to be fined and imprisoned untill the fine and damages to the party wronged be paide. And all such as draw men to plead out of England, in cases that belong to the cognisance of the Kings Court, and all obtainers of provisions in the Court at Rome, these were also subject to a Praemuniri. 27 E. 3. c. 1. For whiles these things were thus in action, the Pope bestirred himselfe notably with Citations, Excommunications, interdictions, and such other birds of prey, not only against meane men, but Judges, [Page] Bishops, and the Kings Councell; as amongst others, the case of the Bishop of Ely, at the solicitation of some of inferior regard, as I remember, a Clerke or some such thing:Antiq. Brit. Eccles. 247. yet as these Bull-drivers or summoners to the Romish Court, were no late upstarts, so were not these times the first that tooke them to task: for before the Statuts of Praemuniri, we find provision was made against Provisors, and that some Statute did precede those in Print, which punished a disturber of the Kings Incumbent, by a Bull from Rome, with perpetuall imprisonment, or at the Kings will; besides the party wronged was allowed an action for his damages,21 E. 3. fol. 40 Qui tam pro Domino Rege quam pro seipso sequitur; and before that time also, bringers of Bulls from Rome were imprisoned, although in all these cases aforesaide▪ the liberty of the Persons, both of Lords and Praelats, was saved:38 E. 3. cap. 1. And thus all the while King Edward the third kept the field, he gave the Pope cuffe for cuffe, but retiring himselfe to take his ease, he waxing wanton, waxed weake, and more slowly pursued the vindication of his owne right, and his Subjectes liberty. The Lawes are layde aside, and Rome had further day given to plead, and in the mean time execution is staid: the double minde is double died, and advantage is soon espied, above sixty Church livings more are suddainely catched and given to the favorites at Rome; the Parliament rings herewith,Rot. Parl. 51. E. 3. tit. 35. yet the King delayes the remedy, and in this Edy of affaires, Edward the third dies, and Richard the second takes up the place, who had witt enough to observe what concerned his owne interest, and courage enough to pursue it. But neither witt nor courage to over-rule his lusts, which in the conclusion overruled all rule, and brought himselfe to destruction. He found the people at his entrance into the Throne irritated with the Popes opressions, and vexed at his Grandfathers desidiousnes. His Spirit is also stirred within him, and himselfe thereby pressed to tread in his Grandfathers former wayes, and to outrunne him in his later:3 Rich. 2. c. 3. he made the penalty of Praemuniri to extend to all Farmores, or others, in nature of Bailiffs, that held any Church maintenance to the use of any alien, [Page] and unto all Aliens that are Purchasors of such Provisions to any use:7 Rich. 2. cap. 13. 12 Rich. 2. cap. 15. and unto all Lieges, that shall in like manner purchase such Provisions:

But as touching such as shall accept such provisions, he ordained Banishment for their Persons, and Forfeiture of their Estate:13 Rich. 2. Stat. cap. 21. Notwithstanding all this, the Romane Horseleach would not so give over. The King grew into displeasure with his Subjects, and they with him, and with one another; they see the Pope still on Horseback, and fear that the English Clergy, their own Countrey men, if not Friends, and Abbettors, yet are but faint, and feigned Enemies to the Popes Cause. Nor was it without Cause that their fear was such, for as the Pope had two hands to receive, so they had two hearts, making show of forming blowes at the Pope, but then alwayes at a distance, or when without the Popes Guard; and thus the Lawes begin to stammer and cannot speake so plain English as they were wont. The people hereat offended, resolve to put the Clergy into the Van, and to try their mettle to the full.

16 Rich. 2. cap. 5.At the last Parliament that Richard the Second did hold, both the Lords Temporall, and Spirituall, are opposed one by one. The Lords Temporall (like themselves) resolve and enter their Resolutions, to defend the right of the Crowne in the Cases of Provisors; although even amongst these great men all were not equally resolute; for Sir William Brian had purchased the Popes Excommunication against some that had committed Burglary, and he was committed to the Tower for his labour: But the Prelates answer was ambiguous,Antiq. Brit. and with modifications, which was all one to cry (as men use to say) Craven: yet was the Statute made peremptory, according to what was formerly Enacted. And though the Prelates cautionary way of proceeding, might be a principall reason why the Popes power held so long in England, in an usurping way: yet Kings also much conduced thereto, by seeking too much their Personall ease above the Honour of their Place, and the Popes blessings, and opinion of his Favour, more then their owne good, or [Page] the Peoples liberty: for there was no other balme for a distracted minde, then that which dropped from the Popes lips. In like manner Richard the Second, being already, at least in purpose, estranged from his People, sought to get freinds at Rome, to hold by the Spirituall Sword, what he was in danger to loose, by laying aside the Sword of Justice, which is the surest Tenure for Kings to hold by: And though the Popedome was now under a Schisme, between two Popes, Clement and Ʋrban; yet he was so farre won for Ʋrban, 2 Rich. 2. cap. 7. that he not onely ingaged himselfe, and the Parliament, to determine his Election, and uphold the same; but also, Ex abundante, did by Implication allow to him an Indefinite Power, to grant Provisions, and so at once he lost the Die, and gained a Stake, that like a bubble looked faire, but soon vanished away.

Neverthelesse, these two Comrades, whiles they were together, resolved to make the most of each other that they could; and therefore though the Popedome liked not the King, yet the Pope had his love so farre, as he could deny himselfe; for he had already denied his Kingdome:Antiq. Brit. 272. And (if the Articles exhibited against the King by Henry the Fourth, be true) the Pope had his Faith also: For (that he might be rid of his reputed Enemy, Arch Bishop Arundell) he trusted the Pope with that Complement of making Walden Arch Bishop of Canterbury in Arundells stead; which the Pope tooke so kindly, as he made it a President for Provisors for the future. Nor did the King stick in this one Singular; but made it his Custome in passing of Lawes, (especially, such as the King was most devoted unto) to put more Confidence in the Popes Amen, then in all the Prayers of his Commons, with his owne Soit fait, to boot. The summe then will be that the Prize was now well begun, concerning the Popes power in England. Edward the Third, made a fair blow, and drew blood; Richard the Second, seconded him, but both retired; the former left the Pope to lick himself whole, the later gave him a salve, and yet it proved a Gangrene in the conclusion.

[Page]The second means used to bring down the power of the Pope in this Nation, was to abate the power or height of the English Clergy: for though the times were not so cleare as to espy the Root of a Pope in Prelacy, yet experience had taught them, that they were so nigh ingaged, that they would not part. And therefore, first, they let these men know, that Prelacy was no Essentiall Member to the Government of the Kingdome; but as there was a Government established before that ranke was known, so there may be the like when it is gone. For Edward the Third, being troubled with a quarrell between the two Arch Bishops of Canterbury, and Yorke, concerning Superiority, in bearing the Crosse; and the important Affaires of Scotland, so urging. Summoned a Parliament at Yorke, which was fain to be delaied and adjourned for want of appearance, and more effectuall Summons issued forth; but at the day of Adjournment, none of the Clergy of the Province of Canterbury would be there; and upon this Occasion the Parliament was not onely interrupted in their proceedings, but an ill president was made, for men to be bold with the Kings Summons, in such Cases as liked not them; and thereupon a Statute was made to inforce Obedience upon Citizens, and Burgesses,15 E. 3. St. 3. cap. 6. and such Ecclesiasticks as held, per Baroniam. Neverthelesse, when the matters concerning Provisors began to come upon the Stage, which was within two yeares after that Law was made, the Clergy found that matter too warme for them, and either did not obey the Summons, or come to the Parliament; or if they came, kept aloofe; or if not so, would not Vote; or if that, yet order their tongues, so as nothing was certainly to be gathered, but their doubtfull or rather double minde. These Prelates thus discovered, the Parliament depended no more upon them, further then they saw meet: At sixe or seven Parliaments, determined matters without their Advice; and such as crossed the Principles of these men: and therefore in a rationall way might require their Sense above all the rest, had they not beene prepossessed with prejudice, and parties in the matter. Nor [Page] did Edward the Third, ever after hold their Presence at so high Repute at such meetings; and therefore Summoned them, or so many of them, as he thought meet for the Occasion; sometimes more, somtimes fewer, and at a Parliament, in his fourty and seventh yeare, he Summoned onely foure Bishops, and five Abbots. And thus the matter in Fact passed in these times, albeit the Clergy still made their claim of Vote; and desired the same to be entered upon Record.

And thus the Parliament of England tells all the World,Antiq. Brit. 23. Co. that they hold themselves compleat without the Clergy, and to all intents and purposes, sufficient to conclude matters concerning the Church, without their Concurrence. Thus began the Mewing time of Prelacy, and the principall Feather of their wings to fall away, having now flourished in England nigh eight hundred years; and had future Ages pursued the flight as it was begun, these Lordings might have beaten the Aire, without making any speedy way, or great work, saving the noise.

A third step yet was made further, in order to the reducing of the power of the Popedome in England, but which stumbled most immediatly upon the greatnes of the Prelates. For it was the condition of the Spirituall Powers, besides their height of Calling to be set in high Places, so as their Title was from Heaven; but their Possessions, were from men, whereby they gained Lordship, Authority, and Power, by way of Appendix to their Spirituall Dignities: This Addition however it might please them, yet it for a long time ere now had been occasion of such murmur and grudge in the Commons against the Clergy, as though it advanced the Clergy for the present, yet it treasured up a back reconing for these men, and made them lyable to the displeasure of the Laity, by seisure of their great places: when as otherwayes their Ecclesiasticall Dignities had been beyond their reach. And of this, these times begin now to speak louder then ever, not onely by complaints made in Parliament by the People,25 E. 3. R [...]t. Palm. 22. n. 15 but also by the Lords and Commons in Parliament, [Page] to the King, that the Kingdome had been now long, and too long time governed by the Clergy, to the disherison of the Crown; and therefore prayed, that the principall Offices of the Kingdome, might henceforth be executed by the Laity: and thus the stir arose between the Lords Temporall and Spirituall, each prevayling or loosing ground, as they had occasion to lay the way open for them. The Duke of Lancaster being still upon the upper ground, that as little regarded the Popes Curse, as the Clergy loved him.

But the worst, or rather the best, is yet behinde; Outward Power, and Honourable places, are but undersetters, or props to this Gourd of Prelacy, that might prove no lesse prejudiciall by creeping upon the ground, then by perking upward: For so long as Error abideth in the Commons, Truth can have little security amongst Princes; although it cannot be denyed, but its a good signe of a clear morning, when the Sun rising, glorieth upon the top of the Mountains. God gives Commission therefore to a Worme, to smite this Gourd in the roote, and so at once both Prelate, and Pope, doe wither by undermining. This was Wickleife, that had the double Honour of Learning in Humane and Divine Mysteries; the latter of which had for many yeares passed obscurely, as it were in a twilight amongst the meaner sort, who had no Indowments to hold it forth amongst the throng of learned or great men of the World.

And though the newes thereof did sound much of Holynesse and Devotion, Theames unmeet to be propounded to an Age scarce Civillized: Yet because divers of them were more immediately reflecting upon the Policy of the Church, wherein all the greater sort of the Churchmen were much concerned, but the Pope above all the rest; the accesse of all the matter, was made thereby more easie to the Consideration of the great Lords and Princes in the Kingdome, who out of principles of State, were more deeply ingaged against the Pope, then others of their ranke formerly had been: Duke John of Gant led the way in this Act, and had a [Page] party amongst the Nobility, that had never red the Canon Law.

These held forth Wickleife and his Learning to the World, and Edward the Third himself savoured it well enough, but in his old Age desiring his ease, was contented to looke on, whiles his Lords Temporall and Spirituall played their Prize, yet giving his plaudite rather to his Sonne, then his Spirituall Fathers, as if led by Principles of Nature, rather then Religion: This was the blossoming part of the Wickleifists, but the principall strength was from beneath, where the roots spread and fastned exceedingly, especially in the South, and Eastern parts of this Kingdome. To tell of the Ʋsurpations of the Clergy, the Idolatry of their costly Worship, the vanity of their Curses, &c. was exceeding welcome newes to an oppressed multitude, especially where these things were rightly understood. The Issue soon manifested it selfe to the World, no Parliament passed without reflections at Prelates, Rome, or some such thing; and not onely the persons and practices of these men, but even their Lawes and Canons, were begun to be had in contempt;51 E. 3. n. 46.47. and their missives sleighted. And thus these men pretending Patronage, both from Right drawn from Heaven, and derived from men, faile in their Evidence, unlesse the people doe still beleive more then they are able to understand.

No marvell if Rome be now rouzed, and that sort of men that formerly were Wolves in Sheeps clothing, become now red and fiery Dragons, taking up a new course of Establishing their Power by Persecution. This was a way of Power indeed, but its a touchy thing to have to doe with fire, least it gets too high. It is therefore holden a point of discretion by the Prelates, not to meddle with the Lords or the Common People; the former were too great, the later too many: the one sort would not heare, the other would not understand: The Teachers therefore being the Velites, at them they give fire. Wickleife their Leader, comes on bravely; and notwithstanding, they all made at him, he routes them, and in despite of them all, comes off fairely, [Page] and dies in his bed by the course of Nature:Antiq. Brit. Then an Ordinance is levelled at the rest of the Teachers: This was made of an old Canon, the nature whereof was to this purpose.

5 Rich. 2. Stat. 2. c. 5. That upon complaint of the Bishop, the Kings Writt shall be granted, to apprehend Preachers of Heresies, Errours, and matters of Slander, tending to Discord, and Discention, betweene the States of this Realme, with their Factors, and Abbettors; and to imprison them, till they be acquitted according to the Law of the Church.

This Law (for such it yet appears) gives occasion to consider of these particulers, Viz. The Crime, the Delinquents, the manner of Inquisition, and the penalty. For the first, (not to trouble my way with Debate, about the right of liberty of Preaching) the matter in Fact was, that men did publiquely Preach without Authority, matters of Theology, tending (as its said) to sow discord and dissention; so as they are under consideration & censure of the Church-Men, and Canon Law, in one regard, and of the Lawes of the Kingdome, and Civill Magistrate, as disturbers of the Peace, on the other side: and thus the Subjects liberty is cast into a mysterious, cloudy, and doubtfull posture, by matters of Opinion.

Secondly, the Persons Delinquent, are also left to an indefinite Construction: For they are not onely Preachers in publique, which might be an Order of Men, within the Church Cognisance as things then stood; in regard it was permitted to the Church, to Authorize Men to preach, but also their Factors, and Abbettors; words that might comprehend any other person whatsoever, according to the passion or discretion of the Church-men.

Thirdly, the manner of this Inquisition must be according to the Canon, and then the people are at the Churchmens mercy, to returne Complaints against whom they please, upon such Grounds as they shall thinke meet. The Persons that must make this Inquisition by this Law, are [Page] the Ordinaries, or any one of them, and for ought appeares the same might be done, by Pope, Councell, generall, Nationall, Provinciall, Diocessan, or their Delegates, according to the Canon: Although the last president that I met with, was executed by a Grand Councell of Lords, and Prelates, in the time of Henry the Second. But now the Clergy finding the Laity, began to swell against the Canon; they thought it high time to get the Civill Sword to joyne in the worke, to be as their Hands to apprehend, and Goalers to hold in Custody, such as they should complain of, without any other Legall Conviction; although hereby, they not onely disclaimed the exercising of their owne power of Imprisoning, which they by the Canon formerly claimed to have in such Cases; but also acknowledged to receive their power Judicatory in such Cases from the Parliament.

Thus was this Ordinance levelled, as I said, but the shot fell short: For this Law attained no further perfection, then a meere shape, and was complained of by the Parliament, within few moneths after its first noise, that it was made and published without the Commons consent,6 Rich. 2. Artic. 52. or knowledge; and that the Nature thereof was directly contrary to the Liberties of the people; and therefore they prayed that it might be repealed, and the same was done accordingly; although the times have been such as would not suffer the same to come into the publique Booke of Statutes in Print. But whether Statute or no Statute, they tell the King plainly, that they will not further be bound or justified by the Prelates, then they, or their Ancestours were anciently used to be; and besides that, they thought somewhat more, which they laid up against future times; nor was it long ere they discovered it. For a Subsidy being offered to the King by the Laity, under a Proviso, that the Clergy would grant a tenth; the Clergy tooke this Articulating of the Commons in snuffe, and protested that the Laity should not charge them. The Commons hereat begin to bid battell, to the Temporalties of the Clergy, and had not the King been a fast freind in good earnest unto the [Page] Clergy, the Laity had won the Feild. Thus were these times like the motion of the Ballance unto the Churchmen, sometimes up, sometimes down; getting somewhat which they formerly had not, with lesse assurance in what they had.

CAHP. VII. Concerning Trade.

KINGS hitherto had lived upon the main stocke, improving the same to the utmost penny: few of them laid up for the future, much lesse indevoured to advance the principall for their successors.

There had now beene ten Kings of this Nation since the Conquest, all of them spending what they had, or could get from the people, in the maintenance of their Patrimony, or their own Lusts: if any overplus was either gained by, or saved from the game, their Executors might be the better for it, their Heires were not: but Edward the third had a new game to play, he must gaine his right by his Sword, or he must loose it; his Spirit was too big to sit still and bear blows: and yet pre-advising himselfe about the poverty of the people, and that their patience would be spent soone after their supplies, if they continually saw much going out, and nothing comming in; he had a rule upon his private expences, a good glosse upon the publique, and a platforme for the augmenting of the treasure of the Kingdome, as well for the benefit of the people, as of the Crowne. 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 Queene who were of a gallant and accomplisht deportment, they had a son, a Prince of as great renoune as ever Prince had, and he also family sutable to his generosity: that they had other children, every on like their Father, both for Warr and Peace; and that for the maintenance of all these, the expences must be in reason larger then formerly they [Page] were wont to be; neverthelesse; 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,4 E. 3. cap. 4. 14 E. 3. c. 19. 34 E. 3. cap. 2. 36 E. 3. cap. 2.5, 6. 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 himselfe, his wife, and children, then to the families of himselfe, the Queen, and Prince: and in the levy hereof, some mens estates were absolutely priviledged, and some kind of goods, as sheep before shearing,14 E. 3. cap. 1. 24 E. 3. cap. 6. & 15. 4 E. 3. cap. 4. 14 E. 3. c. 19. 36 E. 3. c. 3. 4 E 3. cap. 3. 28 E. 3. c. 12. and trees about the dwelling house. Nor is the settling of the manner lesse considerable. It must be levied by authority in writing under the seale: 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 immediatly, if the price be under twenty Shillings, if above,36 E. 3. cap. 2. it must be made in a quarter of a year, and no man must charge more carrige then is necessary, and thus was this wild Ivie of purveyance that like some kinds of plants spreads over all, by rooting up and cutting downe brought into some kind of fashion, that if did no good it might do the lesse 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 owne private interests, nor so weak and irresolved as not to imploy himselfe and his Souldiers to the utmost to bring to passe his pretentions, nor so unhappy as to faile of the desirable issue of what he took in hand: so as though the people parted with much money, yet the Kingdome gained much honour and renoune, and becomming a terror to their neighboures, injoyed what they had in fuller security and so were no loosers by the bargaine in the conclusion. Secondly, although they parted with much, yet nothing to Prerogative [Page] 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 meete 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 sheafe 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.5 E. 3. c. 6. Secondly, these Taxes were assessed by the Neighborhood, 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 then 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 truely Royall in demanding his Taxes upon evident grounds of State, levying them with a tender hand,25 E. 3. c. 11. and imploying them to their right end.

Thirdly, that which digested all, and bred good blood, was in that the people had quid pro quo, by the advance of Trade, wherein the King shewed himselfe the Cape Merchant of the World. Certainly, mens parts in these times were of vast reach, that could manage such Warres, settle such a Government, and lay such a foundation of a treasury by Trade, a thing necessary to this Island, next unto its owne being, as may appear, not onely in regard of the riches of this Nation, but in regard of the strength thereof: And in regard of the maintenance of the Crowne; the two later of which being no other then a naturall effluence of the former, it will be sufficient to touch the same in order to the thing in hand. Now as touching that, its evident that the riches of any Nation are supported by the Conjuncture of three regards.

First, that the naturall Commodities of the Nation may be improved.

[Page]Secondly, that the poorer sort of people, be set a worke.

Thirdly, that the value of money be rightly ballanced.

For as on the one part, though the people be never so laborious, if the naturall Commodities of the Island be not improved by their labour, the people can never grow much richer, then barely for subsistance during their labour: so neither can the improvement of the naturall Commodity inrich the Kingdome, so long as many mouthes are fed upon the main stock, and waste the same by idlenesse, and prodigality: Nor though both these should concurre, yet cannot the Kingdome be said truly to be rich, unlesse by intercourse and traffique, there be an emptying out of the superfluity of such Commodities by way of barter, or otherwise. for such Forrain Commodities, whereof this Nation standeth 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 mutuall 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 tooke into their consideration the principall Commodities of this Kingdome,2 E. 3. cap. 9. 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 Wooll, throughout the Realme▪ and matter for imployment 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 owne benefit, and soon found out occasions to reconcile the reason of State with their own Interests, and at length settled the Staple in certain places in severall parts of the Kingdome;27 E. 3. cap. 3. but this extended onely unto the Commodities of Wooll, Leather, and Lead; for as yet the Manufactures were not come to Maturity. [Page] Secondly, the indeavour was to advance Manufacture, and principally such of them as are made of the Staple Commodities, amongst all which, Wooll had the precedency, as being the most principall and ancient Commodity of the Kingdome; and the Manufacture of Wooll of long use, but had received little encouragement before these times. For that it formerly had been the principall flower in the Flemish Garden, and nourished from this Nation, by the continuall supply of Wooll that it received from hence, which was the principall cause of the ancient League between the House of Burgundy, and this Crowne. But Edward the Third, was now too well acquainted with the Flemings Affaires, by a joynt Engagement with them in the Wars with France, and therein had gained so good an opinion amongst them, that he might adventure to change a Complement for a Courtesie. The Staples beyond the Sea were now taken away, he now inhibiteth the Importation of Forraine Cloathes, and having gained these two steps onward his way, he represents to the Flemings their unsettled Condition,11 E. 3. cap. 2.3, 5. by these bordering Warres with France, the peaceable Condition of England, and Freedome of the People; then propounds to them an Invitation to come over into England, promiseth them share and share like with his own People, with such other Immunities, as they take his offer, come over, and brought their Manufacture with them, which could never after be recalled: So as now the Wooll, and Manufacture dwell together, and like to Man and Wife, so long as they care for one another, both will thrive, but if they come to play their games apart; both will be loosers in the Conclusion.

The third step to the advance of Trade, was the Exportation of the surplusage of the Staple Commodities, that remained over and besides that proportion that should suffice for the Manufactures; to which end, it was ordered, that no Wooll should be Exported till it had remained at the Staple by the space of fifteen dayes.31 E. 3. c. 8. That time was necessary, and longer time might have been Convenient, but that the [Page] Markets beyond the Sea could not be delayed longer time, without much damage to the Merchant and Owner, for as much as Winter time is no time to prepare Wooll for the Manufacture, and by over long continuance of the Commodity upon the hand of the Merchant, or Owner, both the Commodity, and the Manufacture might surfet, lye in dispaire, and Trade choked thereby. For its a necessary preparative to Trade, to keep the Nation in some kinde of hunger after the Staple Commodities, so as the main stock be not too great to occupy, and yet to leave enough to use. But because this Nation formerly had been, and as yet were used too much to Forrain Manufactures, the importing of which, did debase the Home made Manufactures, and discouraged that work; therefore the Law was made to reduce the vanity of Apparrell, (which infected these times) to more Sobriety.

Some delight in Forrain Commodities, and Manufactures, is doubtlesse profitable both for Trade and Shipping; so as what is Imported, exceeds not what is Exported: for too much of that makes the Domestick Commodity contemptible, the Nation poore, and the People want work, because its a noted vanity of this Nation, That they love things far fetcht, and dear bought. As a cure therefore to this disease,43 E. 3. cap. 1. English Cloath by Law is injoyned to be worn by all Persons,11 E. 3. c. 2, 3. under the Degree of a Lord, and so the former Inhibition of Importation of Forrain Cloathes was strengthened thereby. And because the English Clothiers should not take advantage hereby, to rais the price of their Cloathes to their own covetous pin:27 E. 3. c. 4. 7 Rich. 2. c. 9. 17 Rich. 2. cap. 2. 50 E. 3. c. 7. Therefore the Law also settled a certain price and measure, & the same before sale was to be allowed upon view, and for the goodnesse of the Cloathes, and perfect working thereof; Lawes were likewise made against Exportation of all such as were not perfectly made.

A fourth step in the advancement of Trade, was the compelling 4 men to work; for when publique imployment calls men forth for service in the Feild; their minds once in Commotion, or upon the Wing, can hardly settle any where, or [Page] stoop to the Perke again, unlesse upon hope of prey or gain to be gotton thereby. Such were the times of Edward the Third, wherein partly for that cause, and partly for the scarcity of men left from the Sword and Pestilence, not onely work-men were scarce and deare, but even the Masse it self was grown stately, the private delights of Kings and great Men, and scarce vouchsafeing to be seen by common gaze, but at a great distance: The Priests had little Charity, and the Poore had as little money; so as no penny, no Pater Noster. A sick and very crazy time questionlesse was it, when the Clergy were stately,36 E. 3. c. 8. and the Poore idle. The Preists wages for this cause are now settled, and they that would get much, must get many littles, and doe much: but the greater sore was amongst the poorer sort; either they would not serve,23. & 25. E. 3. 2 Rich. 2. c. 8. or at such wages, as could not consist with the price of the Cloaths, and the subsistance of the Clothier. Lawes therefore are made to compell them to work, and to settle their wages; so as now its as beneficiall to them to serve the meaner sort of Clothiers, as the richer sort: For the Master must give no more, nor the Servant take more, and thus became labour currant in all places.

5 A fifth means to advance Trade, was the setling of a Rule upon Exportation, and Importation: this wrought a double effect, Viz. The inriching of this Kingdome with Forrain Commodities, and the maintaining of Shipping, which was and is a principall means, not onely of riches, but of strength unto all Sea bordering Countries, especially regard being had to these three Considerations.

First, that Importation do bring in more profit, then Exportation disburseth.

Secondly, that both Exportation, and Importation be made by Shipping belonging to this Nation, fo farre as may consist with the benefit of this Nation.

Thirdly, that the Exportation be regulated to the overplus, saving the main stock at home. The truth of the first will be evident from this ground, That no Nation can be rich that receives more dead Commodities from abroad, then [Page] it can spend at home, or vend into Forrain parts, especially if it be vended in its proper kinde, and not in money;27 E. 3. and therefore the Lawes provided that no Merchant should Export more money then he Importeth, and what he doth Export must be of the new stamp, which it seemeth was inferiour in vallue to the old: yet the times may prove so penurious, that this rule may be waved for a season.

The second is no lesse beneficiall; for as it is in Warre, so in all Trades; the greater the number is that is imployed, the more effectuall the issue will be: and therefore though it in the generall be more beneficiall, 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 then ordinarily imployed for the service of the State: And that every Nation striveth to have the benefit of Exportation by Vessels of their owne.

And lastly, in regard the case may be such, as Importation may be, at a cheaper rate by Forrain Vessels, and Exportation likewise may for the time be more prejudiciall to this Nation, if done by our own shipping, then 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,27 E. 3. 43 E. 3. c. 1. 5 Rich. 2. c. 3. 6 Rich. 2. c. 8. 14 Rich. 2. c. 5 in the times whereof we now Treat, the Lawes often varied; sometimes no Staple Commoditie must be Exported in English bottomes; sometimes all must be done by them, and within a yeare again that liberty was restrained; and after that, liberty given to Forrainers 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 maine Stock the Kingdome in time must needs be brought to penury, because it is their Magazine:31 E. 3. c. 8. and for this cause it was provided, that all Wooll should remaine at the Staple 15 dayes, to the end it might be for the Kingdomes use: if any one would buy, they must doe it within that time, otherwise it might be Exported.

[Page] 6 The sixth means of advancement of Trade, was the settling of the Staple; for as it was an incouragement to the first establishing of the Manufacture, that the Staples were let loose, so when the Manufactures had taken roote, the Staple especially now fixed to places within this Kingdome, brought much more incouragement thereto.

First, for preserving a full Market, for whiles 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 its not easily discovered whether it be vendible or not; and besides small parcells are not for every mans labour, and the greater are not for every mans money.

Secondly, Staples are convenient for the stating of the generall price of the Commodities; in regard the quantity of the Commodity is thereby the more easily discovered, which commonly maketh the price. And the quantity of the Commodity thus discovered will not onely settle the price to it selfe, 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 principall 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 settled, untill the Manufacture was grown to some stature; and then the place became Litigious. The benefit of Exportation, pretended much interest in the settling 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 Kings pleasure or displeasure, as the King pleased; for it was a great benefit to the Countrey, or place where ever it settled; or else it moved or stayed according to the inclination of the people where it was, either for Warre, or Peace. But on [Page] the contrary, the Interest of the People began to interpose strongly: and for these Causes the Parliament likewise intermed [...]ed in the place; and thus the Scene is altered: some times its beyond the Seas, in one place, or in another: sometimes in England. In Edward the Thirds time,43 E. 3. cap. 1. 12 Rich. 2. cap. 16. 14 Rich. 2. cap. 11. we finde it sometimes at Calis, sometimes in England,: In Richard the Seconds time; we finde 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 settled the same, it being found to burdensome for the Manufactures to travell t [...] the Staple beyond the Seas, for the Commodity that grew at their owne doores, besides the inhancing of the price, by reason of the carriage, which falling also upon the Manufactures, must needs tend to the damage of the whole Kingdome. 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 settled within the Kingdom for that, and the overplus exported to a Staple beyond the Sea, it might have proved no lesse 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 Personall 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 owne 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 Countrey hath an interest in his Commodity for its safety and welfare, as in his own person. I doe not assert the manner of buying the Staple Commodities, by Merchants of the Staple, to sell the same again in kinde, for their private advantage; divers limitations must concur to save it from an unlawfull ingrossing; nor doth it appear to [Page] me that the Staplers in these times used such course, or were other then meer Officers for the regulating of the Staple, in nature of a Court of Piepouders, belonging to some Faire or Market. Neverthelesse, I conjecture that it may well be made evident from Principles of State, that Mart, Markets, and Staples of Commodities, that are of the proper Ofspring of this Nation, are as necessary to Trade, as Conduits are to places that want water.

7 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 soule of Trade, for though exchange of Commodities may doe much, yet it cannot be for all, because it is not the lot of all to have exchangeable Commodities, nor to work for Apparell, and Victuall. Now in the managing of this tricke of Money, two things are principally looked unto; First, that the Money be good and currant. Secondly, that it should be plentifull.25 E. 3. Stat. 5 cap. 13. 6 E. 3. cap. 2. & 3. As touching the excellency of the Money, severall Rules were made, as against imbasing of Money, against Forrain Money not made currant, against counterfeit and false Money: For according to the goodnesse of the Money, so will the Trade be more or lesse, for the Merchant will rather loose in the price of his Commodity in Money, then in exchange for other Commodity, because the vallue thereof is lesse certain, and the Transportation more chargeable.

Secondly, as touching the plentie of Money, that is as necessary to the advance of the Trade, as of the goodness of it: for according to the plenty thereof, will be the plenty of the Manufactures, because Handy-crafts men having no Commodities but their labour, cannot work for exchange, nor can exchange supply Rents and maintenance to the greater sort of people.6 E. 3. c. 2, 3. 17 Rich. 2. cap. 1. To this end therefore it is provided against melting of Money, and Exportation of Silver and Gold: And yet to incourage or not discourage Importation of Silver and Gold, liberty was given to every man to Export so much as they did Import, provided that what they carry away, must be of the new stamp, or Minted in this Nation. [Page] By this means Bullion came in with probability,27 E. 3. that much thereof would remain in the Nation in liew of Commodities exported, or if not, the greater part; yet at least the Mint gained, and that was some benefit to the Nation.

Thirdly, for the fuller currence of the Money, the Mint was established in severall parts of this Kingdome, according to the ancient custome, and this was advantageous both to the Mint, and to the stocke of Money in the Kingdome. This establishment was with this difference,18 E. 3. c. 6. that though the Mint was settled by the Parliament, yet the Exchange was left to the Directory of the King and his Councell;18 E. 3. cap. 6. 25 E. 3. Stat. 5. cap. 12. because the Exchange is an uncertain thing, subject to sudden alteration in other Nations, and its necessary that in this Countrey, it be as suddenly ballanced, with the Exchange in other Countreyes, or in a short time, the Nation may receive extreame damage. In regard whereof, and many other sudden exigencies in Trade, it seemeth to me convenient, That a particular Councell were established for continuall influence into all parts of these Dominions, to take into consideration the quantity of the Staple Commodities, necessary to be retained as a Stock at home, for the use of the People, and the Manufactures; and accordingly to ballance the Trade of Exportation and Importation; by opening, and inlarging, or shutting, and straitning the Streame, as occasion doth require.

And lastly, to watch the course of the Exchange in Forrain Parts, and to parallell the course thereof, in this Land thereto: For otherwise, the Publique must necessarily suffer so long, as Private men seeke their own particular interests, onely in their course of Trade.

[Page]

CHAP. VIII. Of Legiance, and Treason, with some Considerations upon Calvins Case.

AS times change manners, so doe manners change Lawes: For its the wisedome of a State, when it cannot overrule occasion to pursue and turn it to the best issue it can. Multitude of Lawes therefore are not so much a sore to the People, as a Symptome of a sore People; yet many times Lawes are said to be many, when as they are but one, branched into many Particulars, for the clearing of the Peoples understanding, (who usually are not excellent in distinguishing,) and so becomes as new Plaisters made of an old Salve, for sores that never brake out before. Such sore times were these, whereof we now Treate, wherein every touch made a wound, and every wound went to the heart, and made the Category of Treason swell to that bignesse, that it became an individuum vagum, beyond all rule, but the present sence of timerous Judges, and a touchy King. Thus were many of the ignorant and wel meaning people in an hideous danger of the gulfe of forfeiture before they found themselves nigh the brimme.

All men do agree that treason is a wound of Majesty, but all the doubt is, where this Majesty resteth originally, and what is that legiance which is due therto, the breach whereof amounteth to so high a censure; for some men place all Majesty in one man, whom they call an absolute Monarch. Others in the great men, and others in the people, and some in the concurrence of the King and body of the people: and it is a wild way to determine all in one conclusion, when as the same dependeth wholy upon the constitution of the body; looke then upon England in the last posture, as the rigider sort of monarchiall polititians do, and Majesty will never be in glory, but in the concurrence of the King and Parliament, [Page] or convention of Estates, & so upon the whol account it wil be upon the people, whose welfare is the supream Law. Rome had Kings, Consuls, Dictators, Decemviri, and Tribunes long before the Orators time, and he saw the foundation of an Empire, or perpetuall Dictatorship in the person of the first of the Caesars; any of all which might have challenged the supremacy of Majesty above the people: and yet the often change of Government shewed plainly that it rested upon another pinne; and the Orator in expresse words no lesse; when speaking of the Majesty of that Government, he allotteth it not to those in cheife command, but defineth it to be, magnitudo populi Romani;Cic. partit. Orat. afterwards when the pride of the Emperors was come to its ful pitch in the times of Augustus & Tiberius; an Historian of those times in the life of Tiberius tels us, that he declared the bounds of Treason to be determined in three particular instances, of treachery against the Army; Sedition amongst the people, and violating the Majesty of the People of Rome; in al which men were not punishable for words, but actions and indeavors. I do not herein propound the Government of the Roman Empire as a modell for England, but à majori, may conclude,Si quis majestatem populi Romani minuisset, Tacit. an. 1. that if the proper seat of Majesty was in the people of Rome when Emperours were in their fullest glory, its no defacing of Majesty in England to seat it upon the whole body, from whom the same is contracted in the representative and so much thereof divided unto the person of the King, as any one member is capable of, according to the work allotted unto him. These severall seats of Majesty making also so many degrees do also imply as many degrees of wounding, for its writen in nature, that the offence tending to the immediate destruction of the whol body is greater then that which destroyeth any one member only, and when the written Law maketh it treason to compasse the destruction of the Kings Person, it leaveth it obvious to common sense, that its a higher degree of Treason to compasse the destruction of the representative, and above all, to destroy the whole body of the People; crimes that never entred into the conceit of wickednesse it [Page] selfe in those more innocent times; much lesse saw they any cause to mention the penalty by any written Law. Neverthelesse because many sadd examples had accurred within the memory of this present age, of the danger of the person and honor of Kings; and yet on the otherside they saw that in such cases of Treason the Kings honor was made of retching leather, and might easily be strained within the compasse of a wound of Majesty: therefore Edward the third imitating Tiberius, reduced the crime of wound of Majesty in the Person of the King, into certaine particular instances, out of the compasse whereof, the Judges of the Law in ordinary course must not determine Treason. These concerne either the safety of the Person of the King, or of the succession in the Royall Throne;25 E. 3. Stat 5. cap. 2. or lastly, the safegard of the publique right by the board and privy seale, the vallue of Mony, and by persons in matters of judicature judicially presiding, all of them reflecting upon the King, considered in his politick capacity; for otherwise many crimes might have beene mentioned, more fatally reflecting upon the King in his naturall capacity, which nevertheless are omitted as not worthy of so high a censure.17 R. 2. n. 20, 21. 3 R. 2. n. 18. 22 Ass. pl. 29. Stat. 11 R. 2. Other Treasons are left to the determination of the Parliament as occasion should offer it selfe, whereof divers examples of a new stamp accurred within forty yeares next ensuing, which were of a temporary regard, and lived and died with the times.

To these two notions of Majesty and treason, I must add a third, called Legiance, for it is that which maketh Majesty to be such indeed, and lifteth it into the Throne, and whereof the highest breach makes Treason: and because that which hath been already sayd reflecteth upon an opinion, or rather a knot of opinions (for I find them not punctually adjudged) in Calvins case, I must a little demur to them, because as their sense is commonly taken; it alters the fundamental nature of the Government of this nation from a commonweal to a pure Monarchy. In handling of this case the ho. Reporter took leave to range into a generall discourse of legiance, although not directly within the conclusion of the [Page] case; and therin first sets down the general nature therof, that it is a mutual bond between an English King and his people; and then more particularly sets forth the nature of this bond in the severall duties of obedience and fealty, fo. 5. a. and those also in their severall properties, Viz. naturall, absolute, fo. 7. a. due to the King, omni soli & semper, fo. 12. a. in his naturall and not politick capacity, fo. 10. a. whereas he saith, this bond is natural, he meaneth that its due by birth, fo. 7. a. By absolute (if I mistake him not) he meaneth, that it is indefinite, fo. 5. b. Viz. not circumscribed by Law, but above Law, and before Law, fo. 13. a. and that Laws were after made to inforce the same by penalties, fo. 13. b. and therefore he concludeth that this legiance is immutable, fo. 13. b. and fo. 14. a.

Thus having stated the point as truely as I can, both for the nature of legiance, and the object thereof, Viz. the King, and not the people, otherwise then in order to the safety and honor of the Kings Person, considered in his naturall capacity as he is a man; I shall in the next place examine the grounds as they are severally set down, and therein shall lead the Reader no further then the Reporters owne concessions. Not troubling the Reader with any doubt, whether this bond consists in obedience only, or in that fealty: and in all shall ever be mindfull of the honour of that Pen with which I have to deale.

First, whereas it is said, that English legiance is naturall, and grounded upon the birth of each party within the Kings dominions and protection, it needeth no debate, so as the same be taken, sano sensu, Viz. for a qualified legiance beared of those sublimities of absolute, indefinite, immutable, &c. for otherwise if such a high strain of legiance be due from every English man by birth; then all the Magna carta, or laws concerning the liberties of the People come too late to qualifie the same, because they cannot take away the Law of nature, f. 14. a. and thus the party once born English must for ever remain absolutely obleiged to the King of England although haply he lives not two Months under his protection all his ensuing life time.

[Page]Secondly, the legiance of an English man to his King ariseth from that civil relation between the two callings of King and subject, and therefore it is not a naturall bond which cannot be taken away. The first is true by the Reporters owne concessions; Protectio trahit subjectionem, & subjecti oprotectionem; so he saith, fo. 5. a. fo. 9. b. and therefore though it be granted that Magistracy in general is from nature, as he saith, fo. 13. a. yet of weak birth is that inference which he maketh, Viz. That English allegiance is a principle in nature. Unlesse it be also admitted that all men on earth that submit not to English legiance do sinne against nature. The difference then will stand thus, Magistracy is founded in nature, therefore legiance also. But English Magistracy is from civil constitution, therefore is English legiance of the like nature. In the next place, the Reporter saith, that before any municiple Law was made, Kings did dare jura, and he mounts as high for an example as the Trojans age by the testimony of Virgil: but I beleeve he intended not much strength in this, seeing its wel known by any that knows the scriptures, that there were municipal laws given, and that concerning the office of a King by Moses, which was more ancient then those of Troy, and long before the time of Virgil, who neither tels us in what manner those Trojan Laws were made, though the Kings gave them, nor if al were according to the Reporters sense is the testimony of a Poet (who somtimes useth his poetica licentia) to be taken in terminis, in the next place, the Reporter vouches the testimony of Fortescue, c. 12 & 13. which is as absolutely opposite to the maine point in hand, as any Penn can declare▪ for he tels us of divers sorts of Kingdomes, some gotten by conquest, as those of Nimrod and Belus, &c. But saith he, there is a Kingdome politick, which is by the association o [...] men by consent of Law, making one cheife, who is made for defence of Law, and of his subjects bodies and Estates, and he cannot govern by any other power, and of this nature, saith he, the Kingdome of England is, fo. 30.31.32. A second peice of the foundation of this opinion of the Reporter is taken, ab inane, it is a vaine thing, saith he, to prescribe Laws [Page] but where by legiance foregoing, people are bound to obey: but this compared with the words of Fortescue, formerly mentioned, falls of it selfe to dust, and therefore I shall not further inlarge concerning it.

Thirdly, The Reporter brings in to helpe the matter the consent of the Law in elder times, by certaine cases vouched to that purpose; the first concerning the Legiance of Children to Parents, which commeth not to this case, because it is a legiance of nature, and this legiance whereof we speake is yet under a litigious title. And I suppose will in the conclusion be found to rest only upon a civil constitution, therefore I leave that. The second is, that a man attainted and outlawed, is neverthelesse within the Kings protection for this (saith the Reporter) is a Law of nature, Indelibilis & immutabilis, and the Parliament nor Statute can take this power away, fol. 13. b. 14. a. and therefore the Reporter concludes, that as well the Legiance of the subject as the protection of him by the King are both of them from the Law of nature. An opinion that speakes much mercy, yet it seemes strange, considering the penne, for if it be a Law of nature, and immutable, for the King to protect Persons attainted, then must no such Person suffer, for if he be under the Kings protection, that, being by a Law of nature, cannot be changed by any positive Law, as the Reporter saith, nor can the King, be so bound, by any such Statute, but by a nonobstante, he can set himselfe at liberty when he pleaseth, & then the issue will be this, the King hath a naturall power to protect the Persons of Law-breakers, from the power of the Law, therefore much more their Estates; and then farewell all Law, but this of the Kings naturall protection. I say that these are of a high straine, considering what the Reporter speaketh,11. Co. fo. 88. 8. Co. fo. 20. 4. Co. fo. 35. 7. Co. fo. 36. elsewhere. But to persue his instance, he saith, that the King hath power, to protect an attainted person, that if any man kill him without warrant he is a manslayer; and yet this Person attainted hath lost the legall Protection. Its true, yet not to all intents, for by the sentence of the [Page] Law, his life is bound up under the Law of that Sentence, Viz. 35 H. 6.63. That he must not suffer in other manner then the Sentence determineth, nor before warrant of Execution issue forth to that end. And notwithstanding the Sentence, yet the Law leaveth him a liberty of Purchase, or Inheritance, though to the use of the Crowne, and therefore in some respects, the Law protects his Person so long as he lives, and the Kings Naturall Protection is in vaine in such Cases.

Lastly, suppose the King hath a power of Nonobstante, if the same be allowed to him in a limited way by the Law, it is no argument to prove the Kings naturall Power which is driven at under naturall Legiance, much lesse if it cannot be made forth that the Law doth allow any such power of Nonobstante at all; but by the iniquity of the times, permitteth the same to subsist, onely to avoyd Contention, as it came into this Kingdome by way of Usurpation. And thus I have onely discovered the Foundation of this first qualification, which I shall onely leave naked, supposing that no man seeing it, will build at all thereupon.

The second property that commeth to be considered, is, That English Legiance is absolute, fol. 5. b. fol. 7. a. which is a word of a vast extent, serving rather to amaze mens apprehensions, then to inlighten them; and therefore the Reporter did well not to trouble himself or the Reader, in the clearing or proof thereof, but left the Point rather to be beleived, then understood, nor shall I in the Negative; for God himself can have no other Legiance from an English man, then absolute Legiance; and Kings being (as other men) subject to erre, especially in this Point of Prerogative, are much rather subject thereto, being misled by such Doctrines as these are;Act. 14.19. The Scripture determines this Point, and cuts the knot in sunder.

The third property of English Legiance, which the Reporter insisteth upon, is that it is indefinite; which he explaineth to be Proprium quarto modo, so as it is both Universall and Immutable, fol. 5. b. fol. 12. and neither defined [Page] by Time, Place, or Person: As touching the Time, and Person, the Reporter inlarged not at all, therefore I shall onely leave the Reader to chew upon the Point, supposing himself in the first times of Edward the Fourth, when Henry the Sixth, was then alive; and let him resolve to which of them his Legiance had been due, considering them both in their naturall Capacity, as the Reporter would have it. But as touching the Place, its reported that English Legiance is not onely due from an English man, to an English King in England; but in all places of the Kings Dominion, though otherwise Forrain, as to the power of the Law of England: yea, saith the Reporter, as farre as the Kings power of Protection doth extend. And yet this had not been enough, if the Premises be granted: for if this Legiance whereof we speake be absolute, and omni soli & semper, then is it due to the King, from an English man, ubivis Gentium. Neverthelesse, to take the Reporter in a moderate sense; it is worth consideration, whether English Legiance in the dayes of Edward the Third, extended as far as the Kings power of Protection; when as he had the Crown of France, in a Forrain right to that of England. In this, the Reporter is extreamly Positive upon many grounds which he insisteth upon,

First, he saith, that Verus and Fidelis are qualities of the minde, and cannot be circumscribed within the predicament of Ʋbi; and upon this ground, he might conclude, that this Legiance is due to the King, from an English man all the world over, as well as in all the Kings Dominions; but concerning the ground, it may be denied, for though simply in it selfe considered as a notion, Verity or Fidelity are not circumscribed in place, yet being qualities of the soul, and that being in the body, in relation thereunto, it may be in the predicament of Ʋbi; for where ever that Body and Soul is, there is Faith and Truth, according to its modell, which though not absolute, and indefinite, yet if according to the Lawes of the place wherein the man is, he is truely said to be Verus & Fidelis.

Secondly, the Reporter argueth, that the Kings Protection [Page] is not Locall, or included within the bounds of England; therefore also is not the Legiance: for, Protectio trahit Legiantiam, & Legiantia Protectionem: Had this reason been formed into a Syllogisme, it had appeared lesse valuable; for the Protection of an English King qua talis, of an English man, is locall and included within the bounds of the Kingdome: But if the same King be also King of France, or Duke of Aquitane; and an English man shall travell into those parts, he is still under the same Kings Protection, yet not as King of England, but as King of France, or Duke of Aquitane, otherwise, let the party be of France, or Aquitane, or England, all is one, he must be (whether French or English) under an unlimitted absolute Protection, without regard had to the Customes or Lawes of the place; yea, contrary to them, which I beleive the Reporter never intended to affirme.

Thirdly, the Reporter falleth 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 Confines, 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 Lawes of the place: Nor doe any the Presidents vouched by the Reporter clear, that the King of England did grant as King of England, Protection to any English man in any parts of the Kings Dominion beyond the Seas, which was not qualified according to the Lawes and Customes of that place: especially, it being apparent, that an English King may hold Dominion in Forrain parts, in Legiance under a Forrain 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 goe with him in his Warres, as well without the Realm of England, as within the same; therefore the Legiance of an English [Page] man to his King, is indefinite, and not locall, or circumscribed by place, or within the Kingdome of England. Although the first of these be granted, yet will not the inference hold, for possibly this may arise from the constitution of a Positive Law, and not from naturall 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 Personall interest; nor doe the authoritie 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, commeth 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 Plaintiffe 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 Plaintiffe is not of the Legiance of England, nor of the Faith of the King: And upon this Plea thus amended, the Plaintiffe 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 comming 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 of the Case. Neverthelesse, I rather thinke that the present Point in controversie, will receive little light herefrom on either part.

[Page]We are now come to the fourth Property of English Legiance, that it is due to the Kings Naturall Capacity, and not to his Politique 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 Naturall Capacity, therefore the Subjects swear to him in his Naturall Capacity. This reason was intended to be taken from Relatives, and then it should have been thus: A King doth sweare to his Subjects in their Naturall Capacity, therefore Subjects sweare to a King in his Naturall 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 Naturall Capacity; yet not Terminative, more then the Oath of the Tenant to his Lord, which this Author pleaseth to couple with the mutuall dependence between King, and Subject, fol. 4. b. 5. a. Nor doth the Oath of an English man binde him to the Obedience of all, or any Commands, which the King shall give in relation onely to his Naturall Capacity, or in opposition to his Politick Capacity: Nor will the Reporter himself allow that the Politique Capacity of the King, can be separate from his Naturall Capacity, fol. 10. And yet it is evident that a King may in his Naturall Capacity command that, of which in his Politique 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 Naturall 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 Naturall 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 Naturall Person of a King, as he is King: neither is their any other difference [Page] between the murther of a King, and a private Man, but onely in regard of the Place and Office of a King, which makes the murther of him Treason; for which cause all Indictments that doe conclude, Contra Legiantiae debitum, doe as well also conclude, Contra Coronam & Dignitatem, &c.

The third reason is this; A body politique, can neither make nor take Homage, 33. H. 8. Bro. tit. Fealty: Therefore cannot the King in his Politique Capacity take Legiance. The first must be granted onely, sub modo, for though it cannot take Homage immediately, yet by the means of the Naturall Capacity, it may take such service; and therefore that Rule holds, onely where the Body Politique is not aggregate, and not one person in severall Capacities, for the Tenant that performes his service to his Lord, performs the same to his Lord in his Naturall Capacity, but it is in relation to his Politique 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 Kings naturall Person hath right in the Crowne by Inheritance, therefore also in the 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 supposall of a Fides ficta; whereas that Faith of an English Subject, which is according to Law, is the truer of the twaine. 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 Naturall Capacity, have right to the Crowne by Inheritance, and yet not right in the Legiance of his Subjects, otherwise then in right of the Crowne; As in the Case of Lord and Tenant, the Lord may inherite the Lordship in his naturall 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 [Page] King, is of a higher strain, then 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 commeth to consideration, is, from a Testimony of the Parliament; for it is said, That this damnable Tenet of Legiance to the King in his Politique Capacity, is condemned by two Parliaments: But in truth I can finde but one under that Title, that mentioneth this Opinion, and that is called Exilium Hugonis, which in summe 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 rigor, to govern according to their wills: for withdrawing him from hearkning to the advice of his Lords, for hindering of Justice, and Oppression, and (as a means hereunto,) They caused a Bill or Scedule to be published, containing that Homage and Legiance is due to the King, rather in relation to the Crowne, then absolutely to his Person; because no Legiance is due to him, before the Crowne be vested upon him: That if the King doe not govern according to Law; the Leiges in such case are bound by their Oath to the Crown, to remove him either by Law or Rigor.

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 any appearance thereto: So as to the matter of this Scedule (which contains an Opinion suitable to the Point in hand, with some additionall 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 these 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 Affaires witnesse: and [Page] 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 matter of the Scedule, if he had perceived any such thing in their purposes. Add hereunto that the Lords themselves justified the matter of the Scedule in their own proceedings, all which tended to inforce the King to govern according to their Councells, and otherwise then suited with his good pleasure: By force they removed Gaveston from the Kings 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 Reporters own Penne (in this discourse of his) for the maintaining, that the Legiance of an English man, is neither Naturall, nor Absolute, nor Indefinite, nor due to the Naturall Capacity, but qualified according unto Rules.

The first is this, English men doe owe to their Kings Legiance, according to the Lawes, therefore is it not Naturall, or Absolute, or Indefinite. The inference is necessary, for the later is boundlesse, and naturall; the former is limited, and by civill constitution: If any branch therefore of English Legiance be bounded by Lawes, then the Legiance of an English man is circumscribed, and not Absolute, or Naturall. The major Proposition is granted by the Reporter, who saith, that the Municipall Lawes of the Kingdome, hath prescribed the order and form of Legall Legiance, fol. 5. b. And therefore if by the Common Law, the Service of the Kings Tenant, as of his Mannor, be limited, how can that consist with the absolute Legiance formerly spoken of, which bindeth the Tenant being the Kings Subject, to an Absolute, and Indefinite Service: Or if the Statute-Lawes have settled a Rule, according to which each Subject ought to goe to Warre in the Kings Service beyond the Sea, as the Reporter granteth, fol. 7. & 8. Then cannot the Legiance be absolute to binde the Subject to goe to War according to the Kings own pleasure.

[Page]Secondly, an English Kings Protection of his Subjects, is not Naturall, Absolute, Indefinite, nor Originally extendeth unto them in their Naturall Capacity: therefore is not the Legiance of an English Subject to his King, Naturall, Absolute, Indefinite, nor Originally extendeth to the King, in his Naturall Capacity.

The dependance of these two resteth upon the Reporters owne words, who tells us, that Protectio trahit Subjectionem, & Subjectio Protectionem; Protection drawes with it Subjection, and Subjection drawes with it Protection, so as they are Relata, and doe prove mutually one anothers Nature, fol. 5. a. And in the same Page (a few lines preceding) he shewes why this Bond between King and Subject is called Legiance, because there is a reciprocall, 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 maintaine the Lawes, fol. 5. a. and the Lawes doe not Protect absolutely, any man that is a breaker of the Lawes.

Fourthly, this Protection is not Indefinite, because it can extend no further then his Power, and his Power no further then his Dominions, fol. 9. b. The like also may be instanced in continuance of time.

Lastly, the Kings Protection extendeth not Originally to the Naturall Capacity, but to the Politique Capacity; therefore till a Forrainer commeth within the Kings Legiance, he commeth not within his Protection: And the usuall words of a Writ of Protection shewes, that the party Protected, must be in Obsequio nostro, fol. 8. a. The summe then is, that as Protection of an English King, so neither is Legiance, or Subjection of an English man Naturall, Absolute, Indefinite, or terminated in the Naturall Capacity of the King. And to make a full Period to the Point, and [Page] make the same more cleare, I shall instance in one President, that these times of Edward the Third produced. The former English Kings, had Title to many Teritories in France, but Edward the Third, had Title to all the Kingdome: And being possibly not so sensible of what he had in possession, as of what he had not; He enters France in such a way, and with that successe, that in a little time, he gaines the highest Seate therein, and so brought much Honour to the English Nation; and more then stood with the safety of the Kingdome. For in the union of two Kingdoms, its dangerous for the smaller, least it be swallowed up by the greater.

This was foreseen by the English, who knew England did bear but a small proportion to France, and complained of that inconvenience; and thereupon a Law was made, that the People of England, 14 E. 3. Stat. 4 should not be subject to the King, or his Heires, as Kings of France: which manifestly importeth, that an English King may put himselfe in such a Posture, in which Legiance is not due to him; and that this Posture is not onely in Case of Opposition, but of diversity, when he is King of another Nation, and doth not de facto, for that Time, and Place, rule as an English King: which if so, I suppose this notion of Naturall, Absolute, and Indefinite Legiance to the King in his Naturall Capacity is out of this Kingdome, if not out of the World: and then the foot of the whole Account will be, that the Legiance of an English man, is Originally according to the Lawes: The summe of all, being comprehended in the joynt safety of the People of England.

[Page]

CAHP. IX. Of Courts for Causes criminall, with their Lawes.

THe great growth of Courts, founded upon Prerogative, derogated much in these times from the ancient Courts, that formerly had attained the Soveraignty over the People, and in the hearts of them all. This was a hard Lesson for them to learn, but especially of the Kings Bench, that was wont to learn of none; and yet must be content to part with many of their Plumes to deck the Chancellor, much of their work to busie the Prerogative Courts, holden Coram Rege; and more to those holden Coram Populo, I mean, The Courts of Oier and Terminer, Goale delivery, and Ju [...]tices of Peace. Those of Oier and Terminer, were now grown very common, but lesse esteemed, as being by men of mean regard nominated for the most part by the party that sued out the Commission, which for the most part was done in behalfe of those that were in danger, and meaned not to be justified by Works, but by Grace. These escapes, though small in the particulars, yet in the full summe made the matter so foul, as it became a common greivance, and a Rule thereupon set by the Parliament, for the regulating both of the Judges of such Court,2 E. 3. cap. 2. & 7. and the Causes. The Commissions for Goale delivery likewise, grew more mean and ordinary: The chief sort of men in the severall Counties, had formerly the power, but were found to savour too much of Neighbourhood, and Alliance; the leading of the work therefore, is now committed to the Judges at Westminster, and the other made onely Associates to them. But above all, the Courts of Sheriffes, Coroners, and Leets, were now grown soure with Age, having attained courses by common Practice, differing from Oppression onely in name; and yet were the times so unhappy, as by these courses they had obtained [Page] fovour, and respect, amongst the great men, and so gained more power from above to abuse them below. These men loved to be Commissioners of Oier and Terminer, and having learned how to make capitall offences pecuniary, found such sweetnesse, as they used not to be weary of their places, though the Countrey grew weary of them; and therefore disliking uncertainties, in such matters of benefit, they cannot rest till they obtaine more certaine settlement in their places; some for yeares, others for life, and some for ever. The disease thus contracted by degrees, the cure must be accordingly; first the Sherifwicks much dismembred to please the Court Favorites, and fill the Kings privy purse, and all raised to the utmost penny of the full, and beyond the just vallue.4 E. 3. cap. 12. & 15. A Law is made to restore the severall Hundreds, and Wepentakes to the Sheriffs and their Counties, and all of them are reduced to the old rent; and it is likewise provided that none shal execute that place in County or Hundred, who shall not then have sufficient Lands in that County to answer dammages for injustice by them done.2 E. 3. cap. 4. 4 E. 3. cap. 4. And that no Sheriff shall serve in that place above one yeare; and then not to be chosen againe for that service, till three yeares be past: which later clause was only a medium taken up for the present occasion,1 R. 2. cap. 1 [...]. in regard that men of ability became very rare in these times, especially, in some of the Counties. The election of the Sheriff is likewise not to be forgotten, for though the Counties had the election of Coroners in regard they looked that no man should come nigh their blood, but whom they trusted;28 E. 3. cap. 6. yet the Sheriffe came not so nigh their skinne, nor yet so nigh their freeholds, as anciently they had done, for that their power in judicature was much abated, and so not worthy of so high regard, yet in respect he was still to be a Minister of justice, and his place valuable more then formerly; it was holden convenient that such as had the cheife power of judicature at Westminster, Viz. the Chancellor, Treasurer, Cheife Baron, 14 E. 3. cap. 7. and the two cheife Justices, should nominate the man [Page] that should be their Servant, and in the Parliament neverthelesse,14 E. 3. n. 33. interposed in that Election as often as they saw cause.

Secondly, as touching Causes criminall, which more ordinarily come within the Cognisance of these Courts: They generally held the same regard in the eye of Law in these times that they had done formerly; neverthelesse, in two crimes these times wrought diversly, urging the edge of Law against the one, and abating it as to the other. The later of these is commonly called Petit Treason, which is a murder destructive to the Common-wealth, in an inferiour degree, and at a further distance, because it is destructive to that Legiance, by which Families doe consist, and of whom Kingdomes are derived.

Mirror Just. cap. 2. Sect. 13. 21 E. 3. fol. 17. b.In former times it extended unto the Legiance between Lord and Tenant, and Parents and Children: but by this Law of 25. E. 3. it is reduced to the Legiance onely of Man, and Wife, Master, and Servant, Clerk, and his Ordinary: the last of which was now lately taken up; and might have beene as well laid aside, as divers others were, but that in these times much is to be yeilded to the power of the Prelacy, who loved to raise the power of the Ordinary, to an extraordinary pitch, that themselves might be the more considerable.

This reducing of Treason into a narrower ground, made the Regiment of Fellonies to swell: A hard thing it was in a Warring time, for men to conceit themselves well drest, untill they were compleatly armed: Some used it for a Complement, and amongst others, honest men had as good cause to use it, as some that were ill affected, had a bad; and of the last sort, some did aime at private revenge, though many aimed against the Publique quiet. But however the intentions of men thus harnessed might be different, the lookes of them all are so soure, that its hard to know a man for Peace, from a man for Warre. And therefore the People were now so greedy after Peace, as they are ready to magnifie, or multiply all Postures of Armed men into the [Page] worst fashion, being well assured that the readiest way to keep themselves from the hurt of such men, is to have none of them at all. But Edward the Third,25 E. 3. c. 2. had more need of them then so, and will therefore allow men to ride Armed, but not to Troope together, to rob, kill, or imprison any man; and if any Person did otherwise, it should be Fellony, or Trespasse, but not high Treason.

All this was in favour to the People, and yet it was not all, for when Mercy groweth profuse, it becomes cruelty: Murder is very incident to times of Warre, yet is an Enemy to the Peace, of so high a nature, that though the Kings pardon may doe much, yet both King and People declare it an impardonable crime, by the Common Law, and that the Kings Prerogative shall not extend so farre, as to Pardon the same. This justice done to the party dead, was a mercy to them that were alive; a means to save blood, by blood-shed, and not so much by the Kings Grant, as by his Release. One thing more in these cases of blood, the people obtained of the King, which they had not so much by Release, as by Grant, and that was the taking away of Englishire, an ancient Badge of the Imperiall Power of the Danes over the Saxons, and which had either continued through the desidiousnesse of the Saxons, in the times of Edward the Confessor, unto the Normans time, or by them taken up again, and continued, untill these times that Edward the Third was so farre desirous to declare his readinesse to maintaine the Liberties of the people, as to be willing to restore them where they failed, and in particular tooke away the manner of Presentment of Englishire, 14 E. 3. cap. 4. blotting out the Title and Clause concerning it, out of the Articles of inquiry for the Judges Itinerant. And thus whether Native or Forrainer all men are now made in death equall, and one Law serves all alike,

Next unto blood, these times grew more sensible of Ravishments, then former times had done: For though they had determined a severe Penalty against so foule a Crime, and made it in the nature of Fellony capitall, which was [Page] enough to have scared any man from such attempts, yet for the proof of the matter in Fact, much rested upon the will of the Woman, which for the most part grounded upon self respects, and private prudence laboured to conceale that which could not be made whole by revealing; and by after consent skind over the sore as to themselves, which corrupted inwardly, and indangered the whole body; to cure which, a Law is made to restrain such late connivance in the Woman,6 Rich. 2. c. 6. 5 E 4. fol. 58. by depriving her both of her Joyncture, and Inheritance, which otherwise had been saved to her by such compliance, as after consent unto such violations.

CHAP. X. Of the Course of Civill Justice, during these Times.

HOwever the course of the Law concerning matters of the Crown, passed in a troubled wave, yet in matters of Common Pleas, it passed in a calme and full Channell; as the Reports in Print doe sufficiently witnesse, nor was their any change of Principles, but onely some alteration tending to a clearer manifestation of the same. I will not touch upon every particular, but onely upon two, which reflect somewhat upon the Publique pollicy, the one touching the course of Inheritance in some particular Cases; the other touching pleading in the Courts of Civill Justice.

The first of these was occasioned from Conjuncture of Affaires, the Case being such, that Edward the Third had now gotten himselfe a new Kingdome unto that of England, and must looke to maintaine that by Power, which he obtained by force, and conducing thereunto, must have continuall imployment of the English in that Service, as being most trusty to his Cause. And that it is un reasonable, that such English as had devoted themselves to his [Page] Service in this Cause, and in order thereunto, had transported themselves, and their Families into those Forrain parts, should thereby loose the benefit of Leiges,17 E. 3. n. 19. in the Birth-right of their Children, borne in those Forraine parts. Upon consideration had hereof, and of a former leading Opinion of the Lawyers and Parliament, a Declarative Law was made;25 E. 3. Stat. 2 That all Children borne without the Kings Legiance, whose Father and Mother at the time of their Birth, shall be under the Faith and Legiance of the King of England, shall have the benefit of Inheritance within the same Legiance, as other Inheritors have. These are the words of the Statute, and doe occasion a double observation, one from the matter, the other from the manner of the Expression.

The Subject matter is so delivered, not as an Introduction of a new Law, but as a Declarative of the old, that lay more obscurely hidden, for want of occasion to reveale it, and the substance thereof resteth onely in this, to enable the Children of English Natives, borne beyond the Seas; not the Children of those that are of Forraine birth, though within the Kings Teritories in those parts, as the opinion hath beene, nor doth any ancient President, or Case, warrant the same, as might be at large manifested, if it might conduce to the end of this discourse, and for the same cause, after this Statute; when as the Commons would have had a generall Naturalizing of all Infants borne beyond the Sea, within the Kings Segniories; the same would not be granted,42 E. 3. c. 10. otherwise then according to the former Statute, and the Common Law.

That which in the next place concerneth the manner of expression, is this, That a Childe is said to be borne out of the Kings Legiance, and yet the Father and Mother at the same time to be of the Faith and Legiance of the King of England: It seemeth to me, that it intendeth onely those Children of English Parents, borne within the Kings Teritories beyond the Seas, because the words insuing concerning Certification of Bastardy of such Children, are, that the same shall be made by the Bishop of such place upon the [Page] Kings Writ directed to him, which could never have passed into those places that are not of the Kings Teritories: and so the Issue will be, that the Legiance of those born in those parts, though they are Leiges to the King, yet they are not of the Legiance of the King of England, but as Lord of that Teritory.

The other matter to be observed concerning pleading in the Courts of Civill Justice, is this, That whereas anciently,36 E. [...]. c. 15. from the Normans time, till these times, the pleadings were in the Norman tongue, they shall be henceforth in English; out of an inconvenience, I beleive, rather supposed then felt: for though some kinde of knowledge of Law-termes may be increased thereby, yet unlesse that shall be professedly studied, it will breed nothing but Notions, and they an overweening conceit, which many times sets men to suites in Law, to their owne losse, like some weake influence of the Celestiall bodies, that are strong enough to stirre up humours, but not to expell them, or draw them out. However, even thus in part is the reproach of Normandy rolled away, like that of Egypt from the Israelites at Mount Gilgall.

CHAP. XI. Of the Militia in these Times.

WArre is ever terrible, but if just and well governed, majesticall; the one may excite resistance and defence, but the other Conquers, before blow given; because it convinceth the judgement, and so prevails upon the Conscience: For that heart can never be resolute in its own defence, that is at Warre with its own understanding; nor can such a heart consider such a Warre, otherwise then as Divine, and bearing the face of an Ordinance of God; and then how can the Issue be unsuccessfull. It is no strange [Page] thing for Kings to miscarry in their Warres, because its rarely seen that they are under good Councell; but if a Christian Councell miscarry, we may conclude it extraordinary, in the efficient Cause, and no lesse wonderful in the issue, and end. Upon this ground, it concerneth a Christian Nation, not onely in point of Honour, but of safety and continuance, to settle fundamentall Lawes for War, against time of War; as of Peace, in time of Peace. Neither was England deficient herein, saving that ancient times were more obscure in the particulars, and these dayes revealed them at such a time, wherein we may say, that Edward the Third, approved himself, not onely King of England, but of himself, above the ordinary strain of expectation; for being now become a famous Commander and Conquerour, having also an Army inured to fight and overcome, and so might have given a Law; he neverthelesse, received the same, submitting both it and himself to the Directory of the Parliament, in making a Warre with France, which was three to one against him in every respect, (but in the Title) besides the disadvantage from Scotland, that lay continually beating upon his reare. The like may be observed of his Warre with Scotland, in both which, he evidently telleth the World, that he held it unreasonable to enter upon the managing of an offensive Forraine Warre, without the concurrence of the common consent of the people; and that not onely for the thing it selfe, but also for his owne personall ingagement in the Service. For a King, though he be the Generalissimo, yet is he so from the people, and his person being of that high value, is not to be exposed to every occasion, that may provoke Warre, without due advice first had with the publique Councell, because in his person the people adventureth as well as himself. And in this manner were the Warres in France by Edward the Third, and in Scotland, concluded upon debate. In the next place, as touching the arraies of Men for Warre, I finde no foot-steps of any power which was claimed as peculiar to the King therein, and acknowledged by the Parliament; but many [Page] instances do I meet with in the opposite; all which do plainly tell us,13 E. 3. n. 15, 17, 18, 37, 38. 14 E. 3. n. 14, 15, 16, 19, 42, 53. 20 E. 3. n. 14. that the old shifts of Jurati and obligati ad arma, could do little either in the calling of men forth, or arming them for the Warr. But in case of publique defence against forrainers, men were summoned upon their Legiance as anciently was used. And this was by both King and Parliament fully declared, and all such obligations by writing called in and damned as dishonorable to the King. In forraine service the course was no lesse regular; if the Warr was by especiall direction of the Parliament,1 E. 3. cap. 15. they likewise ordered the manner of the raising of Souldiers, Viz. So many out of a County, and so many out of a Burrough, all which are by the expresse words of the Statute, said to be granted by the Knights and Burgesses.4 E. 3. cap. 5. But if it was only upon the Kings particular instigation and not by order or consent of the Parliament, the King in such cases being Volunteir, all the Souldiers were in like manner; unlesse some particular Law, or Tenure, otherwise obleiged them. As touching the arming of Souldiers; the Law was yet more certaine and particular. If the Souldiers were men of estate they were armed according to the ancient rule asserted by the Statute at Winton, or otherwise were especially assessed by the Parliament, or by vertue of their Tenures; the first of these is confirmed by Edward the third in Parliament,1 E. 3. cap. 5. Stat. 2. wherein he willeth that no man shal be urged to arme himselfe otherwise then hee was wont in the times of his Ancestors Kings of England. The two later were likewise confirmed by another Law, made in the same Kings time;25 E. 3. Stat. 5. cap. 8. whereby it was ordained, that no manshall be constrained to find men of armes, Hoblers, nor Archers, other then those which hold by such services, if it be not by common consent and grant made in Parliament. By men of Armes meaning those which we now call Curiasseires, or compleat armed; by Hoblers meaning those now called light horse-men. The Archers served on foot, and were Principally armed with Bowes, although they had also Swords or other such offensive portable Weapons.

[Page]The first of these concerneth only the arming of a mans owne person, the other the finding of Souldiers, and arming of them, and both together sufficient for the safegard of the rights and liberties of the people, invaded in those times, by Commissions of array; and such other expressions of Prerogative Royall; for as touching the arming of a mans owne Person, the Statute of 1. Ed. 3. formerly mentioned, is cleare in the point. And though the Statute of 25. Edw. 3. doth not in the letter direct, as touching the finding armes for others as is urged in his Majesties answer to the Declaration of the Parliament,Fol. 418. concerning the Commission of Array, July, 4. 1642. yet is it therein granted that a compleate Souldier is within the Letter of the Statute; and seeing the person of the Souldier is not in the power of any private Person in such cases to command him to the service, it seemeth cleare to me that the Statute must intend the arming of him with compleat armes,Pat. Rot. 3 E. 3. n. 18. Regist. fol. 192. a. and not the armed person of the man. The souldery thus arrayed, they are in the next place to be called by their Rendezvouz; the Knights by summons sent to the Sheriff, but the rest by Proclamation. If the Knights appeare not, a fine is let upon them; if others runne a way from their conduct, a Writt issued to the Serjeant at armes to apprehend them; if they were not arrayed,4 E. 3. cap. 5. then the recognisances of such as undertooke the worke are estreated.50 E. 3. n. 62. All plunder or spoile committed by the Soudiers in their conduct, was to be satisfied by the Conductor, or Commander, that received their Pay, or Charges for their conduct: And although the charges for conduct had formerly, De facto been defraied somtimes by the County, by vertue of Commissions that issued forth, both for the raising and conducting of them; yet was this no rule, nor did Edward the third claime any such duty, but disclaimed it, and ordained by Act of Parliament, that both the pay and conduct Money, should be disbursed by the King,1 E. 3. cap. 7. from the time of their departure from their severall Counties. For to this end (and for the safegard of the Realme.18 E. 3. cap. 7. And for [Page] the maintenance of the Warrs of Scotland, France, and Gascoigne.) The King had supply from Aids, Releifs, Wardships,14 E. 3. Stat. 2. cap. 1. Marriages, Customes, and Escheats, nor did the Parliament grant any particular Aide by assessment or publique Taxe, but when they evidently saw the burden of Warr, to be extraordinary; as it befell in the Conquest of so great and potent a Realme as France was: Wherein although the Taxes were many, yet so well ordered were they, and with that compliance from the King, that the people indured them with much patience, so long as the King lived. Lastly, in all these Cases of forraine Warrs (for of such Cases onely these Laws are to be understood) it was especially provided,1 E. 3. Stat. 2. cap. 5. that no man should be distrained, or urged against his will, to goe out of his County. But in Case of defensive Warr; the course was otherwise, for all men in such Cases are bound by the Law of Nature, to defend their owne Countrey from Invasion, in order to the safety of their owne Estates, and habitations. They were arrayed, or gathered together by Commission of Array from the King, armed according to the Laws formerly mentioned, and not by arbitrary order of the Commissioners: And by vertue of such Commissions, they were drawne forth and led to places, where need required. Sometimes to one Coast, sometimes to another, yet not altogether at the Kings pleasure, for the Parliament upon occasion set rules of restriction, and generally exempted the North parts beyond Humber, from being drawn Southward,13. E. 3. n. 18. 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,20 E. 3. n. 14. and other times wholy exempted the Countrey adjacent, within six miles of the Sea Coast. And because the King might under colour of a defence Array the People, where no such occasion led the way, and command them out of their Countyes, a Statute is made that states the Case wherein such Array shall be;1 E. 3. Stat. 2. cap. 5. the words whereof are variously set forth in the Bookes in Print, [Page] whether determinatively, or carelesly, I cannot tell, but all of them doe differ in sence one from another, and from the Truth; some of the common Books have the words thus: None shall be destrained to goe out of their Counties, unlesse for cause of necessity, and of sudden coming of Strangers, or Enemies, into the Kingdome: Others reade it thus, But where necessity requireth, and the coming of strange Enemies into the Kingdome. The Kings answer to the Parliaments Declaration, concerning the Commission of Array,Fol. 422. would reade it thus, Ʋnlesse 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 Reqaulme, In English thus, word for word, And that none be destrained to goe out of the Counties, if not for cause of Necessity, of sudden coming of strange Enemies, into, or in the Kingdome: 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 Kingdome, so as probably the Invasion must be actuall before they be drawn out of their Counties, and not onely feared; and it must be a sudden Invasion, and not of publique 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 Volunteires to that Service, seeing every Invasion is not so fatall, as to require a Commission for a Generall Array. Against what hath been thus noted, the judgement of Sir Edward Coke in Calvins Cafe lies yet in the way,Fol. 7. b. who affirmeth, that the Subjects of England are bound by their Legiance to goe with the King in his Warres, as well within the Realme, as without; and this Legiance he telleth us, is that Naturall Legiance which he saith, is absolute and Indefinite, &c. and not Locall, 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, [Page] because English men may be bound to goe out of England, by vertue of their Tenures, particular Contract, or else by speciall Act of Parliament, and not by vertue of that Naturall Legiance, which in Truth is no where.

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.11 H. 7. cap. 1. 2 E. 6. cap. 2. As touching the Statutes, one in Henry the Sevenths time, and the other in Edward the Sixths time: I shall speake 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 lesse is the modern practice of these later dayes, 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 doe 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 seeme 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, 7 Hen. 4. Protect. 100. 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 goe beyond the Sea: for the King cannot compell a man to goe out of the Kingdome, That is, (as the Reporter saith) Not without Wages; intimating thereby, that if the King shall tender wages to any man, he must goe whither the King shall please to send him, which is not onely destructive to the opinion of Thirning, concerning the Plea, but also (though granted) is destructive to the Reporters judgement in the main point: For if an English man may refuse to goe without wages, then is he not bound to goe by any naturall absolute Legiance, as the Reporter would have it. And as touching the second Case, which is Bigots and Bohuns Case, [Page] it cleareth the same thing; for it was resolved, that they ought to goe but in manner and form, according to the Statutes, then is not the ground in the absolute Legiance, for that is not qualified, but in the Positive Statute-Law, which tieth onely in manner and form, and that by voluntary consent in Parliament.

The rest of the Cases, do neither conclude the main point, nor the particular thing that the Reporter intendeth: for he would imply to the Reader, that English men were anciently used to be imprested for the Warres in France:44 E. 3. fol. 12 12 H. 4.7. 32 H. 6. fol. 4. 17 H. 6. Protect. 19 H. 6.35. and hereunto he voucheth one Authority out of ancient Reports of Law, in Edward the Thirds time, one authority in the time of Henry the Fourth, and three in the time of Henry the Sixth; none of all which doe speake one word concerning impresting, and that in Edward the hird, doth imply the contrary; for the Case is, that in a Praecipe quod reddat, a Protection was offered by the Defendant, as appointed to goe beyond Sea with the Duke of Lancaster; and the Plaintiffes Councell alledged that the Defendant had been beyond Sea, with the Duke, and was returned: To this the Defendants Councell answered, that the Duke was ready to return again; and for this cause the Protection was allowed: Yet a Quere is made upon this ground, that it might be that the Defendant would not goe over with him, nor was it proved that he would, which sheweth plainly, the party was not imprested, for then the thing had not been in his power to will or nill.

The last instance that the Reporter produceth, is that of Forinsecum Servitium, or Forrain Service, and that seemerh to be Knight Service to be performed abroad: But this falleth short of the Reporters intention in three respects,

First, though it belongeth to the King, yet not to him onely, but to other cheif Lords, so saith Bracton.

Secondly, it is not due from every English man:Bract. li. 2. fol. 36. & 37,

And lastly, it is a Service due by vertue of Tenure, and then the Conclusion will be, That which is due by Tenure of Lands, is not due by naturall and absolute Legiance: and [Page] so this Forrain Service, arising meerly by compact, and agreement between Lord and Tenant, and not by the naturall duty of an English born Subject, (which is the thing that the Reporter driveth at in all this discourse) will be so far from maintaining the Reporters opinion, as it will evidently destroy the same.

And thus the Posture of this Nation, in the Feild remaineth regular in the rule, what ever hath been said against it; notwithstanding, that in the very instant of Action, there may be some irregularity, which no doubt both was, and ever will be, in stormy times; nor did it conquer the Law: For though Warre may seem to be but a sicknesse of the State, yet being in Truth, as the Ʋltimum refugium, and onely reserve unto Law, beaten to a retreat by oppression: It is no wonder if this motion, or rather commotion that brings on the Law of Peace in the reare, be still and ever subject to a rule of Law, how unruly soever it selfe seemeth to be. Now because Law imports execution, and that presupposes a triall, and it a Court; therefore did our Ancestors (amongst other Courts not regulated by the Common Law) forme a Court for the Service of Warre, called The Court Martiall, or the Constables Court, according as the Office of one or the other, had the pre-eminence. The proceedings herein, were ordered as I said, not according to the Common Law, for that is like the Land, much distant from all other Nations, and the negotiation of this Iland with other Nations, (as in time of Peace, so of Warre,) require a rule common to all those Nations, or otherwise no negotiation can be maintained: And for this cause, the proceedings in this Court, were ever according to the rule of the Civill Law: The work of this Court is principally judiciall, and in some Cases Ministeriall.

The first reflects upon causes Forrain and Domestick, and both of those, are either Criminall, and such as concern the common Peace of the place of warre, or more civill, relating onely unto private interest. As touching the first of these, I suppose it is no Bull, to speake of a Common Peace, in the [Page] place of Warre; for a Common Peace must be in each party within it selfe, or otherwise no party at private variance can subsist within it selfe, much lesse make Warre with the other; and therefore in order unto Warre, there must be a Law of Peace, for the triall of Offenders, and punishing them, for offences committed against the good government of the Warre; such as are breaking of ranks, deserting the Standard, running away from the Colours, mutinies, murders, rapes, plunderings, private quarrells, disobedience to command, and such like; all which doe bear the shew of Crimes against the Common Peace of the Army, and the Countrey.

Of the second sort, are matters concerning Quarter, and Contracts in order to the government of the Warre, saving such as are made, before either party be Inrolled for the Warre: For if a man doth covenant to serve in the Warre,13 Rich. 2. Stat. 1. cap. 20 8 Rich. 2. n. 31. 8 Rich. 2. c. 5. Regist. sol. 191.2. and keepeth not his day at the first Rendezvouz, he is to be attached by Writ at the Common-Law. Causes Domesticall likewise fall under the like division: for whatsoever Cause may be Forrain, may also be Domestick; because the Army is ever imbodied within the Kingdom, and must be under the Directory of the Martial-Law, upon the first forming thereof. Now though the particular Lawes of the Army, for the government thereof, be ordinarily according to the Prudence of the Generall, yet certain Fundamentalls have been ab Antiquo, made by Custome, and the Parliament, against which the course of Judicature must not goe; and as the Parliament saw need, it set also particular Directions,50 E. 3. n. 33. n. 161. 3 R. 2. n. 27. as for the payment of Souldiers wages, for remedy of wastings and plunderings in their owne Countrey, and other such Emergencies. But the execution of all these Lawes Originally, was in the Martiall of the Army, and because that the Army was generally dissolved, or such persons ingaged in such matters of Controversie, departed from the Army, before the same were concluded. Therefore the Martialls Court continued in order, to the determining of these matters; and in continuance of time, other matters also crouded [Page] into that Society, although sometimes under the Directory of the Constable of England, as well as at other times under the Martiall; more particularly, that power of determining matters concerning Torniament, a sport that like a Sarcisme tickles the fancy, but wounds the heart, and being of as little use in a Common-Wealth, as of benefit; therefore is laid aside, nor need I to speake any more concerning it. There is one thing more, somewhat like a Torniament, but that it is in good earnest, and that is called Duell. This commeth likewise within the Cognisance of this Court, but in a Ministeriall way, and as subservient to the Common Law, in Cases of appeale and right: Hereof needs likewise little more then the naming, and therefore, I shall leave the Reader that would understand the particular managing thereof, unto the discourse compiled by the Duke of Glocester, Gloss. 129. in Richard the Seconds time.

Lastly, as touching the Antiquity of this Court, though it may be great, yet the power thereof was doubtfull, and scarce taken notice of in any publique Act of State, till about these times; when as a complaint was made by the Commons, for the incroachment of that Court, upon the liberty of the People, and bounds of the Courts of Common Law; Nor is it strange, that such unquiet times brought forth such Presidents, but much more strange that the Common Law held up its head against such violent irruptions of Warre.

CHAP. XII. Of the Peace.

YOu have seen the Kingdome in Armor, now see it in Robes, and you will say that its Majesty therein, is as grave, as it was in the other brave. Its true, the tempers are so contrary, as it may be wondred how one and the same should be wise and willing for both: but when God will [Page] doe much, he gives much, and can make a people as one man, like unto Caleb, fitted both for Warre and Peace: Besides, the times were now much conducing hereto, its vain to indeavour to allay humours in the body, which are maintained by Agitation, they must be purged out, or the whole will still be indangered: and therefore although Kings hitherto did indeavour to establish a peaceable Government, yet being led by ill Principles of private Interests, they laboured to little purpose: but now the Scene is altered, and one wise moderate King, that was as wise as valiant, did more then they all: And first set a rule upon his own desires, contenting himself with the condition of an English King; and then upon his people, making them contented with the condition of English men.

The order herein was no lesse observable; for the former wrangling times having trained up the minds of men in a tumultuous way, nor could they skill to pace in the steps of Peace, the King led them into Forrain parts to spend their heat, till being either weak or weary, they are contented to return home, and study the happinesse of a quiet life: these men thus ordered, the rest at home are made more coole, like a body after Physick, and all are now contented to submit to Law and Magistracy. A fitting time now it was for Justices of Peace to come upon the Stage in their best garbe: For though the work was more ancient, yet like some loose notes laid aside in severall places, it was not to be found, but at a distance, and after long delay. But Edward the Third, sums up all into one breif, and brings a compleate modell thereof into the World for future Ages to accomplish, as occasion should lead the way. The cours was now established to have Justices settled in every County, there to be resident and attending that Service. First, they were named Guardians, or Wardens of the Peace,1 E. 3. cap. 16. 1. E. 3. n. 5. 17 E. 3. n. m. 1 E. 3. cap. 6. 18 E. 3. c. [...]. but within a few yeares altered their Title to Justices. First, they were chosen out of the good and lawfull men of each County: After that they were two or three chosen out of the worthiest men, and these were to be joyned with Lawyers. Then was one Lord [Page] and three or foure in each County of the most worthy men,34 E. 3. cap. 1. adjoyned with Lawyers. Afterward in Richard the Seconds time,12 R. 2. c. 10. the number of Justices in each County might attain to the number of six, and no Steward of any Lord to be admitted into the Commission: but within half a yeare all is at large, so be it that the choise be out of the most sufficient Knights,14 R. 2. c. 12. Esquires, and Gentlemen of the County. Again, within two yeares, the number in each County, is set at eight, yet in all these, the Judges and Serjeants were not reckoned, so as the work then seemeth not so much as now a dayes, although it was much of the same kinde; and yet it grew up into that greatnesse which it had by degrees. Before, they were settled by Edward the Third, there were Custodes pacis, which might be those whom we now a dayes call the High-Constable of the Hundred, whose work was purely Ministeriall.

Afterward about the second yeare of Edward the Third, the Guardians of the Peace had power of Oier and Terminer, in matters of riding Armed upon the Statute 2. Ed. 3. After that,2 E. 3. cap. 3. 4 E. 3. cap. 2. 8 E. 3. n. 67. 18 E. 3. cap. 2. 17 R. 2. c. 10. they have power of inquiry by Indictment in certain Cases, within foure yeares after they have power of Oier and Terminer in Cases of false Jurors, and maintenance: and about tenne years after that, they obtained like power, in matters of Fellony and Trespasse. The way of Commissions in case of life and member thus opened; another occasion of Commission offers it self for a determinative power, in case of offences against the Statute of Labourers, and the Cognisance hereof is soon settled upon Commissioners in the Counties specially chosen for that Service,25 E. 3. Stat. 1. c. 7. 34 E. 3. c. 11. which questionlesse as the times then stood, was as commendable work as it was necessary: For Souldiers were so many that Labourers were very few; and those that once are accustomed to Armes, thinke ever after meanly of the handycraft; nor will they ever stoop thereto after their Spirits are once elivated by Mastery of Adventures. And secondly, those few Labourers that remained of the Sword, Plague, and other disasters of these wasting times, understood their advantage, [Page] and set a value upon their labours, far above their merit, apprehending that men would rather part with too much of a little, then to let their work lie still, that must bring them in all they have; but these Commissioners lasted not long, though the worke did: The Justices of Peace are looked upon as meet for that service,42 E. 3. c. 6. and its a vain thing to multiply Commissions, where the work may be done by one, that before this time had obtained an additionall Cognisance of all Causes of Riots, Batteries, wandering dangerous Persons, and offences in Weights and Measures, and in Purveiance.34 E. 3. c. 5, 6. To them, I say, all this work concerning Labourers, is also committed by the Parliament; and herewith a way was laid open for Crimes of greatest regard under Fellony, to be determined by triall in the Countrey, according to the course of Common Law. The issue of all which was not only ease to the People, but a great escape from the rigor of the Councel-Table in the Star-Chamber, and the Kings-Bench at Westminster, on the one side, and also from the gripe of the Clergy on the other; who hitherto held the Cognisance of the Markets in Weights and Measures to themselves. This modell so pleased all men, that Richard the Second, that was pleased with nothing but his owne pleasure, gave unto the Justices of Peace yet further power to execute the Statute at Northampton, against riotous ridings,14 R. 2. c. 12. and to settle the wages of Labourers and Servants, to punish unlawfull Huntings by the meaner sort of people, and regrators of Wooll,13 R. 2. cap. 8. cap. 13. 14 R. 2. cap. 4. 16 R. 2. cap. 4. 17 R. 2. cap. 9. fals Weights in the Staple, unlawfull wearing of Liveries, and unlawfull fishings, contrary to the Statute at Westminster, 2. Thus was the power of Justices of the Peace grown to that heighth in these and other things, that it undermined, not onely the Councel-Table and Kings Bench, but the Commissions of Gaole delivery, and of Oier and Terminer, so farre forth as their work was, much lesse then formerly, for Neighbous in cases of Crime, are better trusted, with the lives and estates of men, then strangers, so as in all this the people are still the gainers.

The manner of Judicature by these Justices of the Peace [Page] still remains: nothing appears by any Statute in these times, that one Justice of the Peace might doe alone,15 R. 2. cap. 2. but record a forcible detainer, although questionlesse in point of present security of the Peace and good behavior by the intent of the Statutes, he might doe many things, but in Cases of Oier and Terminer, all must be done in publique Sessions, which the Justices of the Peace had power to hold by Commission onely, untill the thirty sixth year of Edward the Third, and ever after that they held their Sessions, by vertue of the Statutes,34 E. 3. cap. 1. 16 R. 2. cap. 4. 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 newes, or slanderous reports, raised and spread amongst the great men: For in these times the Lords were of such considerable a 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 injoy his pleasure, would have the people know their duties in plain words,2 R. 2. cap. 6. and agreed to a Law, that all such as published such false newes, tending to sow strife between the great men,12 R. 2. c. 11. should be imprisoned untill the first mover was found, and if he were not found, then the Relator should be punished by advice of the Councell: So much power was then given to the Councell, what ever 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 feare, 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 quarrells, [...] R. 2. cap. 7. upon pain of Fine and Imprisonment, [Page] and the triall to be before the Justices of Assize, which it seems was in affirmance of former Lawes, as by the Preamble of the Statute doth appeare, though the Lawes themselves are not extant. About fifteen years after, it was by sad experience found, that the Lords maintained quarrells by multitude of Liveries, and therefore another Law was made inhibiting the Lords to give Liveries to any,16 R. 2. cap. 4. but their meniall Servants; and its ordered, that the Justices of the Peace, shall make inquiry 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 humors may so abound, as nothing will keep them in; they must either breake out into a sore, or a long sicknes of State will certainly follow; To this end therefore, the Statute made at Northampton, 2 E. 3. cap. 3. 7 R. 2. c. 13. 20 R. 2. cap. 1. is again revived, expresly forbidding all Persons to ride Armed, unles in some particular Cases of executing Justice, or guarding the Person of the King, or his Justices, and such like: And if men will be so adventerous, as to outdare Law, by publique force, Troopings together, and Riotous ridings: Another course is taken, not by Commission of the Peace, but rather of Warre, directed unto valiant persons in every County, and they have power thereby to apprehend such Offenders, and imprison them untill the Goale-delivery, though no Indictment be found thereof, untill the Goale-delivery shall be. By this Commission therefore power is given of Posse Comitatus, in nature of a Commission of Array, with an additionall 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 Warre, it is Originally from that power.

The fourth and last prevention, was the taking away means of continuance and supporting such Riotous wayes,13 R. 2. cap. 15 Viz. Castles and Goales out of the Custody of private hands, and restoring them to their Counties.: For Goales and Castles are taken promiscuously for places of security, in times of Peace [Page] to keep ill persons from going out, and in times of Warre, 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 Gaole-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 Assilum 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 yoake of the Statute, 13 E. 1. For remedy of all which, the Kings Castles are once more returned to the Sheriffes Custody, by Act of Parliament; who questionlesse hath the power to dispose of all places of Strength, whether in order to Peace, or Warre, and could not dispose them into a more fafe, and indifferent hand, then the Sheriffes; who is as well the Kings Officer, as the Kingdomes Servant, and much intrusted by the Law in the execution of its owne power. And thus is this Nation now prepared for a settled Peace, a Condition that is long in ripening, and soon rotten, unlesse 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 inforces into Forrain Countries; and himselfe holds on his careere over hedge and ditch into Ireland, where under pretention of holding Possession of that Kingdome, he lost England, and whiles he playes his game in that Country, another playes King, by your leave, in this, and steps into the Throne; teaching the King thereby this lesson, though too late; That Nonresidency is dangerous for a Preist, but unto a Prince, fatall, unlesse his Subjests be fast to him, when he is loose to them.

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CHAP. XIII. A view of the summary Courses of Henry the Fourth, Henry the Fifth, and Henry the Sixth, in their severall Reignes.

HE that played this pranke was the banished Duke of Hertford, sonne of John of Gaunt, and by his death, now become Duke of Lancaster by Title, and as the times then were, it proved not hard to get more: For in uncertain Common-wealths, it is an easie thing for a man of opinion, that hath lesse then his due, to get more then he ought. As sonne of John of Gaunt, this Duke had the peoples good wishes; he (a wise and a brave man, and under oppression) gained the more upon the people, by how much they love brave men, and compassionate, such as suffer wrong, especially from such persons, from whom they all found the like measure. All these concurring with the Kings absence, invited the Duke to adventure himself upon the influence of the peoples favour, to gain his own right, and what more the people would allow him; and if no more, yet his Honour is saved, he came for his own, and attained his end.

Thus then he comes over, without Army, or Forraine power, or other help, saving the advice and interest of Arch-Bishop Arundell, who was his Companion in suffering, Partner in the Cause, and no lesse welcome to the Clergy, then the Duke himself was to the people; and so gained power to the Duke, though he brought none. Upon their Arivall the aspects of all are benigne; the Dukedome waits for him, [Page] and in that, as in a mirrour he beholds the way fair and easie; yet further, it pities him to see the Kingdome so torne in peices and spoyled: The People knew him able, and hoped him willing to amend all; they offer him their Service, which he accepts, and therewith the Crowne: so hard a thing it is for to put a stop to a Conquerour in his careere.

By this time was the Duke of Hertford thus become Duke of Lancaster, and King of England, under the name of Henry the Fourth, by a designe, that in the proof was more easie then commendable; and which being effected, cost more skill to make that seem fair, which was so foul, then to accomplish the thing. He therefore first heaps together Titles, enough to have buried the clamour of Usurpation, if it would have succeeded. Conquest was a Title freest from dispute, whiles Power holds; but it lookes better from a Forrain Enemy, then one sworn to the English Crowne; and therefore after that had served his turne, he disclaymed it as that which was, though meet enough to have, yet unmeet to hold.

His right by Designation from his Predecessour, he glanced upon, but durst not adventure it too deep into the Peoples consideration, whose Ancestors had formerly over-ruled the Case against King John. He then stayed upon a concealed Title, from a concealed Sonne of Henry the Third, of whom they who listed might be perswaded; but few beleived the thing, nor did himself, but thence takes his flight up to a Jus Divinum, or some hidden Fate that called him to the worke; but even there his wings failed him, and so he falls flat upon the Peoples Election, De bene esse. Some of these, or all together might make Title enough for a great man that resolved to hold by hooke, what he had got by crooke; and therefore trussing them up all together, he enters his claime to the Crown, As comming from the blood Royall from King Henry, and through the Right that God his grace hath sent me; with the help of my Kinne, and Freinds, to recover the same, which was in point to be undone, for want of good Governance, and due Justice: The extract of all, is, that he was chosen [Page] by the People and Parliament then sitting: And allbeit that by the Resignation of Richard the Second, the Parliament might seem, in strict construction of Law, to be expired, together with the Kings power, who called them together, yet did not that Parliament so apprehend the matter, but proceeded, not onely to definitive Sentence of Deposing him, but declared themselves by their Commissaries, to be the three States, and Representative of the People of England, maintaining thereby their subsistency by the Consistence of the Members together, although their Cheif was for the present like a head in a trance, till they had chosen Henry the Fourth to succeed in the Throne, by this means preventing the conceit of discontinuance in the very Bud of the Notion.

Much like his entry was his continuance, a continuall tide of Forraine and Domesticke Warre and Conspiracy, enough to exercise his great Courage, although he was more Wise then Warlike, being loath to take up Armes; (for well he knew, that a sick Title never sleeps but in a Bed of Peace) and more loth to lay them down; for besides Victory, whereby he gained upon his Enemies in time of Warre; he knew how to make advantage of them in time of Peace, to secure his Freinds to keep others in awe, to inforce such Lawes as stood with reason of State, and the present posture of Affaires, and where Lawes failed, to fill up the period with Dictates of his owne will. And upon this Account the Product was a government full of Ulcers, of Blood-shed, without regard of Persons, whether of the Lay, or Religious Order, without Legall triall, or priviledge of Clerke. So was Arch Bishop Walden Dethroned, Arch Bishop Scroope put to death, and Dukes were dismounted without Conviction, or Imputation, saving of the Kings displeasure: Taxes multiplied, although begotten they were upon the Parliament, like some monstrous Births shewne to the World, to let it know what could be done; but concealed by Historians,Walsing. to let it know what may not be done. Yea, the priviledges of Parliament invaded in point of Election: A thing that [Page] none of his Predecessors ever Exemplyfied to him, nor none of his Successors ever Imitated him in; nor had he purposed it, but that he was loath the People should know more of the Government then needs must.

To keep off Forrain troubles, he made Peace with France, for longer time then he lived; yet was ever infested with the Sword of Saint Paul, in behalf of Richard the Seconds Queene, and with the Factions betweene the Houses of Orleance, and Burgundy, in which he had interested himselfe to preserve the Forraine Neighbour-hood in Parties one against another, that himselfe might attend his owne Security at home. He would have moved the Scots, but they were already under English Banners; nor could he reach so farre, having so many Enemies even in his owne bosome. The Welsh were big with Antiquity, and Mountains of Defence; they beginne to bethinke themselves of their Ancient Principality, hold the Kings Armes at hard Duty,2 H. 4. cap. 12. 4 H. 4. cap. 26.32. & cap. 19.20, 28.31. till by Lawes enacted in Parliament, they lost their Liberties of bearing Office Ministeriall, or of Judicature, of holding Castle, of Convention without the Kings Licence, yea, of Purchase; and so by degrees were brought downe 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 Mortimars 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 finde out the Root of All, or to strike at that.

Lastly, when time had made all troublers weary, yet he stil sits upon thornes; 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 Crowne. For the most part of his Reigne, he was troubled with the walking Ghosts of Richard the second; ever and anon he was alive, he was here, he was there, and so the Peoples mindes were alwayes kept at random; but when all these [Page] Spirits are conjured downe, Richard the seconds Ghoste is yet within Henries owne breast. So ruled Henry the fourth, an unhappy confident man, that durst undertake more then he would, did more then he ought, was successfull in what he did, yet never attained his end; to be sure of his Crowne, and quiet of minde. For a plaister to this sore, he turned somewhat towards Religion; but shewed it more in Zeale to Church-men, then workes of Piety, and therefore may be thought to regard them, rather as his best freinds in right of Arch Bishop Arundell, then as in relation to Religion; yet as if he overlooked that,Hist. Eccles. Ang. 618. he desires their prayers, becomes a strict observer of superstitious rights, is fiery Zealous against the Lollards, intends a journey into the holy Land, and Warr against the Infidels, (the common Physick of guilty Kings in those dayes.) Breifly, he did will to do any thing but undoe what he had done; and had done more, had his journey to the holy Land succeeded; but (whither hastned or delayed, by a prophesie of the ending of his dayes, falls not within my Penn to censure:) entring upon the worke he died; in the beginning of his purposes, in the midst of his feares, never came to the holy Land, and yet yeilded up his last breath in Jerusalem.

THe Parliament was then sitting,Henry the Fifth. and was witnesse of the death of Henry the fourth, as it had beene of his entrance upon the Throne, as if purposed to see to the cours of the Crowne, in the doubtfull currant; betweene the two Houses of Lancaster, and Yorke, and to maintaine their own honor in directing the Scepter according to their warranty upon a late intaile by act of Parliament; yet did not all rest upon this; for the Heire of Henry the fourth was a man every inch of him, and meant not to Moote upon the point: His Father died a King, and he his Heire; had the Crowne, and was resolved to hold it: A rough young man he had beene formerly, and bold enough to outface small doubts in point of succession, for he could (for a need) outface [Page] common civility it selfe. This might have lien in his way, for he that cannot govern himselfe, can much lesse govern a Kingdome: Yet a hidden Providence concluded quite contrary, and rendred him a cleare testimony of a strange change by the annointing oyle, 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 parallell in Government and superiour in successe. Being seated in the Throne, all men thought it dangerous to abide the adventure of the turne of this Kings Spirit. The Clergy had but yesterday tryed the Mastery with the Laity, and gained it but by one Vote; there was no dealing with the Clergy, while Arch Bishop Arundell lived, nor with him whiles Henry the fourth lived, or his merits were in memory, but now they both are dead, the Clergy, and the Laity, are upon even ground; this might make the Clergy 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 quarrells; and jumped in one, that he that would be in action should act abroad, where he might get renowne, and a purchase big enough for his Spirit. Scotland was a Kingdome yet incompetent to the Kings appetite. France was the fairer marke and better game, and though too big for the English gripe, yet the Eagle stooped, and sped himselfe so well, as within six yeares he fastned upon the Sword and Scepter, and a daughter of France, and might have seised the Crowne; but chose to suffer a blurr to lye upon his title derived from Edward the third, rather then to incurr 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 into his lap, by a better Law then that of the Sword; otherwise it might be well conceited, that he that hath both right and Power, and will not seise, disclaimes. Besides the King was as well Inheritor to his Fathers Fate as Crowne; still he had successe, but the end [Page] was so farr distant that he died in the way thereto▪ The brave Dauphine of France maintaining Warr (after his Father, the French King had yeilded up the Bucklers to Henry the fifth) till Henry the fifth died, and the English did foregoe what they had formerly gotten in France, by the Sword of that great Commander. Nor did the English gaine any thing in the conclusion of this Warr, but an honorable windy repute, of being one of the five cheif Nations of Christendome, (if honor it be to be reputed amongst the Nations) a Conquerer of France; the cheif 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 Popedome, which had spent the bloud of two hundred thousand mens lives lost in that quarrell.

These forraine ingagements made the King lesse solicitous, of point of Prerogative at home; and the rather, because he knew the way to conquer; his private enemies armes, and his Subjects hearts; without losse of honor in the one, or reverence in the other. He loved justice above the ranke of his Predecessors, and in some respects above himselfe; for he advanced Gascoigne for doing justice, though to the Kings owne shame. He liked not to intrude himselfe into elections, and therefore though requested by the Monks of Canterbury, Antiq. Brit. he would not nominate a Successor to Arch Bishop Arundell, but left the whole worke to them. In the authority of his place, he was moderate, and where his Predecessors did matters without the Lords consent,Walsing. when he made his Uncle the Marquis of Dorcet Duke of Exceter and had given him a pention to maintaine that honor, he asked the Lords consent thereto. To the Clergy he was more then just, if not indulgent, led thereto by his Fathers example, as being wrapped up in the same Interest as I conceive, rather then out of any liking of their wayes, now growing more bold upon usurpation then in former times. Or it may be that having prevailed in that work in France, which to any rationall man [Page] must needs appear above the power of the King, and all the Realm of England; he looked upon it as more then humane, and himself as an instrument of Miracles; and was stirred up in his zeal to God, according to his understanding in those darke times, to give the Clergy scope, and to pleasure them with their liberty of the Canon Law, that began now to thunder with fire and terror, in such manner, that neither greatnesse nor multitude could withstand the dint, as was evidenced in that Penance inflicted upon the Lord Strange, and his Lady,Antiq. Brit. 285. in Case of bloodshed in Holy Ground, and their hot pursuit of the Lord Cobham, unto a death of a new Nature, for somewhat done, which was sometimes called Treason, and sometimes Heresie: And thus became Henry the Fifth baptized in the flames of the Lollards, as his Father had sadly rendered up his Spirit in the same. I say, in this he is to be looked upon, as one misled for want of light, rather then in opposition against the light: For in his last Will, wherein men are wont to be more serious and sincere; amongst his private regards, he forgets not to reflect upon Religion to this purpose; We further bequeath (saith he) to the redundant Mercy of the most excellent Saviour, the Faith, Hope, and Charity, the Vertue, Prosperity, and Peace, of the Kings our Successours, and of our Kingdome of England; that God for his Goodnesse sake would Protect, Visite, and Defend them from Divisions, Dissensions, and from all manner of deceitfulnesse of Heretiques. And thus Piety, Justice, and Moderation of Henry the Fifth, Adorned and Crowned the honour of his Courage, and Greatnesse, with that honourable Title of Prince of Preists; and had he been blessed with a clearer light, he might as well under God have obtained the Title of Prince of Princes, wanting nothing that might have rendered him a president of Fame.

[Page]BUt the time is now come,Henry the Sixth. that the Tide of Englands Glory must turn, and the sudden Conquest in France, by Henry the Fifth, not unlike the Macedonian Monarchy, must disgorge it selfe of what it had hastily devoured, but never could digest. Three things concurred hereunto, one dangerous, the other two fatall to the flourishing condition of any Nation.

First, the King is a Minor in the least degree that ever any Prince sate on English Throne; He entered thereinto, neither knowing what he did, nor where he was; and some say, he sate therein in his Mothers lap: for his life had been more in the wombe, then abroade. A sad presage of what followed, for many men thinke that he was in a lap all his dayes. Nor are the cheife men to be blamed herein, for its a certain Truth, that its much better that Election of a King should be grounded upon a rule that is known, though it be by discent of Inheritance, then upon none at all. For if a Childe should succeed, or a Lunaticke, yet where the Principle of Government resteth upon the Representative of the People, there is the lesse cause of complaint, the Government being still the same, both for Wisedome, Strength, and Uniformity; though it may be the Nation not so active and brave. For a Common-wealth can admit of no Minority, though a Monarchy by descent may.

Secondly, this deficiency in Nature might have been supplied, but that these times were unhappy in the great power of the Lords; to please whom, the Government is parcelled out into two shares: One is made Protectour of the Kings Person, the other Protectour of the Kingdome; too many by one: For let their Persons be never so eminent for Abilities, if they be not as eminent for Humility, and selfe-Command, their hearts will soon over-rule their heads into a Faction: And therefore though the Earle of Warwicke was a wise man, and the Duke of Glocester, a wise man, yet the Earle of Warwicke with the Duke of Glocester were not wise. On the other side, the Protectorship of the Kings [Page] Person, being in the Duke of Exceter, and that of the Realm in the Duke of Glocester; things succeeded passing well, for they both had one publique aime, and the Duke of Exceter could comply with the Spirit of the Duke of Glocester, who otherwise was not so pliant: But after five years, the Duke of Exceter dying, and the government of the Kings Person devolving to the Earle of Warwicke, who sided with the proud Cardinall of Winchester, against the Duke of Glocester, and so not onely consumed the rest of the Kings Nonage in a restlesse disturbance of Affaires, but also dispoyled Henry the Sixth, of the spirit of a King for the future, and so the Kingdome of a King: For it was not the condition of Henry the Sixth, to be indowed with a spirit of such height, but might well have been led by advice, and needed not the Earle of Warwicke rugged brow, to overlooke him; who was not content to have the King onely attendant upon his advice; but must likewise have him under his rod, to be corrected for his faults, and that by a Commission under the Kings owne hand and seale, dated in the eleventh yeare of the Kings Reigne, and so under colour of Curbing, he killed that spirit in the King, which otherwise, doubt lesse, had both spirit and pride enough to act himself above his due height, and could not have been so long a Childe, and so little a Man as he was.

It is very true, that Henry the Fifth by Will, seemed to countenance his Brothers, and it cannot be denied but the Duke of Glocester, was of such noble parts, that they could hardly dilate in any work inferiour to the government of a Kingdome. Neverthelesse, to yeild much to the will of a diseased King in such Cases, is as ill a President, as the making of a King by Adoption: and it had been better for the People to have adhered to the Duke of Glocester alone, then by joyning him with another, bring into president such a luxurient Complement of State, as a Protectorship of a Kingdome, which is of such little use to a Common-wealth, and of so bitter Fruit to the Party, as must needs bring repentance when it is too late: For he that can manage the [Page]Protectorship of a Realme, without anger of good men, or envy of bad men, is fitting to live onely with Angels, and too good for the World. Nor did the Duke of Glocester meet with better measure, how wise soever he was, and truely devoted to the good of the Realme: For after foure and twenty years government, so wisely and 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 darke, because the Cause durst not indure the light.

Now is Henry the Sixth, perswaded that he is of full age, he had laid aside his Guardian, the Duke of Glocester; but forgetting to sue out his Livery, he betakes himself from the Grace of God, into the warm Sunne, (as the Proverb is) changing the advice of a faithfull experienced wise Councellour, for the government of an Imperious Woman, his Queen, who allowed him no more of a King, then the very Name; and that also she abused to outface the World: and after she had removed the Duke of Glocester out of the way, undertook the sway of the Kingdome in her own Person, being a Forrainer, neither knowing, nor caring for other Law, then the will of a Woman.

Thus the glory of the House of Lancaster goes down, and now a Star of the House of Yorke appears in the rising, and the People looke to it. The Queene hereat becomes a Souldier, and begins the Civill Warres, between the two Houses, wherein (her English party growing wise and weary) she prayes aide of Ireland, a Nation that like unto Crowes, ever wait to prey upon the infirmities of England. The Warres continue about sixteen yeares by fits, wherin the first losse fell to the English party, the pretentions being yet onely for good Government: Then the Feild is quiet, for about foure yeares, after which the clamor of ill Government revives, and together therewith a claime to the Crown by the House of Yorke is avouched; thereupon the Warres grew hot, for about foure yeares more, and then an ebbe of as long quiet ensues. The Tide at last returnes, and in [Page] two yeares Warre,Comin. lib. 1. cap. 7. ends the quarrell, with the death of fourescore Princes of the blood Royall, and of this good man, but unhappy King. Unhappy King, I say, that to purchase his Kingdomes Freedome from a Forraine Warre, sold himselfe to a Woman, and yet lost his bargaine, and left it to Observation; That a Conscientious man, that marries for by-regards, never thrives: For France espied their advantage, they had maintained Warre with England, from the death of Henry the Fifth, with various successe: The Duke of Bedford being Regent for the English, for the space of fourteen yeares mightily sustained the fainting condition of the English affaires in those parts, and having Crowned his Master Henry the Sixth in Paris, in the ninth yeare died, leaving behinde him an Honourable Witnesse, even from his Enemies, That he was a brave Commander, a true Patriot, and a faithfull Servant, to his Lord and Brother Henry the Fifth, and to his Sonne 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 blood, and interest; and what they could not effect by Armes in their own Feild, they did upon English ground by a feminine Spirit, which they sent over into England to be their Queen, and in one Civill Warre (shedding more English blood by the English Sword, then they could formerly doe by all the men of France) were revenged upon England to the full,Comin. lib. 3. cap. 8. at the English mens own charge: For what the English gain by the Sword, is commonly lost by discourse. A Kingdome is never more befooled, then in the Marriage of their King; if the Lady be great, she is good enough, though as Jezabell, she will not either reverence her Husband, obey her Lord and King, nor regard his People. And thus was this Kingdome scourged by a marriage, for the sinne of the Wise men, that (building upon a false Foundation) advised the King in the breach of Contract with the Earle of Arminiacks Daughter. And thus the King also [Page] for that hearkning to such Councell, he murthered the Duke of Glocester, (that had been to him a Father) yeilded up his Power to his Queen, (A Masterlesse 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 owne Issue, to the Line of Yorke; then renewing the Warre (at his Queens beck) lost what he had left of his Kingdome, Countrey, and Liberty, and (like the King that forgot the kindnesse of Jehojada) lost his life by the hand of his Servant.

CHAP. XIV. Of the Parliament, during the Reignes of these Kings.

THe interest of the Parliament of England, is never more Predominant, then 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 claimes, by devising their Crowne in their last Will; but the successe 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 himselfe.

Not much unlike hereunto, is the Case of Henry the Fourth, who like a Bud, putting up in the place of a fading Leafe, dismounts his Predecessor; First, from the Peoples [Page] regard, and after from his Throne, which being empty, some times he pretending 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 worke.) But when he comes to plead his Title to Forrain 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 speciall Cases as a sufficient barr 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, unlesse his next Successors follow the dance upon the same foote; to this end an Act of Parliament leades the tune, whereby the Crowne is granted or confirmed to Henry the Fourth for life, and intailed upon his Sonnes, Thomas, John, and Humphrey, by a Petition presented, 5. Hen. 4.

7 H. 4. cap. 2. 8 H. 4. n. 38.Thus Henry the Fourth, to save his owne stake, brought his Posterity into the like capacity with himselfe, that they must be Kings, or not subsist in the World, if the House of Yorke prevailes; and so he becomes secured against the House of Yorke, treading on his heeles, unlesse the Parliament of England shall eat their owne word: However, for the present the House of Lancaster hath the Crown intailed, and the Inheritance is left in the Clouds to be revealed in due time. For though this was the first president of this kinde, yet was it not the last,39 H. 6. n. 18. wherein the Parliament exercised a Power by Grant or Confirmation, to direct the Law and Course of the Crown as they pleased.

The due consideration hereof, will make the things that follow lesse strange; For the Parliament according to occasion, as the Supreame power of this Kingdome, exercised Supreame Jurisdiction in order to the safety of the Kingdome,1 H. 6. n. 12, 13 as if no King had beene to be found, in issuing forth Writs under the great Seale; concluding of matters [Page] without the Royall assent:6 H. 6. n. 22. 1 H. 6. n. 2.4. 9 H. 4. n. 21. treating of Peace with Forrain Nations, and of other matters, and determining their Resolves before discovery made to the King of their Councells; making Ordinances, and ruling by them, 3 H. 6. n. 29. 2 H. 6. n. 27. 8 H. 6. n. 12. referring matters determinable in Parliament, to be determined according to their directions, Authoritate Parliamenti: Confirming Peace made by the King,4 H. 6. n. 15. Cir. 3. & 4. H. 5. n. 14. protesting against Peace, made without, or against their consent: making Ambassadours with power to ingage for the Kingdome: making Generals of the Army, Admiralls at Sea,3 H. 6. n. 19. 1 H. 6. n. 16. & 4. H. 6. 8 H. 6. n. 27. Chancellors, Barons, and Privy Councellors, and giving them instructions, 8 H. 4. n. 73. & 76. & 31. 5 H. 4. n. 57. 31 H. 6. n. 21. and binding them to observance upon Oath, 11 H. 4. n. 19.39. Ordering the Person of the King,28 H. 6. n. 51. 23 H. 6. n. 51, 52. 17 H. 6. n. 11. 8 H. 4. n. 71. denying his power of Judicature in Parliament, and ordering his Houshold and Revenue; besides many other particulars.

Now if such as these things were thus done, not by one Parliament, which possibly might be overwayed by Factions, but by the course of a Series of Parliaments, that mightily laboured against Faction, and unworthy ends and aimes, that man shal determin the same to be unjust or indiscreet, should himself first be determined to be very just, and exceeding wise. Nor was the Parliament partiall in all this, but being in a way of Reformation, it set upon the work of reforming it selfe.

Some that are very zealous in the point of Arbitrary and absolute Government of Kings in this Nation, and all in other, amongst other grounds, rest upon this one, That an English King hath power to call Parliaments, and dissolve them; to make and unmake Members as he shal please. I do easily grant that Kings have many Occasions and Opportunities to beguile their People, yet can they do nothing as Kings, but what of right they ought to doe: They may call Parliaments, but neither as often or seldome as they please, if the Statute-Laws of this Realme might take place: Nor if they could, is that power necessarily, and absolutely arising from Supremacy; seeing it is well known that such power is betrusted [Page] by the Superiour States in other Nations, to the Inferiour, who dayly attend on publique Affaires, and therefore can discern when the generall Conventions are most necessary. As touching the dissolving of Parliaments against the wills of the Houses, its true that sad Presidents have beene of later times in that kinde; and so for want of due attendance, Parliaments have been inforced to adjourn, to prevent a worse inconvenience; but these are infirmities, better buried in silence, then produced as Arguments of power, seeing its evident that Kings themselves were no greater gainers thereby, then an Angry man is by his passions. It is true also that Kings may make Lords, and Corporations, that may send their Burgesses to the Parliament, and thus the King may make as many as he will (as the Pope did with the Bishops in the Councill of Trent) yet cannot he unmake them when he pleases, nor take the Members from the Parliament, without attainder and forfeiture, according to the knowne Law: Neither can all these Instances prove, that the Kings of England have the sole and supreame Power over the Parliament: Nor did the Parliament in these times allow of any such Authority, and therefore proceeded for the reforming of themselves, by themselves, in many particulars as the Statutes do hold forth.

7 H. 4. cap. 15.And first in the point of Elections, (for an error in that, is like an error in the first Concoction, that spoiles the whole Nutriment,23 H. 6. cap. 15.) they ordained that the Election of Knights shall be at the next County Court, after the Writ delivered to the Sheriffe.

That in full Court betweene the houres of eight and nine in the morning, Proclamation shall be made of the day and place of the Parliament. That the Suters duely summoned, and others there Present, shall then proceed to the Election; notwithstanding any Prayer or Commandement to the contrary. That the names of the Persons elected, (whether present or absent they be) shall be returned by Indenture, betweene the Sheriffe and the Elizors; and that a Clause to that end shall be added to the Writ of Summons.

[Page]This was enough to make the Sheriffe understand,11 H. 4. cap. 1. 8 H. 6. cap. 7. 23 H. 6. c. 15. but not to obey, till a penalty of one hundred pound is by other Lawes imposed upon him, and a yeares imprisonment without Baile or Mainprise, besides damages for false return in such Cases: and the party so unduely returned, Fined, and deprived of all the wages for his service. Thus the manner of Election is reduced; but the Persons are more considerable: For hitherto any man of English blood promiscuously had right to give or receive a Vote, although his residency were over the wide World.

But the Parliament in the time of Henry the Fifth,1 H. 5. cap. 1. 8 H. 6. cap. 7. reduced these also, (whether they were such as did chuse, or were chosen) unto their proper Counties, or else rendered them uncapable to Vote or serve for any County. And the like Order was made for the Burroughs, Viz. That no Person must serve for any City or Burrough, 23 Hen. 6. cap. 15. nor give Vote in Electing such as shall serve for that Towne, unlesse they be both Free, and Resiants within that City or Burrough: A Law no lesse wholsome then seasonable. For the times of Henry the Fourth, had taught men to know by experience, That a King that hath Souldiers scattered over the Kingdome, can easily sway the County-Courts, and make Parliaments for their owne tooth. Yet this was not enough, For all Elizors, though of the meanest sort, yet are still able to doe as much hurt with their Vote, as those of the best sort both for wisedome and publique minde, can doe good by theirs. This made Elections much subject to parties, and confusions, and rendered the Parliament much lesse considerable.

A remedy hereunto is provided, in the minority of Henry the Sixth,8 H. 6. cap. 7. Viz. That no man should give his Vote in Elections in the County, unlesse he hath forty shillings yearely in Free Lands or Tenements, and this is to be testified upon Oath of the Party. And more plainly it is ordered (within two yeares after) that each Elizor shall have Frank Tenement of that vallue within the same County.10 H. 6. cap. 2. And thus the Freemen yeilded up their liberty of Election to the Free-holders, [Page] possibly not knowing what they did; Neverthelesse, the Parliament well knew what they did; this change was no lesse good then great.

For first, these times were no times for any great measure of Civility: The Preface of the Statute shewes, that the meanest held himself as good a man, as the greatest in the Countrey, and this tended to parties, tumults, and bloodshed.

Secondly, where the multitude prevaile, 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 then by right Understanding, make their Elections, and thereby the Generall Councell of this Nation, lesse generous and noble.

Thirdly, there is no lesse equity in the change, then policy: for what can be more reasonable, then that those men onely, should have their Votes in Election of the Common Councell of the Kingdome, whose Estates are chargeable with the publique Taxes and Assessements, and with the wages of those persons that are chosen for the publique Service: But above all the rest, this advancing of the Free-holders in this manner of Election, was beneficiall to the Free-men of England, although perchance they considered not thereof; and this will more clearly appeare 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 rendered 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 publique regards, and (under a kinde of Ambition) to aspire unto the degree of a Free-holder. that they may be some what in the Commonwealth, and thus leaving the meanest rank sifted to the very branne, they become lesse considerable, and more subject to Coercive power, whiles in the mean time the Free-holder now advanced unto the degree of a Yeoman, becomes no [Page] lesse carefull to maintain correspondency with the Lawes, then he was industrious in the attaining of his degree.

Thirdly, by this means now the Law makes a separation of the inferiour Clergy, and Cloystered 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 neverthelesse Fsee-men in Fact, and lost not the liberty of their Birth-right, by entering 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,23 H. 6. c. 15. 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 Countrey; which tacitely 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 rudenesse) 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, then they are to their Fethers, to were them no longer then they will make them brave. Secondly, the Person thus agreed upon, his intertainment must be accordingly, and therefore the manner of taxing in full County,23 H. 6. c. 11. and levying the rate of Wages for their maintenance, is reformed and settled. And lastly, their Persons are put under the Protection of the Law in an especiall manner, for as their work is full of reflexion, so formerly they had met with many sad influences for their labour.11 H. 6. c. 11. And therefore a penall Law is made against force to be made upon the Persons of those workmen of State, either in their going to that Service, or attending thereupon, making such Delinquents liable to Fine and Imprisonment, and double damages. And thus however the times were full of confusions, yet a foundation was laid of a more uniforme Government in future times, then England hitherto had seen.

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CAHP. XV. Of the Custos, or, Protector Regni.

KIngs though they have vast dimensions, yet are not infinite, nor greater then the bounds of one Kingdome, wherein, if present, they are in all places present; if otherwise, they are like the Sunn gone down; and must rule by reflexion, as the Moone in the night: In a mixt common wealth, they are integrall members, and therefore regularly must act; Per deputatum, when their Persons are absent in another Ligialty, and cannot act, Per se: Partly because their Lustre is somewhat eclipsed by another Horizon; and partly because by common intendment they cannot take notice of things done in their absence. It hath therefore been the ancient course of Kings of this Nation, to constitute Vicegerents in their absence' giving them severall titles, and severall powers, according as the necessity of affaires required: Sometimes they are called Lord Warden, or Lord Keeper of the Kingdome, and have therewith the generall power of a King,Rot. Pat. 24. E. 1. m. 4. as it was with John Warren Earle of Surry appointed therunto by Edw. the first, who had not onely power to command but to grant, and this power extended both to England and Scotland. And Peter Gaveston (though a Forrainer) had the like power given him by Edward the second over England, Rot. Pat. 1. E. 2. m. 2. to the reproach of the English Nobility, which also they revenged afterward. Somtimes these Vicegerents are called Lievtenants, which seemeth to conferr onely the Kings power in the Militia, as a Lievtenant Generall in an army. And thus Richard the second made Edmund Duke of Yorke, his Lievtenant of the Kingdome of England, to oppose the entry of the Duke of Hertford. (Afterwards called Henry the fourth) into England, during the Kings absence in Ireland: And in the mean while the other part of the Royalty which [Page] concerned the revenues of the Crowne was betrusted to the Earle of Wiltshire, Sir John Bush, Sir James Baggot, and Sir Henry Green, unto whom (men say) the King put his Kingdome to farme. But more ordinarily the Kings power was delegated unto one, under both the titles of Lord Gaurdian of the Kingdome, and Lievtenant within the same; such was the title of Henry Lacy Earle of Lincolne, and of Gilbert De clare Earle of Glocester, and of Audomar De valentia, Rot. Pat. 4 E. 2. Ps. 1. m. 18. Earle of Pembroke, all of them at severall times so constituted by Edward the second, as by the Patent Roles appeareth: So likewise did Edward the third, make his Brother John of E [...]tham twice, and the black Prince thrice, and Lionell Duke Clarence, and his Brother Thomas, each of them once in the severall passages of Edward the third beyond the Sea, in the third, fifth, twelfth, fourteenth, sixteenth, nineteenth, and thirty third years of his reigne concerning which see the Patent Rolls of those yeares.10 Hen. 5. p. 1 m. 9. And Henry the fifth gave likewise the same title and authority to the Duke of Bedford, upon the Kings voyage into France;7 Hen. 5. m. 23 and afterward that Duke being sent over to second the King in the French Wars, the Duke of Glocester obtained the same power and place. But Henry the sixth added a further title of Protector, and Defendor of the Kingdome and Church of England;1 Hen. 6. p. 2. m. 3. this was first given to the Duke of Bedford, and afterwards he being made Regent of France, it was conferred upon the Duke of Glocester. And towards the later time of Henry the sixth, it was granted by him to Richard Duke of Yorke. 32 H. 6. m. 7. This title carried along with it a power, different from that of a King onely in honor, and the Person so adorned may be said to sway the Scepter, but not to weare the Crowne. And therefore in the minority of Henry the sixth, when as the Government was ordered by the Parliament, and to that end a Protector was made, and he wel guarded with a Privy Councill, and they provided with instructions, one of them was, that in all matters not to be transacted ordinarily but by the Kings expresse consent, the Privy Councell should advise with the Prorector; but this [Page] is not so needfull, in regard that it concerneth the power of executing of Lawes, which by right of the liberty of the Subject is the known duty of the Scepter, in whose hands soever it is holden. And therefore I shall passe to the Legislative power, wherein its evident that the Protectors power was no whit inferiour to the Kings power. For first the Protector, Ex officio, by advice of the Councell, did summon Parliaments by Writs, even as the Kings themselves, under their owne Teste; and if not bear the Royall Assent, yet did they direct the same, and received Petitions in Parliament to them directed as to Kings, and every way supplied the roome of a King, in order to the perfecting, publishing, and inforcing of Law to Execution, Secondly, the Parliaments holden by Protectors, and Lawes therein made, are no whit inferiour to those by the King, whether for Honour, or Power: And therefore, if a Parliament be-holden by the Lord Warden, and sitting the Parliament, the King in person shall arrive, and be there present; neither is the Parliament interrupted thereby, nor the power thereof changed at all; though the power and place of the Wardenship of the Kingdome, doth utterly vanish by the personall accesse of the King; because in all Cases where the King is subservient to the Kingdome, or the Common-wealth: The Lord Warden in his absence is conservient unto him, being in his stead, and not under him, for the very Place supposeth him as not, because not present. And this was by a Law declaratively published at such time as Henry the fifth was Regent of France, and therefore by common presumption,8 H. 5. cap. 1. was likely to have much occasion of residence in that Kingdome, and it holdeth in equall force with all other Lawes of the highest Size, which is the rather to be noted because it is (though under a Protector) obligatory to the King, and makes his personall presence no more considerable then the presence of his shadow. For the King spent three whole yeares in the French Warres, and during that time never saw England, where neverthelesse in that interim three Parliaments had been holden, one by the Duke of [Page] Bedford, and two by the Duke of Glocester; in the last of which this Law was made. And in truth if wee looke upon this title of the Kingdomes Guardianship in its bare lineaments, without lights and shadows, it will appeare little better then a Crown of feathers worne 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 wel 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 yeares of age; afterwards Edward the seconds Queen, and the Lords of her party, were wise enough in their way, and yet they chose Edward the third to be the Custos regni, then not fourteen yeares old, his Father in the meane time being neither absent from the Kingdome nor deposed,Rot. Pat. 5. E. 3. p. 1. m. 16. but onely dismissed from acting in the adminstration 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 yeares old, afterwards▪ when hee was about fourteene: Then he made his Sonne the Black Prince upon severall occasions three times Lord Warden of the Kingdome, once he being about nine yeares old, and againe when he was eleven yeares old, and once when about fourteen yeares old. Lastly, Edward the third appointed his son Lionell Duke Clarence unto this place of Custos regni, when as he was scarce eight years old; all which will appeare upon the comparing their ages with the severall Rolls of 25 E 1. and 3, 5, 12, 14, 16, 19, E 3. If therefore the worke of a Custos regni be such as may be as wel done by the infants of Kings as by the wisest Councellor, or most valiant man; it is in my opinion manifest that the place is of little other use to this Common-wealth then to serve as attire to a comely Person, to make it seeme more faire because it is in fashion, nor doth it advance the vallue of a King, one graine above what his personall endowments doe deserve.

[Page]Hitherto of the title and power; the next consideration will be of the original Fountain from whence it is derived, wherein the presidents are cleare and plaine, that ordinarily they are the next and immediate ofspring of Kings, if they be present whithin the foure 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, inlarged, or abridged, both it and them. Thus was the Duke of Glocester made Lord Warden in the time of Henry the fifth (he being then in France) in the roome of the Duke of Bedford, the like also in Henry the sixths 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 Dukes going over into France, they committed that Service to the Duke of Glocester (if I forget not the nature of the Roll) during the Duke of Bedfords absence, and with a Salvo of his right. Nor 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 Kingdome by common intendment, is to endure no longer then the King is absent from the helme, either by voluntary deserting the worke, or imployment in forrain parts; though united they be under the Government of the same King; together with this Nation, such as are these parts of France, and Ireland, and Scotland, then under the English fee: This is apparent from the nature of that statute of Henry the fifth formerly mentioned; for if there was need to provide by that Statute, that the Kings Arrivall and Personall Presence should not dissolve the Parliament, assembled by the authority of the Custos regni; then doth it imply, that the personall presence of the King, by and upon his Arrivall had otherwise determined the Parliament and that authority whereby it sate. But the presidents are more cleare, all of them generally [Page] running in these or the like words, In absentia Regis, or Quamdiu Rex fuerit in partibus transmarinis. It is also to be granted, that the Kings will is many times subjoyned thereunto, as if it were in him to displace them, and place others in his absence; yet doe I finde no president of any such nature, without the concurrence of the Lords or Parliament, and yet that the Parliament hath ordered such things without his consent. For when Richard the First, passing to the Holy Land, had left the Bishop of Ely to execute that place during his absence in remote parts; the Lords finding the Bishop unfaithfull in his Charge, excluded him both from that place and Kingdome, and made the Kings Brother John, Lord Warden in his stead.

But in the Case of the Protectorship, which supposeth disability in the Person of the King, the same by common intendment is to continue during the Kings disability; and therefore in the Case of Henry the Sixth, it was determined,8 H. 6. n. 2. that the Protectorship doth Ipso Facto, cease at the Kings Coronation, because thereby the King is supposed able to govern; although in later times it hath not so beene holden: For Kings have been capable of that Ceremony, as soon as of the Title, and yet commonly are supposed to be under the rule of necessity of Protectorship, till they be fourteen years of age, or (as the Case may be) longer: For although Henry the Sixth was once thought ripe, when he was eight yeares old, yet in the issue he proved scarce ripe for the Crowne at his two and twentieth yeare. Neverthelesse, the default of Age is not the onely incapacity of Kings; they have infirmities as other men, yea more dangerous then any other man; which though an unpleasant tune it be to harp upon, yet it is a Theame, that Nations sometimes are inforced to ruminate upon, when God will give them Kings in his wrath, and those also over to their own lusts in his anger. In such Cases therefore, this Nation sometimes have fled to the refuge of a Protector, and seldome it is, that they can determine for how long: When Henry the Sixth, was above thirty yeares old; Richard Duke of Yorke was made [Page] Protector, and Defendor of the Realme, and of the Church; It was done (if the Record saith true) by the King himselfe, Autoritate Parliamenti: It was further provided by the Parliament, that though this was to continue, Quamdiu Regi placuerit, yet the Duke should hold that place, till the Kings Sonne Edward, should come to yeares of discretion, and shall Declare that he will take that place upon himself.

Rot. Pat. 32. Hen. 6. m. 7.The ground hereof is said to be, that the King was, Gravi infirmitate detentus, which could not be intended of any bodily distemper; for neither doth any such thing appeare by any Author, or Record. Nor if such had been, yet had it been an irrationall thing in the Parliament, to determine the same upon the Princes discretion, and acceptance of the Charge upon himselfe. It seemeth therefore, that it was, Gravis infirmitas Animi, and that this way of the Parliament tended to a tacite sliding him out of the Government of the Kingdome, by a moderate Expression of a Generall incapacity in his Person.

The Conclusion of all that hath beene said concerning this Title, is double: One, that both the Custos Regni, and Protector, are not subsistent, but consistent, with that of a King, because it supposes a King under incapacity.

Secondly, that they tend to teach the people a necessity of having one Cheife, although it may, in truth, seem to be but a tricke of State; like some pretty carved Cherubims in the Roofe of a building, that doe seeme to beare it up, when as, in truth, it is the Pillers that supporteth both it and them.

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CHAP. XVI. Concerning the Privy Councell.

NAtions doe meet with their Exigencies as well as Persons, and in such condition, Resolutions taken up by sudden Conceit, are many times more effectuall then more mature deliberations, which require more time in composing, are more slow in Conclusion, let slip opportunities, and fall short of Expectation in the end. Such are the wayes of debate in the Grand Representative of the Kingdome. Add hereunto, that in putting the Lawes in execution, greater discretion is required, then can enter into the head of any one man, and greater speed then can stand with debate amongst many: And therefore it is beyond all doubt, that the Conventicles of Councell, are no lesse necessary in their Degree, then the Assembly of the Estates of this Nation, in their Grand Convention.

Yet with this Caveat, that one Genius may move in both; for otherwise the motions of Government must needs be inconstant, inconsistent, and like that of an Hipocrite, one way abroade, another way at home; neither comfortable to it selfe, nor confiding to others: and therefore cannot these privater Councells, by any proportion of Reason, be better Constituted, then by the Representative it selfe, that it may be a Creature made in its owne Image, one and the same, with the Image of the maker.

This was the wisedome and the practise of these times,5 Hen. 4. n. 57 8. n. 31. 11. n. 44. 2 H. 6. n. 15, 16. 31 H. 6. n. 31. more ordinarily then in the former; for the Parliament was no lesse jealous of the power of Henry the Fourth, then of the infirmities of Henry the Sixth; nor more assured in the aimes of any of them all, then themselves were in their own title to the Crown.

Neither was this sufficient, for the Parliament looked upon themselves as a body that somtimes must retire to rest, [Page] and upon the privy Councel, as watch-men subject to change, and therefore they not onely give them instructions,8. H 6. n. 8.12. 14, 16. but ingage them unto observance. Their instructions were somtimes occasionall but some more generall, of which I shall instance onely in two, which were to be of everlasting regard. First, that they should hold no Pleas before them, that is to say, at the Councell table, or at the privy Councell, nor before any of them, unlesse as Judges in the Chancery Exchequer, or Benches at Westminster, 8. H 4. n. 76. so as whatsoever miscarriages were had by the privy Councell in Cases of judicature in the Star-Chamber formerly, are now reduced; The second rule was this,1. H 4. n. 37. 8. H. 4. n. 73. that no dispatches should be made at the Councell table of any matters there agitated, but by generall consent. Unity gives life to action, carrying therewith both Authority and Power; and when all is done, must derive its originall from without, and in all good ends from above. And therefore as a seale to all the rest it was wisely done by the Parliament to draw the minds of the Privy Councell together, and to present them joyntly before God,11. H 4. n. 14.39. by an oath oblieging themselves to a solemn and constant observance of their instructons, and to persevere therein; for the unchangeable God can onely stamp a lasting Image upon the minde, and bind the same (that is so subject to change) to an unchangeable Law; whereby the People may be made as happy for continuance as for Righteousnesse and Peace.

The privy Councell thus settled, dressed, and girt, becomes of high esteeme, both for trust and honorable imployment in great matters. The Mint is the very Liver of the Nation, and was wont to be the cheife care of the Parliament it selfe in all the dimensions thereof; now the Mint is two wayes considered, Viz: either in the vallue of the Mettall and Mony, or in the coynage.

The first of these & things most immediatly concurring therewith, the Parliament still retaines to its owne immediate Survey; such as are the inhibiting of exportation of Gold, and Silver; and of melting of Coyne into Plate or Bullion; the regulating of the currant of Forraine Coyne, the reducing of [Page] Money, both Eorrain and Domestick, imbased by Counterfeiture, clipping, washing, &c. The regulating of allay of Gold and Silver; the regulating exchange, and such like; concerning all which, the Reader may please to peruse the Statutes, 2 H. 4. cap. 5, 6, 11, 13. 4 H. 4. cap. 16. 3 H. 5. Stat. 1. & 4. cap. 6. & 9. cap. 11. And 2 H. 6. cap. 6.

The second Consideration touching the Mint,1 H. 6. cap. 1. 9 H. 5. cap. 6. concerned the election, and government of the Officers, touching the Mint and Exchange, or the places where they shal be holden, which with some other matters of inferiour Nature, were left to the Order of the Privy Councell, either with the King, or alone, in Case of the Kings absence or disability.

A second power given to the Privy Councell, was in point of Trade, and Merchandize: formerly they had somewhat to doe therein, but still the Parliament set out their bounds in Richard the Seconds time, the people had liberty of trade in some Commodities, by way of Exportation,17 R. 2. c. 7. but the Privy Councell might restrain them upon inconvenience to the Publique: Now the same is confirmed,4 H. 6. cap. 5. and though it concerned Corne onely, yet it was a President that led the way to a much larger power in the Trade of the Staple Commodities of this Iland, to inlarge or straiten it as they thought meet; and so they became in a fair way to have a principall power over the Revenues and Riches of this Nation. But this lasted not long, for within ten yeares, these Licences of Transportation cost the Merchant so much,15 H. 6. cap. 2. 20 H. 6. c. 6. as he could make little gaines of all his care and paines, and therefore a rule is set to a generall allowance of all Transportation of Corn, till the price of Wheat came to a Noble, and Barly at three shillings, and no longer. This being first made Temporary, was afterwards made perpetuall,23 H. 6. cap. 5. and so gave a restraint unto the power of the King and Councell. But where no Positive restraint was made by any Statute, the King and Councell seemed to have the sole power left unto them, to open and shut the passes of Trade as they pleased: For whereas the Commodity of Butter, and Cheese, was made Staple, the King and Councell had [Page] power to stop the sale thereof; notwithstanding, that the Law gave full liberty to the Subjects to bring all their Staple Commodities to the Staple:18 H. 6. cap. 3. Neverthelesse, this power in the King is not Primitive, but derived from the Parliament, for they had power over the Kings Licences, and Restraints in such Cases, as by the severall Statutes doe appeare.

A third power given to the Privy Councell, was a power of Summons and Processe against Delinquents, in Cases of Riots, Extortions, Oppressions, and greivous Offences; the Summons to be by Privy Seale, the Process, Proclamations, and for Non-appearance,31 Hen. 6. cap. 2. Forfeiture, if the Delinquent be of the Degree of a Lord, if of inferiour ranke, then a Fine or Outlary. At the first view the Statute hath an ill-favoured aspect, as if it raised up a new Court of Judicature, but the time is to be considered with the occasion; for it was made for the securing of the Peace, in a turbulent time. And besides, the Law carrieth along with it two Restrictions, which puts the right of Cognisance in the Privy Councell to the question.

First, it saveth the Jurisdiction of other Courts, and provideth further, That no matter determinable by the Law of this Realme, shall be by this Act determined in other forme, then after the course of the same Law in the Kings Court, having determination of the same; which implieth, that some kindes of Riots, and Extortions are of so high a nature, that though determinable in the Kings Court, yet are they to be determined before the Lords.

In the next place, this Law provideth that such offences, as are determinable by the Law of the Realme, that is by Jury, shall still be so tried.

13 Hen. 4. cap. 7.Secondly, if Conviction be upon Confession, or by Certificate, in case where (by reason of Parties, and partakings) Inquisition by Jury can not be had, there the Lords shall immediately determine the same.

Lastly, if the Certificate be traversed, then the same shall be tried in the Kings Bench.

[Page]But there is another Restriction that undoeth all, in effect, in point of right, because what this Law setleth therein, it setleth but for seven yeares, and leaveth the Privy Councell to the limits of the Common Law for the future: In the mean time, the Privy Councell may be thought terrible, and very high, both by this Law, and the greatnesse of the Lords. Kings Unkles, and Kings Brothers, are Subjects indeed, but of so high a Degree, that if a little goodnesse of Nature, or publique Spirit shine in them, they soon become the Objects of Admiration from the Vulgar, and gain more from them, by their vicinity, then the King can doe at a distance. For the Commons of England, by the fair demeanour of popular great men, are soon won out of their very cloathes, and are never more in danger to part with their liberties, then when the Heaven is faire above their heads, and the Nobility serve the King, and flatter them. Neverthelesse, as I said, the season must also be considered of this power, thus by this Law contracted; for what the Lords gained not by their Popularity, the Queen did with her power; who now mindfull of her contemned beauty, and opposition from the Duke of Glocester against her marriage, removes him out of the way, gets the reines of Government into her hand, and like a Woman drives on in full careere.

The Duke of Yorke, and other Lords, not liking this gallop, indeavour to stop her pace, but are all overborn, the Duke taken prisoner, and doubtlesse had pledged the Duke of Glocester, but that the Heire apparent of the House of Yorke steps in to rescue; and new troubles arise in Gascoigne, to put an end to which, the Queenes party gaines, and takes the Duke of Yorkes word for his good behaviour, gets this Law to passe, expecting hereby, if not a full settlement at Home, yet at least a respite to prevent dangers from abroad, during the present exigency. And thus upon the whole matter, the Lords and Privy Councell are mounted up by the Commons to their own mischeif.

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CAHP. XVII. Of the Clergie, and Church-government, during these times.

IT was no new thing in the World, for Princes of a wounded Title, to goe to the Church-men for a plaister, and they are ready enough to sing a Requiem, so as they may be the gainers: The Princes therefore of the House of Lancaster, had offended against common sense, if they had not done the like themselves, being not onely guilty in their Title, but also by a secret Providence, drawn into one interest together with the Church-men to support each other. For Henry the Fourth, and Arch-bishop Arundell, meeting together under one condition of Banishment, become Consorts in sufferings, and Consorts in Honour; for Society begotten in trouble, is nourished in Prosperity, by remembrance of mutuall kindnesses in a necessitous Estate, which commonly are the more hearty, and more sensible, by how much other Contentments are more scant. But the Arch-bishop had yet a further advantage upon the heart of Henry the Fourth, though he was no man of power, yet he was of great Interest; exceedingly beloved of the English Clergy, and the more for his Banishment sake: Now whatsoever he is, or hath, is the Kings, and the King is his; the sweet influence of the Arch-Bishop, and the Clergy, enters into his very Soule; they are his dearly beloved, for the great Naturall Love (as he sayes to the World) they beare to him; what he could, he got, what he got, he gave to the Church: Thus the Family of Lancaster, becomming a mighty support unto the Clergy, Romane as it was; they also became as stout maintainers of the crackt Title of that younger House: So was fulfilled the old Prophecy of the Oyle given to Henry the first, Duke of Lancaster, wherewith Henry the Fourth was anointed, That Kings anointed with that Oyle, should be the [Page]Champions of the Church. Now for the more particular clearing of this, we are to consider the Church absolutely, or in relation to the Politicall Government of the People. Concerning the later, many things did befall, that were of a different peice to the rest, in regard that the Lords, for the most part, were for the Clergy, and they for themselves; but the Commons began to be so well savoured with Wickl [...]fs way, that they begin to bid defiance to the Clergies self-ends, and aimes: and because they could not reach their heads, they drive home blowes at their legs.

A Parliament is called, and because the King had heard somewhat, feared that the People were more learned then was meete for his purpose, and that the Parliament should be too wise; he therefore will have a Parliament, wherein the People should have no more Religion, then to beleive; nor Learning, then to understand his sense, nor wisedome then to take heed of a Negative Vote: But it befell otherwise, for though it was called the Lack-learning Parliament, yet had it well enough to discern the Clergies inside, and Resolution enough to enter a second claime against the Clergies Temporalties, and taught the King a Lesson, That the least understanding Parliaments, are not the best for his purpose: For though the wisest Parliaments have the strongest sight, and can see further then the King would have them, yet they have also so much wisedome, as to look to their own skins, and commonly are not so venterous, as to tell all the World what they know, or to act too much of that which they doe understand. But this Parliament, whether wise, or unwise, spake loud of the Clergies superfluous Riches, and the Kings wants are parallel'd therewith, and that the Church-men may well spare enough to maintaine fifteen Earles, fifteen hundred Knights, six thousand two hundred Esquires, and one hundred Hospitalls more then were in his Kingdome.

This was a strong temptation to a needy and couragious Prince, but the Arch-Bishop was at his elbow; the King tells the Commons, that the Norman and French Cells were in [Page] his Predecessors time seized under this colour, yet the Crowne was not the richer thereby; he therefore resolves rather to add to, then diminish any thing from, the maintenance of the Clergy.

Thus, as the King said, he did, though he made bold with the Keyes of Saint Peter; for he could distinguish between his owne Clergy, and the Romane. The People are herewith put to silence, yet harbour sad conceits of the Clergy against a future time, which like a hidden fire, are not onely preserved, but increased by continuall occasions, and more principally from the zeal of the Clergy, now growing fiery hot against the Lollards. For that not onely the People, but the Nobles, yea, some of the Royall blood, were not altogether estranged from this new old way; whether it was sucked from their Grand-Father Duke John, or from a Popular strain, of which that House of Lancaster had much experience, I determine not. These were the Dukes of Bedford and Glocester; Bedford was first at the Helme of Affaires at home, whiles the King acted the Souldiers part in France, as ill conceited of by the Clergy, as they sleighted by him. At a Convocation once assembled against the Lollards, the Duke sent unto their Assembly his Dwarfe, as a great Lollard, though he was a little Man, and he returned as he went,Antiq. 278. even as Catholique, as any of them all; Non tam dispectus à Clero, quam ipse Clerum despiciens atque eludens. This, and some other sleights the Clergy liked not, they therefore finde a way to send him into France, to be a Reserve to his Brother: And in his roome steps forth Humphrey Duke of Glocester, that was no lesse coole for the Romane way then he. Henry the Fifth was not more hearty in Romes behalf, for although he was loath to interrupt his Conquest abroad, with contests at home, yet he liked not of advancements from Rome; insomuch, as perceiving the Bishop of Winchester, to aspire to a Cardinals Hat, he said, that he would as well lay aside his own Crowne, as allow the Bishop to take the Hat. Nor was he much trusted by the Clergy, who were willing he should rather ingage in the [Page] Wars with France, then minde the Proposalls of the Commons, concerning the Clergies Temporalties, which also was renued in the Parliament in his dayes. Above all, as the Lancastrian House loved to looke to its own, so especially in relation to Rome, they were the more jealous, by how much it pretended upon them, for its favour done to their House: And therefore Henry the Fourth, the most obleiged of all the rest, looked to the Provisors more strictly then his Predecessors had; and not only confirmed all the Statutes concerning the same already made,9 H. 4. cap. 8. but had also provided against Provisors of any annuall Office, or Profit, or of Bulls, of Exemption from payment of Tythes, or from Obedience,2 H. 4. c. 3, 4. 7 H. 4. cap. 7, 8 4 H. 5. cap. 4. Regular or Ordinary, and made them all punishable within the Statute; and further, made all Licenses, and Pardons, contrary thereto (granted by the King) void against the Incumbent, and gave damages to the Incumbent in such vexations; for the former Lawes had saved the right to the true Patron, both against Pope, and King.

And thus the English Kings were Servants to the Church of England, at the charges of Rome, whiles the Popedome being now under a wasting and devouring Scisme, was unable to help it selfe, and so continued untill the time of Henry the Sixth; at which time, the Clergy of England, got it selfe under the power and shadow of a Protector, a kinde of Creature, made up by a Pope and a King. This was the Bishop of Winchester, so great a Man, both for Birth, parts of Nature, Riches, Spirit, and Place, as none before him ever the like; for he was both Cardinall, Legate, and Chancellour of England; and had gotten to his aide, the Bishop of Bathe, to be Lord Treasurer of England: Now comes the matter concerning Provisors once more to be revived.

First, more craftily by collogueing with the Nobility, who now had the sway in the Kings minority, but they would none: An answer is given by the King, that he was too young to make alteration in matters of so high Concernment, yet he promised moderation. The Clergy are put to [Page] silence herewith, and so continue till the King was six yeares elder, and then with Money in one hand, and a Petition in the other, they renue their Suit, but in a more subtill way: For they would not pretend Ro [...]e, but the English Churches liberties; they would not move against the Statutes of Praemuniri, but to have them explained; it was not much they complained of, for it was but that one word,16 Rich. 2. cap. 5. Antiq. Brit. Otherwhere, which, say they, the Judges of the Common Law expound too largely, not onely against the Jurisdiction of the Holy Sea, but against the Jurisdiction of the English Prelacy, which they never intended in the passing of those Lawes: Their Conclusion is therefore a Prayer, That the King will please to allow the Jurisdiction of their Ecclesiasticall Courts, and that Prohibitions in such Cases, may be stopped. But the King, either perceiving that the Authority of English Prelacy, was wholly dependent on the Sea of Rome, and acted either under the shadow Legatine, or at the best, sought an Independent power of their own: Or else the King doubting that the calling of one word of that Statute into question, that had continued so long, might indanger the whole Law into uncertainty, declined the matter, saving in the moderation of Prohibitions. Thus the English Clergy are put to a retreat, from their reserve at Rome; all which they now well saw, yet it was hard to wean them: The Cardinall of Winchester was a great Man, and loath to lay down his power; but his own Tribe grew weary of him, and his Power: For the greater some Church-men are, unlesse they be better then men, the inferiour, and better Church-men, are worse then men; at length therefore the Cardinall is Un-Legated, and that Power conferred upon the Arch-Bishop of Canterbury, a Man formerly well approved, but by this very influence from Rome, rendered suspected; which he perceiving, protested against the Exercise of the Jurisdiction Legatine, without the Kings allowance, and so mannerly crept into the Chaire.

The English Kings and Clergy, having thus attained the right discerning of each other, begin to take up a new way [Page] of Policy; which was to hold nothing of the Popedome, but the forme of Worship, and Discipline; but as touching Jurisdiction, they held it a high point of wisedome, either to fetch it nigh at home, or to be silent in the matter; having now found a main difference between the Popes Will, and the Church Law; and therefore, as formerly,Holl. the Convocation and Parliament joyned in excluding of Forrainers from Church-livings, under the Notion of Intelligencers to Enemies abroade: So neither now will they allow any Provisions for English men; and upon this ground the Deane and Chapter of Yorke refused to admit the Bishop of Lincolne, to the Sea of Yorke, although designed he was thereto by Pope Martin, and he the Darling of Nations, being by joynt consent advanced to the Triple Crowne, that had been formerly tripled amongst three Popes, and troubled all Europe: And whereas during the Tripapalty, much money had been Levied here in England, to serve for the recovery of the Popedome, to one of English Interest: Now by joynt consent, the same is seized upon and stopped, as fewell from the fire, and spent by Henry the Fifth, in the recovery of a Kingdome in France, that should have beene imployed in recovery of a Popedome at Rome: these things concurred to give a wound to the Popedome, that was never cured to this day.

Neverthelesse the English Clergy was no looser by all this, but gained in the whole summe: for as it made them more depending on the Crowne, so it made the Crowne more fast to them, from which they had received more reall immunities and power, then the Pope ever did, or was able to give them, and might expect to receive many more. What Personall respects these three Kings shewed them, hath been already touched: Henry the sixth added one favour, which made all the rest more considerable: hitherto they had used to meete in Convocation, as upon the interest of Rome, and little notice was taken of them; now the Nation owns them, and in some respects their worke, and it is granted, That the Clerkes of Convocation called by the Kings Writ, and their [Page] Meniall Servants shall have such priviledge,8 H. 6. cap. 2. in comming, tarrying, and going, as the Members of the Parliament have: So as though they be not Members yet they are as Members, if they assemble by the Kings Writ, and not onely by the power of the Legate or Metropolitan.4 Instit. c. 74. The antiquity of this Court is great, yet not so great as hath beene supposed; nor is it that Court of the Ordinary, called the Church Gemot, mentioned in the Lawes of Henry the first, as not only the work thereof, therein set down, doe sufficiently declare, but also its evident, that in Henry the seconds dayes the Grand Councells of this Kingdome were Joyntly mixed both of Clergy and Laity, nor could the Clergy shut the Laity from their Councels, till about the times of Richard the first, or King John. From which time forward the Laity were so far from protecting of them (till these times now in hand) that all their care was to keep them from violating the liberty of the People. That they were many times notwithstanding called together by the Kings Writ before these times,Mr. Will: Prynne. hath been also cleared by another Penn. That their worke at such times was to advise concerning such matters as should be propounded to them by the King in Parliament, their summons do shew; the particulars whereof, for the most part, concerned supplies of Mony from the Churchmen, and yet somtimes matters of great moment were debated therein: as in a Convocation summoned by Henry the Fifth in his ninth year, the pre-eminence of Pope Eugenius above the Councill of Bazill was debated, and as much as they could, determined the same: the credit of their decisions in former times, I beleeve, was not much amongst the People, because the men were looked upon with an evil eye: Now that the Parliament seemeth to owne them in thier way, and to protect them; their determinations are somewhat: The Churchmen espy their opportunity, and whiles the benevolent influence of the State is in its first heat, they improve it in this manner. The times were now come about wherein light began to spring forth, conscience to bestirr it selfe, and men to study the Scriptures; This was imputed to the idlenesse [Page] and carlesnesse of the Clergy, who suffered the mindes of young Schollers to luxuriate into errors of Divinity, for want of putting them on to other Learning, and gave no incouragement to studyes of human Literature, by preferring those that were deserving. The Convocation taking this into consideration, do decree,Antiq. Brit. that no person should excercise any jurisdiction in any Office, as Vicar-generall, Commissary, or Officiall, or otherwise, unlesse he shall have first in the University taken degrees in the civill or canon Law: A shrewd trick this was to stop the growth of the study of Divinity, and Wickleifs way: and to imbellish mens mindes with a kind of Learning that may gaine them preferment, or at least an opinion of abilityes beyond the common straine, and dangerous to be medled with, like some Gallants that weare Swords as badges of Honour, and to bid men beware, because they possibly may strike, though in their own persons they may be very Cowards; and no less mischeivously intended was this against the rugged common Law, a rule so nigh allyed to the Gospel way, as it favoreth liberty, and so far estranged from the way of the civill and canon Law, as there is no hope of accommodation till Christ and Antichrist have fought the feild.

Thus much of the Church of England, in relation to the State, now as it is absolutely considered in regard of the severall degrees of Persons therein. Although these three Kings were much indeered to the English Clergy; yet the difference between the Laity and them growing high, the Kings principall care is now, to keep an even hand between them both, for he that will back two Horses at once, must keep them even, or put his joints to the adventure: First, Henry the fourth granteth, that no more shall be payed to Rome for the first fruits of Arch-Bishops and Bishops,6 H. 4. cap. 1. then hath been anciently used. The occasion hereof was to prevent the horrible mischeif and damnable custome of Rome; for such are the very words of that Statute, unto which the Clergy gave their Vote, if not the first vote; and therefore certainly did neither beleeve, nor honor that infallible Chaire as their [Page] owne Mother; nor did they beare her yoake further then their owne benefit, and reason of State did require, for though the immediate benefit of this Law did descend upon the Prelacy; yet it also much concerned the interest, both of the honor and benefit of the Nation, that the Clergy should not be at the Popes pleasure to tax and assesse as he thought good.

2 H. 5. cap. 1.Secondly, Henry the fifth added unto the Prelacy some kinde of increase, both of Honour, and Power, Viz. To visit Hospitalls that were not of the Kings owne foundation, and to reforme abuses there; for the Patrons either had no Power to punish, or will or care to reform them; and thus upon the point, although they lost a right, yet they gained ease.

3 H. 5. cap. 8.Thirdly, the same King confirmed by a Statute unto Ordinaries, the Cognisance of accompts of Executors, for their Testators Estates, which formerly was granted by the Canon Law, but they wanted power to execute, and a right to have and receive: In all these the Clergy or Prelacy were the immediate gainers. In as many other things the People were made gainers, and yet the Clergy were no loosers, otherwise then (like the Kite) that prey which was none of their owne.

First, they refused formerly to grant copies of Libells, either thereby to hinder the course of Prohibitions, or to make the copies the more dear, and Mony more Cheap with them. Henry the fifth finding this a greivance to the People, passeth a Law, that all Ordinaries shall grant the copies of Libells at such time as by Law they are grantable.

2 H. 5. Stat. 2. cap. 1.Secondly, as the Probate of Wills had anciently belonged to the Ordinary, by the Canon Law, and formerly also confirmed to them by the Parliament, so it also regulated and setled the Fees for such Service: But the Clergy having been ever under the nouriture of their Mother Rome, that loved to exceed, they likewise accounted it their liberty to take what they could get, but the nigher they come to ingage with Kings in their government according to Law, [Page] the more reformed they grow: Formerly Edward the third had setled their Fees, but they would not hold to the rule, now the Law is redoubled by Henry the fifth, with a penalty of treble dammages against delinquents.3 H. 5. Stat. 2. cap. 8. Furthermore the very Preists could not containe, their Paternosters, Requiems, Masses, and such wares, they had ingrossed, and set thereof what price they pleased: The Market was risen to that height, that Edward the third undertooke to set a rate upon those commodities, but that also would not hold long; Henry the fifth he sets a certaine Stipend somewhat more then Edward the third had done,2 H. 5. Stat. 2 cap. 2. and yet lesse then the Preists had formerly.

Lastly, some Lawes were made, wherein the Commonwealth gained, and the Church were loosers. First, whereas the Church-men formerly held all holy things proper and peculiar to their owne Cognisance, especially such as concerned the worship of God, the Parliament now began to be bold with that, and never asked leave. It had now for a long time, even since the Saxon times, been the unhappy condition of this Church of England, amongst others, to decay continually in Piety and right devotion, but through the light that now revived, and Gods goodnesse, it in these times came to passe, that the People did entertain some sense of their duty towards God, more then formerly, and begin to quarrell the abuses done to the Lords day, in the manner of the keeping thereof: London hath the honor for beginning this reformation by an Act of their Common Councell. The Parliament within seven yeares after that,27 H. 6. cap. 5. ingage the whole Kingdome in that service (though therewith also are adjoyned other holy Feasts then holden) And all Faires and Markets are injoyned to cease on that day, under paine of forfeiture of Goods exposed to sale, excepting Victuall, and excepting the foure Sundayes in Harvest. And thus though places had their consecration allowed by the Parliament, and immunity from trading in Faires, and Markets, by the space of 160. yeares before this time, yet that time which God by his owne Law had reserved to his owne selfe, [Page] never came under regard to be allowed till now, and yet not by the motion of the Clergy, nor by their furtherance; for by their thrusting in the holy dayes, they made them equal with the Lords day, and in Harvest time superiour, by preserving them in force, when as the Lords dayes were set aside: So God had somewhat of these men, but the Pope more. Secondly, as the Church-men lost in the former, so the Prelacy in this that follows.

The Prelates had long since obtained the triall of Bastardy, and therein could straine themselves so far, as to put the Case of inheritance into danger, where the point otherwise was cleare enough; and this grew to that height that it indangered the disinheriting of the heires of the Earle of Kent. 9 H. 6. cap. 11. It is therefore now provided, that before the Ordinary in such Cases Proceed to triall, Proclamations shall be made in Chancery, to summon all pretenders of Interests or Titles to come before the Ordinary, to make their Allegations, and all trials of Bastardy otherwise made shall be voide; so as whatever the Canon did, the Parliament would not trust to the Ordinaries Summons, nor allow of their power in any other manner, then the Parliament thought meet. One thing more remaineth, wherin the true Church of Christ seemed to lose and yet gained; and the Clergy joyning with the King seemed to gain and yet lost; this was the point of worship, which had long stumbled the mindes of the People, and was now growne to that strength, that nothing but an Act of Parliament can keep it under. This opinion concerning worship, was at the first so young, that it was not yet baptized with any proper name, but called, Opinion contrary to the Church determinations, or Catholique faith. And against this the Clergy now stormed, more then ever formerly, because it was grown to such a height as if it meaned to over-top theirs. To this end they procure an Act to passe,

2 H. 4. cap. 15. That all Preachers, Teachers, Writers, Schoolemasters, Favorers; or notoriously defamed Persons, for the maintenance of such opinions, shall be (upon conviction before the[Page]Ordinarie, according to the Canons) imprisoned in the Diocessans Prison, Fined according to the Diocessans discretion.

If upon Conviction, he shall not abjure, or shall relapse, he shall be delivered unto the Seculer Power, and be burned.

And that Preachers without Licence of the Diocessan, should be restrained.

Concerning which Law, I shall first shew what change in the Lawes of this Kingdome was endeavoured, and what was really effected.

First, it is an undeniable ground,42 E. 3. cap. 3. that no Free-man can be put to answer before any Judge, but upon Presentment, or other matter of Record foregoing, and by due Processe of Law; and yet it hath been ruled, that strong presumption, and complaint of credit after it is entered,10 H. 7. fol. 17. is sufficient Record, to ground proceedings in this Case; to attache the Party to answer. But by this Law a Triall is introduced, that neither resteth upon any peremptory accusation, or proofe of witnesse, but meerly upon Inquisition, upon the Oath and Conscience of the Party suspected; which in the later dayes hath been called the triall upon the Oath, Ex Officio; for such was the triall allowed by the Canon in these times;Otho de Jur. Jur. Calumn. as appeares in the Constitutions of Otho, and the Decrees of the Arch-Bishop Boniface, by whom it was indeavoured to be obtruded upon the Laity, about the times of Henry the Third, or Edward the First; but even the Clergy then withstood it, as Lindwood confesseth.Lind. de Jure Juran. 2. And Otho in his very Constitution, doth hold this forth by that Clause of his, Nonobstante obtenta consuetudine.

Secondly, this Law doth indeavour to introduce a new Judge, with a power to Fine and Imprison according to discretion, and a Prison allowed to him as his own peculier, and yet the Writ De cautione admittenda, still held its power, to regulate that discretion as formerly it had done; which by the way may render the power of this Law suspitious.

Thirdly, the Clergy are not content to have the Estates, [Page] and Liberties of the bodies of the People at their discretion; but they must also have their lives, although no Free-mans life could by the Fundamentall Lawes of this Kingdome, come to question, but by the judgement of his Peeres; nor could the Clergy by their owne Canons interesse sanguine, Viz. They cannot put any man to death, but by this Law they may send any man to death by a Sentence, as sure as death, Tradatur potestati seculari: And such a death, not as the Civill Magistrate is wont to execute by a speedy parting of the Soul from the Body, by losse of blood, stop of breath, or such like; but the Clergy must have blood, flesh, bones, and life and all, even to the edge of nonentity it self, or they are not satisfied: And thus the Writ, De comburendo Haeretico, entered into the World. True it is, that some sparks of this fire are found in former times, and Bracton toucheth upon such a Law, in Case of a Clerk convict for Apostacy, Primo degradetur, & post per manum Laicalem Comburatur, which was indeed the Canon, and that by his own Confession; for it is grounded upon one, Secundum quod accidit, in the Synod at Oxford, under Arch-Bishop Becket: but that Case concerneth a Clerk, who by his Profession hath put himselfe under the Law of the Canon, and it was onely in Case of Apostacy, himself being turned Jew; and this also done upon a sudden pang of zeale and power of an Arch-Bishop, that would know no Peere; nor doe we finde any second to this President by the space of two hundred yeares next ensuing; neither doth the Decree of Arch-Bishop Peckham, who was not long after Becket, Lind. lib. 5. de Apostat. treating about Apostacy in Lay-men, mention any other punishment then that they are to be reclaimed, Per censuras Ecclesiasticas; nor yet that of Arch-Bishop Arundell, amongst the Constitutions at Oxford, not long before this Statute, who treating about the crime of Heresie, he layes the Penalty upon the forfeiture of goods, with a Praesertim, Lind. lib. 5. de Heret. fol. 159. as if it were the Grand punishment: And Lindwood in his glosse upon that place, setting down the Censures against Heresie, Hodie sunt (saith he) damnandi ad mortem, as if it were otherwise but as yesterday.

[Page]Fourthly, the next indeavour is to bring the Cognifance of all, wholly to the Ecclesiasticall Court, without further appeale; for so the words concerning Conviction of Heresie are: Whereupon credence shall be given to the Diocessan of the same place, or his Ordinary in that behalfe.

These changes, I say, were indeavoured to be brought upon the Government of this Kingdome; and yet the Law for all this, suffered no change, nor did the House of Commons (however the name is thrust into the English Ordinary Print) ever yeild unto the passing of the same, but in the Parliament next ensuing, complained thereof, and protested they would not be bound by such Lawes, whereto the House of Commons had not given their consent; and this dashed the Law quite out of countenance (although it holds the place still amongst the number) for within foure yeares after,8 H. 4. the Clergy bring in another Bill of the same nature in generall, though varying in some particulars, but the same was again rejected.

All the strength therefore of this Law, resteth upon the King, and House of Lords, ingaged by the Clergy, to whom they trusted for their Religion (for Book-learning was with them of small account) and no lesse by the King, who knew no better way to give them content, that gave him so much as to set the Crowne upon his head; nor to discharge his Royall word, passed by the Earles of Northumberland, Antiq. Brit. 273. and Westmerland, in his behalf unto the Convocation, Viz. That they were sent to declare the Kings good will to the Clergy, and Church Liberties, and that he was resolved to defend all the Liberties of the Church by his Kingly Power, and to punish Hereticks, and the Churches Enemies, in such manner as the Clergy should thinke meete; and therefore desired their dayly Prayers, for his owne, and the Kingdomes safety. Walsingham, Ypo. Neustr. 157. And yet for all this, the People were not of this minde; no small part of the Kingdome being overspread with these Opinions.

After Henry the Fourth, comes Henry the Fifth, and he also makes another assay; the former opinions then knowne onely by the generall name of Heresie, are now baptized, [Page] by the new name of Lollardry, and grown so overspreading, that all the troubles of these times are still imputed to them. It was indeed the Devills old and common trick, thus to inrage earthly powers against these men, although he be hereby but an instrument in the hand of the Cheif Builder, that in laying a sure foundation, doth as well ramme downe, as raise up; for the malice of these men made the People of God to multiply: Henry the Fifth, also published a Law to this same:

2 H. 5. cap. 7. That all Persons in place of Government, shall sweare to use their diligence, to destroy all Heresies, and Errors, called Lollardries.

That all Lollards convict by the Clergy, (left to the seculer power, according to the Lawes of Holy Church) shall forfeit their Lands, and Tenements to their Lords: And the King to have the yeare, and day, and waste, and all his Goods and Chattels.

If the Lord be the Ordinary, the King shall have all.

No forfeiture to be, till the Delinquent be dead.

They shall be found by Indictment, before the Justices of the Peace.

This Indictment being found, shall be sent to the Ordinary with the Prisoner.

The Indictment shall not be for Evidence, but onely for Information.

These are the Principall things contained in this Law, which by the manner of the Composure, seemeth to be of an uncertain colour, neither made by the Clergy, nor Laity, but spoyled between them both. The intent thereof seemeth to be principally to draw on the House of Commons to passe the Law, under hope of gain by the forfeitures; for the penalty is like that of Fellony, though the Crime be not expresly declared to be Fellony. But the intent fell short in event.

For first, the nature of the Crime is not defined, nor declared by any Law, and therefore can no man by Indictment be found to be such.

[Page]Secondly, no penalty of death, hath been by any former, or by this Law determined upon such as are guilty, for its not enacted by any Law, that such Person shall be delivered to the Seculer power, &c.

Thirdly, this Statute determining the forfeiture to be not till death, and neither that, nor any other Law of this Kingdome determining death; then is no forfeiture determined.

Fourthly, though this Law taketh it for granted, That Heresie and Errors belong to Ecclesiasticall Cognisance, yet the same allowes of no further proceedings, then Ecclesiasticall Censures.

Lastly, by this Law, there can be no proceeding, but in case of Indictment, (for otherwise, without Record, no forfeiture can be) therefore, where no Indictment is, there is no forfeiture. In all which regards, its evident that the Clergy could by this Law, neither get fat nor blood;Fox Marturel. 589. and therefore at their Convocation in the next yeare following, they tooke another course, and ordered that three in every Parish, should make presentment upon Oath, of such Persons as are defamed for Hereticks, and the truth so farre as they can learn; which puts me in minde of a Presentment, that I have seene by some of Saint Mary-Overies in these times: Item, we saine, that John Stevens is a man we cannot tell what to make of him, and that he hath Bookes, we know not what they are: This new course shewes plainly, that the former held not force as they intended it. So God blasted the practises of the Clergy at this time also, rendering this Law immateriall that had the form, as the other missed in the form, and had the matter.

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CHAP. XVIII. Of the Court of Chancery.

IT often befalls in State Affaires, that extraordinary Exigencies require extraordinary remedies, which having once gotten footing, are not easily laid aside, especially if they be expedient for Prerogative. The Privy Councell in the Star-Chamber, pretending default of the Common Law, both in speed, and severity, in Cases whereby the State is indangered: The Chancery pretends default by the Common Law in point of equity, and moderation: The People taken with these pretences, make that rod more heavy, which themselves had already complained of: What the Chancery was in times past hath been already shewed; still it is in the growing and gaining hand.

4 H. 4. cap. 8.First, in the Judicatory power it prevailed in relation to the Exchequer, exercising a kinde of Power to survay the proceedings thereof, in Cases of Commissioners distrained to account, for Commissions executed, or not executed; for it was no easie matter to execute Commissions from the Exchequer in those times of Parties; nor were men willing with such unwelcome occasions, between Freinds, and Neighbors; and it may be, they grew weary of imbroyling themselves one against another, and of being Instruments of the violent counter-motions of Princes, and great Men.

Secondly, it gained also upon the Admiralty, which by former Lawes had Jurisdiction in all Cases incident upon the great Sea; but now either through neglect of the Admirall, or the evill of the times, occasioning Piracies to grow Epidemicall, the ill government upon the Sea became dangerous to the State, trenching upon the Truce made between this and other Nations.

2 H 5. cap. 6.For a remedy whereof, first Conservators of the Truce were settled in every Port, who had power committed to [Page] them to punish Delinquents against the Publick Truce, both by Indictment at the Kings suite, and according to the course of the Admiralty by complaint, saving matters of death to the Cognisance of the Admirall. But this was soon found defective, for Justice done in the dark, is many times more respective, and lesse respected, and therefore within a few yeares, it is provided, that Offenders against the Kings Truce upon the Sea, or in any of the Ports,29 H. 6. c. 2. shall be proceeded against in the Chancery, before the Chancellour, who hath power given him, calling to his Assistance some of the Judges to execute the Statute of 2 H. 5. foregoing, by a handsome contrivance:14 H. 6. cap. 8. 20 H. 6. cap. 11. For that Statute was once and again suspended for the rigour that was used by the former Conservators, who being Borderers upon the Sea, for their own peace, spared as few as they could, which had so discouraged the Sea-men, that the Kingdome had been almost utterly bereaved of its strength at Sea. Neverthelesse, all this while, these Lawes were but penall, and not remediall, for the Parties wronged: And therefore another Law is made,31 H. 6. cap. 4. to give the Chancellour and Judges power to make restitution and reparation.

Thirdly, the Chancery gained upon the Ecclesiasticall Court; for whereas by the Canon, the Church-men were to be judged by their Superiours, according to Ecclesiasticall and Ordinary Jurisdiction; and the iniquity of the times, was again returned to that height, that Parents could not enjoy their own Children; but the little ones were allured, stolne away, and detained in Cloysters; nor did the Church-men afford remedy in such Cases: A Law was made,4 H. 4. cap. 17. that upon complaint hereof made to the Chancellor, the Provinciall should be by him sent for, and punished according to his discretion.

Lastly, the Chancery incroached upon the Common Law: For whereas the stirs between the two Houses of Yorke and Lancaster, beganne to rise, Men made their dwellings in places of security, and strength; Women likewise, and other persons flying, thither for refuge; especially, such of [Page] them as had most to lose; these were contrary to the Law of common honesty, urged to ingage their Estates unto the desires of such, to whom they had fled for refuge, and some times compelled to marry, before they could gain their liberty.31 H. 6. cap. 9. It was now provided, that all such complaints should be heard and determined by the Chancellor.

4 H. 4 cap. 8. 13 Hen. 4. cap. 7. 2 H. 5. cap. 9.Secondly, as touching the Ministeriall power of the Chancery, this likewise was inlarged in making of Processe to compell appearance in cases of forcible Entries, Murders, Manslaughters, Robberies, Batteries, Assemblies, in nature of Insurrections, Riots, and Plunder, committed by Servants upon their Masters goods, before their Masters death, and such like Offences, now growne common, and in need of sudden remedy.

Thus as the worke and power of the Chancery grew, so did the Place and Person of the Chancellor grow more considerable, raised now from being the Kings Secretary, (for no better was he in former times) to be the Kingdomes Judge, and of such Trust, that although the King might make election of his owne Secretary, yet the Parliament would first know, and allow him, that must be trusted with the power over the Estates of so many of the People: And therefore did in these times, both place, and displace him as they saw expedient.

2 H. 4. cap. 11.In a word, he is become the Kingdomes Darling, and might be more bold with the Common Law, then any of his Peeres.

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CHAP. XIX. Of the Courts of Crowne Pleas, and Common Law.

AS the Chancery on the one side did swell and increase, so was the Kings Bench in an Ebb; the Councill Table in the Star-Chamber on the one side, and the Itenerant Courts in the Countrey intercepted, and drew away much to their own shares: Making themselves fat, the Kings Bench leane, and the Rurall Courts for Crown Pleas almost to starve. The Crown Pleas formerly had been determinable in the Kings-Bench, Goale-Delivery, Oier and Terminer, and many of them by Justices of the Peace, Coroners, and Sheriffe. The Goale-Delivery was afterwards united to the Judges of Assize, and if one of them were a Clergy man, then to the other, and cheif men of the County. This was usefull for the Publique, but not beneficiall for some men; and therefore they laboured for Commissions, especially directed to parties, that they thought would partake; but these were found soone to be dangerous, soone taken away,2 E. 3. cap. 2. and the Goale-Delivery restored to the Judges of Assize, as formerly. The Commissions of Oier and Terminer were sued forth upon extraordinary immergencies, and offences, wherein the State was much concerned for speedy Execution. In former times both these and Goale-Deliveries were but rarely had and then granted unto some, that perchance knew more of the Case, then before hand was meete to be known. Edward the Third amended this errour, and ordered that no Commissions of Oier and Terminer should issue forth, but unto Commissioners named by the Court,34 E. 3. cap. 1. and not by the party complaining. But the Judges of Assize are now in the growing hand, hoth for Honour, Use, and Power, the rather, because their Persons are of high repute in the Benches at Westminster, which are the Master-peices [Page] of Judicature, and their Iters are constant and ordinary: Neverthelesse, the Judges of Assize, though they have the Goale-Delivery annexed to them, yet have they not that absolute power of the Kings-Bench; but are still under the rule of their Commission, which is not alterable, but by Parliament, and which by it was altered, by way of adding of new powers, as new crimes arose, that required the eye of the State to provide, and so the Judges of Assize by degrees grew to be the ordinary Administrators of Justice throughout the Kingdome, yet holding still forth to them a limited power, to heare and determine in some Cases; but in others onely,11 H. 4. cap. 1. to inquire and certifie, as in the Case of false returns by the Sheriffe, of persons elected for the Parliament: And also in Cases concerning the Statutes of Labourers,2 H. 4. cap. 21. 13 H. 4. cap. 3. and unlawfull games, and pastimes; in which case the Certificate is to be made to the Chancellor: And also in Cases concerning Liveries, contrary to the Statutes, wherein the Certificate is to be made to the Kings-Bench; which power in this last Case, continued in that manner by the space of thirty yeares;8 Hen. 6. c. 4. 4 Hen. 5. c. 7. and then by another Statute, they had the power to determine such cases before themselves: In like manner they had power to heare and determine cases of falshood, in counterfeiting and corrupting of money, by washing, clipping, &c. And also defaults committed by Sheriffs,8 Hen. 6. c. 9. Bayliffs, and their Officers against the Statutes of forcible Entries, and of wearing of Liveries, as aforesaid.

These were signes of much confidence and trust in them, and yet notwithstanding, in these, nor none of these, were the Penalties by Fine left to the Arbitry of the Judges; no, nor to the Justices of the Kings-Bench, but were by the very Letter of the Law determined.13 Hen. 4. c. 2. Nor would the Parliament trust these men with doing Justice in the cases aforesaid, in their own Counties where they dwelled, nor did it think expedient to allow the cheif Justice of the Kings Bench unto that Service in any of them all, but onely once in the County of Lancaster, and then onely at the Kings pleasure; [Page] otherwise,50 E. 3. n. 113 8 Rich. 2. cap. 2. it was to be as was used by the space of one hundered yeares foregoing; possibly because his power was too great to be trusted amongst the People.

Lastly, the Judges of Nisi prius, Westm. 2. c. 30. were anciently made by Edward the First, by whom also the Assizes were setled at certain times of the yeare, and afterwards by the Statute at Yorke, the Nisi prius in smaller cases was granted,12 E. 2. cap. 3. before one Justice of the Bench, where the Plea dependeth, and one substantiall man of the County; but those of greater concernment were to be had before two Justices of that Bench, or in case they were wanting, then before Justices of the other Bench, or in default of them, before the cheif Baron, if he were a man of Law, and in default of that,14 E. 3. c. 16. before the Judges of Assize. Therefore in those dayes, the Justices of the Benches in their Iters in the Counties, divided in their power; Some being for Assizes, others for Nisi prius; and in some times, and cases, some were for both: For in those times of Edward the Third,4 E. 3. cap. 11. Judges of Assize had power to inquire in some matters that concerned the Crowne, or to try Nisi prius, nor were these powers united, till in Henry the Sixths time, Justices of Nisi prius had the power of Oier and Terminer annexed to them, in all cases of Fellony, and Treason.

What was formerly provided by Edward the Third, and Richard the Second, for Instruction to these Judges,2 E. 3. cap. 8. 14 E. 3. c. 14. 20 E. 3. cap. 1. 8 R. 2. cap. 3. 9 R. 2. cap. 1. and to binde them thereto by solemne Oath, I shall not particularly mention, but shall leave the consideration of the Originall of the whole Judicature of this Nation, unto the Readers observation upon the Premises.

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CHAP. XX. Concerning Sheriffs.

HEnry the Fourth, after a small rest in his Throne, though he alwayes sate loose, sought after the civill Peace, as the corner Stone of his subsistence; and that by a way of Justice, which found more acceptance with the Vulgar, then the common Education of the greater number in these times could promise; for the worst of men cannot endure to suffer injustice, though themselves will doe it. Now because where Kings are reputed to be the Fountain and Life of Justice, Sheriffs may be reputed to be the breath thereof; and by their irregularities, doe render the Government of the King, as loathsome, as unsavoury breath doth the Person whose it is: Therefore Henry the Fourth chose rather to be a looser in his Farme-Rents of the Sheriffwicks, then to occasion the Sheriffs to save their bargains by oppression:1 Hen. 4. c. 11. And to this end he tooke away the course of forming of Sheriffwicks, and made the Sheriffs bare accountants for the Annuall profits;4 Hen. 5. c. 2. and as touching the casuall profits, the Sheriffe discharged himselfe upon Oath. This was a good security to the King, but yet the People was not herewith satisfied; For though the Sheriffs might not take to Farme, yet what they had, they might let to Farme; And then wherein are the People the better for these Lawes? Seeing its all one for them to be oppressed by the Sheriffe immediately, and by the Proxie.

For preventing of this inconvenience, another Law is made;4 H. 4. cap. 5. That the Sheriffe shall not let his Bailywicke to Farme, nor be Nonresident, and to this he must binde himselfe by Oathe: So as now the Sheriffe is double girt, and may be fairely ridden, without danger to the King or People. But men ride horses for ease, and pleasure, and he that must bend his minde alwayes to watch his horses motion, [Page] will choose rather to goe on foote; and therefore Henry the Fifth renewed the Law of Richard the Second,1 H. 5. cap. 4. that Sheriffs shall be but for one yeare, and then not to be chosen again, nor serve for three yeares next following. This Order continued for the space of eight yeares, within which time, Warre, and Pestilence had consumed so many of the richer sort of People, that a Dispensation is granted,9 H. 5. cap. 5. that Sheriffs may continue in their places for foure yeares. And it was above twenty yeares after, ere the Stocke was recruted againe; after which time, the substance of the former Statutes of Edward the Third, Richard the Second, and 1. Henry the Fifth is revived againe,23 H. 6. cap. 8. with a penaltie upon the Sheriffe, his Deputy, or Clerke, that shall execute that place above one yeare; so the custome of holding that Office tenne or twelve yeares, by occasion of the Dispensation for foure yeares was laid aside: But the Cure would never be perfect, so long as Sheriffs held by Inheritance: For it was easie to finde new Deputies, but not to lay downe old Customes, nor could it be lasting, unlesse the penalties also had beene annexed to the particular crimes.

For a Sheriffe before he is a yeare old, by experience formerly had, becomes too cunning for all these Lawes; and therefore Lawes are made also against the ordinary corruption of these places, such as are extorting of Fees,4 H. 6. cap. 1. 6. cap. 4. 15. c. 5. 18. c. 14. 23. cap. 10. 28 E. 3. c. ult. false making of Juries, false returnes of Writs, &c. and damages in such cases given to the party wronged; and when all is done, he is not trusted with taking of Indictments. Thus with much adoe, a Sheriffe is made a tollerable Officer, and his place by Degrees so hedged in, that what was in former times hard to plucke up, is now become hard to sett.

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CAHP. XXI. Of Justices and Lawes concerning the Peace.

THe faint title of Henry the fourth to the Crowne, made him ever tender of the Civill Peace, without breach whereof, he was sure to be quiet in the Throne; he undertooke not this worke by any superlative power, from and by himselfe, but useth the help of the Parliament, and Lawes, wherein he was industrious; pretending love of Unity amongst his People, which neverthelesse he liked not, unlesse in order to quiet between himselfe and them. The former way of Justices of Peace he followed close, reducing the Persons to their ancient qualifications.1 H. 5. cap. 10. The most sufficient Persons,18 H. 6. c. 11. Inhabitants in the County, worth at least twenty pound yearly, unlesse they be Lawyers, or such as are Justices in Corporations;2 H. 5. Stat. 2. cap. 1. nor is the King troubled or trusted with the naming or electing of these men, but the Chancellor, or the Kings councell; so as now by Law the King can neither be Justice, nor make Justice, Jure proprio, but as his interest with the Councell is more or lesse prevalent, and that power▪ that first gave it to the Crowne, the same power tooke it away, or imparted, and placed it elsewhere. But as touching the Worke or Power of the Justices themselves,2 H. 5. cap. 4. 3 cap. 7. 4 H. 6. cap. 1. it grew exceedingly, much wheerof was onely of inquiry and to make Certificate, as of Herisie, Treason, Falshood of Sheriffs, &c. But more of Oier and Terminer as in Case of Watches, deceitfulnesse in Trades; as of making arrow heads,5 H. 4. cap. 3. 7 H. 4. cap. 7. 8 H. 5. cap. 3. 2 H. 6. c. 7, 14. guilding of Mettall, tanning of Leather, inbasing of Silver, selling of waxen Images and Pictures, &c. for the superstition of these times was such, as these petty Gods were not set at so high a Price by the Seller, but at a higher price by the Buyer; the Parliament therefore set a truer vallue of them, Viz. For the Wax, so much as the Wax is worth by weight, and but foure pence for the Godhead; [Page] so as it seemes, the Parliament was not very superstitious in their House, what ever they were at Church. Further-more, the Justices of the Peace had power to punish deceit in Measures, Weights, forcible entries, and Detainers.1 H. 5. cap. 10. 9 Stat. 2. ca. 8. 2 H. 6. cap. 11. 11 H. 6. cap. 8. 13 H. 4. cap. 7. & 2. 4 H. 5. cap. 8. In many of which Cases, the Penalty being fine and imprsonment, became a snare to many of the Justices, especially such as were of the greater and higher ranke, who having Castles of their owne, under colour of justice, imprisoned Delinquents, in their owne Castles, and ransomed them at their owne pleasure; which proved a great oppression to the People; and occasioned a Law, that no Justice should commit any Delinquent to other then the County Goale, saving Franchises to the Lords.5 H. 4. cap. 10. Those times are happy when justice waites not altogether at Court, but growes up in the feilds, and Justices of Peace, as the Kings armes upon the Royall Mace are terrible onely to the bad; and not as they are pictured before an Ale-house door to invite men to transgresse.

The Lawes for the preservation of the Peace concerne either punishment of Crimes committed, or prevention of them from being committed: There is a succession of Crimes, as of men and ages, because the Scripture tells us, that the hearts of all are fashioned alike, yet it is with generations as with men, some incline to some Crimes more then other, and that is the reason that the title Treason, sometimes is set forth in Folio, sometimes in a lesser Volume. Its evident in Story, that the violent times of Richard the second, had raised the vallue of that, amongst other offences, above measure; not long before his time, his Father had reduced that wilde Notion of Treason to a certaine rule, that formerly wandred in a Wildernesse of opinion. But Henry the fourth, either to save his own Stake, or to take the People, or both,1 H. 4. cap. 10. reduced it againe to the Statute rule of Edward the third, and made void that Statute of his Predecessors, which had made a former Act of Parliament, (and all the service thereby done) Treason. The dimensions of Treason thus clearly limmed and declared, taught [Page] ill disposed mindes to keep out of the Letter, and yet to be bold with the sense; counterfeit Money they durst not, yet to diminish the same they thought came not within the circle,3 H. 5. cap. 6. and so it became a common greivance, till a Law was made, that all purposed impairing of Mony shall be Treason. And so the Parliament held forth to all men that they had a power to declare Treason, without the bounds of the Statute of Edward the third. The like power it held forth in the time of Henry the sixth, for men knew that Burglary and robbery were mortall crimes, they would no more of that, now they devise a way to spoile, and prey, for themselves, and yet neither to rob, nor break house. To this end they would scatter little Scrolls in writing, requiring the party that they intended to prey upon, to leave so much Money upon such a day, at such a place, and this was,8 H. 6. cap. 6. Sub paena, of burning the parties house, and goods; which many times did insue upon default made, this practise was at once made Treason, to prevent the grouth of such an evill. And the like was done with Robberies and Manslaughters, contrary to the Kings Truce, and Safeconduct.14 H. 6. cap. 8.

As many or more new Fellonies were also now created.

One was the cutting out of mens tongues, and plucking out of eyes,5 H. 4. cap. 4. a strange cruelty; and that shewed the extreame savagenesse of those times, so much the more intollerable, by how much the poore tortured creature could hardly be either eye, or eare witnesse, of the truth of his own wrong.

18 H. 6. c. 15.A second Fellony was, the customary carrying of Wooll, or Wool-fells out of the Realme, to other places; except Callis.

Another Fellony concerneth Souldiers, which I refer over to the next Chapter.

The last was, Servants plundering their Masters Goods, and absenting themselves,33 H. 6. cap. 1. if upon Proclamation made, they appeare not, this was also made Fellony.

[Page]In the next place, as touching forcible entries and riots, the remedies so often inculcated, and new dressed, shew plainly the nature of the times: These kind of crimes commonly are as the light Skirmishes in the beginning of a War, and follow in the conclusion also, as the faintings of a battell fought till both sides be weary.

I shall not enter into each particular Statute, diverse of them being little other then as asseverations, annexed to a sentence, to add credit and stirr up minding in men, that otherwise would soone forget what is sayd or done: The remedies formerly propounded are now refined and made more effectuall.

First, in regard of speed, which is as necessary in these forces as the stopping of the breaches of waters, in the first Act, and therefore one Justice of the Peace may proceed upon a holder by force, or breaker of the Peace, with a Continuando, 8 H. 6. cap. 9. but Riots are looked upon as more dangerous, and the first opposition had need be more stiffe, least being uneffectuall, aggravates the violence, and therefore its required that two Justices, and the Sheriffe should joyne in the worke, to carry one the worke with more Authority, and Power. And what they cannot do in the punitive part, they must certifie to the King and his Councel,31 H. 6. cap. 2. 2 H. 5. cap. 9. or to the Kings Bench if traverse be made: So as though the Power of the County be annexed to the Sheriffe, Jure ordinario, to maintaine the peace, yet the Parliament did delegate the same upon Justices, as it thought most expedient.

To maintaine and recover the Peace when its broken, shewes more Power, but to prevent the breach, shewes more Wisdome, and therefore to all the rest, the Wisdome of these times provided carefully,

First, for Guards, and Watches, according to the Statute at Wint: 5 H. 4. cap. 3. and committed the care thereof to the Justices of the Peace.

And secondly, against the gendring of partyes, for its commonly seene, that such as are admired for excellecies [Page] of Person, are so far adolized of some, as that their gestures, actions, and opinions, are observed; tokens of favour (though never so small) are desired from such and the Idoll likes it well, gives Points, Ribbons, it may be Hats, and with these men are soon gained to be Servants in the fashion, and not long after to be servants in Action, be it War or Treason, or any other way. This manner of cheat, the former times had been too well acquainted with; Knights, and Esquires, are not feared, in times where the word Lord carries the wonderment away, their offences against the Statutes of Liveries, are all great, though in themselves never so small;1 H. 4. cap. 7. 8 H. 6. cap. 4. and therefore are sure of Fine, and Ransome, and its well if they escape a yeares Imprisonment, without baile, or mainprize. Lords may weare the Kings Livery, but may give none; Knights and Esquires may weare the Kings Livery in their attendance upon his Person, but not in the Countrey:2 H. 4. cap. 21. The King and Prince may give Liveries to Lords and meniall Servants. The summe is, that Liveries may be given by the more publique Persons for State, not to make parties; and Men may weare Liveries in token of Service in Peace, and not in Armes.

One thing must be added to all, which may concern triall in all,20 H. 6. Stat. 2. c. 6. Viz. A Law was now made, that Noble Ladies shall be tried by their Peeres; a Law now of the first stamp, and strange it is that it never came before now into the breast of the Law, but that it came now, it is not strange; no meaner Person then the Dutches of Glocester is first charged with Treason; when that could not appear, then for Necromancy, very fitly, that she might be tried by the Ecclesiasticall way of witnesses; She is found guilty, and a Sentence of Penance, and imprisonment or banishment passed thereupon after such a wilde way, as both Nobles, and Commons passed this Law, for the Vindication of that Noble Sexe, from such hudling trialls for the future.

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CHAP. XXII. Of the Militia during these times.

THe Title of Henry the Fourth to the Crown, was maintained principally by his Tenures, which the Courtiers call Knight-Service, but the Common People, force of Armes; and that which destroyed many a man, was the principall means of his subsistence. Otherwise its clear, that his Title was staring naught; nor could he outface Mortimars Title, without a naked Sword, which he used warily; for he had Enemies enough to keep his Sword in hand, and Freinds enough to keep it from striking at randome: for coming in by the Peoples favour, he was obleiged to be rather remisse, then rigorous, yet his manner of comming was by the Sword, and that occasioneth men much to debate about his absolute power in the Militia, as supposing that what power he had, other Kings may, De jure, challenge the same; and let that be taken for granted, though it will not necessarily follow in true reasoning: And let it also be taken for good, that Henry the Fourth, entered the Throne by his Sword, yet is there not any Monument in Story or Antiquity, that favoureth any absolute right in him over the Militia, but the current is, I think, somwhat clear against it.

First, because Henry the Fourth, De Jure, could not compell men to serve beyond the Seas, but raised them by contract, and therefore by Act of Parliament, he did confirme the Statute, 1 Ed. 3. Stat. 2. cap. 5.4 H. 4. cap. 3. which Statute was purposely made to that end: And the same also is countenanced by another Statute made in these times,18 H. 6. c. 19. whereof we now Treat; by the words whereof appeareth, that the Souldiers for the Forrain Service were levied by Contract, between them and the Captain, who undertooke to Levy them by wage; so as none were then compelled to enter into Service by imprest, or absolute command; nor is there any [Page] authority amongst all those cited in Calvins Case, that doth mention any such thing; but contrarily, that Opinion of Thirning is expresse,7 H. 4. Fitzherb. Protect. 100. That the King cannot send men beyond Seas to Warres, 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 himselfe.

Secondly, it seemeth also to be granted, that such as went voluntarily in the Kings Service, ever had the Kings pay, after they were out of their Counties, if the King ruled by his Lawes, for by the Statute formerly mentioned, the King did likewise confirm the Statute of 18 Ed. 3. Stat. 2. cap. 7. which is expresse 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 their was a certain Law, by which all men were Assessed to certain Armes, either by the Service and Tenure of their Lands, or by Parliament; for such as were not bound to finde sufficient Armes by their Tenure, according as is contained in the Statute,4 Hen. 4. 25 Ed. 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 Calvins 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 Warre at his pleasure, and he hath onely power to make Warre; and if so, then hath he absolute power in the Militia: As touching the power of sending men to Warre, hath been already spoken; but as touching the power to make Warre, there is no doubt, but where a King hath made a League with another King, he onely can break that League, and so make Warre; and that Opinion of Brian must be agreed for good in that sense.19 E. 4. fol. 6. But if a League be made by Act of Parliament, or if the King will have Warre, 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 Legall Power to [Page] break that League as he pleaseth: Neither in the next place, hath the King any right or Legall 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 Coronation, but also by the Lawes 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 Publique Peace. And Henry the Fourth,1 H. 4 cap. 7. amongst other provisions made against that trick, hath this; That the King shall give onely his Honourable Livery to his Lords Temporall whom shall please him, and to his Knights and Esquires meniall, and to his Knights and Esquires which be of his retinue, and take of him their yearely Fee for Terme of Life, and that no Yeoman shall take or weare any Livery of the King, nor of none other Lord. And another Law was made within one yeare ensuing, confirming the former,2 H. 4. cap. 21. and providing, the Prince may give Liveries to such Lords as he pleases, and to his meniall Gentlemen, and that they may weare 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 then in especiall Cases; and then the Conclusion will be, that if the King may not give Liveries to prejudice of the Peace, then may he much lesse break the Peace at his pleasure; or Levy Men, Armes and Warre when he shall think most meet. Take then away from the King absolute Power to compell men to take up Armes, otherwise then in case of Forrain Invasion; power to compell men to goe out of their Counties to War; power to charge men for maintenance of the wars, power to make them find Armes at his pleasure; and lastly, power to break the Peace, or doe ought that may tend thereto: Certainly the power of the Militia that remaineth, though never so surely setled in the Kings hand, can never bite this Nation.

[Page]Nor can the noise of the Commission of Array, Intitle 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 President or Rule for the future; yet will it not follow, that Henry the Fourth had, or any Successours of his, hath any power of Array originally from themselves, absolutely in themselves, or determinatively to such ends, as he, or they, shall thinke meete.

First, as touching the amendment of the Commission, it was done upon complaint made by the Commons as a greivance, that such Commissions had issued forth, as had been greivous, hurtfull, and dangerous; And the King agrees to the amendments, upon advice had with the Lords, and Judges:Exact. Collec. p. 406. and if it be true that the amendments were in the materiall Clauses (as it is granted) then it seemeth that formerly a greater power was exercised then 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 greivance to the Subject.

P. 407.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 goe; 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,Ibid. fol. 406. but (as we are told) beyond expectation, alterations were made in materiall parts of the Commission, and the powers in execution there, whereof no complaint of greivance had been made. The issue then is, if the King had an Universall Power in the Array; the Parliament likewise had a generall 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 [Page] not be concluded, that this Power is Originally or absolutely in the King: Its not absolutely in him, because it is limited in these particulars.

First, its not continuall, because its onely in case of eminent danger.

Secondly, Its not generall upon all occasions, but onely in case of a Forrain and sudden invasion and attempts.

Thirdly, the powers are not undefined, but circumscribed. 1. To Array such as are Armed,Collect. 4.24. so as they cannot assesse Armes upon such. 2. To compell those of able Bodies and Estates to be Armed, and those of able Estates, and not able bodies, to Arme such as are of able Bodies, and not Estates: but this must be Juxta facultates, and salvo Statu. 3. Whereas they straine themselves to make the Statute of Henry the Fourth, and the Commission of Array, to consist with the Statutes of 13 E. 1. 1 E. 3. and 25 E. 3. thereby they affirm so many more restrictions unto this power of Array, as those Statutes are remediall in particular cases; yet doe I not agree to their Glosses, but leave them to the debate already published concerning the same.

Secondly, as this power was not absolutely in the King, so was it not originally from themselves, because they had not the Legislative Power concerning the same; but the same was ever, and yet is, in the Parliament; hereof I shall note onely three particular instances.

First, the Militia is a Posture, that extendeth as well to Sea, as Land: That which concerneth the Sea, is the Law of Marque, and Reprisall, granted to such of the People of this Nation, as are pillaged by Sea, by such as have the Kings Conduct, or publique Truce. And by this Law,4 H. 5. cap. 7. the Party pillaged, had to recompence himself upon that man that had pillaged him, or upon any other Subject of that Nation, in case upon request made of the Magistrate in that Nation, satisfaction be not given him for his wrong, it was a Law made by the Parliament, whereby the Chancellor had power to grant such Letters or Commission, upon complaint to him made.

[Page] Mag. Cart. cap. 32.This was grounded upon the Statute of Magna Charta, concerning Free Trade, which had been prejudiced by the rigour of the Conservators of the Truce, against the Kings Subjects, although what was by them done was done in their own defence: And by which means, the Forrainers were become bold to transgress, and the English fearfull in their own Charge, and many laid aside their Trade by Sea, and thereby the strength of the Kingdome was much impaired: Nor is the Equity of this Law to be questioned, for if the Magistrate upon complaint made, grants not releif, the offence becomes Publique, and the Nation chargeable, in nature of an Accessory after the Fact, and so the next man liable to give satisfaction, and to seek for releif at home.

The King then hath a power to grant Letters of Marque, by Sea or Land, and this power is granted by Parliament, and this power is a limited power, onely in particular cases, in regard that many times these prove in nature of the first, light skirmishes of a generall War.

Two other Instances yet remain, concerning the Order and Government of the Souldiers in the Army; the one concerning the Souldiers Pay, Viz. That Captains shall not abate the Souldiers Wages, 18 H. 6. c. 18. but for their Cloathing, under peril of Fine to the King. The other concerning the Souldiers service,cap. 19. That they shall not depart from their Colours without leave, before the time of their Service be expired, unlesse in case of sicknesse, or other good cause, testified and allowed by the Captain; and such as shall doe otherwise, shall suffer as Fellons. Which Lawes could not have holden in force, had they not been made by Parliament, in respect that the Penalties concern the Estates and Lives of Men, which are not to be invaded but by the Law of the Land: so as both Captains and Souldiers, as touching the Legislative power, are not under the King in his Personall Capacity, but under the Law of the Parliament.

Lastly, as the rule of War was under the Legislative power of the Parliament, so was the rule of Peace; for whiles Henry the Sixth was in France, which was in his tenth yeare, [Page] from Saint Georges day, till February following: The Scots propound tearmes of Peace to the Duke of Glocester, Hall. 10. H. 6 he being then Custos Regni, which he referred to the Order of the Parliament, by whom it was determined, and the Peace concluded in the absence of the King, and was holden as good and effectuall by both Kingdomes, as if the King had been personally present in his full capacity.

CHAP. XXIII. A Survey of the Reignes of Edward the Fourth, Edward the Fifth, and Richard the Third.

THe reign of Henry the Sixth, was for the most part, in the former parts of it, like fire buried up in the ashes; and in the later parts breaking out into a flame: In the heat wherof, the Duke of York, after Fealty given by him to Henry the Sixth, and dispensation gotten from the Pope, to break his Faith, lost his life; and left his Sonne the Mark-grave, to pursue his Title to the Crown, which he claimed by Inheritance, but more especially by Act of Parliament made upon the agreement between Henry the Sixth, and his Father. This was Edward the Fourth, who neverthelesse reserved himself to the Election of the Lords, and was by them received, and commended to the Commons in the Feild, by which meanes he gaining the Possession, had also incouragement to maintain the same, yet never held himself a King of full age, so long as Henry the Sixth lived, which was the one half of his reigne: Nor did he, though he held many Parliaments, scarce reach higher then at reforming of Trade, which was a Theame well pleasing to the People, next unto their Peace, which also the King carefully regarded. For although he had been a Souldier of good experience, [Page] and therewith successfull, yet as one loath to trust too far, either the constancy of the People of his own dominion, or the fortune of War with his neighbouring Princes, he did much by brave countenance and discourse: and yet gain'd repute to the English for valour, after the dishonorable times of Henry the sixth. He had much to do with a wise King of France, that knew how to lay out three or foure calme words at any time to save the adventure of his Peoples blood, and make a shew of Mony to purchase the peaceable holding of that which was his, only by force, untill the winde proved more faire to bring all that continent under one head.

In his Government at home he met with many crosse gales, occasioned principally by his owne rashnesse, and neglect of the Earl of Warwicks approved freindship, which he had turned into professed enmity: And so weakned his own cause thereby,Com. lib. 3. c. 4. & 5. &. 6. that he was once under Water, his Kingdome disposed of by a new intaile upon the Heires of Duke Clarence, and so the Earle of Warwick remained constant to the House of York though this particular King was set aside. Nor did he in all this, gaine any thing but a Wife, who though his subject, and none of the greatest family, neither brought any interest unto her Lord and Husband amongst forraine Princes, brought neverthelesse a Pearle, which was beyond all; which was the purchase of the Union between the two Houses of Yorke, 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 Queenes 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 avoyded, 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 beneficiall for the Kingdome, then to marry a Stranger.

But Edward the fourth did not long lye underneath; upon the next faire Gale he comes from beyond the Sea, and [Page] (like his first predecessor of the House of Lancaster) claimes only his Dutchy, which no man could in reason deny to be his right, and therfore were the sooner ingaged 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 ingage then slack to disingage, 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 Crowne to save his Dutchy. His Government was not sutable; for he came in by the People, but indeavored to uphold himself by forrain dependences; as if he desired to spread his roots, rather wide then deep, how ill this choise was, the event shewed; for plants that root wide may be strong enough against an outward storme, but they soon grow old, barren, and ro [...]t irrecoverably from beneath: Such was the end of this mans Government, himselfe 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 then a bare title. Nor was the Government of Edward the fourth so secured by these ingagements of Forrainers, for as he sought to delude so he was deluded,Comin. lib. 3. c. 4. both by Burgundy and Scotland, to the prejudice of all three. Towards his owne 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 himselfe, dissatisfie others, and yet never was called to account: What was done by intreaty 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 tyred by Warrs, scared by his successe, and loath to adventure much for the House of Lancaster, in which no courage was left to adventure for it selfe. The greatest errour of his way was in the matter of Revenue; the former times had been unhappy in respect of good husbandry;Comin. lib. 3. c. 5. and Edward the fourth was no man to gather heaps: His occasions conduced rather to diffuse, and [Page] his minde generally led the way thereto, so as its the lesse wonder if he called more for accommodations then the Ordinary Treasury of the Crowne could supply: Hereto therefore he used expedients, which in his former times, were more moderate; for whiles Henry the sixth lived, he did but borrow,12 E. 4 cap. 2. by privy Seale, and take tonnage and poundage by way of hire: Afterwards when no Starr appeared (but what was inlightned from his own Sun) he was more plaine, and tried a new trick, called Benevolence: unwelcome it was, not onely in regard of its owne nature, but much more in the end,Comin. lib. 4. cap. 1. for it was to serve the Duke of Burgundy in raising a Warr against France in the first view, but in the conclusion to serve his own purse, both from freinds and foes: And yet this also passed without much controll, for when displeasure was like to ensue, he could speak faire, and feast, and if need was, kisse away all discontent. Towards his end, as stale drinke, he grew sowre: For as in the first part of his reigne he had beene supplyed by good will against Law; so in his later times, he had gotten a trick of supply by Law against good will: This was by penall Laws, which are a remedy if they be used, Ad terrorem, but if strained beyond that, the remedy proveth worse then the disease; in their first institution they are formes of courtesie from the People to the King, but in the rigorous execution of them, are trialls of mastery of the King over the People, and are usually laid up against dayes of reckoning between the Prince and them.

Those penall Laws are best contrived, that with the greatest terrour to the Delinquent bring the least profit to the Kings Coffers. Once for all, this Kings Acts were many, his enterprises more, but seldome attaining that end which they faced. He was a man of Warr, and did more by his Fame then his Sword, was no sooner resolved in good earnest but he died, left a Kingdome unassured, his Children young, and many freinds in shew, but in truth very few.

Edw. 5. Rich. 3.Now if ever was the Kingdome in a trance, Edward the fourth left a Son, the Prima materia, of a King, and who [Page] lived long enough to be inrolled amongst English Kings, yet served the place no further, then to be an occasion to fill up the measure of the wickednesse of the Duke of Glocester, 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 Unkle the Duke of Glocester, little other then as an Overseer to an Executor, that might see and complaine, 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 honor before he ascended the Throne,Fercat. de Gallar. Imper. lib. 3. so no man ever entred and sate theron with lesse; his proceeds were from a Protector to an Usurper, and thence to a Tyrant a scourg to the whol 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 loath 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, hee makes whole by recompence, takes a way benevolences;1 Rich. 3. c. 2. 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 as soone finde an army in the feild to fight for him, as the most meritorious of his Predecessors. His ill title made him very jealous, and thereby tought his best freinds, to keep at a distance, after which time few escaped that came within his reach, and so he served Gods judgement against his adjutants, though he understeod it not. Amongst the [Page] rest, the Duke of Buckingham (his great Associate, both in the Butchery of the two young Princes, and usurpation of the Royall 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 owne wombe.

The Kings minde delivered from feare of the Sonnes of Edward the Fourth, now dead, torments himselfe with thoughts of his Daughter alive; ashamed he is of Butchery of a Girle,1 Rich. 3. cap. 15. he chooseth a conceit of Basterdizing the Children of Elizabeth Graye, 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 Graye is now undoubted Wife of Edward the Fourth, and her eldest Daughter, as undoubted Heire 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 Kingdome; which, he good King, was bound in Conscience to maintain, though with the perill of his owne Soule; and in this zeale of his Conscience, his Queen soon went out of the way, and so Love is made to the young Lady. But Henry Earle 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 loosing both the Lady, his Crowne, and owne life together, put an end to much wickednesse, and had the end thereof in Bosworth-Feild.

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CHAP. XXIV. Of the Government in relation to the Parliament.

THe seasons now in Tract were of short continuance, lives passed away more speedily then years; and it may seem uselesse to inquire what is the nature of the Government in such a time, when as 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 Yorke was never so clear against that of Lancaster; yet it had been so long darkned with a continuall Succession of Kings of the Red-Rose, that either by their merit had gained a Throne in the Peoples hearts, or by their facility had yeilded their Throne up to the Peoples will; as it proved not easie to Convince them that liked well their present Lot, and were doubtfull 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 triall 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 Prince. On the other side, Edward the Fourth, newly sprung up out of a Root, watered with blood; himself also a Man for the Feild.

This might well put the minds of the People to a stand, what to think of this Man, whose nature and ends are so doubtfull, 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 lesse. Add hereunto that Divine Providence did not so clearly, nor suddenly, determine his secret purpose concerning this change, by any constant successe to either part, by means whereof the one half of Edward the Fourths reign was spent, while as yet Henry the Sixth was in veiw, and the [Page] minds of men left unassured, neither trusting much to Edward the Fourth, nor he to them: and after that Henry the Sixth was gone out of the way, Edward the Fourth, could not readily change his posture, used Arguments of force and power, and for the most part, looked like a Man in Armes, with his hand on his sword, ready to draw upon the next man that stands in his way.

1 E 4. n. 30.Thus are the People partly driven, and partly drawn, into an Oath of Allegiance unto Edward the Fourth, under perill of Attainder; and the Parliament assured unto him once more: For immediately upon the departure of Edward the Fourth beyond Sea, after tenne yeares of his Reign, the Parliament (never staying for the issue of Providence) declared the Throne void of Edward the Fourth, and Henry the Sixth King. The Judges likewise of the Courts at Westminster determined the same thing, as may appear by the Law Reports of those times in Print: wherein Re-attachments were often granted by them upon discontinuance of processe by this Demise of Edward the Fourth. And thus Henry the Sixth is once more King for six moneths, Viz. from October to Aprill, at which time the ballance turns, Edward the Fourth returns, gets into the Throne; Henry the Sixth is again Dethroned, all things are as they were, and all confirmed by Act of Parliament. For that Body is ever wise enough to side with power, rather then to spend much time upon fruitless Orders and Votes, that will peirce no Armour; and therefore like the times, must needs be subject to fits of distemper at the comming in of every Tide, and did build, and pull down, Enact and disenact, turn and return, the English Crown, from Yorke to Lancaster, and back again, and in conclusion, for some time did do little but undo. Nor can they be justly censured herein; for Councells of men are not ordained to hinder Divine Providence, or over-rule Fate, but to foresee, and close with occasions, in the most advantageous way for the Publique good, and when both winds and Currents are uncertain, to ride at flote, till they can discern the most commodious Haven to Winter in. To impute [Page] therefore fault unto the Parliament in such Cases for want of Uniformity, and Immutability of Councells, is somewhat like the Notion that Batchelours conceit of Wives, they would have, but they do not know what other, then an Idea of their own Fancy

Now if it be inquired which course prevailed, in order either to the Kings Royalty, or the Peoples Liberty, I shall answer neither of these; but the House of Yorke prevailed to hold the Crown, and might have advanced the Authority thereof, had they not falne out amongst themselves for the spoyle; and Edward the Fourth was not altogether disposed thereto: The successe that he had in the Feild, and his Souldiery, made him look big like a King of the greater size; but Kings sleep not securely upon such pillowes; when the Militia is on hors-back, it is as ready to be a Guard upon the King, as for him, and when it is most sober, not so easily governed as a Common-wealth. And therefore Edward the Fourth, now in Armes, though he found it a hard Notion to maintain the Peoples Liberty, where no man is free from the Souldier, yet he inclined thereto: we reade of multitude of Taxations of all sorts, and of benevolences, the worst of all those sorts: for Souldiers must have money, or if not, they will have it, but the King would not force things so far as his power could reach, he will have money, but it shall be by Order of the Parliament. He might have pretended much upon the Commission of Array,12 E. 4. n. 8. yet did it not, but chose rather to be Lord of the Seas: and because it was too great a Farm for his private purse, he prayes aid of the Parliament by the way of Tonnage, and Poundage,12 E. 4. cap. 3. which was in demand nine yeares, before the Parliament granted it; and when it was granted, it was with such restrictions, that it is evident the King preferred the right of the Parliament therein, above his private Honour.

Secondly, Titles of Honour are but windy Notions, and every one knowes what claim is made by Kings, to have the sole interest in conferring the same;17 E. 4. n. 10, 16. this Edward the Fourth neglected so far, as he interested the Parliament, both in the [Page] in the conferring of them, and resuming of the same.

Thirdly, the course of Trade was now more especially looked to, not by the King and Privy Councell, but by the Parliament; and because it was much decayed, partly by reason of the ill Government thereof, and partly by the excessive lavishnesse of these times, many Lawes are made for remedy of both. And first, the Staple was settled sometimes at Callis alone,3 E. 4. cap. 1. 4 E. 4. cap. 2. 14 E. 4. cap. 3, 5. sometimes at it, and Middleburrough, and by this means England gained Trade from both Nations; but the principall thanks is to be given to the interest between the King and the House of Burgundy. Then course is taken for the bringing of the Staple Commodities onely to those places,3 E. 4. cap. 1. and the return to be made in money, and not commodity by exchange. Then for the well making of Staple Manufactures,1 R. 3. cap. 12. 4 E. 4. cap. 1, 2, 3. 17 E. 4. cap. 1. and restraining Importation of Forrain Manufactures of such kinds. Then against transporting of English Coyn, and Importing of Forrain Coyn, other then Bullion.

And as touching the second greivance, it seems gallantry, or vanity of Apparrel was a sore disease of these times, which were become times of Fashions, and wherein the King led the way by his own example; for he desired to be brave, and that he might be more brave, he passed Lawes that the People should be lesse brave, assessing a sort of Apparrell for every degree,3 E. 4. cap. 5. 22 E. 4. cap. 1. 17 E. 4. cap. 1. and therein stooped so low, as to define the fashions of their very shooes.

Fourthly, the Parliament retained their ancient right of reducing the course of Judicature; for whereas Sheriffs had hitherto holden their course of triall of the meaner sort of Fellonies, and Trespasses, and Offences, determinable onely by Imprisonment, or Fines and Amerciaments; whereby mens Estates did lie under the continuall pillage of these covetous and extorting Officers: It was established by the Parliament, that these men should have for the future, onely power of inquiry,1 E. 4. cap. 2. and to certifie at the next Sessions, and there the Triall to be, and Fines and Amerciaments to be set, taxed; and estreated, unto the Exchequor, and from thence [Page] to be levied, and thereof the Sheriff to give account; this was a great security to the Peoples estates, but gave them not a full remedy: for though the Triall was now more fair, yet these Officers were Judges of suspition, and had still power upon suspition to imprison their persons, and seize their Estates, under colour to save them for the King, in case Conviction followed.

For remedy hereof,1 R. 3. cap. 3. the Justices of the Peace have now power given them to Bail, in Cases of light Suspition, and it is further declared, that no mans Estate shall be first seized, till Conviction and Attainder first be had. And because Estheators grew no lesse burdensome in their way; it was therefore Ordered, that no man shall be allowed in such Office, unlesse he hath Lands to the vallue of twenty pounds per annum, 12 E. 4. cap. 9. and that he shall be responsable for such wrong done by himself, or by his Deputy and Farmer.

Thus Edward the Fourth quitted himself like a King in many regards, but soon ran himself out of breath, gave his Lamp to his Sonne, that was too weake to hold it; a Third snatches it away, and for two yeares carrying it exceeding well, yeilded up all incroached Royalty to the People,1 R. 3. cap. 2. and his Crown and Life to his Successor.

CHAP. XXV. The Condition of the Clergy.

IF any gains were had in these uncertain times, the Churchmen might seem to have them, having now this advantage, that the Commonalty was distracted with uncertain Interests of the Succession of the Crown: And themselves onely united under the Popedome, now freed from all Schisme: and the Popedome mannaged by Sixtus the Fourth, who had the hap to be accounted more vertuous, [Page] then any of his Predecessors had been,Naucler. and to have all the Christian Princes wholly at his Devotion,

And lastly, both the Clergy, and the Kings were now joyntly ingaged against the rising power of Religion, then called Heresie, in order whereunto, the Clergy leading the way, had the applause of them that followed upon an implicite Faith, that whatsoever was done, was exceeding well done.

Nor was it wisdome for Kings that sate loose in their Thrones, to stumble the good Opinions of so considerable party towards them. And therefore Edward the Fourth, in his first entrance, granted to the Clergy, that which could never be by them obtained from any of the foregoing Kings, Viz. Antiq. Brit. 294. Free liberty of Process in all Cases Ecclesiasticall, and in Tythes of Wood above twenty yeares growth; and in Case they were troubled upon the Statutes of Provisors, they should have their remedy in the Chancery, against those Judges, and their proceedings in such Cases to be there Cancelled. This was done by Charter, and was sufficient to shew what the desire of the Clergy,9 H. 6. fol. 56. Per Paston. and the intention of the King was, Viz. At once to favour the Church, and under colour of favour done to the Clergy [...]o cancell both Common and Statute Lawes of the Kingdome, by the power of the Chancellors Decree; neverthelesse, all this was but the Kings breath, the policie changed never a whit the more. For the Common Law held on its course, not onely in Cases depending before the holy Chair, but also even before the Bishop of the Diocess at home; so as neither the King was concluded from his Suit,5 E. 4. fol. 6. 9 E. 4. fol. 3. 7 E. 4. fol. 2. Per Littleton. nor the party endammaged from his Action by any such Charter. And so far was the Judges of the Common Law from being bound by the Chancery in such Cases, that they professed they would not delay to grant the Habeas Corpus, to deliver any Prisoner by Decree of the Chancellor,22 E 4. f. 37. in any Case triable at the Common Law: Much lesse did the Parliament favour these men so far, as to give them any countenance in any way of gain upon themselves, but rather made bold with what the Church-men in [Page] former times challenged as their own, and upon this Account, whereas formerly it had inhibited Fairs and Markets upon the Lords Day: Now it inhibited the sale of Boots, Shooes, &c. upon that day, though done never so privately, which they did at the first, onely within the City of London, and three miles thereof. I suppose it was made onely by way of Triall, it being dangerous in such times to give a stop to all England at once, otherwise it might be wondered, why Gods Honour should be better regarded in London, then all the Realm besides: Of this Inchroachment we finde no complaint made by the Church-men; another touched them to the quick, although it befell onely the Archbishopricke of Yorke. Hitherto that so held ordinary Jurisdiction over all the Bishops of Scotland, as being their Provinciall. Now it is disclaimed by them all, and they are backed therein by their King, under pretence of great inconvenience to his Bishops in their so far travells; but in truth, not unlike to Jeroboam, though he pretended it was too much for them, yet he thought it unsafe for himself, that his Bishops should owe Canonicall obedience to the Subject of another Prince, and upon this ground prevailed with Pope Sixtus the Fourth, to make the Divorse, and left it to future Ages, to try the validity thereof, if they would.

This is all that I shall observe of the Government of these three Kings, whose Reigns in the whole, exceeded not twenty six yeares, and their compleat power therein, not much above half so many.

[Page]

CHAP. XXVI. A short summ of the Reignes of Henry the Seventh, and Henry the Eighth.

THe course of English policy hitherto wandering in the different Currents, springing from the double head of Monarchy, and Democracy, and in them likewise, often tossed up and down, partly by the blasts of windy Titles and Pretentions, and partly by the raging Tides from the Roman Sea, now begin to come to Anchor within veiw of Shore. Happy England, if the same prove good Harbarage for a fainting Nation. Two Kings now undertake the Stearage; the worke of the first was to still the Winds, the other the Seas, and so to bring the Adventure safe home. Henry the Seventh, hapned upon a good preparative for this work, in that he delivered the Kingdom from a Tyrant, whose irregular and bloody way was so odious to the People, that it set a foil upon his Successors Government, and made his Wisdom, Vallour and Justice, appear greater then possibly it was. His Vallour made way for the other two, he had enough thereof to serve a wise Man in case of Extremitie; at other times he made more use of his Majesty, then Manhood; being confident that the People knew not where to mend themselves, but would be at his Devotion, so long as he was better then his Predecessor, though he cared not how little. His Wisdome was his greatest part, of which, upon all occasions he made the greatest improvement he could, without reflecting upon Conscience, or Religion, whereof he had tasted no more then would render him a civill man, whereunto his Education did lead the way: thus, though his Vallour brought him to the Crown, yet it was [Page] his wisdome that settled him in the Throne. For though he loved himself so well, that he was loath to pretend allowance of any access of Forrain help to his own atcheivement in his Title, or that he was guilty in the least manner in his Entry upon the Throne; yet to keep danger far off, he provided one guard for his Person, and many for his Title.

That of his Person he pretended onely as a Ceremony of State brought from the French Court, and yet its strange that it went so well down with a Free People: For 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 fearfull; and so turn the Royall power of Law into force of Armes: but it was the French Fashion, and the Kings good hope to have all taken in the best sense.

His Title (setting aside the saying of Phillip the hardy,Thevet. lib. 4. cap. 32. That Kingdomes onely belong to them that can get them) would hardly endure the touch, till Pope Inocent by his Bull, confirmed the Crown to him to hold by a sixfold right, Viz. Of Inheritance, of Warre, of Espousals, of Election, of gift by Parliament, and lastly, of Pontificiall Benediction; which the King liked marvellous well, and the rather because his Title by marriage was buried up in the middle, and so made the lesse noyse. For though it was his best guard, yet he liked not that it should be so reputed, least his Title should seem rather conferred upon him, then 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 English King diminished: His Title by Inheritance is much disputable, if the right Heires of John of Gaunt be inquired after: and much more that of Warre, for although that brought the Possession, yet no right or Title, but by wrong; which may indeed be plaistred over by Election, or Act of Parliament, but then he must be Tenant to the People. As touching the Pontificiall Benediction, himselfe tooke that but as a redundancy, that might sway with the [Page] Clergy, and do his Title no hurt. Neverthelesse 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,Jovius Brit. 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 greatnesse, that he lost the repute of his goodnesse, 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 whiles 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, then all his Predecessors had done; nor did the People perceive it til they were over their shoos, and then they clearly saw their condition, and that it was in vaine 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 also he did by degrees, first by light Skermishes of borrowing smaller sums of Money (possibly when he had no need) and paying them againe, thereby to gain credit for greater sums, of which he intended not so suddain returne. 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 lesse regarded. But in this course he gained nothing but winde; then (as Edward the fourth) he falls upon Malevolences of penall Lawes; things made, in terrorem, to scare men to obedience, rather then to compell 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,Jovius Brit. fol. 9. he made all serve his owne turne, Humanitatem omnem vicente periculo.

[Page]In the feild he alwayes put his Wisdome in the Van, for as he was parcimonious in expences of Money, so much rather of Blood, if he could prevaile by wit; Generally he was the first in armes, to make men beleeve he was more ready to fight then they: Thus he many times gained the advantage of his adversaries, and sometimes came off without blowes. In the Battell he did put on courage as he did his armor, and would dare to adventure just as far as a Generall should, as if he had ever regard of his Crown, rather then of the honor of a forward Souldier, which neverthelesse was also so dear to him as he is seldome found in the reare, although his judgment commanded in cheife rather then his courage. In the Throne he is much more wise, because he was willing it should be known. In doing Justice he is seldome suspected, unlesse where himselfe is party, and yet then he is also so shamfaced as he would ever either stalk behinde 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 finenesse might be known, but his royalty. For the Lion hunts not his own prey, nor is it regall for a King to be seen in catching of mony, though he be understood; besides it was needlesse, he had Lords, Bishops, Judges, and other instruments of malevolent aspect, as so many furies, outwardly resembling men for the Common-wealth, but working for the common mischeife; like some pictures one way looking right, and another 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 Kings owne traine; for he had some of his suite that were not altogether of his minde, and these he would spare to the Course of Justice if need were; as it befell in the Case of the Duke of Suffolk, whom he suffered to be tried at the Kings Bench bar, for a murther done upon a meane person, and by such meanes obtained the repute of a Zealous Justiciar, as if Justice had been his principall vertue. [Page] All this suited well with his maine end; for he that will milk his cattell must feed them well; and it incourages 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 behinde him, he made Church-men his instruments, that the matter might better relish, for who wil 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 to be trusted. And it is his unhappynesse to meet with Clergy men to serve a turn, and a Pope to give his benediction to a [...]l. Nor was this Gratis, for there were as many mutuall ingagements between the Clergy and him, as any of his Predecessors of the hous of Lancaster besids. Lastly, it may wel be supposed however wise this King seemed to be, that many saw through him, which procured him a troublesome reigne; though many times occasioned by his owne interposing in forraine Interests, wherein he suffered more from others then they from him. Amongst the rest the Dutches of Burgundy (though a Woman shee were) mated him with Phantomes and apparitions of dead bodyes of the House of Yorke, the scare whereof put the King and all his people in allarme, and striking at idle shadows slew one another. All which, together with the appearances of Collections, Taxes, and other accoutrements, to furnish such imployments, were enough to disturb that ease and rest that the King aimed to enjoy, make him burdensome to his People, and both himselfe and them weary of each other; and so he went down to the grave with but a dry funerall, leaving no better testimony behinde him then that he was a cunning man, rather then a wise English King: and though he died rich, yet is he since grown into debt to the Pen-men of his story, that by their owne excellency have rendred him a better King then he was.

[Page] HEnry the Eight was a conception, in whom the two Bloods of Yorke and Lancaster did meete,Hen. 8. both of them unconquered, both of them predominant; and therefore no wonder if he was a man beyond the Ordinary proportion of other men in stature of body, and in qualities of mind not disproportionable. Its regularly true that great bodies move slowly, but it holds not where much spirit is, and it was the condition of this Prince to have a Spirit of the largest size that acted him into motion with no lesse speed then mighty Power. This himselfe understood right well, and therefore might be haughty upon a double title both of purchase and inheritance; nor did he faile of expectation herein, for he could not endure that man that would owne his right in competition with the Kings aimes, and therefore would have his Kingdome be like his doublet to keep him warme, and yet sit loose about him that he might have elbow room; suitable hereunto were his undertakings, invited thereunto by the inordinate motions or rather commotions of his neighbouring Princes; for it was now full Sea in all Countries; and though England was inferiour to some of them, yet the King held it dishonorable for him not to adventure as far as the bravest of them, and in the end outwent them all: What he wanted in number, he supplyed in courage; wherein he so exceeded that he avoyded dangers, rather out of judgment then feare. His thoughts, resolutions, indeavors, and actions, were all the birth of occasion, and of each other; as if he had obtained a generall Passe from Providence, with warranty against all Counterguards whatsoever.

His Wisdome served him to espy present opportunities, rather then to foresee them, and therefore was not so crafty as his Father in preventing occasions, yet more dexterious in giving them the rout. For he could mannage his hand and foote better then his Father, strike down-right blowes, and rather then he would faile of his ends would make one, as many times he did.

[Page]Another advantage he had of his Father, for considering the times, he was a learned King, which made his Actions carry more Majesty, and like a well feathered Arrow from a strong hand drive through the winde stedily to the marke, when as his Father like a weak Archer must raise his compasse, and crave aid of the winde to help him to be right in the end.

Its affirmed by some, that Henry the Eight was courteous and debonaire, if so, he must thanke his Education; but it may be rather supposed, that upon occasion he used the Art of Insinuation, which he might learn both from the Father side, and Mother side; but he neither practised it much, nor did he rely upon that skill, for his resolution led him to cut the knot that he could not unty. His learning led him most to Divinity, and therein shewed him light enough to see much into the Mystery of iniquity, which he did explain to the World passing well; but as touching Devotion, he left that to the care of the Church-men.

He was very well accommodated with money; First, from the full Coffers left by his Father, much whereof he spent in pastimes and gallantry, as he was Heire to Edward the Fourth, and much also in his Devotion to the Pope, as he was Heire to Henry the Seventh, in liew of all which, he was rewarded with a Title, Defender of the Faith; and so much ill gotten, was much ill spent. But a better supply he had when Rome and he parted asunder, and the Current of the riches of the Clergy was stopped from running at waste, and returned into the Kings own Treasury, and so might have died the richest Prince in the World, but that he wanted the main Clause in the Conveyance, To have and to hold. The wisdome of God so ordered it, for these felicities were too great and many for any moderate spirit to bear gently, much more for the Kings Spirit, that was ever on the Pinacle, and grown to that height, that like an embossed Stagge, none must cope with him, he must run and out-run all; none must crosse him under extream perill, no good is to be done but by following afar of; nor is it a full wonder if in this [Page] his heat, he knowes neither faithfull Servant, Councellour, nor Wife, but strikes at all that stands in his way. Neverthelesse, in his coole temper, and when he was intangled with some perplexed occasion, he could use the advantage of good Councell, and the wits of others that were more crafty then himself, wherein it was his good hap to have some ever nigh him that were for his turn, and unto them committed much, that himself might be at ease to hear good newes of successefull dispatches.

In his youth he was served by the wise Councellors trained up by his Father, and he then willing enough for his pleasure, was contented by their advice to serve his People for a time, that they might be his servants for ever. The two great Conduit Pipes of this Treasury, which he had from his Father, he cut off at his Peoples request, as if he loved his People above all his riches; and after that, he laid aside his pleasures, and youthfull company to apply himself more closely to the Affairs of his Kingdome, as if he loved that above all pleasure: which neverthelesse stuck to him so long as he lived, and swayed too much in the greatest Affairs of his Government.

Thus the first heat of his course was run well; so long as the Privy Councell continued moderately poysed: But no sooner began one of them to put up beyond his place, and to bid adue to the advice of all the rest; but he gets the uppermost seat in the Kings Head, makes a foot-stoole of the Kings Heart, and then its two to one that the People in such cases must bear the greater burden; for who ever 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 reigne of this King Henry the Eighth, serve us with much experience of this kinde, for if the consideration of the Affairs of this Government should be divided, the same would be double; the one under the Regiment of Cardinall Woolsy, the other of the King, by Cromwell, Cranmer, Gardner, and others interchangeably. I call that of Woolsy a Regiment, for he was in nature or condition of a [Page] Pro Rex, during the Kings Juvenility. This Temporizer thus super-induced upon a Cardinall raised from mean Degree to be Legate è Latere, Thuan. lib. 1. courted by Forrain Princes, flattered by the Emperour with Titles of Sonne and Cousin, made him lead a dance, that the King (however active he was) is put to his Carreere to hold him company; which the King perceiving, tripped up his heels, and left the Arch-Bishop, the Chancellour, the Cardinall, the Legate, and many more with him, lying on the ground: No pride like to that of the Clergy, whose parts are more sublime, and apprehensions clear: If God addeth not a Superiour work to rule over all, A litle Honour will blow up all with a powder. The King having thus matched the Cardinall, forgot his former naturall pace, and once in a heat, could coole no more, till Death cooled him. He knew by experience, that the Cardinall could over-awe the People; why should not the King doe as much, if the Lords stooped to the Cardinall, why not much rather to the King? The Cardinall pulled down, reared up, turned square to round, why should he be lesse then his Subjects? Such conceits as these soon wounde up the Kings minde to that height, that its 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 Arme, though it were no small one; and yet in point of Religion, Affaires tended to a kinde of Reformation all this while.

CHAP. XXVII. Of the State of the Crowne.

THat the Crowne of England now abounded more in Flowers then 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 [Page] how they were obtained, or in their 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 later dayes doth much depend. Hitherto the Crown came short of absolute Power over the people, upon two grounds in observation; one relating to the Clergy, the other to the Laity.

The Church-men were heretofore under a Forrain power, and a Forrain Law, against which, Kings durst not deeply ingage; either not being assured of their own Title, or imployed in pursuit of other game, or being of a weak Spirit, were scared with the Thunder-bolt of the Popes Curse: But the Laity were under another Law, and such an one, as by clear and unquestionable Custome, 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 inclined, or in others by a kind of fear of raising up Earth-quakes from beneath, which commonly doth overthrow high Towers sooner then windes 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 Modell in some particulars: It was not rich enough, nor well poysed to his minde, which ever was not to be poore, but towards his later time to be exceeding rich; as supposing that to be the onely way to be more desirable to Freinds, 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, then 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 loath it should prove Customary, least they should loose their [Page] common right, they therefore choose 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 repossesse his owne, then possesse theirs; many penall Lawes 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 Royall mind of the King served no further then 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 its hard to adjudge the Garland, yet it may be thought, the King observed it rather, because he offered all the play, whiles the People did onely lie at their close guard. The whole Project consisted in this, to gaine a more absolute Allegiance from the English to their King: and because this is exemplified partly in Warre, and partly in Peace, that part which concerneth Warre, 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 Lawes, and of Judicature according to those Lawes. As touching the making of Lawes, 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 Arme himself; then call a Parliament, who were wise enough to grant as readily as he asked, rather then to be compelled thereto: so he had Lawes 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 himselfe, though they did not [Page] onely represent his Person, but his minde; so things were done according to his minde, though he did them not: And thus his Excellency seemed more eminent in finding and making instruments fitting to do his work, then in doing his own work. Neverthelesse, all this was but from hand to mouth; no fundamentall Law is altered all this while; if the Lawes were made by Parliament, the King made them not; if the Judges turned the Law to the Kings eare, the Law was still the Crown, though the King wore it. But Henry the Eighth was no such man, he had not this skill of undermining, nor desired it; he was tender of the least diminution of his Honour, industrious in finding out the occasion, and a most resolved man to remove it out of the way, though it reached as high as the Triple Crown; a man underneath many Passions, but above fear: What need [...]he care for pretences, his Father loved Riches, he Power; when he came to traverse his ground, he found quickly where the Churchmen trespassed upon him, and began with them, resting upon the wisdome of his Father, and the infallibility of the Pope. Henry the Eighth, had taken to Wife Katherine his Brothers Dowager, and continued in that condition eighteen years without wrinkle of Fame, till the great successe of Charles the Fifth, the Queens brother against the Pope, and French, scared the King into a jealousie of his greatnesse, and the Emperours failing in courtesie to Cardinall Woolsy, the Kings Achates, stirred the Cardinals Spirit to revenge, for the losse of his hopes in the Popedome. For the Cardinall finding the Kings mind to linger after another Bed-fellow, by whom he might have a Sonne, he made the French Embassadour his instrument to mind the King of his unlawfull marriage with the Queen, and to mention unto him Margaret D' Allanson a Princesse of France, both in blood and beauty.Thuan. lib. 1. The King liked the Notion of Divorse, but disliked the motion concerning the French Lady, himself being prepossessed with a fair Object at Home, the Lady Anne Bullen, Jov. hist. fol. 31. then attending upon the Queen; and thus being moved, entered into a scrutiny concerning the condition of his marriage, [Page] wherein he had been formerly touched, both by the French and Spaniards themselves upon severall motions made.

Fox. Sleyden. lib. 9.First, between Charles the Fifth, and afterwards between the Dauphine and the Lady Mary, afterwards Queen; Hereat the Cardinall winked all the while, till the infallibility of the Chair at Rome came upon the Stage; then bestirring his wits, he lodged the Case upon appeale thither, as he hoped beyond all further appeale, and so held the King there fast, till himself might accomplish his own ends. But the wheele once set a running would not stay; the King espies the Cardinall in his way, and bears him down, then finding the fallacy of the infallible Chair, he hearkens after other Doctors, followes their light; and being loath to hear what he expected from Rome, he stopped the way to all Importation of such Merchandize, as might be any wayes prejudiciall to the Prerogative Royall, with the penalty of losse of Land, or Liberty and Fine, the two later being formerly warranted by Law: The first served as a scare, for (though it were but by Proclamation) men might justly fear that he that was so stout against the Pope, would not stick to scourge his owne Subjects out of his way in the time of his heat.

The King thus entered the Lists, both against Pope and Cardinall, now under Praemuniri (whereof he died) meets the English Clergy, (thus loosing their top-gallant) standing up in the reare against him, and talking at large. Neverthelesse, the King stops not his carreere, puts them to the rout for maintaining the power Legatine. They soon submit, crave pardon, give a summe of money, and perfume their Sacrifice with that sweet Incense of Supreame Head of the Church of England. This was done, not by way of Donation,1531. Ann. Antiq. Britt. (for the Convocation had no such power) but by way of acknowledgement in flat opposition to the Jurisdiction of the Pope: It became the common subject of discourse amongst all sorts,Jovius Brit. f. 20. Royden. lib. 9. but of wonderment to the Pope: Yet for fear of worse, he speaks faire, for he was not in Posture to contest, but all would do no good; the Queen had appealed to Rome, the Pope by Woolsies advice makes delayes: [Page] The Parliament espying the advantage; at once tooke all appeales to Rome away,24 H. 8. ca. 12. and established all sentences made or to be made within this Land, notwithstanding any Act from Rome; and enjoyned the English Clergy to administer the severall acts of publique worship, notwithstanding any inhibition or excommunication from any forrain pretended Power: The grounds upon the preamble of the Law will appeare to be two.

First, that the King of England is supream head in rendring Justice within the Nation in all causes therein arising, which is more then the recognisance of the Clergy two yeares before this Act did hold forth, yet this acknowledgment is not absolute, but in opposition to Forraine pretentions.

Secondly, that the Clergy in England having Power, may in matters spirituall determine all doubts without forrain help, and administer such duties as to their place do belong; not hereby determining that the Church-men ever had such Power by Law, nor that they ought originally to have such Power. They never had it, for no sooner were they disjoyned from the Laity in these affaires, but immediately they were under the Pope, and received their Power from him. And, De jure, they cannot challenge such power, but by a positive Law, such as this Law of Henry the eighth, which also giveth but a restrictive and limited power, Viz: In matters testamentary, of divorce, matrimony, tithes, oblations, and obventions. So as if they will challenge such power, they must thanke the Parliament for it and use the same accordingly as persons deputed therunto; and not in their owne right or right of their places. In all this the Kings supremacy is but obscurely asserted, and rather by implication, shewing what in reason may be holden, then by declaration of what was, making way thereby,

First, into the opinions of men before they were enjoyned to determine their actions, but within two yeares ensuing or thereabout, the Law is made positive,

The King shall be taken and accepted the onely supreame 26 H. 8. cap. 1. [Page] head on earth of the Church of England; and have power to visite, correct, represse, redresse, reforme, restraine, order, and amend, all such errours, heresies, abuses, offenses, contempts, and enormities, as by any manner of spirituall authority, or jurisdiction, ought or may lawfully be reformed.

Which in the preamble is saide to be made to confirm what the Clergy in their Convocation formerly had recognized. The corps of his Act is to secure the Kings Title, the Kings Power, and the Kings Profit. As touching the Kings Title it is sayde, that in right it did formerly belong to him, which is to be granted by all so far as the Power is rightly understood. But as touching the Kings Profit it cannot be saide that the whole lump thereof did belong to the King, because much thereof was not so ancient, but, De novo, raised by the Popes extortion; and therefore the true and reall Profits are by particular Acts of Parliament ensuing in speciall words devolved upon him. The nature of this power is layd downe in this Statute under a three fold expression.

First, it is a visitatory, or a reforming Power which is executed by inquiry of offences against Lawes established, and by executing such Lawes.

Secondly, it is an ordinary jurisdiction, for it is such as by any Spirituall authority maybe acted against irregularities; and thus the Title of supreame Ordinary is confirmed.

Thirdly, it is such a Power as must be regulatd by Law, and in such manner as by any spirituall Authority may lawfully be reformed. It is not therefore any absolute arbitrary Power; for that belongs onely to the supreame Head in Heaven. Nor is it any legislative Power, for so the Law should be the birth of this Power, and his Power could not then be regulated by the Law: nor could ever Ordinary execute such a Power, nor did Henry the eighth ever make claime to any such Power, though he loved to be much trusted.

[Page]Lastly, this Power was such a Power as was gained formerly from the King by forraine Usurpation, which must be intended, De rebus licitis, and once in possession of the Crown, or in right thereto belonging according to the Law, for the King hath no Power thereby to confer Church-livings by Provisorship, or to carry the Keyes and turn the infallible Chaire into an infallible Throne. In breife, this Power was such as the King hath in the Common-wealth; neither legislative, nor absolute in the executive, but in order to the Unity and Peace of the Kingdome. This was the right of the Crowne which was ever claimed; but not enjoyed further then the English Scepter was able to match the Romish Keyes: And now the same being restored by Act of Parliament,28 H. 8. c. 10. 35 H. 8. c. 1. is also confirmed by an Oath enjoyned to be taken by the People, binding them to acknowledge the King under God supreame head on earth of the Church of England, Ireland, and the Kings Dominions,35 H. 8. c. 3. in opposition to all Forraine jurisdiction.

And lastly, by a Law which bound all the People to maintaine the Kings Title of Defender of the faith, and of the Church of England and Ireland, in earth the supream head, under the perill of Treason in every one that shall attempt to deprive the Crowne of that title.

We must descend to particulars, for by this it will appeare that these generall Lawes concerning the Kings refined title, contained little more then matters of Notion, otherwise then a generall barr to the Popes future interests: And therefore the Wisdome of the State (as if nothing had been already done) did by degrees parcell out by severall Acts of Parliament the particular interests of the Popes usurped Authority in such manner as to them seemed best.

And First, concerning the Legislative Power in Church government; It cannot be denied but the Pope; De facto had the Power of a negative vote in all Councels and unto that had also a binding Power in making Lawes, Decrees, and Decretalls out of his own breast; but this was gotten by plunder, he never had any right to headship of the [Page] Church, nor to any such Power in right of such preferment, nor was this given to the King as head of the Church, but with such limitations and qualifications, that its evident it never was in the Crowne, or rightly belonging thereto.

First, nigh three yeares after this recognition by the Clergy in their Convocation, it is urged upon them, and they passe their promise,25. H. 8. ca. 19. In verbo sacerdotii.

And lastly it is confirmed by Act of Parliament, that they shall never make, publish, or execute any new Canon or constitution provinciall or other unlesse the Kings Assent and License be first had thereto; and the offences against this Law made punishable by fine and imprisonment: So as the Clergy are now holden under a double bond, one the honor of their Preisthood which binds their Wills, and Consciences; the other the Act of Parliament which bindes their Powers, so as they now neither will nor can start. Neverthelesse there is nothing in this Law nor in the future practise of this King that doth either give or assert any power to the King and Convocation to binde or conclude the Clergy or the People, without an Act of Parliament concurring, and inforcing the same: And yet what is already done, is more then any of the Kings Predecessors ever had in their possession.

A second Prerogative was a definitive power in point of doctrine, and worship. For it is enacted, that all Determinations, 32. H. 8. ca. 26. Declarations, Decrees, Definitions, Resolutions, and Ordinances according to Gods word, and Christs Gospell, by the Kings advise, and confirmation, by Letters Patents under the great Seale, at any time hereafter made, and published by the Arch-Bishops, Bishops, and Doctors, now appointed by the King or the whole Clergy of England, in matters of the Christian faith, and lawfull rights and ceremonies of the same, shall be by the People fully beleeved and obeyed under penalties therein comprized: Provided that nothing be done contrary to the Lawes, and Statutes of this Realme. A Law of a new birth, and not an old Law newly revived, or restored. This the present occasion, and the naturall constitution of the Law do fully manifest: The occasion was the present [Page] Perplexity of the People, for in stead of the Statute, Ex officio which was now taken away,25 H. 8. ca. 14. the six articles commonly called the six stringed whip was gotten into power by a more legall and effectuall originall. The Parliament had heard the cries of the People concerning this, and having two things to eye at once; one to provide for the Peoples liberty,31 H. 8. ca. 14. and further security against forrain pretentions; the other (which was more difficult) for the liberties of the consciences of multitudes of men of severall opinions (which could not agree in one judgement, and by discord might make way for the Romish party to recover its first ground) and finding it impossible for them to hunt both games at once, partly because themselves were divided in opinion, and the bone once cast amongst them might put their own co-existence to the question, and partly because the worke would be long, require much debate, and retard all other affaires of the Common-wealth, which were now both many, and weighty. In this troubled wave they therefore wisely determine to hold on their course in that worke which was most properly theirs, and lay before them: And as touching this matter concerning doctrine, they agreed in that wherein they could agree, Viz. To refer the matter to the King and Persons of skill in that mistery of Religion, to settle the same for the present till the Parliament had better leisure, the People more light, and the mindes of the People more perswaded of the way. Thus the Estates and Consciences of the People for the present must indure, 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 then lye under continuall darknesse, 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 partiall respect or affection to the Papisticall sort or any other sect or sects whatsoever. Unto this agreement both parties were inclined by diverse regards. For the Romanists, though having the possession yet being doubtfull of their strength to hold the same, if it came [Page] 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 Theame, as wel as libertie 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 meete to have the care of this matter, for still this title brings on the Vann 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 owne Power, and being so exceedingly oppressed with the six Articles, as they could not expect a worse condition, but in probabililty might finde a better; they therefore also cast themselves upon the King,Sleyden, lib. 9. Ann. 1535. who had already been well baited by the German Princes, and Divines, and the outcries of his owne People, and possibly might entertain some prejudice at length at that manner of woship that had its originall from that Arch enemy of his Head-ship of the Church of England. Nor did the issue fall out altogether unsutable 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 shewes that this was not derived from the ancient right of the Crowne 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 owne sake.

Secondly, they trusted the King, but he must be advised by Councell of men of Skill.

Thirdly, they must not respect any sect, or those of the Papisticall sort.

[Page]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 affaires. Nor did the King or People rest upon this Law, for within three yeares following, another Law is made to confirme what was then already done by the King; and a larger power granted to the King, to change, and alter,34. & 35. H. 8. cap. 1. as to his Wisdome shall seeme convenient. Thus the Kings injunctions already set forth were established, all opposall to them inhibited, and the King hath a power of Lawing, and Unlawing in Christs Kingdome, and to stab an Act of Parliament in matters of highest concernment: And the reason is, the King will have it so and who dares gain-say it, as Cranmer said, the King loves his Queene well but his own opinion better,Antiq. Britt. for new things meeting with new love, if it be once interrupted in the first heat, turnes into a displeasure as hot as the first love, nor had either party great cause to boast in their gainings; for none of them all had any security, but such as kept close to a good conscience.

All this, though much more then any of his Predecessors ever attained, was neverthelesse not enough till his Title was as compleat. The Pope had fashioned him one now above twenty yeares old for his service done against Luther and others of that way, and sent it to him as a Trophee of the victory, this was Defender of the faith, which the King then took kindly, but laid it up till he thought he had deserved it better; and therefore now he presents it to the Parliament,35 H. 8. c. 3. who by a Statute annexed it to the Crown of England for ever now made triple by the Royallizing of that of Ireland amongst the rest.

A third Prerogative concerned the Kings Power in temporall matters, and now must England look to it selfe, for never had English King the like advantage over his people as this man had. His Title out-faced all question: Left rich by [Page] his Father, trained up in the highest way of Prerogative, absolute Lord of the English Clergy and of their Interest in the People, of a vast spirit, able to match both the Emperour and French abroad, and yet more busie at home then all his Predecessors. A King that feared nothing but the falling of the Heavens; the People contrarily weary of civill Wars enamored with the first tastes of Peace, and Pleasure; whiles as yet it was but in the blushing child-hood, overawed by a strange Giant, a King with a Pope in his belly; having the temporall Sword in his Hand the spirituall Sword at his command. Of a mercilesse savage nature, but a word and a blow; without regard even of his bosome companions, what can then the naked relation of a Subject do with such an one, if providence steps not in and stops not the Lions mouth, all wil be soon swallowed up into the hungry maw of Prerogative. To set all on work comes Steven Gardiner from his Embassage to the Emperor, sad apprehensions are scattered, that the motions abroad are exceeding violent and sudden, that the Emperor and French King are fast in nothing but in change according to occasion, that like the Eagle they make many points before they stoop to the prey. That if the motions at home do wait upon debates of Parliament, things must needs come short in execution and the affaires of this Nation extreamly suffer. A dangerous thing it is that the King should be at disadvantage either with the Emperour or French King for want of power in these cases of suddaine exegencies, and for some small time, during the juncture of these importent affaires, that seeing likewise at home the point concerning Religion is comming to the Test, the mindes of men are at a gaze; their affections, and passions are on their tiptoes. Its reason the King should steare with a shorter Rudder, that this care might meete with every turne of providence, which otherwise might suddainly blow up the Peace, and good Government of this Nation. These and the like represented a faire face to that which followed, and made way for the King without shame to ask what no King before him suffered ever to enter into conceit, [Page] I meane a Legislative power to this effect, That Proclamations made by the greater part of the King for the time being and his Councell, whose names hereafter follow,31 H. 8: ca. 8. with such penalties as by them shall be thought meet; shall be of equall force to an Act of Parliament, provided it shall not extend to forfeiture of Estates, or Priviledges; nor to losse of Life (but in cases particularly mentioned in the Law) provided no Proclamation shall crosse any Statute or lawfull or laudable Custome of this Realme: All which at length comes to be demanded by a formall Bill with as ill favored a preface as the matter it self, which was much worse ere it was well licked in the House of Commons, and when all was done proved a Bare still: Whatever it was it passed in manner above said, neither much to the desire of the Commons that so much was given; nor to the good liking of the King that there was no more: For in stead of a Legislative power which he grasped at for himself, he received it in common with his Councell; and so becomes ingaged neither to alter nor destroy that Brother-hood, if he intended to reape any fruit of this Law, leaving the point in doubt whither his gaine or losse was the greater. For this Law thus made for this King, these Councellors, and these times, and occasions, can be no president to the future, unlesse to informe Kings that the Parliament hath a power to give more Authority and prerogative to Kings then they or the Crowne have by common right, and to give it with such limitations▪ and qualifications, as seemeth good to them.

And secondly, that even Henry the eighth acknowledged that the Legislative power was not in the Crown, nor was the Crowne capable thereof, otherwise then it was conferred by the Parliament. Onely Steven Gardiner might glory in this atcheivement, having for the present obtained much of his ends by perswading the King that forrain Princes estranged from him, not so much for his departure from the Pope, as for some apprehensions they had of his departure from that way of Religion, and Worship, which they apprehend every Christian ought to maintaine. And therefore if he [Page] meaned to gaine better correspondency amongst these Princes, he must ingage more resolvedly to the fundamentalls of the Worship, though he shook of some sleighter ceremonies with the Romish supremacy, for he knew that they were willing enough with the later, though the other could not go downe with them; thus did forraine correspondency float above, when as the Church as then it stood was underneath, and gave the tincture to every wave. And it was holden more safe by the Romish party to trust the King (thus attempered) with the legislative power in the Church matters, then the rough Parliament, whose Course steered quite wide from the Roman shore, as if they never meant to look that way any more, though Cranmer and the cheif Officers of State, and of the Houshold, were by the Law Judges of the matter in fact as well as the King, yet in the conclusion the King only was of the Quorum; all this yet further appears in the penalty, for by a Provisor it is moderated as to all forfeitures of Life, Limb, or Estate; and in the conclusion extended only to Fine and Imprisonment; unlesse in some cases mentioned, and excepting offences against Proclamations made by the King or his Successors concerning Crimes of Heresie. For it is the first clause of any positive Law that ever intimated any power in the King of such Cognisance and punishment of Heresie; too weake a principle it is to settle a prerogative in the King, and his Successors, as supream head of the Church, thus by a side winde to carry the keyes of Life and Death at their girdle, and yet a better ground cannot I find for the martyrdome of diverse brave Christians in those times, then this touch of a Law glancing by: All which passing, Sub silentio, and the Parliament taking no notice thereof, made way for the Statute 32. H. 8. ca. 26. Formerly mentioned to come more boldly upon the Stage.

This was one wound to the legislative power of the Parliament thus to divide the same: Another ensues that in its consequence was no lesse fatall to that power which remained, and it was wrought by some Engine that well saw [Page] that the disease then so called grew to be epidemicall amongst the more considerable party in the Kingdome; that the Lady Jane Seymor (now Queene) was no freind to the Romanists; that she was now with child, which if a Sonn (as it proved to be) was like to be Successor in the Throne, and be of his Mothers Religion, and so undoe all, as in the issue all came so to passe: To prevent this, neverthelesse they fancy a new conceit, that Lawes made by English Kings in their minority are lesse considerately done, then being made in riper yeares. And so by that one opinion countenanced a worse, which was, that the Legislative power depended more upon the judgment of the King, then the debates, and results of the Parliament; a notion that would down exceeding well with Kings; especially with such an al-sufficient Prince as Henry the eight conceived himself to be; upon this ground a Law is made to enable such of the Kings Successors, by him appointed, as shall be under the age of twenty and foure yeares, when Lawes by him are made,28 H. 8. c. 17. to adnull the same by Letters, Patents, after such Prince shall attaine the said age of twenty foure yeares. Thus the Armes of the Parliament are bound from settling any Reformation, let them intend it never so much; a Muse is left open for the Romish Religion still to get in, when the Season proves more faire. The Parliament was now in its minority, and gives occasion to the Reader to bewaile the infirmities of the excellency of England.

A fourth advance of Prerogative concerned the executive Power in the Government of the Church. This had formerly much rested in the Prelacy, and that upon the cheife Praelatissimo at Rome; now there is found in England a Prelater then he; the Pope was already heheaded, and his head set upon the Kings shoulders: To him it is given to nominate all Bishops, and Arch-Bishops within his dominions, by long desire, 25 H. 8. c. 20. and that the party once elected shall sweare fealty, and then shall be consecrated by Commission, and invested, but if upon the long desire, no election be certified within twelve dayes the King shal by Commission cause his own Clerke to be consecrated and invested. [Page] The occasion that first brought in this President, was the accesse of Cranmer to the See at Canterbury, for though the head-ship had beene already by the space of two yeares translated from Rome to England, and yet the course of Episcopizing continued the same as formerly it had beene. I mean as touching the point of Election: For though in their originall, Bishops were meerely Donatives from the Crowne, being invested by delivery of the Ring and pastoral staffe, and untill King Johns time,Rot. Pat. 17. Jo [...]. 35 E. 1. St. Carl. 25 E. 3. De Provis. 13 R. 2. ca 2. the Canonicall 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 diverse publique 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 yeares, for the Reformation intended by the King, was not done at once but by degrees; and therefore though this course of long desire was brought into use, yet the Parliament being of six yeares continuance (a necessary thing in times of so great change of policy) began this course of Election,Antiq. Brit. vit. Cranmer. by giving the King Power to nominate, and allowing of the Pope Power to grant to such his Bulls or Pall at his owne will; otherwise they should be consecrated by Commission without his consent, & this at the first, the Popes concurrence was not excluded, though his Negative was. In this posture of Affaires comes Cranmer to be consecrated Arch-Bishop: And being nominated therunto by the King, the wily Pope knowing the Kings aime, meaned not to withstand, least he should loose all, but granted the Pall as readily as it was desired, so as Cranmer is thus far Arch-Bishop of Canterbury, without all exception: yet he must go one step further, 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 affirme, it was done, Perfunctoriè, like some worne Ceremony, or civill Complement. Neverthelesse it was not so soone turned over, the Arch-Bishop loved not the Office, the King loved no partnorship in this matter; and it was evident to all that no man could [Page] 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 the looser, the English Clergy the savers, for the Pall cost Cranmer nine hundred markes. And the Crown is the great gainer; for hereby the King got the men sure to him, not onely by their own acknowledgment and submission, but also by a Statute Law.

And lastly by Oath, which to make sure was treble twined, once upon their first submmission in the Kings twenty second yeare, when they had beene under Premuniri.

Secondly, soone after the decease of Queene Katherine Dowager, in the twenty sixth yeare, which Oath was more compleat then the former; containing,

First, A Renunciation of all fealty to the Pope or any sorraine Power.

Secondly, an obligation to adheare to the cause of the King and his Successors.

Thirdly, a disavowing of the Pope, otherwise then as another Bishop or fellow Brother.

Fourthly, an ingagement to observe all Lawes already established against the Popes Power.

Fifthly, A disavowing of all appeales to Rome.

Sixthly, an ingagement to informe the King of all Messages, or Bulls, sent from Rome into England.

Seventhly, An ingagement 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 Prelacy, having beene sworn slaves to the Papacy ever since Beckets time, are now preferred to a more Royall service, and the persuit by Kings after their right being laid a side by the space of 300. yeares, is now renued, and the prey seised upon by the Lion, we found it upon a better title, and in better condition [Page] by much then when at the first it was lost, for it was upon som semblance of reason that the Arch-Bishop and Clergy 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 apprehended, the stolne goods are the Kings in right, and by Remitter, whereunto the Parliament were by the Statute adding their conveiance, establishes the same by an unquestionable Title; neverthelesse their service is no lesse servile to this Crown then it had beene to the Romish Miter; formerly they asserted the Popes infallibility, now the Kings 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 Kings: He makes Bishops,31 H. 8. c. 9. he makes new Bishop-ricks; 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 finde; 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 Tympany) by growing great: For though he was left rich by his Fathers Treasure, yet his Zeale to Rome in its now Poor captived condition under the Imperiall power, stirring up in him great underrakings abroad (besides his own pleasures and gallantry at home) exhausted that, and doubtlesse had starved these his grand designes, had he not found the hidden Treasures of the Cells and Monastries; 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 feare and flattery. It was not done without deliberation, for the thing was felt as a greivance before the Norman times, and complained of in Parliament above a hundred and forty years ago, and diverse times since, [Page] but Kings either understood not, or beleeved not, or durst not give remedy, or had much else to do. But now the King is beyond all his Predecessors, he knowes 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 wroke feasible, was a president made by Cardinall Woolsie, whose Power was enough to dissolve some petty Cells, and no opposition made. The King might well expect the worke would be as lawfull for him, and not much more difficult, or if any stormes ensued, the People that had so long complained, and felt the burthen of these excrescences of the Clergy, would soon find out a way to Calme them, the King need do no more then speake, and the people will do. This opened the doore, but that which brought the King in, was the hold the Pope had in this Kingdome by these Cloystered People, who were persons dead in Law, and dead to all Law but the Canon; and upon this account the Kings Ancestors had possessed themselves of the Cells in the hands of Forrainers in times of War, and now a deadly feud is stirred betweene Henry the eighth and the Pope their holy Father; the Children cannot expect to thrive, when as their Father is cast out of doores; 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 don must be don 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, then abide the triall:27 H. 8. c. 27. Once more the smallest are picked out whiles the greater stand by and wonder, but either do not foresee, or (in dispaire of altering the Kings resolution) do nothing but expect the sad hour, which within four yeares comes upon them all;31 H. 8. c. 13. every one of them choosing rather to surrender, and expect the Kings mercy for maintenance during life, then adventure against the dint [Page] of his Justice, and Power, and so loose all; for they were ill befreinded amongst all sorts of the People. Thus came the personall Estate and Stock of these Houses to the Kings immediate Treasury, and their yearly maintenance to the disposing of the Crowne, 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 neverthelesse the Crowne had a small rent, or service annuall, for the acknowledgement of their tenure besides, the first fruits of the spirituall dignities, and the tenths,26 H. 8. c. 23. both which he formerly had already obtained.

The first whereof was but casuall, and occasionall 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,Fox. Mart. fol. 322. although at his Parliament at Carleile, in his thirty fourth yeare he withstood the same: This was above three hundred and twenty thousand pounds in the whole summ. The later was annuall, and amounted to above thirty thousand pounds: And thus the Popes Usurpaons are turned into duties to the Crowne, but were much lessened in regard that these Cells and Monastries were accounted amongst these Ecclesiasticall promotions, which by their dissolution fell off in that account. Neverthelesse the advancement that might by a parcimonious King have beene made of the fall of this Ceder, was such, that the Crowne might have been rendred of it self absolute and al-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 eight inferior to none of them; what comes in goes out, and he is a rare example of that Divine proverb; As Riches increase, so doe the mouths of them that eate; he still stands in need of his Peoples Love, Purses, and Power; so Divine providence orders the matter, that Kings can never attaine further end of their undertakings without the aide of [Page] the people, then their labour, least 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 peice-meale onely, nor they good Historians, that will tell you the bare journall 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 it a compleat Monarchy, wherein the King may Act what he resolveth; resolve what he pleaseth; and please what he lusteth; when as 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 then by especiall allowance of the Parliament.

For first, its evident, though the King was Supream Head of the Church, yet this was not like the head of a mad man, led by phaney 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.

Secondly, it is no lesse cleare 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 [Page] 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 Lords Day, the Statute of Edward the Fourth,4 Edw. 4. 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,15 H. 8. c. 9. if the words of either Statute may be beleived. But more especially,25 H. 8. c. 19. 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 Clergy, 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 contrary to the Kings Prerogative, or the Lawes and Customes 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 dayes of Henry the Eighth,27 H. 8. c. 15. 35 H. 8. c. 16. by divers continuances, and was not any power devolved to the Crowne, under the Title of Supremacy, nor by Vertue of the Act of Parliament concerning it, but by the continuall 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 as 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 Lawes concerning Church-government. In the next place commeth to be considered the Legislative Power in point of Doctrine, which doubtless issueth from the same principle of Power with the former. For if the Church [Page] (which as a pillar and ground holdeth forth the truth) be the company of professing Beleevers; then ought it not seem strange if these in their representative do intermeddle with this Power, or rather duty; and for the matter in fact, neither did the King challenge this power, nor did the Parliament make any difficulty of Conscience in executing the same, and yet there were many Learned and Consciencious men of that number.

They therefore, as touching the doctrine, proceed in the same way, with that formerly mentioned concerning the discipline: And a Committee also is by them made of the King and Learned men, to set down rules for Faith and obedience, and for the order of the publique Worship of God,32 H. 8. c. 26. according to the word of God; and these rules are confirmed by a Statute, so as the King hath a power in the point of Doctrine, but it is a derivative power, it is a limited power to himself and not to his Successors, and to himself and others joyned with him.

And Lastly, nothing must be done contrary to the Lawes of the Kingdome.

Secondly, the Parliament hath not onely a right to grant and limit this power unto others, but also to execute the same immediately by it self; and therefore before they granted this power to this Committee, whereas formerly the Pope usurped the power to be the Omega to the resolves of all Councills, the Parliament intercepted that to their own jurisdiction in flat opposition to the infallibility of the Roman Chaire,5 H. 8. cap. 14. so farr as to Disherize some opinons which by the sentence of that infallible mouth, had beene marked with that black brand of Heresie. And what they did before this Act of Delegation to the King and other Committees for this worke,34 H. 8. cap. 1. they did afterwards as not concluding their own power by any thing that they had so don as may appear by their Censure of the translation of the Bible, made by Tindall: By their establishing another translation: By their ordering and appointing what persons might read the same:35 H. 8. cap. 5. By their qualifying the six Articles, and the like. The Parliament [Page] then hath a power which they may grant, and yet grant nothing away; they may limit this power in others as they will, and yet not conclude themselves. And the King by accepting this limited power, must disclaime both the originall and absolute right, and cannot claime the same by right of head-ship or supremacy. This was one great windfall which the Parliament had from the ruines of Rome, not by way of usurpation but re-seisure, for their possession was ancient, and though they had beene dispossest, yet that possession was ever under a continuall claime, and so the right was saved.

A second that was no lesse fatall unto that See; was the losse of all power over Ecclesiasticall persons in this Kingdome: For whereas the Popedome had doubly rooted it self in this Nation, one way by the Regulars, the other by the Seculars; the Parliament by the dissolutions of Monastries, &c. consumed one to ashes, and by breaking the fealty between the other and the Pope, parted the other root and the stock asunder, & thence ensued the downfal of this tal Cedar in this Nation; and Prelacy now left alone must fawn elsewhere or lye along, a posture wherein that rank of men can never thrive: Up againe they peepe, and espying a King that loved to towre aloft, they suddainely catch hold, promising their help to maintaine his flight, and so are carried up, and like a Cloud borne between Heaven and Earth, making the Commons beholding to them for the Kings Sunnshine, and the King for their interests in the People, and for his superlative advancement above them all. Now though the English Prelates may thinke their Orbe above the winds, yet were they herein deceived. The Parliament had power in their Election, before the Pope usurped that to himself; now that they are discharged, Kings are possessed of them by long desire, but it is not by way of restitution, for Kings were never absolutely possessed of any such power, but as Committees of Parliament and by delegation and concession from them, and therefore must render an account to them, and abide their judgment when they are thereto called.

[Page]Thirdly, the Parliament had the disposing and ordering, of all the Church Revenues, as the Lawes concerning Monastries, Sanctuaries, Mortuaries, First Fruits, Tenths, Annates, and such like, sufficiently manifesteth.

Fourthly, the Parliament had the power of granting Licenses, Dispensations, and Faculties, setting a rule thereunto,21 H. 8. c. 13. 25 H. 8. c. 16. 28 H 8. c. 13. as in case of Nonresidency, and delegating the power to Committees, whereof see more in the Chapter following concerning ordinary jurisdiction.

Fifthly, the Parliament reserved the Cognisance of all appeales for finall sentence unto themselves, and disposed of all the steps thereunto, as unto them seemed most convenient:24 H. 8. c. 12. For though it be true in some cases the Arch-Bishop of Canterbury had the definitive sentence, and in other Cases the Convocation, yet was this but by a temporary Law, and this also granted to them by the Parliament, which took it away from the Pope, and never interested the Crowne therein, but made the Arch-Bishop and the Convocation their immediate Delegates so long as they saw good. Afterwards when they had done their work, Viz. The determining the appeal and Divorce of Queen Katharine, and some other matters,25 H. 8. c. 19. the same hand that gave that power tooke it away and gave it (not to the King or Crowne) but to Delegates from the Parliament from time to time to be nominated by the King, and may as wel alter the same & settle the power elsewhere when they please. And therefore after the appeale of the Dowager thus determined, and the sentence definitive thus settled upon Delegates: The Parliament neverthelesse determined the other causes of the Marriages of the Lady Anne Bullen, and the Lady Anne of Cleve, the jurisdiction of the Crown never intermedling therein; so as upon the whole, it must be acknowledged, that however the King was supreame head of causes Ecclesiasticall, yet had not the definitive sentence in Appeales, nor absolute Supremacy, but that the same was left to the Parliament.

Sixthly and Lastly, what attempts the Parliament had met with, partly from the designes of some great men that [Page] sought their own ends, and partly from the endeavors of these Kings that sought their own heighth and greatnesse, above their Peoples good, hath beene already related, and the utmost issue hath beene truly stated, Viz. That the gaines have come to the Kings Persons and not to their Crowne, and that therein they have put their Seale to the Law, and made their submission to the Parliament, as touching both their Persons, and Power. Add hereunto, that however Henry the eighth aimed much at himself in his ends in two other maine Interests that most nighly concerned him, yet the cheife gaine came to the Parliament.

The one concerned his owne Wife, which-however so nighly related to him as next to his owne Person, and under the determination of the immediate Law of God, yet was so cast upon their sentence, as if he durst adventure his owne Soule at their direction.

The other concerned the Crowne, to which he ought relation above his owne person, which he laid downe at the feet of the Parliament, seeking to their power to fulfill his owne pleasure: The ball is tossed up and downe, somtimes amongst the issue betweene the King and the Lady Ann Bullen, 25 H. 8. c. 22. another while amongst the issue betweene him and the Lady Jane Seymor, 28 H. 8. c. 27. or such as the King should nominate by Letters Patents or last Will. After that, to the Ladyes Mary and Elizabeth, 35 H. 8. c. 1. to performe conditions declared by the Kings Letters Patents, or his last Will. The King then is trusted, but he hath his trust from the Parliament, the Crowne is intailed (as it hath beene ever since Richard the seconds time) but it is done by the Parliament: The reversion is in the the Clouds, but the right of inheritance much more. The Conclusion of all is this, the Parliament by serving these Kings turnes, turned their turnes into their owne.

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CHAP. XXIX. Of the power of the Clergy, in their Convocation.

THe Convocation of the Clergy, like some froward Children, loves not new dressing, though it be a gainer thereby. Before the Pope and Henry the Eighth were falne asunder, their masters, their minds, their work, all was double; their Councels uncertain, their Conclusions slow in Production, and sleight in their Fruit and Consequence; sometimes displeasing to the Pope, sometimes to the King, generally to themselves; who naturally lingering after their own interests, were compelled to feed that body that breathed in them, rather then that wherein themselves breathed; and so like hunted Squirrells, from bough to bough, were ever well tired, yet hardly escaped with their owne skins in the conclusion. Now Henry the Eighth tenders them better conditions, both for ease and Honour, and more suitable to their own Interest; yet they are loath to accept, because they had been slaves by prescription.

Formerly, they were troubled with multiplicity of Summons, 1 somtimes from the King, sometimes from the Pope, sometimes from the Metropolitan, and alwayes overdripped by a Forrain Power, that they could propound nothing for the good of the Souls of themselves or others, but must be blasted from without; their labours lost, their undertakings vain, and themselves, in the conclusion, sit downe hoaked in their Consciences and desires. Now they are at no mans call,25 H. 8. c. 19. but the Kings, and that by Writ, both Provinciall, and Legate è Latere, must meddle no more.

Formerly, its taken for granted, that Kings have no Vote 2 in matters Ecclesiasticall, though themselves be interested therein; and therefore if he will accept of a Disme, he must accept it, Statu quo, it is granted;21 E. 4. fol. 46 nor can he interpose his [Page] Dissent, nor do they much care for his Consent: But whether the King be concerned or not concerned, what they conclude, they must maintain, Vi & Clavibus, although in right,25 H. 8. c. 19. his Prerogative is above theirs. Now by the Statute, the Kings Vote is asserted, and a Negative Vote restored, and himself made as well Head of the Convocation, as the Church: nothing can passe there without his Concurrence, nor come to the Consideration of the Parliament, without his pleasure; and thus the King hath a double Vote in every Church Ordinance: One, as in the Parliament, to passe the same as an Act of Parliament, of which I conceive the Opinion of that Honourable Judge is to be understood; the other,Instit. 4. fol. 323. as a Member of the Convocation, to passe their advices to the Parliament; and therefore he might either sit in person amongst them, or by his Vicar, as Henry the Eighth, did by the Lord Cromwell: By the First, the whole Kingdome was ingaged▪ By the Second, the Convocation onely, and that as a Court onely, and not the representative of the Clergy, because as they had a Spirituall relation, so also they had the Common right of Free-men, and therefore could not be bound without the Common consent of the Free-men.

3 Thirdly, as their power of Convention, and power in Vote, so their Originall right of Law making, suffered a change: formerly they depended wholly upon a Divine right, which some settled Originally in the Pope; others, in the Prelacy, and some in the Clergy: But now they sit by a derivative power from the Act of Parliament, from which as from their Head, they receive life and power.

4 Fourthly, they suffered some change in the very work of their Convention; for though formerly they claimed power to meddle onely with Ecclesiasticall matters, yet that Notion was ambiguous, and they could many times explicate it more largely, then naturally. It is not to be denied, but the matters concerning the Service and Worship of God, are of Spirituall consideration, but that such should be so strictly deemed, to lie in the way of Church-men onely, is [Page] to bring all Spirits within the Verge of Ecclesiasticall Jurisdiction, and to leave the Civill power to rule onely dead Carkases; much lesse can any other thing, which by prescription hath not been of Ecclesiasticall Cognisance, be called Spirituall.

But to come to particulars, because generalls edifie not: The Convocation claimed formerly power, as Originally from it self, to impose rules for government upon Church-men, and Church-Officers, and upon the Laity, so far as extended to their Service of God: And also to charge the Estates of the Clergy; and concerning Matrimoniall, and Testamentary Causes: They claimed also a power to determine Doctrine and Heresies. Yet De Facto, divers of these they never acted in that right, wherein they claimed to hold Cognisance.

First, as touching the charging of the Estates of the Clergy; If it was for the Kings Service, they were ever summoned by the Kings Writt, yet was not their Act binding immediately upon the passing of the Vote, till the Parliament confirmed the same; and therefore the old form of granting of Dismes, was, Per Clerum & Communitatem, as by the pleading in the Abbot of Walthams Case appears;21 E. 4. fol. 45. for without their concurrence, they had no power to charge any Free-man, nor to levy the same, but by their Church Censures, which would stand them in no stead. And in this, the Convocation suffered no alteration, either in right or power, by the change thus wrought by Henry the Eighth.

Secondly, as touching imposing Lawes upon the Laity,20 H. 6. fol. 14. Per Neuton. in points of Worship and Doctrine, its evident, though they claimed such power, they had it not; for when all is done, they were contented at length to get the Support of the Statute-Lawes of this Kingdome, as may appear in the particular Lawes concerning the Lords Day, and proceedings against Heretiques, setling the Popedome in the time of the great Scisme, &c. But now all Title of claim is quite taken from them, and all is left in the Supream Legislative power of this Nation, as formerly hath been already manifested.

[Page]Thirdly, as touching Matrimoniall causes, their former power of making Lawes concerning them and Testamentary causes, is now absolutely taken away; onely concerning Matrimoniall matters, they had so much of the Judicatory power concerning the same put upon them, as might well serve the Kings own turn; and that was for determining the matter between himself,24 H. 8. c. 12. and the Lady Katharine Dowager, depending before Arch-bishop Cranmer: For the King supposed the Pope, a party; and therefore meaned not that he should be his Judge: And thus, though the Clergy had acknowledged the King to be their Supream Head, yet in this, he was content to acknowledge their Supremacy above him, to judge between himself and his Queen, and in other matters concerning himself: So as upon the whole matter, the Convocation were gainers in some things, in other things, they were onely loosers of that, which was none of their owne.

CHAP. XXX. Of the power of the Clergy, in their Ordinary Jurisdiction.

THose Spirits are truely degenerate, that being sensible of misery, cannot stir up desires of change, although the way thereto lies open before them: and this shewes the nature of the Romish yoke, that it lay upon the Spirits of Men, did intoxicate, and make them drunk with their condition; otherwise the Usurpations, Oppressions, Extortions, and Incroachments of the Popedome, upon the Bishops Sphear, and the People under their charge, could never have provoked such complaynings amongst all sorts, in severall Ages, from time to time. And now that Henry the Eighth, undertakes to set them free, so as they would acknowledge [Page] his Supremacy, they all are struck dumb, till a Premuniri taught them to speak; and so were scared into a better condition then they would have had, and into a more absolute Estate of Jurisdiction, then they received from their Predecessors. The Pope had now usurped a power, supra ordinary over all Appeals, gained the definitive Sentence to the Roman See ▪ and had holden this power by the space of foure hundred years, and the King finding the root of all the mischeif to his Crown from abroad, springing from that Principle, meaned not to dispute the point with the Casuists, but by one Statute, took away all Appeals to Rome, 24 H. 8. c. 12. and determined Appeals from the Bishops Court, in the Arch-Bishops Court, and the Appeals from the Arch-Bishops Commissary, in the Court of Audience: So as though in the Kings own Case, the Convocation had the last blow; yet in matters concerning the Subjects, the Arch-Bishop was either more worthy, or more willing with that trust: For though the Convocation might have as well determined all, as well as the Pope; yet for dispatch sake of a multitude of Appeals, now depending at Rome, and to prevent long attendance on the Convocation, that now had much to doe in matters of more publick nature, the utmost Appeal in such Cases is made Provinciall. This, (whether priviledge or prejudice) the Ecclesiasticall Causes gained above the Civill, whose definitive Sentence was reserved to the Parliament. And thus is the Arch-Bishop made Heire to the Pope, in the greatest priviledge of a Pope, to be chief Judge on Earth in matters Ecclesiasticall, within his own Province. A trick that in my opinion much darkened the Glory of the Kings Title of Supream Head, which the Church-men had formerly offered up to the Honour of the Crown of this Realm. For be it so, that the Title is in the Crown by Remitter: yet cannot the same carry along with it any more then a lawfull power, and whether all the Popes former power allowed him by the Canon, or gained by Usurpation and Custome, shall be said a lawfull power, or whether the power of Review by Appeal, shall be derived to the Crown, under the generall [Page] Notion of Supremacy upon the Clergies submission, is to me a doubt (albeit,Instit. 4. fol. 344. I must give Honour to the Judgement in Print) in regard that after the submission of the Clergy, the matter concerning the Divorce of the Lady Katharine Dowager, came before the Pope by Appeal, and there depended the King himself also, waiting upon that See for Justice; and a definitive Sentence in that matter, and thereby acknowledged the Popes power, De facto: Notwithstanding, the Clergies foregoing submission, and being occasioned by the delay at Rome, he procured this Statute concerning Appeals to be made, whereby at one breath he took the Appeals to Rome away, and settled them as formerly hath been mentioned; all which was done two years before the Title of Supremacy was annexed, or declared for to be to the Crown, by Act of Parliament.

And therfore, as to me it appears, the power of supream Cognisance of appeals was not in actuall possession of the Crown by the Clergies submission; so was it actually vested in the Arch-Bishop, before the Title of Supremacy was confirmed by Act of Parliament; and so it never was in the Crowne actually possessed, much lesse had the Crown the same by Remitter: For the Kings turn once served by the Convocation, and the matter of the Divorce of Queen Katharine settled, the King perceiving the slow Progresse of the Convocation, the Members of the same not being yet sufficiently tuned to the present Affairs: And moderate Arch-Bishop Cranmer, likewise foreseeing, that the Odium of these Definitive Sentences would be too great for him to bear; another Appeal is provided, more for the Honour of the Crown, to be from the Arch-Bishop to Delegats, to be appointed by the King, his Heirs, and Successors, so as though their Nomination be the Kings, yet their power is deduced immediately from the Parliament, which took the same from the Arch-Bishop, and conferred it upon them.

25 H. 8. c. 19.A second advantage not inferiour hereto, which the Arch-Bishop gained out of the ruines of the Popedome, was the power of Licenses, and Dispensations, or Faculties. In the [Page] Pope, it was a transcendent power without any rule, but what was tuned to him by the Bird in his own breast; and was the ground of much license, or rather licentiousnesse in the World: But in the Arch-Bishop, they seem to be regulated.

To be First,25 H. 8. c. 21. in Causes not repugnant to the Law of God.

Secondly, such as are necessary for the Honour, and Security of the King.

Thirdly, such as were formerly wont to be remedied at the See of Rome; yet in truth, left as much scope for the Conscience of the Arch-Bishop to walk in, as the Pope had in former times; a large Teather, and greater priviledge then ever the Crown had; by which, although the King himself be like Saul, higher by the head, then all the People, yet in many things Samuel is higher then he. The moving cause hereof, is not difficult to find out: the King had but lately married the Lady Anne Bullen; a thing that many startled at, and the King himself not extreamly resolved in; he would therfore have his way like that of the Zodiack, broad enough for Planetary motion of any one that could not contain himself within the Eccliptick line of the Law, and so shipped over the Popes power to the Chair of Canterbury, and had made a Pope, in stead of an Arch-Bishop, but that the man was not made for that purpose. What the Ordinary Jurisdiction got, or lost wee come in the next place to observe.

First, they had still their Courts and Judiciary power, but upon what right, may be doubted: Their first foundation was laid by the Civill power of a Law, in the time of William the first Norman King; yet the power of the Pope and Bishop growing up together, they came to hold the Power of the Keyes by a Divine right, and so continued, untill these times of Henry the Eighth, wherein they have a Retrospect to the Rock, from whence they were first hewen; and many seem to change their Tenure, and therewith therefore are in right to change the Style of their Courts, and Title of summons, [Page] but the times not being very curious and the worke of Reformation but in fieri; the more exact lineaments must be left to time to finish and beautifie. A greater blow did light upon the Lawe of these Courts, which was left as doubtfull as the Canons; all which are now put to the question, and to this day never received full resolution, but were left to the Parliament to determine them at leisure; and in the meane time to the Judges of the common Law, to determine the same Lawfull or Unlawfull, as occasion should require: Neverthelesse the Courts still hold on their course according to their old Lawes, and Customes, for their forme of proceedings, some say by prescription, yet more rightly by permission; it being a difficult matter to make prescription hold against a Statute Law: As touching the matters within their Cognisance the Law settled some, and unsettled others.

First, as touching Heresie, the Church-men formerly thought scorne the Lay Magistrate should intermeddle, but not being able to stop the growth thereof by their Church-Censures, prayed aid of the Civill Magistracy; so by degrees arose the penalties of Imprisonment, and burning, which brought the whole matter into Cognisance before the Civill Magistrate, because no Free-man might be proceeded against, for losse of Life or Liberty, but by the Lawes of the Nation;Mag. Cart. and for this cause the Civill Magistrate granted the Writ of Habeas corpus, and releived many times the party Imprisoned wrongfully or granted prohibition as they saw cause:Instit. 3. fol. 42. And therefore it cannot be saide rightly, that the sole or supreame Cognisance of this Crime of Heresie belonged to the Clergy before these times. Nor did their proceedings upon the Writ of Burning Warrant any such thing, partly because till these times the Canon Law was the best ground that these proceedings had, and the course therein was not so Uniforme as to permit the Title of a Custome to warrant the same: Conviction being sometimes by jury, sometimes according to the Canon, somtimes before the Ordinary, sometimes before the Convocation, [Page] sometimes before the King, sometimes before speciall Delegates, as the Histories of the Martyrs more particularly set forth, and no Act of Parliament positive in the point. But the time is now come when nighest reformation, that the thing is settled more to the prejudice of reformation then all the endeavoures foregoing; like to the darknesse of the night, that is at the Superlative degree when nighest break of Day. A Statute is now made, that indeed quite blotted out the very name of the Statute of Henry the fourth, De haeretico comburendo, 25 H. 8. c. 14. but made compleat that Statute of 5 Rich. 2. and the other of 2 Hen. 5. both which were formerly neither good in Law, nor effectuall, otherwise then by Power; and gave more settlement to the Ordinaries proceedings in such Cases: For the Delinquent might be convict before the Ordinary by Witnesses, or might be indicted at the Common Law, and the indictment certified to the Ordinary as Evidence: yet did the Parliament carve them out their work; and in expresse words declared, That opinions against the Authority and Laws of the Bishop of Rome were not Heresie, and by the same reason might have done more of that kind, but that was enough to tell all the World that the Parliament could define what was not Heresie, although they did not then determine what was Heresie: And thus the judgment of the Romane Church is called into question in one of their fundamentals, and the Clergy left in a Muse, concerning the rule upon, which they were to proceed against this Crime.

The Parliament within six yeares after, undertakes, though somewhat unhappily, to determine and define certain points of Controversie, which had some relation to the Worship of God, and the publique Peace, and declared the contrary to these determinations to be Heresie,31 H. 8. c. 14. and the punishment to be Death and Forfeiture, and the triall to be before Commissioners by Jury or testimony of two Witnesses, or by examination in the Ecclesiasticall Court, or inquisition in the Leete, or Sessions of the Peace. Upon the whole matter therefore the Ordinary had a particular Power to determine Heresie; [Page] but the Parliament determined such Heresies as were punishable, with Death and Forfeiture, by enumeration in the six Articles. This was the Clergies Primmer, wherin they imployed their study, as making most for their designe, and laid aside thoughts of all other Heresies as drie Notions, or old fashions laid aside, and not worthy the setting forth to common sale.

Secondly, the Lesson concerning Marriage was no lesse difficult for the Clergy to take out: They were put by their former Authority derived from abroad, and their ancient rule of the Canon Law; with the Kings leave they do what they do,35 H. 8. Rat. Pat. p. 15. and where they doubt they take his Commission, so did the Arch-Bishop of Durham in the Case betweene John and Jane Fisher; in the Kings Case the determining part is put to the Parliaments Conclusion; and for a rule in other Cases,15 H. 8. c. 8. some persons are enabled to Marry which formerly were not, Viz: Masters of the Chancery, and Doctors of the Civill Law;37 H. 8. c. 17. and some forbidden Marriage, as all Preists by the Statute of the six Articles. And unto the rest concerning degrees of Consanguinity,28 H. 8. c. 7. 32 H. 8. c. 38. or Affinity, a particular enumeration is appointed to be observed; within which, Marriage is declared unlawfull, all other further off are made lawfull. In all which regards the Cognisance of Matrimoniall Causes is theirs onely by leave.

Thirdly, Residency, and Nonresidency, was a Theame formerly learned from the Canon Law, in which as also in the thing it self the Clergy were the onely skilfull men. The rule of the Canon Law was strict enough, considering the times, but it was not steel to the back. The Parliament now undertakes the cause; and though it gave, in some respects, more liberty then the Canon, yet stood it better to its tackling, and kept a stricter hand upon the reines, then was formerly used, and by giving a generall rule for Dispensation,21 H. 8. c. 13. 25 H. 8. c. 16. 28 H. 8. c. 13. took away all arbitrary Dispensations, and Licences, which were formerly granted beyond all rule, but that of Silver or Gold; and made all practises contrary to the rule damageable to the party. Thus far concerning the matters [Page] in Cognisance; now touching the Power of the Keyes, English ▪ Prelacy having laid aside the pretentions of Rome, they put the World to a gaze, to see which way they would go. In the inocent infancy of Prelacy it was led by the hand, by the Presbytery; and would doe nothing without them, afterwards having gained some degree of heighth, and strength, they entred themselves to be Chariot Horses to the Roman Sun, till they had set all on fire; now unharnest, it is expected they should returne to their former wits; neverthelesse forgetting their ancient yokefellowes, the rurall Presbyters, they stable with the King, use his name sometimes, but more often their owne; serving him with Supremacy as he them with Authority beyond their Spheare; they raise him above Parliament, he them above Councills;Antiq. Britt. so as they do what they list, let the Plebeian Presbyter wil or nill; they are the onely numerall Figures, and the other but Ciphers, to make them, Omnibus numeris absoluti: Neverthelesse the Canon still remaines the same, Episcopi se debent scire Presbyteros, non Dominos nec debent in clerum dominari, Episcopus se sedente non permittat Presbyterum stare. Distin. &c. c. 5. Esto & 3. c. Ead. Dist. Episcopus. Episcopi noverint se magis consuetudine quam dispensatione Presbyteris majores, Kings may make them Lords, but as Bishops they hold their former rank assigned by the Canon, as Lords the King never gave them the keyes, and as Bishops the Canon did not; yet as under the joynt Title of Lord Bishops, they hold themselves priviledged to get what power they can; two things they reach at, Viz. The absolute power of Imprisonment,Instit. 3. fol. 40. and of Excommunication in all causes Ecclesiasticall. The common Law would never yeeld this; some Statutes in some cases did pretend:

First, as touching Imprisonment, the Statute of Henry the fourth concerning Heresie doth lispe some such Power; of what force the same Statute is hath been already observed,1 H. 7. cap. 4. in case of incontinency of Church-men, it is more directly given them by a Statute in Henry the sevenths time, before which time the Statute it self doth initimate, that an Action did lye against them for such imprisonment, which Law also [Page] was made uselesse by another in Henry the eighths time, who gave away to Statutes for the punishing them at the common Law.

31 H. 8. c. 14. 32 H. 8. c. 10.First, with Death, which continued for some Months, and that being found too heavy, it was punished by another Law, with Forfeiture and Imprisonment. And the same King likewise gave way to a law for the like punishment in case of Heresie. By that Law that revoked the Statute of Henry the fourth formerly mentioned, although till triall, the same was bailable: And thus continued till the time of Edward the sixth.

But as touching Excommunication, it was to no purpose for them to struggle, the common Law would never permit them to hold possession quietly; but did examine their Authority,14 H. 4.14. 30 E. 3. Ass. 19. 22 E. 4. f. 29. Hil. 13. H. 7. pl. 15. 26 H. 8. c. 3. granted prohibition, enjoyned the Ordinary to grant absolution where it saw cause; neverthelesse in some cases Henry the Eighth gives way to some Statutes to allow them this power, as in the levying of Tenths. In the next place the Prelacy had not this Ecclesiasticall jurisdiction in themselves so as to grant it to others but the Parliament did dispose thereof, not only to Bishops but to Chancellors, Vicars generall, Commissaries, being Doctors of the Law, and not within holy Orders,37 H. 8. c. 17. and limiting their jurisdiction in cases concerning the Papall jurisdiction; and their manner of sending their processe and Citations, to draw men from their proper Diocesse,23 H. 8. c. 9. and also their inordinate Fees in cases Testamentary.21 H. 8. c. 5. The Prelates therefore might possibly make great claim hereof, for generally they were still of the old stamp, loved to have all by Divine right and lived they cared not by what wrong: But the Laity inclining too much to the new Religion, as then it was termed, refused to yeeld one foot unto their pretentions: And so like two Horses tied together by their Bits, indeavor after severall courses, ever and anon kicking one at another, yet still bestrode by a King that was joynted for the purpose; and so good a horse-man that neither of them could unhorse, him till Death laid him on the ground. And thus was the Romane Eagle deplumed, [Page] every Bird had its own feathers, the great men the Honours and Priviledges, the meaner men the profits, and so an end to Annates, Legatine levies, Peterpence, Mortuaries, Monestries, and all that retinue, the vast expences by Bulls and Appeales to Rome, to all the cares, expences, and toile in attendance on the Romane Chaire: The beginning of all the happinesse of England.

CHAP. XXXI. Of Judicature.

THese two Kings were men of towreing Spirits, liked not to see others upon the wing, in which regard it was dangerous to be great, and more safe not to be worthy of regard: Especially in the times of Henry the eighth, whose motion was more eager; and there was no comming nigh to him, but for such as were of his own traine, and would follow as fast as he would lead; and therefore generally the Commons had more cause to praise the King for his Justice then the Nobility had. Both the Kings loved the aire of profit passing well (but the later was not so well breathed) and therefore had more to do with Courts which had the face of Justice: But behinde were for the Kings Revenue: Such were the Court of Requests, of meane originall, meane education, yet by continuance attained to a high growth: The Court of Tenths and first fruits: The Court of Surveyors: The Court of the Lord Steward of the houshold: The Court of Commission before the Admirall: The Court of Wards; The Court of the President of the North: The Prerogative Court: The Court of Delegates: The Court of Commission of Review: Others of more private regard: and (that which might have given the name to all the rest) the Court of Augmentation. Besides these there were some in Wales; but that which concerned more the matter of Judicature, was the losse of that grand liberty of [Page] that Countrey formerly a province belonging to this Nation and now by Henry the eighth incorporated into the same,28 H. 8. c. 3. and made a Member thereof, and brought under the same fundamentall Law; a work that had now been long a doing, and from the time of Edward the third brought on to perfection by degrees.

First, by annexing the Tenure of the Marches to the Crowne: Then upon occasion of their rebellion by losse of many of their wonted liberties. Afterwards Henry the eighth defaced the bounds of diverse the ancient Counties and setled them a new and the bounds of the Marches also, and appointed Plees in Courts of Judicature to be holden in the English tongue.

And last of all reunited them again to the English Nation, giving them vote in Parliament as other parcell of the English Dominions had.Rot. Claus. 20 E. 2. m. 3. True it is, that from their first submission even unto Edward the first they were summoned unto Parliament, and had vote there, but onely in order to the Interests of their own Countrey,15 E. 2. In Dors. m. 13. now and henceforth they possesse one and the same vote as English men. Secondly, as Courts and Judicatories multiplied, so some also of those that were ancient enlarged their Jurisdiction, especially such of them as most nighly related to Prerogative; amomgst others, the privy Councell leads the way: Who now began to have too much to do, in a double capacity, one at the Councell Table, the other in the Star Chamber: For now their Power began to be diversly considered. In their first capacity they had too much of the Affaires of the Common Pleas, in the later they had too much of the Crown Pleas; both of them serving rather to scare men from doing wrong, then to do any man right. And therefore though some men might seeme to have some recompence, yet the greatest gain fell to the King and his Courtiers, and thus became Majesty, or State, or Prerogative, to be more feared then beloved. What the Power of the Councell was formerly hath already beene manifested, that which both these Kings conspired in, and whereby they gained more Power over the People [Page] then all their Predecessors, was this, that other Kings stood too much upon their own leggs, these leaned much upon the Lords, and gained the Lords to stick close to them; and in this they had both the Kings Love and the Peoples Leave, who now disjoynted upon severall Interests, especially that of Religion, must be contented to let go that which they had no heart to hold. And thus they obtained a judicatory Power over the people; like that of great men whose Censures are commonly above capacity, and not like to that of the Peers. This was begun in Henry the sevenths time, who taking occasion to complain of corruption and neglect in ordinary Trialls of the Common Law, gets the People to yeild to the Councell, or some of them, a Power of Oier and Terminer, by examination upon Bill or information in matters concerning Maintenance, Liveries, Retainders, Embraceries corruption in Sheriffs, and Juries, Riots,3 H. 7. cap. 1. and unlawfull Assemblies, Crimes all of them of the same Blood with rebellion, which the King as much hated as the thought of his Title to the Crowne; and therefore would have it feared, as much as the punishment by such a mighty Power; and a Triall of a dreadfull Nature could effect. A Triall I say, wherein both the guilty and the guiltlesse adventure their whole Estates, against the edge of the arbitrary wills of great men of unknown Interests, in an unknown way, at unknown places; having no other assurance, how, or when to come off, but a Proclamation to tell the People, that the King above all things delighted in Justice. A bitter pill this was for the People to swallow, yet it was so artificially composed, that at the first taste it gave a prety rellish, the King delights in Justice,4 H. 7. cap. 12. the Chancellor hath his Conscience, the Arch-Bishop brings Religion, the Judges bring Law, so as its probable nothing will be done but according to Justice, Conscience, Religion, and Law; a very faire mixture but that there was a Treasurer in the Case, yet the successe answered not expectation, the Persons offended were many times inferiour and their estates not great, the Offenders more meane and of desperate fortunes; [Page] for great men were too wise to try this new way, or to tast of their entertainment. Therefore within nine yeares the Judges of Assize are betrusted with all, and that Court so continued for as many yeares more;11 H. 7. c. 3. and then the King marked out one Crime amongst the rest for his owne tooth, belonging to the great men onely, for they onely are able to commit the Crime, and to give recompence sutable to the Kings Appetite: It is giving of Liveries, and Retainders, a sore evill in the eyes of a jealous King, tending to draw the inferiour sort to honour and admire, and be of the suit of those of the greater sort, and then beware the Crown. These therefore must be tried before the King himself and his Councell, that he may know whom he is to feare,19 H. 7. c. 14. and of whom to take heed. And herewith is a strange power given, to summon upon a meere Suspition: To proceed without information: To examine the Defendant upon Oath and make him his own Accuser. To punish according to discretion, by fine and Imprisonment; and thus the King and his Councell have gotten a power under colour of Liveries and Retainders, to bring the whole Kingdome to be of their Livery, or else they can suspect whom they please; apprehend whom they suspect, put him presently to the rack of confession, and so into prison till he hath satisfied both displeasure, and jealousie, and covetousnesse it self. Never was England before now in so low a degree of thraldome, bound under a double knot of self-accusing, and arbitrary Censure, and this out-reached, not onely in matters meerly civill, tending to the common Peace, but was intruded also into matters Ecclesiasticall in order to the Peace of the Church. All bound unto the good behaviour both in Body and Soul, under perill of losse of all that a man hath deare to him in this World. The plot of all this was first laid by Henry the seventh, and was followed by Henry the eighth, who put that into practise (which his Father had in designe) being led thereto by such a skilfull Guid as Cardinall Woolsie was, who, though of meane Birth, yet of a Spirit above a King, and equall to [Page] the Popedome, strained the string of Prerogative to its utmost heighth, and then taught the King to play thereon; which he did after his blunt manner till his dying day. And thus though the Clergy are brought a Peg lower, and the Nobility advanced higher, yet was it the pollicy of these Kings to make them all of their own Livery and Retaindership, to keep them in an upper region, looking on the poore Commons at a distance far below; and well it was for the Commons thus to be, till the influence of these blazing Stars grew cooler.

CHAP. XXXII. Of the Militia.

IT may fall within the verge of opinion, that the guilty Title of Henry the seventh to the Crowne of England, galled his minde with jealousie the greatest part of his Reigne: Whether it were that he had not declared himself so fully upon his Title by his Wife, or that as yet he feared some unknown Plantagenet would arise and put his Crown to the question: This made him skilfull in the point of Fortification (wherein he likewise spent the greatest part of his Reigne) not so much by force of Armes (for he cared not much for that noise, well knowing that Peace is the safer condition for a King that comes in by power) but principally by way of gaining Concessions and acknowledgment from the Subjects, a Musick that he much delighted to heare, well knowing it would conclude those amongst them that knew too much, and instruct them that knew too little; and so in time he should passe for currant amongst them all. It was no hard matter for the King to accomplish this, the greater part of the Kingdome being pre-ingaged unto his Title, and of them many depending upon him for livelyhood, if he failed they must look to loose all. But the [Page] 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 Yorke: And its 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 dayes come like those of Henry the sixth, wherein the Subjects should be between two millstones, of one King in Title and another King in possession, for whom must they take up Armes, 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 Yorke, if for the Duke of Yorke, then are they Traitors to Henry the seventh. For though the Duke of Yorke 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 certaine 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 Councellor, of that brave King of Israell, Whom the Lord and his People and all the men of Israell chuse, his will I be. And this is not onely declared by the expresse words in the Preface of the Law, but also by the Kings own practise;11 H. 7. c. 1. for he discharged such as aided him against Richard the third then King,1 H. 7. cap. 6. 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 Kingdome.

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 attainted; therefore the first and the last of these need no dispute.

[Page]The second is more worthy of consideration, in the particular words set downe in the Statute, Viz. That the Subjects are to serve their Prince in his Warres, 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 Battell. Wherein two things are to be considered, the Service, and the time or occasion.

The Service, is to serve the Prince in his Warrs, and with him to enter and abide in Service in Battell; which is the lesse 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 therin set down is only 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 warrs, and willing to admit this Conclusion for the better security of them both in these doubtfull 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 Kings Person and Kingdome is indangered by Rebellion, Power, or might, reared against him. So as the Kings Person must be present in the Warr for the defence of the Kingdome, or no man is bound by his allegiance to hazzard 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 Kings 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 inferr from hence, that the King hath an universall power of Array when he pleases, because the King when he pleases may not levy Warr, nor make other Warr then a defensive Warr when the Land is indangered, or when need shall require,11 H. 7. c. 18. 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 tendernesse of the times, wherein both Prince and People were willing to decline the question.

[Page]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 sense 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 oppressions of this first Law concercerning the occasion or time of this Service; nor did he see sufficient ground under the Notion of bare allegiance to desire more: New wayes 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 payed before hand for his Patents either by Money or that which was as beneficiall to him) yet he was resolved that their holding should be no lesse advantagious to him then their having, and therefore in plaine 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,11 H. 7. c. 18. choose they which, and if they finde 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 Soveraigne Lord, at all seasons when need shall require; generall words, that affirm nothing in certainty, yet do glance shrewdly upon an absolute and universal assistance. Then comming to drive the naile home, it is said that the Patentees are bound to give their attendance upon his Royall Person, to defend the same when he shall fortune to go in his person in Warrs for the defence of the Realme or against his Rebells and Enemies; (and as another Statute addeth) within the same Realme, or without, and according to their Allegiance, and not to depart without especiall license, or untill general Proclamation of dismission. [Page] In shew therefore here is a new Militia, as touching the Kings Patentees they must attend the Kings Person whither ever the King will lead them, either within the Realme, 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 doubtfull expressions, as if it were not meet that Henry the seventh (that loved not to yoke himself to the Law should yoke his Lawes under the Lawes of plaine language: Or rather that he held it a point of policy to publish his Laws in a doubtfull stile, that such as durst question his Lawes 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 breach of them. Nevertheless neither doth the glance of allegiance in the Preface of the former,11 H. 7. c. 18. nor in the body of the later Statute any whit confirm, that what is in them enacted is done upon the ground of Allegiance,19 H. 7. c. 1. but contrarily when as the first Statute commeth to the point, it Startles from the ground of Allegiance, and flies to the ground of a kinde of Equity or reason. And the second resorteth to the first as its proper ground, as being a suppliment thereunto in cases forgotten and so omitted; though it may be rather thought that the King creeping up into his heighth 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 Lawes, being limited, both in regard of time and person. In regard of time, for both these Lawes 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 in to such advancement by purchase for Money: Neither are Judges and other Officers excepted persons in the saide Statutes. [Page] If therefore Allegiance had been the ground of these Lawes, it had equally bound all who are under that Bond, and no Equity could have given a generall rule of discharge unto such condition of men: It had likewise bound as well formerly and afterward as during this Kings Reigne, and therefore what ever semblance is made therein concerning Allegiance, there had bin 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 Lawes do hold forth nothing that is new, but a minde that Henry the seventh had to fill his Coffers, though his minde 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 then to adventure themselves, and so he might get the more Money that could finde pay for Souldiers more and better then they were or would be; for otherwise the Patentees might by the Statute have beene allowed to serve the King by their Deputies which would have done the King better Service in the Warrs then 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 Claime of Kings be what they will, yet the matter in fact shew plainly that they never had possession of what they claimed: Both these Kings pretended a Forraine-Warr, each of them once against one and the same Nation, and to that end advanced unto 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 Volunteirs, this not only the Records but also the Statutes do clearly set forth. Some souldiers served under Captaines of their own choise, and therefore the Law inflicteth a penalty upon such Captains as bring not their number compleat according to their undertaking,7 H. 7. cap. 1. other Souldiers are [Page] levied by Commission by way of imprest; which in those dayes were Volunteirs also, and expecting favour from the publique, the rather because they devoted themselves thereto without relation to any private Captaine; willingly therefore received imprest Money: And of this course the State saw a necessity, both for the better choise of men, and for the more publique owning of the worke: For such as had been usually levied by the Captaines were fit only 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,3 H. 8. cap. 5. as by the like Law in his time may appeare. As touching the levying of the Horse, although diverse 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 certaine number of Horses,32 H. 8. c. 13. 33 H. 8. c. 5. yet do none of them tell us that they shall finde and maintaine them armed compleatly for the Warrs, nor shall send them forth upon their own charge, and therefore I suppose they were raised as formerly; these two Kings had the happinesse 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 finde men that loved to ingratiate themselves, and indeavour to catch their favour, though with the adventure of their Lives, especially if they looked after Honour and Glory, which as a Crowne they saw pitched at the Goale 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;7 H. 7. c. 1. 3 H. 8. c. 5. the payment was to be made by the Captaine, under perill of imprisonment and forfeiture of Goods and Chattels, and the true number of his Souldiers to be maintained and listed, under the like perill.

Fourthly, As touching the Souldiers service, the same course also was taken as before; if they dissert their Colours, they shall be punished as Felons, and the manner of tryall to be at the Common Law.

[Page]Fifthly, For Fortifications, the power properly belongeth to the supream Authority, to give order therein: For the people may not fortifie themselves (otherwise then in their particular Houses, which are reputed every mans Castle) because publique Forts are enemies to the publique peace, unlesse in case of publique 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 Freehold, or exacting their labour, or other Contribution, none of which ought to be done, but by publique Law; and therefore when the Inhabitants of the County of Cornwall were to make defence against Invasion and Piracy, from the Coast of Little Brittaine, in regard they were a long slender County, and upon sudden surprisals, people could not so readily flock together for their joint defence, they obtained an act of Parliament to give them power to fortifie the Sea coasts,4 H. 8. cap. 1. according to the direction of the Sheriff and Justices of the Peace.

Lastly, Warrs once begun, must be maintained at the charge of the undertakers: If they be the Kings own Wars, he must maintaine them out of his owne Treasury, till the benefit of them doe 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 severall times went to Boloigne with their Armies: Henry the seventh with an intent to gaine profit to himselfe by an advantagious peace, and had his ends therein, and was ashamed to aske ayde of the people towards the charges of that Warr.

Henry the Eighth went upon his owne charge also with his Army, trusting to the Parliament for consideration to be had of his imployment (wherein his expectation did not faile) and in his absence, made Queen Katharine Generall of all the Forces of England in his absence, and gave [Page] her power, with other five Noble Personages, to take up Money upon Loane, as occasion should require, and to give security for 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. Neverthelesse the Warr at Sea, Infra quatuor maria, was ever reputed Defensive as to the Nation, and under the publique charge, because no Warr could be there, but an Enemy must be at hand, and so the Nation in eminent danger; and therefore the maintenance of the Navy Roiall in such cases, was from the publique Treasury.

To conclude therefore, If the Parliament and Common Law in all these cases of Levies of men for Warr,7 H. 8. cap. 2. 23. cap. 7. 32. cap. 14. payment of Souldiers, and their deportment, in cases of Fortifications, and of maintenance of Warrs at Sea, and the deportment of such as are imployed therein; I say, if they give the Law, and carry the supream directory, then certainely the Law rules in that which seemes most Lawlesse; and though Kings may be cheife Commanders, yet they are not the cheife Rulers.

CHAP. XXXIII. Of the Peace.

PEace and Warr originally depend upon the same power, because they relate each to other, as the end to the meanes, and receive motion from one and the same fountaine of Law, that ruleth both in Peace and Warr: It is very true, that severall Ages hitherto have been troubled with arbitrary exhalations; and these very times whereof we now treat are not altogether cleare from such an ayre. Two Kings we have at once in view, both of them of an elate spirit; one working more closely by cunning, the other [Page] more openly by Command, yet neither of them pretending so high as to doe all, or be all in all. Peace suited more with Henry the seventh then with his Son, who delighted to be accounted terrible rather then good; yet both of them were glad enough to be at peace at home, and were industrious to that end, though by severall meanes. 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,11 H. 7. c. 15. 19 H. 7. c. 16. 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 Warrs, both Civill and Forraine; 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 selfe.

Secondly, He reformes Goales, as well in their number as their use: During the Civill Warrs, every small party of men that could get a strong place, made the same, not only a Castle, but a Goale, and usually imprisoned and ransomed at their owne pleasure: For remedy whereof, Henry the seventh restores all Goales to the Sheriffs,19 H. 7. c. 10. saving such as hold hy Inheritance; and gives power to two Justices of the Peace,3 H. 7. cap. 3. one being of the Quorum, to take Baile in cases bailable,3 H. 7. cap. 1. and Recognisances of the Peace, to be certified at the next Sessions, or Goal-Delivery.

Thirdly, Both Kings concurr in providing against such disorders, as more immediately did trench upon the publique Peace, and reached at the Crowne it selfe, 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 unlawfull Assemblies: The first being in nature of unlawfull assembly of minds and spirits of men, the second of their bodies and persons: Both these had formerly been [Page] provided against, but the Judges of the Common Law, unto whose Cognisance these Crimes 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 flye at so high a pitch; and therefore they are reduced before a higher tribunall, as matter of State,3 H. 7. cap. 1. 19 H. 7. c. 14. as hath been already mentioned. The severity of punishment consisted not so much in aggravating the paine, as the Crime, matters of injury being made Felonies, and those Treason.

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 harme to the King, but of the Queen or their heires apparent,26 H. 8. c. 13. or tending to deprive them of their Title or Name of Royall Estate:3 H. 7. c. 13. 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 Councell, Steward, Treasurer, or Controller; so as the person of the Queene was not then in the Case, and yet then newly Crowned, and at that instant bearing in her womb that royall seed which was then the onely earnest of the stability and glory of England; and therefore is it a subject of wonderment, unlesse it were out of extremity of Jealousie, least he should seem to make too great account of her title, and thereby disparage his owne; and then is it a peice of wit, but not without weaknesse; for he that is jealous of the slightings of other men, shews himselfe unresolved in his owne pretentions. Now Henry the Eighth, not onely raiseth the price, but addeth to the thing, and not onely putteth the Queen, but the Prince or Heire apparent into the Case, making the same Treason: So as it implyeth, that English Allegiance tyeth the Subject, not onely to the safety of the Person of the King, but also of the Queen and Heire apparent; otherwise the offence is made and declared Treason against the King.

[Page]Secondly, the Election of the object is to be considered, for whether the one or other Statute be observed, it will appeare that although the King was the next object expressed, yet a further was intended, and that the Crime is not intended in regard of his naturall Capacity as a man, but of his politique Capacity, and in relation to the Common good of the Nation, and this is evident, not onely from the severall Prefaces of the Lawes, but also from the manner of Election, whereby the Title of Heire apparent is taken up, and not the eldest Sonn or Daughter, or these, and not the other Children, all which are equally dearly beloved in Naturall regard.

Thirdly, though at the Common Law Treason be properly a Crime against Allegiance, yet as in cases of Felony Crimes may be by the Statute made as Treason, which at the Common Law are not against the legiance of an English man, for this remaineth ever one and the same, but one and the same fact may be made Treason and unmade by the Statute-Law, as befell this Law of Henry the eighth, by a Law within twenty yeares after; like as also in former times one and the same fact hath many times received the like measure. Other Treasons besides these already mentioned were by Henry the eighth created,28 H. 8. c. 18. as Marriage with any of the Kings Sisters, Daughters, or Aunts of the Fathers side, or the Daughters of his Brethren or Sisters, without consent first had of the King:4 H. 7. c. 18. Counterfeiting of currant Money, not of the Kings Coynage, was likewise made Treason by Henry the seventh,27 H. 8. c. 2. who was well seen in that Mistery of Money-Trade, and the like also became of Counterfeitures of the Kings Privy Signet and signe manuell.

22 H. 8. c. 9.And Lastly, that horrid trick of poysoning was reduced to this Category, rather that the Penalty might be more terrible in the Death (which was by boyling) then for any Tincture in the Nature of the Crime, or in any Forfeiture of Estate.

33 H. 8. c. 8.The policy of these times thus irritated against Treason had proved very irreguler, if the same had not been as rigid [Page] in cases of Felony: diverse new ones of that kind are also dubbed, amongst which Conjuration or Witchcraft comes first; an old Felony in the Saxons time, but since had gotten its Clergy, now well nigh for the space of five hundred years, and they it, so as it never walked abroad amongst the Laity but under the favour of the Cloystered People, nor ever came before the Civill Power till now Henry the eighth brought it forth into its own ancient and proper regiment. Other Crimes being those of the season are made into the the same degree: Such as were taking of women into captivity; unlawfull huntings with disguises;3 H. 7. c. 2. 1 H. 7. c. 1. 22 H. 8. c. 11. 21 H. 8. c. 7. malicious breaking of the Dikes and Bankes in Marshland; Servants embezzelling their Masters Goods to the value of forty shillings or upward, which (besides that of Heresie, whereof formerly) though of a new stamp, yet of so good a constitution, that they remaine unto this day under the same brand.

But let the Lawes be never so severe, if they have not free liberty to walk at large they are soone ghostlesse, and therefore these two Kings, especially the later, gained that Honour above their Predecessors that they gave the Law a free and full scope over all persons but themselves and their Assignees, and in all places. First, Concerning places, every one knowes the Notion but few considered the extent of Sanctuary ground in England, that could sanctifie any Crime or Criminall person in such manner, that though the eye of Justice could see yet the hand of Justice could never reach them▪ till Henry the eight plundered them of all their sanctity, and made all places common, so as no Treason could hide it self but where the Act of Parliament did appoint,26. H. 8. c. 13. 27 H. 8. c. 19. 32 H. 8. c. 12. and turned their names from Sanctuaries to priviledged places. The sanctity of the person was yet more mischivious and hard to be reformed, it had been often attempted before, these times with little successe. Henry the seventh gained some ground herein beyond his Ancestors; the Delinquent might have his Clergy once,4 H. 7. c. 13. but not the second time (though he fled to the hornes of the Alter) and was ever after known by a [Page] brand in the hand. Thus far did Henry the seventh go, and would have done more even as far as unto those in holy orders. But Henry the eighth comming on, in point of Treason made all persons common without respect of their orders or profession.23 H. 8. c. 1. Death makes an equall end of all. In cases of Murther,4 H. 8. c. 12. Robbery, Burnings of Houses, Fellonies done in holy ground, high Way, or Dwelling House; refusall of triall,25 H. 8. c. 3. peremptory challenge of above twenty of the pannell; Servants, imbezzelling their Masters Goods in value forty shillings or upwards; in all these Cases no Clergy could be allowed,23 H. 8. c. 1. but to persons in holy Orders, and those also to be perpetually Imprisoned in the Ordinaries Prison; and yet this exception held not long in force, but these men also were equally wrapped up in the same course,32 H. 8. c. 3. to have their Clergy and indure the brand even as other men.

Two difficulties yet remaine which hindred the execution of the Lawes against Treason. One concerning the place, the other the person.

The place many times of the plotting and beginning of the Treason befalleth to be without the walk of the Kings Writ, in which case by the Common Law it cannot be inquired or tried, or it may be that the men of the place be generally disaffected, and then no hope of finding out the matter. In such cases therefore it is provided,28 H. 8. c. 15. 33 H. 8. c. 22. that be the Crime wheresoever the Delinquent will, it shall neverthelesse be inquired and tried where the King will.

The Person of the Delinquent also many times changed its condition; it might be sober at the time of the Delinquency, and afterwards upon discovery, prove lunatick, and thereby avoide the Triall, this whether in jest or earnest, by a Statute is made all one,35 H. 8. c. 2. and it is ordained that in case the fact be confessed by the Delinquent before the Lords of the Councell, at such time as the party accused was of sound minde, and the same be attested under the hands of foure of those Lords, the same shall be a good ground to proceed to inquisition before Commissioners, and the same being [Page] found, to try the Delinquent without answer or appearence, saving unto Barons their Triall by their Peeres. And thus however in their Fits, the Will of the Persons of these Kings was too hardy for the Kings to mannage according to rule, yet the Law still in Title kept the saddle, held the Reines, and remaineth the cheife Arbitrator unto every man.

CHAP. XXXIV. Of the generall Government of Edward the sixth, Queene Mary, and Queene Elizabeth.

WEE are at length come within sight of the shore, where finding the Currents various and swift, and the Waves rough, I shall first make my course through them severally, and then shall bring up the generall account of the Reignes of one King and three Governours.

The King was a Youth of about ten yeares old, yet was older then he seemed by eleven yeares; for he had all the Amunition of a wise King, and in one respect, beyond all his Predecessors, that made him King indeed, By the grace of God. He was the onely Son of Henry the Eighth, yet that was not all his title, he being the first President in the point of a young Son and two elder Daughters by severall venters; the eldest of whom was now thirty yeares old, able enough to settle the Government of a distracted Nation; and the Son so young, as by an Act of Parliament, he was disabled to settle any Government at all, till he should passe the fifteenth yeare of his Reigne: But the thing was settled in the life time of his Father, whose last Will, though it speake the choise, yet the Parliament made the [Page] election, and declared it. The condition of this Kings Person,28 H. 8. c. 7. 35 H. 8. c. 1. was every way tender; borne, and sustained, by extraordinary meanes; which could never make his dayes many, or Reigne long: His spirit was soft and tractable, a dangerous temper in an ill aire, but being fixed by a higher principle then nature yeelded him, and the same, beautified with excellent indowments of nature, and Arts, and Tongues, he outwent all the Kings in his time of the Christian World. His Predecessors provided Apparell and Victuall to this Nation, but he Education, and thereby fitted it to overcome a firy tryall, which soon followed his departure. The modell of his Government was as tender as himselfe, scarce induring to see his Funerall; ready for every change, subject to tumults and Rebellions, an old trick that ever attends the beginning of Reformation, like the winde the Sun rising. The diversity of Interests in the Great Men, especially in point of Religion, for the most part first set these into motion; for some of them had been so long maintained by the Romish Law, that they could never endure the Gospell: and yet the different Interests in matters of State, made the greater noise. All was under a Protector fitly composed to the Kings minde, but ill matched with rugged humorous aspiring mindes; whereof one that should have been the Protectors great Freind, became his fatall Enemy, and though he were his Brother, to prejudice his Interest, pawned his owne blood: The other which was the Duke of Northumberland, had his will, but missed his end; for having removed the Protector out of the way, and gotten the cheife power about the King, yet could he not hold long what he had gotten; for the King himselfe, after sixteen moneths decaying, went into another World, and left the Duke to stand or fall before some other power, which came to passe upon the entry of the next Successor.

The greatest trouble of his Government arose from the prosecution of a designe of his Grand-Fathers, Henry the seventh, for the uniting of the two Crownes of England and Scotland, by marriage, and settling an induring peace [Page] within this Isle; and unto this worke all were ayders in both Nations, but the Enemies of both: But Gods wayes are not as Mans; its a rare example to finde out one Marriage that did ever thrive to this end. England meaned well in profering Love, but the wooing was ill favoredly carried on by so much Blood.

Lastly, As the Government was now tender; so was it carried with much compliance with the People, which ever gives occasion to such of them that are irregular, to be more, and such as are wel governed to be less, because though pleasing it be, yet it is with lesse awe and spirit, which renders their obedience at the best but carelesse and idle, unlesse such as are very consciencious be the more carefull over their owne wayes, by how much their superiours are the lesse.

NOt thus was Queen Mary, Q. Mary. but (like a Spaniard) shee overruled all relations and ingagements by designe; she was about forty yeares old, and yet unmarried when shee came to the Throne, it may seeme shee wanted a minde to that course of Life from naturall abstinency,Thuan. vol. 1. lib. 13. or was loath to adventure her feature (which was not excellent) to the Censure of any Prince of as high degree as shee held her self to be; or her value was unknown, so as to persons of meaner Interests shee might seeme too much above, and to those of greater too much beneath: Or possibly her Father was loath to let the World know her Title to the Crowne till needs must, or to raise up a Title for an other man so long as he had hope of a Son of his own to succeed him, and yet had formerly designed her for a wife to Charles the fifth,Thuan. vol. 1. lib. 1. and afterwards to the Dauphine of France: Or it may be her self had set a command upon her self, not to change her Estate till shee saw the course of the Crown, either to or fro;Fox. however the time is now come that shee must marry, or adventure her Woman-hood upon an uncertaine and troublesome state of Affaires: Shee liked the Lord Courtnoe above the Prince of Spaine, but feared he would not designe with her: Shee held [Page] him not unmeet for her degree, for shee feared he was good enough for her Sister, that then also had the Title of a Kingdome waiting so nigh her person, as shee was an object of hope to her Freinds, and feare to her Enemies. And yet Queene Mary married the Prince of Spaine: It may be it ran in the blood to marry into their owne blood, or rather shee was thereto led by reason of state, partly to inable her with greater security in the reseisure of her Kingdome in the Popish Religion, wherein shee knew shee had to do with a People not easie to be reduced, where Conscience pretended reluctancy; and partly to assure her Dominion against the outworks of the French and Scottish designes. And so shee yeilded up the Supremacy of her Person to the Prince of Spaine, but (thanks to the Nobility) the Supremacy of the Kingdome was reserved to her own use, for it was once in her purpose to have given up all to the man, rather then to misse of the man. And yet their condition was not much comfortable to either: the peoples dislike of the match sounded so loud abroad, that when the Prince was to come over, the Emperour his Father demanded fifty Pledges for his Sons safty during his abode in this Land, which was also denied,Bodin. Rep. lib. 6. when he was come over, the English Feare the Spanish Tiranny, and the Spanish the old Saxon entertainment of the Danes; so both ly at their close guards, as after some time the King and Queen did no lesse, for the Queen was either never earnest in her affection, or now much lesse, finding his Body diseased and his Minde lingring after unlawfull game. On the other side, the King not finding that content in her Person (especially after her supposed Concepcion) that he expected, looked to his owne Interest apart from hers, and thereby taught her to do the like; and this she thought cost England the losse of Callis and he Spaine the losse of many advantages that might have been obtained, and was expected from this conjunction. Thus by the severall interests betweene the King Regnant and the Queen Regent, the Government of England became like a knot dissolving, neither fast nor loose.

[Page]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 designe was contrary to her ingagements; and therefore it was vaine to think to please her self and pleasure them. Nor did she much busie her thoughts therewith, that abominated trick of Impost upon Merchandise she brought into fashion,C. 2. Instit. fol. 61. which had by many publique 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 Spaine, and the People might very well consider of that, though for her part she desired not much to improve that Forraine Interest; because she might well see that Spaine designed to keep England so far beneath, that France might not get above: And that Phillip neither loved the double Crowne of England, no nor the triple Crowne at Rome, otherwise then in order to that of Spaine.

This distance between her and her King, wrought her to a more nigh dependency upon her Councell and English Nobility, and so became lesse discerned in her Government; although questionlesse she did much, and wanted not Wisdome or courage to have done more, but that she was not wholly her owne Woman: All men do agree that she was devout in her kind of profession, and therin as deeply ingaged as her Brother Edward had beene in his; though it may be out of tendernesse of Conscience, but she out of a Spanish kind of gravity that indures not change: and whereunto she was well aided by her Clergy who were her beloved for her Mothers sake, and now also so much the more sowre, by how much the nigher to the bottome: Its the lesse wonder therefore if the zeale 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 Sect, rather then 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 ingageing of England in the Warr at Saint Qui ntins, against [Page] the French, contrary to the Nationall league formerly made: Neverthelesse the issue was but sutable, 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 beleeve that she died for greif therefore as a Mother of her Countrey; although her bodily disease, contracted by a false 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 Reigne, 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 waies excelled them both, she was begotten in a heat against Rome, wherein also she was borne and trained up by her Father and Brother Edwards Order, and saw enough in her Sisters course to confirme her therein. For Queen Mary was not very Catholique in her Throne, though she was in her Oratory. Nevertheless, Queen Elizabeths Course hereunto was very strange, and might seem in outward respects to lead her quite wide, for her youth was under a continuall yoke, her Mother dead whiles she was at the breast; her Father owning her no further then 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 blood, except in point of Religion, might repect her at a distance beyond his Mothers family, but this lasted not long, her Sister Mary comes next, of a stranger blood to her then her Brother was; looking ever back upon her as one too nigh her heele, and more ready to tread upon her Traine then support it, the difference in Religion between [Page] 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 lesse noise in Religion, walked warily, and resolved with patience to indure the brunt; for she might perceive by her Fathers Will that her way to the Crown, if ever she arived at the end, must be through a feild of blood, and though she knew her change of Religion might make the way more plain, yet God kept her in a patient waiting, untill the set time was come. Thus passing over her Minority with little experience of youthfull pleasures, she had the happiness to have the lesse sense of youthfull lusts, which meeting with naturall Endowments of the larger size, rendred her the goodliest mirror 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 then her self, for she kept her pace as treading amongst thornes, and was still somwhat 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 Masse, and then indeavoured to settle it by disputes, she contrarily first caused the point to be debated, and thereby gained liking to lay it aside. Its 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, then censured by any Historian that shall undertake to judg 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, then looking on; and such as stood more directly in her path she would rather [Page] set a side then trample down: And be faire to all (without respect to difference of Religion) that would be faire to her. Much of her happinesse depended upon Election of her Councell,Forcat. de Gal. imp. lib. 7. more in observing their advice, that whether she did rule, or were ruled, or did rule by being ruled, might deserve some consideration: This she did to give satisfaction to such as took prejudice at her Sex, rather then out of any sense of imbecility in her own intellectuals, for therein she equalled the best of her Predecessors, and in learned Endowments exceeded them all. Generally she was of a publique minde, if not populer, she loved to be seen of the People,Quint. lib. 1. cap. ult. and yet kept her distance: Her Sex taught her to use her tongue much, and her education to use it well and wisely: That, with a reserved carriage was her Scepter, winning thereby applause from the inferiour sort, and awe from the greater· A wise man that was an eye witnesse of many of her Actions and of those that succeeded her, many times hath said, That a Courtier might make a better meale of one good look from her then of a good gift from some other King. Anothet felicity She had beyond others of her place, She loved not to be tied but would be knit unto her People. To them She committed her confidence under God, and they to her their cheifest Treasure on Earth, Viz. Their hearts to her Parliament which was the most considerable party that She had to deale with, She could personate Majesty equall to any Emperour, and advise, commend, yea and chide if She saw occasion: And yet ever had a trick to come off with a kinde conclusion without blur of Honour. So as of thirteen Parliaments called during her Reigne, not one became abortive by unkindness; and yet not any one of them passed without Subsidy granted by the People, but one wherein none was desired: And sometimes the aid was so liberall that She refused the one half, and thanked the People for the remnant;Bodin. rep. l. 6. a courtesie that rang loud abroad to the shame of other Princes. She would often mention her Prerogative, and yet not hold her self wise enough, either to interrupt the Judges in their way, nor the Bishops in theirs: [Page] Abeit She spared not also, as She saw occasion, to check the best of them for their irregularities; She had no Beloved, yet entertained Favorites at a cheaper rate and in better order then Kings use to do, for She had a preferment within her power beyond the reach of them all, and passion also soon at command, or rather somtimes beyond command: Yet if calmely taken, it ever proved good for that party (that suffered) in the conclusion. However, her love She held under her own power, and therein excelled her Forefathers; She had the President of her Sister (that adventured upon a Prince for her Bed, and missed what she expected, and lost what She had) and thereby learned to call into question the possibility for her to gaine the private contentments of a married Life, and therewith maintain her publique Interest in the Kingdome; and therefore resolved rather to sit alone then to sit below, and to refuse the help of any Consort, rather then to part with any one jot of her Interest in the people: So She remained above the People and her self, and thereby enjoyed both. But Custom in Government growing, together with infirmities of age, made her Regency taste somwhat stale and spiritless, and gave occasion to mens Mindes to wander after the next Successor; before She had been nine years Queen this scrutiny was once begun; but it received a faire answer of delay, because it was then taken as don in love, now the apprehensions hereof according to her age are more sad; She thinks them weary of her, and therupon She is weary of her self and them: She supposes She can no longer give them content; the Lords have the power, they will not be ruled; and such like dark thoughts working upon an aged body, weakned with other infirmities, wasted her spirits and hastned a conclusion unto a weary life, her self not unwilling herewith, and her Courtiers lesse, who expecting more from Successors then they find, lived to disdesire and unwish their former choise by late repentance; thus making the ending of her dayes the renewing of her Reign in the hearts of all that observed her alive, or consider her (now dead) in the written Registers of her Fame.

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CHAP. XXXV. Of the Supreme Power during these Times.

THe Supreme Power, but ere while monstrous in the two former Kings times for Greatness, now suffers as great a diminution, over-shadowed by infancy, woman-hood, and Coverture; and gives the People breath to beware for the future, Ne potentes si nocere velint non possent; nevertheless the loss was only of the Hydropical humor, and the Government came forth more clearly like it self. In the point of Infancy, Edward the sixth bears it forth, being the seventh President of Infancy, ruling under Protectorship, since the Norman times; yet beyond all the rest in managing his Supremacy in Church matters, which none of them all did ever ingage upon before him.

English Prerogative and Supremacy are Notions of a sublime Nature, and commonly looked upon as the holy Mount at the Delivery of the Law, at a great distance, for fear of death or undoing; and yet it is such a thing as a childe may handle without hurt done, either to the Estates, Persons, or Consciences of any Man; because its presupposed he does nothing but what the Law first dictates by his Councel unto him. There is then no infancy in the Crown, though in the Person, because the wisedom of the Crown is not intended to rest in one Person, but in the Councels of many, who are equally wise, whether the Person of the King be old or young.28 H. 8. c. 17. And that Statute made by Henry the eighth, by which this King had power by his Letters Patents, after the age of 24 years, to adnull any Act of Parliament made by him before that time, was not grounded either upon Principles of Law or general Reason of State, but upon some particular Circumstances of the state of the Affairs as then they stood; and therefore is this power limited onely to such Heirs or Assignees of Henry the eighth, to whom the [Page] Crown shall come by his appointment. Nor did it ever thrive to that desired end whereto it was intended: for upon the entry of Edward the sixth, the Councels changed,1 E. 6. cap. 11. and the Parliament took this Statute away, as scandalous to the fundamental Government of the Nation, and in stead of the power of Adnulling, allowed of the power of Repealing; yet so as untill such time of Repeal the said Statutes, and all Acts thereupon done, shall for ever be deemed warrantable and good. This was too much, but that the Times were yet in Equi lubrio, and men were loath to part with their Interests, which they did hang upon that Power of Reserve, unto the Kings Letters Patents: yet in that the Power is limited, not onely in regard of the manner and time, but of the persons, and also of the Statutes that are to be repealed: it is sufficient to vindicate the nature of this Prerogative (if such it were) to be no ways inherent, but acquired by Concession. But as touching the Legislative Power, they would not trust it in the least manner to any other King. The Parliament had crowned Proclamations at the instance of Henry the eighth, with that royal Title of Laws,31 H. 8. ca. 8. in manner as formerly hath been noted. Now all Interests, both of the Popish and of the Reformed parties of this Nation, are against it; the former because they saw the Kings present way to be against them, and both it and the later because the thing it self was abominable unto the Liberties of the People, and therefore it is soon taken away by Repeal, and the Legislative Power is wholly re-assumed to themselves,1 E. 6. cap. 12. as formerly: for though in matters Ecclesiastical the Power of the Crown might seem to be more pre-eminent in regard of the Supremacy,1 E. 6. cap. 2. and some particular Powers in making Bishops by Election without Conge destire, yet did the Parliament neither yeild or acknowledge any Legislative Power to be in the Crown thereby, but proceeded on in that way of the thirty and two Commissioners formerly agreed upon by them, in the time of the Kings father. Thus the King,3 & 4 E. 6. c. 11. though an Infant, was a Gainer, and the Crown nevertheless still the same.

[Page]Secondly, that Crown that may be worn by an Infant may much rather be worn by a Woman, whose natural Indowments do far exceed the other, and are not inferior unto the most of men: of this we have two Examples in these Times, Queen Mary and Queen Elizabeth, of severall professions in matters of Religion, and liable to Exceptions, in regard of their Sex, by men of the counter-profession on both sides; yet both upheld the honor of the Crown, though therein the one more especially, being neither ingaged in the Roman Cause, nor in the Estate of Marriage, as the other was. This was Queen Elizabeth, in person a Woman, but in minde indowed with all the perfections of a man; she could not indure to abate one hairs breadth of her State; and yet upon the sole regard of her Sex she submitted her Title of Supremacy to a more moderate name of Supreme Governour, whereas her father would be called Supreme Head, as if it were not onely hazardous, but hideous for a Woman to be Supreme Head of the Church;26 H. 8. cap. 1. and for this cause would she not revive that Statute made by her Father, and continued by her Brother Edward the Sixth, and repealed by her Sister Queen Mary:1 Eliz. cap. 1. nevertheless such as she was, she had all such Jurisdictions, Priviledges, Superiorities, and Pre-eminencies, Spiritual or Ecclesiastical, as by any Ecclesiastical Power or Authority formerly had been, or might be lawfully exercised, for Visitation of the Ecclesiastical State and Persons, and for Reformation, Order, and Correction of the same, and of all manner of Errours, Heresies, Schismes, Abuses, Offences, Contempts, and Enormities; she had therefore neither absolute Empire, nor absolute Jurisdiction over the Churches; neither Power to make, declare, alter, or repeal any Law; neither did she ever exercise any such Power, but onely by Act of Parliament:1 Eliz. cap. 3. she had a Power over Ceremonies in the Worship of God, which was given her by the Parliament to execute by advice, and therefore was limited, as also was all the remainder of her. Power in Jurisdiction Ecclesiastical; for she could do nothing in her own Person, but by Commission: and these Commissioners must be Natives and Denizons, [Page] not Forrainers; and the same to be but in certain Cases, and with certain Process. Some Cases of Ecclesiastical Cognisance were referred to Triall at the Common Law,13 El. ca. 12. 23 El. cap. 1. viz. Such as concerned the publique Worship of God in Cases of Forfeiture and Imprisonment.

Lastly, neither had the Queen, nor her Commissioners, nor Bishops, absolute Power over the Church-Censures; no Censure was regarded but Excommunication, and that no further then in order to the Writ, De Excommunicato capiendo, and in all Cases the same was to be regulated according to the Statute in that Case provided,5 Eliz. ca. 23. or by the Common Law in Case of Action: in all which we finde no Jurisdiction in Cases Ecclesiastical that is absolutely settled in the Crown: In matters Temporal the thing is yet more clear; she never altered, continued, repealed, nor explained any Law, otherwise then by Act of Parliament, whereof there are multitudes of Examples in the Statutes of her Reign; and what she did by her Judges was ever under Correction. A Woman she was, and therefore could be no Judge, much less in the Cases of Difference concerning her self and her Crown.18 Eliz. ca. 8. A Queen she was, and might make Judges, but she must go according to the Law; new Judicatories she could make none; nor judicially make, declare, alter, or determine the Power of any Court or Judge in Case of Difficulty, but by her Parliament;5 Eliz. ca. 18. 13 Eliz. ca. 9. 39 Eliz. ca. 6. 18 Eliz c. 12. 43 Eliz. ca. 4. as in the Cases concerning the Power of the Lord Keeper, the Powers of the Commissioners of Sewers, and charitable uses, the Courts at Westminster, and the County Courts, in the severall Statutes concerning the same may more fully appear. And which is yet of a meaner size, her Power extended not to redress any inconvenience in process of Errour, or Delay, in Courts of Law, nor to remedy Errours in Judgements, Fines, Recoveries, Attainders, or other matters of Record, or Triall, whereof the Statutes of her time are full, and also the opinions and judgements of the Judges of the Common Law concurring therewith: I mention not the power of life and member, which without all contradiction hath ever been under the protection of the known Law; so [Page] as upon the whole Account it will be evident, that this Queen had no absolute Pre-eminence in all Cases, but either in contra-distinction to forrain Power, or the power of any particular person, and not in opposition to the joint interest of the Representative of England.

Queen Mary comes next, although a Woman as well as she, yea her elder sister and predecessor, yet came short of her in the point of Supremacy, by a double submission, both unto the Law of a Husband, and of a forrain power in cases Ecclesiastical; although the same was with such qualifications as it was much more in Title and pretence then in reality; and so in the conclusion, neither approved her self to be good Wife, good Catholique, nor good Queen. She could be no good Wife, because she was too great for her Husband within the Realm, and resolved not to be without. A Catholique she was, but the worst that ever held her place: her Father appeared what he was, spake plain English, and was easily discerned. But she told the Pope a fair Tale of disclaiming Supremacy, and reconciling her Kingdom; yet none of her Predecessors did go beyond her in irregularity of her proceedings. Before ever she called Parliament, she settled the great Work of Reformation, or rather Deformation in the Worship of God, by single Proclamation; and not onely took away the partition-wall of Doctrine by the like power, but gave way, and power to Persecution thereupon, to arise before any power or Order from the holy Sea, then so called, inabled her thereunto. And after that she declared her self convinced, that she ought not to exercise Ecclesiastical Jurisdiction, and by her Instructions forbade the Bishops to use in their Process that Clause of Regia Autoritate fulcitus, yet even these Instructions had no other Authority then her own; and nevertheless she still inforced the Execution of all matters concerning the publique Worship of God, and Government of the Church, when as yet the Pope had no admittance unto his ancient claim. It is very true, that the Pope long ere now had made a fair offer, and the Queen had lent [Page] her ear, but her Train was too great to move as fast as was pretended, so as no meeting could be had till the Queens Marriage with Spain was past, and such as were dis-affected, found it was bootless to stop the Current of two such mighty streams of Power, now joyned into one; and so that unclean spirit returned seven times worse then when he went out, and took Seisin, meerly upon Repeal of the Laws made by Henry the eighth, in the Negative, without further Grant or Livery: for though an express Embassage was sent to Rome, to perform the solemnity of the submission, yet the Pope died before the arivall of the Embassie, and the solemnity failing, left the Title of the Crown much blemished, yet was it not wholly defaced; for if the Statutes in Henry the eighth and Edward the sixths time, did but confirm the possession, its evident that the repealing of those Statutes took away no right from the Crown, nor gave legal possession to the Pope, that had formerly neither possession nor right, but left him to his Remitter, as in his ancient right, or rather in his ancient wrong. Yet right or wrong, de facto, he both did win and wear the Keys so long as the Queen lived, and so far as she pleased; for her devotion would not allow of absolute obedience in that kinde, nor all for Gospel that the Pope said or did; but by her self and Councel executed the powers of Supremacy of Jurisdiction in Church matters, not onely in pursuance of the Papall Authority, but in crossing the same where the Popes way crossed her opinion, as in the cases of the War between her Husband and France, and the Power Legatine of Cardinal Pool, her condemning of Doctrines and Books to be Heretical by Proclamation, establishing both Prayers and Dirges, and other Orders of publique Worship, whereof more fully in the publique Histories of those Times,Fox Martyrol. and in the Queens Injunction upon occasion of the Death of Pope Julio, is to be seen.

Lastly, she was no good Queen, not onely because she gave up the Peoples Liberties in Ecclesiasticall matters to the forrain Jurisdiction of Rome, but undertook too much therein [Page] by far upon her own account, and in Civil Affairs, though De jure, She was not inferior to any of her Progenitors; yet She would have it declared by the Parliament, as if the consideration of her Sex or birth, had made som hesitation in her minde,1 Marl. Parliament 2. ca. 1 and when she had made all clear, she commending her self thereby to the Prince of Spain, with her self, indangered likewise that trust of the Nation which she had received, and cast such a shadow upon her own Supremacy, as in many things it is hard to be discerned.

Lastly, In her whole course uneven, sometimes appearing like the eldest Daughter of Henry the Eighth, at other times like a Fem covert, led by the will of her Lord and Husband, that wanting Supremacy himself, rendred her thereby beneath her self.

For First, She married by Act of Parliament, as if She were not at her own disposing, professing as much in her speech to the Londoners, upon the Kentish rebellion; so a difference was made between the two Sisters, the marriage of the one being by advice of Parliament, and the abstinence of the other against the same. Nor is the same altogether irrationall, for by the one the Government of the Nation is indangered, and by the other otherwise.

Secondly, By her marriage She became doubly married, one way relating to her Person unto her King; the other relatintog her trust unto her Councell: For where a Forraine mighty King is so nigh the Helme, its dangerous to trust the same to his Wife without the joynt concurrence of the Lords. The matter in fact declared no less, for many times She had steered quite wide, had not the Lords been more stiff to their principles then She.

The first yeare of her marriage was Hony-moon with her, She thought nothing too dear for the King, and that her self was but meanly married unless her Husband were as compleat a King in her Nation as any of her Predecessors, although contrarily the higher he was advanced the meaner She became.

Thirdly, By her marriage She adventured her Title of [Page] Supremacy of jurisdiction: For Phillip as King had the Honour, stile, and Kingly name, and so had the precedency; he had to do also with the jurisdiction, for by the Articles of the marriage he was to aid the Queen in her administration of the Kingdome and maintenance of the Lawes, Writs, and Commissions, passed under his name: He also sate in Parliament, voted therein and joyned in the Royall Assent.

Lastly, Joyned in the publication, and execution of all Lawes. To him also was Allegiance due, and therefore the Crime of Treason was equally against his as the Queens Crown and Dignity, saving that it was reserved to be as against him onely during the time of Coverture, and yet had the Queen left issue by him it would have been a hard adventure for the Lawers to have given their opinion in that case,1 & 2. Phil. & Mary cap. 10. seeing the King had been Guardian to his Children during their minority.

Lastly, The whole power and jurisdiction resting in them both joyntly, could not inable them to make or dissolve Courts at will nor conclude orders and directions in cases of Plea and conveyance, nor process concerning the same.1 Mar. Sess. 2. cap. 11. & cap. 5. & 7. & ca. 12. I shall sum up all in this on econclusion, if neither of these three had an absolute Legislative power, either in matters concerning the Church or Common-Wealth, if no absolute jurisdiction in case, either of Life, Member, or Estate. If they neither can create, unite, or alter any Court, either concerning the Triall and determining the Estates of the People or their own Revenue. If not alter, or make any new process in Courts of Law: If not order common assurances of Lands or Estates.

And Lastly, If they have no power in determining the last appeal and definitive sentence in matters of controversy, but all must rest upon the sentence by Parliament, there must certainly be found out a further sense of that grand Title of Supremacy of jurisdiction, power, superiority, pre-eminence and Authority, then by the common vogue hath bin made. The Title of supremacy was first formed in the behalf of Henry the eighths Claime in matters Ecclesiasticall, which [Page] by the Statute, is explained under these words of power, To visit,26 H. 8. ca. 1. correct, repress, redress, Offences and Enormities: This Power and no other did Queen Elizabeth claime, witness the words of the Statute in her own time.5 Eliz. ca. 1. But in the framing of the Oath of Supremacy in her time, not only in causes Ecclesiastical but temporal (which never came within the Statutes and publique Acts in Henry the sevenths time) are inserted; and if any thing more was intended it must come under the word Things, which also was inserted in the said Oath, and yet if the words of the Statute of Queen Elizabeth formerly mentioned be credited, the word Things ought to comprehend no more then the word Causes, and then the Power of Queen Elizabeth in the Common-Wealth will be comprehended in these words of Supremacy, to visit, correct, repress, redress, Offences and Enormities, for the Supremacy in the Church and Common-Wealth, is the same in Measure, and what more then this, I cannot understand out of any publique Act of this Nation. Now in regard Offences and Enormities are properly against Lawes, the power to visit and correct must also be regulated according to Laws, either of War or Peace, nor do these five words Jurisdiction, Power, Superiority, Pre-eminence, and Authority, contain any more Supremacy, or other sense; for two of them speakes only the rank or degree of the Queen in government, Viz. Superiority and Pre-eminence belongeth only to her, and not to any other Forrain power: And two other words do note her Right and Title thereto, by Power and Authority committed to her: And the other word denotates the thing wherein She hath Superiority and power, Viz. In jurisdiction: the nature of which word Ʋlpian (speaking of the nature of a mixt government) explaineth thus, Quando servata dictione juris judiciorum fit animadversio, so as this supreame Authority in jurisdiction is no other then supream power to visit, correct, redress, Offences, or determine matters in doubt by deputing fit persons to that end and purpose according to the Law, and this is all the Supremacy that appeareth to me belonging to the Crown in these times

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CHAP. XXXVI. Of the Power of the Parliament during these times.

WHen the Throne is full of a King, and he as full of opinion of his own sufficiency and Power, a Parliament is looked upon as an old fashion out of fashion, and serve for little other, then for present shift, when Kings have run themselves over Head and Eares. A condition that those of that high degree are extremly subject unto, but where the Crown is too heavy for the wearer by reason of infirmity, the Parliament is looked upon as the cheif supporters in the maintaining both the Honour and Power of that Authority, that otherwise would fall under contempt: A work that must be done with a curious touch; or a cleare hand; or they must look for the like Censure to that of a King to a great Lord that Crowned him. My Lord, I like your work very well but you have left the print of your fingers upon my Crown: Such was the condition of these times, wherein a Child and two Women are the cheifs, but ever under the correction and direction of the Common Councel in matters of common concernment. Two things declare the point, the course of the Title of the Crown, and the order of the powers thereof.

The Title ever had a Law which was at the Helm, although diversly expounded. Kings ever loved the rule of inheritance, and therefore usually strained their Pedegree hard to make both ends meet, though in truth they were guilty oftentimes to themselves that they were not within the degrees The People ever loved the Title of Election,Bodin. rep. l. 6. and though ever they joyned it to the Royall blood, and many times to the right Heire to make the same pass more currant without interruption of the first love between them and their Princes; yet more often had they Kings that could not boast much of their birth-right, in their first entry into [Page] their Throne: Of three and twenty Kings from the Saxons time, foure of the former had no Title by inheritance; the two Willams, Henry the first and King Steven; of two others, Viz. Henry the second and Richard the first had right of birth, yet came in by compact. The seventh which was King John had no title but election. The eight, Viz. Henry the third came in a Child, and contrary to compact between the Nobility and the French Lewes; the ninth and tenth succeeded, as by unquestionable Title of discent, yet the Nobles were preingaged: The eleventh which was Edward the third, in his entry eldest Son but not Heire, for his Father was alive, but his Successor, was his Heire; its true there were other Children of Edward the third alive that were more worthy of the Crown, but they were too many to agree in any but a Child that might be ruled by themselves. Three next of the ensuing Kings were of a collatterall line. Their two Successors, Viz. Edward the fourth and Edward the fifth were of the right line, yet Edward the fourth came in by dissesin, and Edward, the fifth by permission; Richard the third and Henry the seventh were collatterall to one another, and to the right blood, Henry the eighth, though when he was King might claime from his Mother, yet came in as Heire to his Father. And if Edward the sixth was right Heire to the House of Yorke by his Grand-Mother, yet cannot the Crown be said to descend upon the two Sisters, neither as Heires to him, nor Henry the eighth, nor to one another, so long as the Statute of their illigittimation remained,28 H. 8. ca. 7. 1 Mar. Sess. 2. cap. 1. which as touching Queen Mary was till three Months after her entry upon the Throne, and as touching Queen Elizabeth for ever; for that Virago provided for her self not by way of repeale (as her Sister had done) but more tenderly regarding the Honour of her Father and the Parliament, then to mention their blemishes in Government by doing and undoing: She overlooked that Act of Henry the Eighth and the Notion of Inheritance and contented her self with her Title by the Statute made by her Father in his thirty fifth yeare which to her was a meere purchase,35 H. 8. cap. and was not ashamed to [Page] declare to all the World, that She did have and hold therby, and that it was high Treason for any Subject to deny, that the course of the Crown of England is to be ordered by Act of Parliament.13 Eliz. ca. 1. And this power did the Parliament exercise, not onely in ordering the course of the Crown to Queen Mary and Queen Elizabeth, but during the Reign of Queen Elizabeth, so far as to dis-inherit, and dis-able any person who should pretend Right to the Crown, in opposition to the Right of Queen Elizabeth; and upon this point onely did the whole proceedings against Mary Queen of Scots depend, who claimed to be,Thuan. vol. 1. lib. 20. and doubtless was Heir unto Henry the eighth, after the determination of his right Line, and yet She was put to death for pretending Right by the Common Law, in opposition to the Act of Parliament. True it is, that this Doctrine doth not down well with those that do pretend to Prerogative, aided (as they say) by the Act of Recognition, made to King James, 1 Jac. cap. 1. and the Oaths of Supremacy and Allegiance, which do make much parly concerning Inheritance and Heirs: nevertheless it is as true, that the Act of Recognition made no Law for the future, nor doth the same cross the Statute of 13 Eliz. nor doth it take away the power of the Parliament from over-ruling the course of the Common Law for after Ages. Nor do the Oaths of Supremacy and Allegiance hold forth any such Obligation unto Heirs, otherwise then as supposing them to be Successors, and in that relation onely. And therefore was no such Allegiance due to Edward the sixth, Queen Mary, or Queen Elizabeth, untill they were actually possessed of the Crown, as may appear by the Oath formed by the Statute of Henry the eighth touching their Succession.35 H. 8. cap. 1. Nor did the Law suppose any Treason could be acted against the Heirs of Edward the sixth, Queen Mary, or Queen Elizabeth, untill those Heirs were actually possessed of the Crown,1 E. 6. cap. 12.5 & 6 E. 6. cap. 11.1 & 2 Phil. & Mar. cap. 10. 1 Eliz. cap. 6. and so were Kings and Queens, as by express words in the severall Statutes do appear. Nor did the Recognition by the Parliament made to Queen Elizabeth, declare any ingagement of the People to assist and defend her, and the Heirs of her Body, [Page] otherwise then with this Limitation, Being Kings and Queens of this Realm, as by the Statute in that behalf made doth appear.1 Eliz. cap. 3.

And lastly, (had these Oaths bin otherwise understood) the Crown had by the vertue of them been pre-ingaged, so as it could never have descended to Queen Mary, Queen Elizabeth, or King James, but must have remained to the Heirs of Edward the sixth for ever.

Secondly, the same power that the Parliament exercised in ordering the course of succession in the Crown, they exercised likewise in determining and distributing the Powers and Priviledges belonging to the same: for these Times were full of Novelties. The Crown had formerly fitted a childes head more then once, but it never tried to fit a Womans head since the Saxon Times, till now, that it must make triall of two. France might afford us a trick of the Salique Law, if it might finde acceptance. And the unsettled estate of the People, especially in matter of Religion, might require the wisest man living to sit at the Helm, and yet himself not sufficient to steer a right course to the Harbour. Nevertheless the Parliament having the Statute of Henry the eighth to lead the way, chose rather to pursue a Rule then to make one, and soon determined the point, viz. That the Crown of England with all the Priviledges thereof equally belong to a Woman in possession as to a Man or Childe. A bold Adventure I say it was;1 Mar. Parl. 2. cap. 1. but that Henry the eighth was a bold Leader, and yet the bolder it was, if the consequence be considered: for Queen Mary as a Woman, brought in one new President, but in her Marriage a worse, for she aimed not onely at a forrain blood, but at a Prince in Power and Majesty exceeding her own, and thereby seeking advancement, both to her self and her Realm, indangered both. The matter was long in debate between the Spanish and English, and now had busied their wits above ten years,Sleiden. at length a Supremacy is formed sutable to the Lord and Husband of Queen Mary, that could not be content to be one inch lower then her self. Philip had the name of a King, and precedency, [Page] and in many cases not without the Allegiance of the English. Their offences against his person equally Treason with those against the Queens own person; and Indictments run,1 Ph. & Mar. Parl. 2. ca. 10. Contra pacem & coronam D. Regis & Reginae. That in some cases he participated in the Regal Power may appear,1 Ph. & Mar. Parl. 2. cap. 1. in that by the Articles, he was to aid the Queen in the Administration of the Kingdom; he joyned with the Queen in the royall Assent, and in Commissions, Letters Patents, and in Writs of Summons of Parliament, as well as others; yet in the words the Crown is reserved onely to the Queen, and she must reign as sole Queen. Now if the King had broken this Agreement, either the Parliament must over-rule the whole, or all that is done must be undone, and England must bear the burthen. A Queen Regent is doubtless a dangerous condition for England, above that of an Infant King, unless she be married onely to her People.

This was observed by Queen Elizabeth, who therefore kept her self unmarried: nor did the People otherwise desire her Marriage, then in relation to Posterity. Few of them liking any one of their own Nation so well, as to prefer him so highly above themselves, and fewer any Forrainer. This was soon espied by forrain Princes; and the Queen her self perceiving that she was like to receive prejudice hereby in her interest amongst them, signified by her Embassadours, that she never meaned to stoop so low as to match with any of her Subjects,Bodin de Rep. lib. 6. but intended to make her choise of some forrain Prince, who neither by Power or Riches should be able to prejudice the interest of any of her neighbouring Princes. A pretty Complement this was to gain expectation from those abroad, and better correspondency thereunto. Upon this ground divers Princes conceived hopes of more interest then by triall they could finde. And the Arch-duke of Austria began a Treaty, which seemingly was entertained by her, but her Proposals were such as silenced all those of the Austrian Interest for ever after, viz.

1. That the Romish Religion should never be admitted into England.

[Page]2. That no man that she married, should ever wear the Title of King.

3. That no Forrainer should ever intermeddle in the Rule and Government of the Church or Common-wealth, nor in the Ministry of the Church.

4. That if he survived the Queen he should never challenge any Title or Interest in the Government, or any Possession in England.

5. She would never marry any one that she might not first see.

So as either she aimed at some inferior Prince, that durst not look so high, or else she did but make semblance till she was nigh fourty years old: and in all declared that she liked not her Sister Maries choise.

To these two Powers of Determining and Distributing, I shall add a third of Deputing, which the Parliament exercised as formerly it had done. Henry the eighth had in Ecclesiastical matters exercised a Power beyond the reach of Law, and yet by Parliament had provided positive Laws, by which the same ought to have been ordered; these were also confirmed in Edward the sixths time, with some Additionals.3 & 4 E. 6. cap. 11. 1 El. c. 1 & 2. 1 E. 6. cap. 1. 1 E. 6. cap. 2. 5 & 6 E. 6. cap. 1. 5 Eliz. ca. 20. By these, particular Commissioners were appointed for the making of Ecclesiastical Constitutions; and the King himself had a power Episcofactory, without Conge deslire. They likewise limited the power of Ecclesiastical Courts, altered their Process, reformed their Censures, even that grand Censure of Excommunication it self. The like, or much more may be said of their deputing power in Civil Affairs, as well inlarging the Kings power, as in abridging the same for whereas some of the Successors of Henry the 8. had power by vertue of his Letters Patents, after 24 years of age, to annull any Act of Parliament by them made before that Age. In the time of Edward the sixth, notwithstanding the Proviso in that Law, and although Edward the sixth was not then twelve years old,1 E. 6. ca. 11. yet the Parliament repealed all, and restored to Edward the sixth onely that power for the time to come, but not to any of his Successors; and whereas Henry 8. had gained to himself & his Successors a Legislative [Page] Power by Proclamation;1 E. 6. ca. 12. the Parliament in Edward the sixths time took the fame quite away, and reduced Proclamations into their former sober posture. The like may be observed of the power of the Parliament, in ordering the Lives,7 E. 6. cap. 2. 1 Mar. Sess. 2. cap. 10 & 12. 1 E. 6. cap. 7. 1 E. 6. cap. 10. 3. cap. 28. 5 & 6. ca. 26. Members, and Estates of the People in matters criminal; and in making and altering Courts of Justice, and bounding their power, altering their Process, abridging their Terms for Judicature, reforming Errors in pleading, amending common Conveyances, and Assurance, as in passing Fines with Proclamations; their course in the County Palatine; Limitations of Prescription; fraudulent Deeds; Recoveries by Collusion, &c. in all which the Crown had no power, but in and by the Parliament. Many particulars more might be added, if the matter so required; for the Statutes are more full in these later Times then formerly, and may soon lead us beyond a just Period in so clear a matter.

CHAP. XXXVII. Of Jurisdiction Ecclesiastical in these last Times.

IN the general, and in relation to the forrain Jurisdiction of Rome, it was like a Childe in an Ague, under Fits of Heat and Cold; but in it self under the Prelacy, still growing in stature, though not in strength. Edward the sixth came in like a storm that tore up Episcopacy by the Roots, yet a Top-Root remained intire with the stock, bearing shew of a kinde of Divinity, that though bared of the old Soile of the Papacy, yet transplanted into the new Mould of Royalty, soon conveyed a new life, which made the stock still flourish, and grow into a better condition then formerly it had. Their Legislative power in matters concerning their own interest, though in outward view seeming their own, yet was doubly disturbed from the Pope and the King, who though many times opposed one another, yet evermore were both of them in opposition to the Church, & with the greater [Page] bitterness by their own mutual Emulations. But now the Church is come under the controll, of onely one that joyned with it for their mutual interest, as being both of them imbarqued in one and the same Ship.

Two things concurred to the furtherance hereof.

First, the Times were tender, and scarce able to digest the change of Worship (now patronized by Edward the sixth) much less able to digest the change of Government, if the same had been undertaken in a different way from what it was formerly.

Secondly, the Times were also dark, and few saw the bottome of Prelacy, but lodged all the prejudice in the persons that managed that calling; and certainly they had the less occasion to doubt of their own judgement therein; because Edward the sixth had the good providence of God to lead him to make use of such men in that place, that were meek, and holy, and themselves attempered in the fire of Persecution, and therefore more tenderly affected to others in that condition; and these carrying themselves like tender nursing Fathers in their places, wrought in the people a good opinion of their places, and that Form of Government for their sakes; yet even in those first Times of Reformation, somewhat appeared in that very quintessence of Episcopacy; in matters about Ceremony and Conformity, that might have taught wise men to beware. Upon such grounds as these it went well with Episcopacy in these first Times of Reformation, but ill with the Church in the issue. That Prelacy was a Gainer by the change in Henry the eighths time, hath already appeared; and that it still gained, may further appear, in these ensuing Considerations.

First, whereas formerly Bishops were regardant both to the Crown and Presbytery (for so may the Dean and Chapter be accounted) in the point of Election by Conge deslire; now they are made the birth of the Kings own breath,1 E. 6. c. 2. which thing was never deduced from the ancient Right of the Crown (saving due honour to the aire of the Preface of that Statute) for in the best Times it never had more then a [Page] power of investure: but from the necessity of the times so corrupted that Deanes and Chapters generally were of the Roman spirit, and gave little hope of good Elections by themselves, besides the state of Learning, and Holiness, was now at the low water mark, so as little supply being looked for to begin the work of Reformation from beneath, they began above, and so it proved but a weak building, for the longer time. And thus a lesson is left to future Parliaments, that in Cases of Reformation they are not to be strictly holden to rules of Law or President.

Secondly, the Prelates hereby had their Authority confirmed by Act of Parliament, and so were now built upon a foundation that formerly did hang onely upon a pin of power from Rome: For jurisdiction without Authority is but a dropsie that brings inevitable consumption in the conclusion. And thus the Prelacy are inabled to hold Courts without contradiction, and directed in their process who formerly had no good Title to either, in that course that they held the same.

Thirdly, Though their jurisdiction was defined by the Statutes, yet in larger bounds then ever the Statute-Lawes formerly noted; and in what they claimed power, they did it not altogether upon Civill Right, but still kept an awfull regard to their Persons and Powers, as under the sway of a Divine donation, and therefore as in those matters to them, by the Statute allowed, they did proceed in the Name and under the Seale of the King, so in other things of collation, institution, induction, orders, excommunication, and such like, they proceeded in and under their own Name and Seal; and which was a Crown to all the rest, power is still given to the Arch-Bishop of Canterbury in cases of faculty and dispensation, to proceed under his own Seal, and not the Kings, as if it were a power independent upon the Crown, and belonging unto the man, neither by Statute, nor Commission, but comming by some secret Influence from the very place it self; although in the cleare sense it is no more then a power of Non obstante, in the point of obedience to the [Page] Canon Law, which by a Statute in Henry the Eighths time is declared no Law: But let this pass as a mole in this faire face of Church Government. The Prelates are now become of the Vicinage, Probi & legales homines, they have their jurisdiction by Law established, what they loose in breadth they gain in heigth and goodness of their foundation: Yet their Attire looks ill favoredly in Queen Maries eye, she will have it of the old cut again, and though Cardinall Poole was well seen in the Roman fashion, yet when he had done all, he did no more then shape a garment to serve the present Interlude, neither fit to the body nor easie to be worne, and therefore after foure or five turnes upon the stage it is thrown away. Neverthelesse during the time that England was thus dancing the Italian measure, Prelacy in England held its own domestique garb so well, that neither Poole (being of English blood, not much distant from the Crowne, and then also holding the Chaire legatine, as little inferiour to the Throne) would not impose too much, nor Queen Mary, a Woman of a stout Spirit, yeeld further then she liked: By meanes whereof the Prelacy looking no more to Rome then the power in appeales; and therein little more then the bare Title, plaied Rex all the while with the People, under colour of Heresie and the Canon Law: Which now was again made their rule; and thus as touching their Election, and Jurisdiction, they were as before. For Queen Mary did nothing but by single repeale. But Queen Elizabeth being true English, both by Father and Mother, liking not this retreat, faced about, routed the Roman fashion out of fashion; put Prelacy to its close gaurd, and received it upon capitulation, not only to mercy but favour, and so became her Vicar to exercise her Ecclesiasticall jurisdiction, Per saltum: For it is hard to finde by what steps they gained this pitch; Henry the Eighth was supream head by submission of the Clergy, by resumption, and by Act of Parliament; and as such, the Power of Bishops formerly derived from Rome ceased, and Henry the eighth after restored it anew, and setled the same by severall Acts of Parliament; which Edward the [Page] sixth confirmed with divers additionall Acts of further benefit to them, as hath been already noted. But Queen Mary altered all by repeale of the former Lawes, and so left all in Remitter as before the alteration by Henry the Eighth, and did neither give or grant any jurisdiction to the Pope. Last of all com [...] Queen Elizabeth, and by repeale and resumption possessed her self of jurisdiction Ecclesiastical, and granted Election of Bishops by Conge deslire, but never granted to the Bishops ordinary jurisdiction by any express act, other then permission of them to continue in their former course, notwithstanding that the foundation of their jurisdiction had been altered twice, and so it will be difficult for it to hold by prescription or custome, or any other way then by a kinde of Divine right which began to be pretended; yet to this day could never be made evident to the World. Whatever the ground was, the thing is plain, that Prelacy in Queen Elizabeths time had this Honour allowed thereunto, that it was upholden by Election from Ecclesiasticall men, and held its jurisdiction as from it self, and in the name of the Bishop as Ordinary; and the power of Excommunication by a saving in the Statute-Law, and not by express donation; notwithstanding the late President in the time of Edward the sixth to the contrary.

Secondly, The rule of this jurisdiction was no lesse at large, for the Canon Law was determined by Henry the eighth and Edward the sixth, and was not revived by any Act of Parliament by Queen Mary or Queen Elizabeth, who neither pursued the Medium of the thirty two Commissioners, nor setled other rule, but a few Canons, which (after some time) by Queen Elizabeth and her Clergy were agreed upon, but never confirmed by Act of Parliament: And so could never bind the Subject, and which in generall set forth a kind of forme of Church policy, yet no fashion of jurisdiction or rule of proceedings in the Ecclesiastical Courts, but in such Cases left them to the Canon Law which was hidden in their own breasts, and could be made strait or wide as they pleased.

[Page]Thirdly, their Censures now grew more sharp; for whereas at the utmost formerly they could do no more but imprison, or deliver over to the Secular power, and that onely in case of Heresie, and yet had scarce ground of Law for what they did;1 Eliz. cap. 1. now they have an additional power, to fine and imprison in cases of inferior nature, and so can reach all that a man hath, even to his skin; nevertheless this was not annexed unto the ordinary Jurisdiction, but given by extraordinary Commission, called the High Commission, wherein, though many others were named, yet the Clergy and Canonists did the work, the rest being but in nature of a reserve to them, in case they were put to the Rout. The power of these Commissioners was to execute the Queens Jurisdiction in Causes Ecclesiastical, so as the Bishops are doubly interested in this work; one way, by supposed Commission from God, as Ordinaries within their own Diocess onely, and so may proceed to Excommunication or Deprivation; the other way, by Commission from the Queen, as Members of the High Commission (for so many of them were such as the Crown would please) and so they might fine and imprison. They might and did, I say, by their Commission, but not by the Statute that gives Authority thereto, and therefore cannot be said to be done legally.

Fourthly, besides the contracted power of making Canons in the Convocation by the power of the Royall Assent; the Queen had a power of making Laws by their consent, in matters of the criminal part of the Worship of God.

This might be tolerable for the Life of one Queen, who might be presumed, would (if she lived a few years) settle all things; but to subject the consciences of all the people to the opinion of one Metropolitan, that might opinionate strange things, and that the Successors of the Queen should usurp this as a flower of the Crown, to determine what is for Gods glory in such cases, and to be always altering and patching up a Form, as he and his Metropolitan, or one of them alone shall think meet,1 Eliz. cap. [...]. is neither commendable upon any grounds of Divinity or humane Policy.

[Page]Now amidst the flourishing Estate of Prelacy, its no wonder if▪ the Churches be no Gainers, but like Plants spending their Natures in luxurient branches, either are over-turned by the next blast of winde, or do wither upon the least change of Sky: That the whole ordering of the Church Affairs rested originally in the Parliament, no man can question, considering what ever the Queen did, or had therein, was from the power of Acts of Parliament. And that the 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 releived 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 publique Worship.

4. Maintenance of Error.

5. Incontinency.

6. Usury.

7. Simony.

8. Perjury.

9. Idolatry.

In other matters the Spirtual Sword must finde or make their own way, or else be quiet.

Secondly, the Church was now no less under the Chair and Throne, then under power of the Parliament; nor is it a wonder if it could not thrive when it was so overdropped: for Prelacy by the Kings arms is lifted up so high above the other Clergy, that the rest of the Clergy are as much underlings to the Prelacy, as the Prelates are to the King: they dare not offend the Crown, least they should loose their honors, nor the inferiour Clergy them, least they should loose their Livings and Liberties; and so the Prelates [Page] speak the sense of the Clergy, and make the Crown their Oracle. Thus in the Church matters the Crown is all in all.

CHAP. XXXVIII. Of the Militia in these later Times.

IT cannot be denied, but as in the sober Government of this Nation, there is a Supremacy of Command, so also in the rudest Times of War; and wheresoever the same is settled, 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 Common-wealth when it is in anger, or War, or in order thereunto. It consisteth in the raising, arming, ordering, and paying of the Souldiery. The Title of the Supreme Power in all this work hath been of late put to the question, and brought us to this sad condition of triall by Battail, and by fighting, to finde out who hath 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 settled, 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 he is the Peoples General by his place; yet if any impediment do befall, either by natural Disabilities, or civil, to render the person incapable of the managing of the Service, there is no question but the People may order the matter as they please. Examples hereof these Times are full, wherein we have a Childe, 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 [Page] imbodied, as a King onely, he may do some things in order thereto, according to the Law and Custome of the Nation; yet this fals 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 Councel, if occasion do provoke to Arms; but if the same befall the Parlaiment 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 sixths 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 publique 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 publique safety, but more upon the dishonor of the same. In none of these did either of the Supreme Powers array or raise men by Prerogative, but onely such as were Volunteir in that Work. And because the People were ill principled in Edward the sixths time, in regard of the change of Religion, he was induced to hire forrain 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 Volunteirs, nor did any Commission give power of impresting men to serve against their wils, 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 reflexions in Government to be succesfull and honorable, and that all was done by Councel, and a [Page] Woman popularly affected, and therefore less feared invasion upon their Liberties; or otherwise they are to be imputed to the condition of those places, being Members of the Common-wealth; as the cautionary Townes in the Low Countries, and the Irish Plantations were, and so befall under another consideration of a defensive War in case of invasion and common danger therby, or by intestine broils, during which condition, as it is the Kings duty to levy and array men, so is it the duty of the People to be ready to assist one another in all such exegencies, and to defend the publique Liberty, nevertheless these Arrays are not left wholly at the Will of the King, but to discretion of the Councell, how far the same shall extend: For never were generall Arrayes made, where but one Coast was in danger, and where no conquest is in pretence, but only piracy or plunder. But if the disease were generall, as it was in the yeare 88. the Array was generall, and yet it was of none, but those that were of the Trained bands, besides such as were Volunteir.

Secondly, The arming of these men was also diversly, there was no generall rule or Law for the arming of men since the times 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 armes: But for such men as passed the Seas for forrain Service, as they were Volunteirs, or sent over by the Parliament these were armed acccording to speciall contract. But Queen Mary having gotten a safe reserve from Spaine upon all adventures, and a strong Interest amongst the People, by upholding the Catholique party, made no bones to innovate in the point of arming of the Militia, although it cost the People much more then was imposed upon their Ancestors. The pattern hereof was taken from the Spanish Cabinet, the Q. being loth to be inferior to her own Husband, in bringing as much strength to him as he to her, and both of them willing enough to appeare potent in the eyes of France that then stood in competition with them both: A yoke it was, [Page] yet neither the King nor Queens Will, but the Parliament put it on and ere an age expired was cast off again: For the better understanding, see it in this Scheme.

Per Annum. | Lances. | Light Horse | Corslets. | Bowes. | Hacquebuts | Bills.
1000. l. | 6. | 10. | 40. | 30. | 20. | 20.
1000. marks. | 4. | 6. | 30. | 20. | 10. | 10.
400. l. | 2. | 4. | 20. | 15. | 6. |
200. l. | 1. | 2. | 10. | 8. | 3. |
100. l. |  | 2. | 3. | 3. | 2. |
100. marks. |  | 1. | 2. | 2. | 1. |
40. l. |  |  | 2. | 1. | 2. |
20. l. |  |  | 1. | 1. | 1. |
10. l. |  |  | A Coate of Plate. | 1. | 1. |
5. l. |  |  | A Coate of Plate. | 1. |  | 1.

Goods.

1000. marks. | 1. | 1. | 2. | 4. | 3. |
400. l. |  | 1. | 1. | 2. | 1. |
200. l. |  |  | 1. | 2. | 1. |
100. l. |  |  | 1. | 2. |  |
40. l. |  |  | Two Coats of Plate. | 1. |  | 1.
20. l. |  |  | One Coate of Plate. | 2. |  | 1.
10. l. |  |  |  | 1. |  | 1.

[Page]The Lances were to be compleatly harnised, or the one half of them, the Corcellets furnished▪ with Coates of Maile and Pikes: the Bowes with an Iron Cap and a sheaf of Arrowes. The Hackbuts with Sallets; all which was to be over and besides such Armes as men were bound unto by Tenure, or Covenant with the Landlord, or by vertue of the Statute 33 H. 8. ca. 5. besides town-ships which were charged with joint Armes; Annuities and Coppy-holds were charged as goods. If the Armes were lost in the Service the owner must make them good again: The defaults were punishable with fine by the Justices of the Peace, who had the view, and might present them at the Sessions to be procceded upon as in other Cases. Here is provision enough, yet not as the Armes of the Militia of the Kingdom, but as a Magazine in the hands of every particular man, and as his proper goods, to be imployed for the publique Service, either upon sudden invasion in a defensive Warr, or when the Parliament shall send them abroad. And yet it is also a rule unto the Crown against arbitrary Assessments upon discretion, from which it cannot recede if it mean to do right. It might now very well stand with the Justice of Queen Elizabeth, to grant Commissions of Array, Secundum formam Statutorum, and do hurt to no man; its true, her Commissions of Lord Lievtenancy wanted that limitation in words, yet they carried the sense, for if the Crown were bound by the Law, the Lord Leivtenants were much rather, but the danger arose after the death of Queen Elizabeth; for when King James came to the Crown, under colour of pleasing the People, and easing them of a burthen, he pleased himself more, and made the yoke upon the People much more heavy in the conclusion; for where no declared Law is, there the discretion of them that have the care lying upon them must be the rule; & thus came the Scottish blood to have pretentions to a greater Prerogative then all their Predecessors had, upon this supposal that the Statute of Queen Mary took away all former Lawes of that kinde, and then the taking away of the Statute of Q. Mary takes away all declared Law as to that point: But more truly it [Page] may be inferred, that if all Statute-Laws be taken away, then the rule of Tenures at the Common Law must remain in force and no other. Nevertheless this Statute of Queen Mary, though in force for the present, was not a generall rule for Armes in all places of this Nation; for the Marches of Scotland were a peculier jurisdiction as to this point. They stood in more constant need of Armes then any other part of this Nation, in regard of their uncertain condition, in relation to their Neighbouring jurisdiction, and therfore were the Farmes of these parts generally contracted for, upon a speciall reservation of Armes for each particular, which being now decaied are, again reduced by Queen Elizabeth to their ancient condition in the time of Henry the eighth.23 Eliz. c. 9.

A second thing which may come under this generall consideration of arming, is, the arming of places, by making of Forts and Castles; which was not in the immediate determinate will of the Crown to order as it pleased, for though they may seem to be meanes of Peace and present safety, yet they are Symptomes of Warr, and in the best times are looked upon with a jealous eye, especially such as are not bordering upon the Coasts: Because that Prince that buildeth Castles within the Land is supposed to feare the Neighbourhood. This was more especially regarded in the dayes of Phillip and Mary: For when that marriage was to be solemnized, it was one of the Articles to provide for the safety of such Forts and Castles, as then were maintained, to the end they might be preserved free from usurpation, for the Use, Profit, Strength, and Defence of the Realme;1 Mar. Parl. 2. cap. 2. onely by the naturall borne of the same. And afterwards when occasion was offered, for the building of more of that nature; a new power is given to King Phillip;2 & 3 Phil. & Mar. cap. 1. and Queen Mary, to re-edifie or make Forts and Castles, which must be executed by Commission to the Legies for ten years, and only within the Counties bordering upon Scotland, and these perticularly named in the Statute, so as the Crown had not power to build in all places, nor to any end they pleased, nor to place therein, or betrust the same to whom it would. [Page] Nor yet had Edward the sixth that absolute power, although not ingaged in forrain interests, as his sister Mary was; and therefore whereas Castellanes had been made for life, by Patent,2 [...]. 6. cap. 16. and so the absolute power of the Crown was barred in the free disposal of the same during such time. The Parliament gave the King power to remove such as were not liked, or thought faithfull to the publique interest, although they gave no cause of Seisure by any disloyal act. The like also may be observed of the Ships and Ordnance; for they also do belong to the State, as the Jewels of the Crown, and therefore upon the Marriage of Queen Mary, they also are by Articles preserved and saved, for the use, profit, strength, and defence of the Realm, by the natural born of the same.

Thirdly, as touching the ordering of the Souldiery, the matter is not much to be insisted upon, for little doubt is to be made, but that power that raiseth them also ordereth them to the same ends that they are raised: and therefore as the sole power of the Crown doth not the one, so neither doth it the other, but in cases formerly mentioned; and yet in no case, though the War b be never so absolutely defensive, and the Souldiers raised by the Kings own and onely power; yet hath not the King absolute Authority, and arbitrary power, in the ordering of them when they are raised, but he must so behave himself to them, as to Free-men, according to Laws made by themselves in their Representative in Parliament, and therefore are particular Laws made to that end,4 & 5 Phil. & Mar. cap. 3. against undue levying and discharging of Souldiers, and Defaults in paying of them; as also against the Souldiers departing from their Service without Licence,2 & 3 E. 6. cap. 2. or wasting their Arms, and such as wilfully absent themselves from Musters;4 & 5 Phil. & Mar. cap. 3. 5 E. 6. cap. 11. 14 Eliz. ca. 1. as also for the preserving the Castles Forts, Ships, and Munition for War, from being with-holden from their due use, or from burning or destroying.

Lastly, as touching the charge of the War, and pay of the Souldies. Its evident, that in all offensive Wars the Souldier was paid by the Crown, although they might be said in [Page] some manner to be in order to the Defence and Safety of the Nation; nevertheless where the same was so apparent to the people, it was the common course in these Times to have often Parliaments, and often Subsidies, which were no less in a good measure satisfactory to the Crown for the Charges of the War, then Testimonies of the Peoples good Acceptance of the Government of Affairs, and so accepted at their hands: The particular Records will warrant all this. For of all the Wars in these Times (that of 88. excepted) not any of them were ever managed at the Peoples charge by Contribution, but by Retribution. So happy were these Times, wherein the People looking upon the Crown, as under a kinde of infirmity of Childhood or Womanhood, did therefore bear a kinde of compassionate regard thereunto, without jealousie at Prerogative, could condiscend and allow the Crown its full Grains, and somewhat more, yea more then was meet for some other Princes to desire, or the People to give up; and yet more happy were they, wherein the Crown knew no interest but in dependence upon the People good, and so understanding were rightly understood.

CHAP. XXXIX. Of the Peace.

IT is but little that can be said of Peace in these Times, wherein so little freedom was found from forrain pretentions, and intestine irregularities, or both; and yet the People were never more resolved against the former, nor secure against the later, and had God to Friend in all. But most apparently was this observable in the Times of Queen Elizabeth, whose Government took up four parts of five of these Times, whereof we now treat. She was a compleat Conquerour of War and Treason, and therein the true Inheritor of the Fate of her Grand-father Henry the seventh, [Page] with advantage, for she out-faced all Dangers by her onely presence, having therof had more experience then any Princes that ever possessed her Throne; yet she was wise enough to beware against the future; considering her condition to be the last of her Line; that the next behinde her was rather likely to trip up her heels then support her Train; that the Pope narrowly watched every opportunity; the distance between him and the Throne, being no greater then the breadth of her onely Person. It may well therefore admit of excuse, if the Statute of the 15. of Edward the third, concerning Treasons did not give satisfaction, although therein if she were solicitous, her Subjects were more. Some kindes of Offences were made Treason by Statute-Laws, which formerly appeared not such, because they appeared not at all; and yet in the opinion of her People the Queen was too slack in the making, and more slack in the execution of them. The People had ingaged themselves deeply against the Queen of Scots, and it was not safe for them to go back; they go yet deeper, and without any positive Authority, leading the way, they enter into an Association amongst themselves, for the Queens safety; and it was well liked by the Queen, because she knew it was well meant, although by some it was mistaken;27 Eliz. cap. 1. nevertheless to take away all Exception, a Law is made in pursuance thereof, and so the Work is reduced under an ordinary rate, though the publique Danger was such, as might well have digested an extraordinary undertaking.

I intend not to enter into the particulars of these Treasons of the new stamp, because they are but temporary, and in their ultimate reach tend onely to the safeguard of the Queens person, in order to the intentionary sense of the Statute of 25. Edw. 3. although not within the explicit words of that Law. Onely this is observable, that though the Times were full of malice, yet was not all malice looked upon as fatal, nor every Expression thereof Treason, or privity thereto Treason (although the Crown it self was not a little concerned therein) but reduced to an inferiour degree, called Misprision, as if they were willing rather to construe undertakings [Page] for mistakings, and thereby overlook much of the malignity of those Times, then to make strict inquisition into every Punctilio of Offence.

As touching Felony, the Rules were various; some were of a new original, as that of Gipsies; others formerly such,5 Eliz. ca. 20. afterwards said aside, are now revived with advantage, as Conjuration, and Buggery:cap. 16, 17. but Imbessellings by Servants of their Masters Goods, made Felony for a time by Edward the sixth, is by Queen Elizabeth made perpetual.2 E. 6. cap. 29. 5 Eliz. ca. 10. Some Felonies are made such within a certain precinct, as Men-stealers, and other Crimes upon the Scottish Borders. Others formerly made Felony are now unmade,cap. 15. as that concerning Prophesies, and divers formerly protected under the refuge of Clergy, are now barred of that reserve. Such as are those that command Councel, or hire others to commit Pettie Treason, Murder, or Robbery, 4 & 5 Phil. & Mar. cap. 4. Stealers of Horses, Geldings, or Mares, 2 E. 6. cap. 33. Robbers of Houses, Booth, or Tent, by Day or Night, 5 E. 6. cap. 9. Pick-pockets, or Cut-purses, 8 Eliz. cap. 4. And Women-stealers, 39 Eliz. cap. 9. And some Crimes made Felony impeachable, onely within a certain time, and not upon a cool suite; so as upon the whole heap of the Account, the zeal of the Times will appear to be more hot, by how much iniquity appeared more hainous, and that wicked men waxed worse as the Times waxed better. More particulars of this nature, and of other Offences of inferior note might be superadded; as also of Laws, of alteration and amendment of Process and Triall, and of Common Assurance and Conveyance of Estates, of particular Revenue; all which might be insisted upon, if need were, to clear out yet further the conclusion of the whole matter, which I hasten to accomplish, led on by a natural motion, that grows in speed the nigher it comes to its end.

[Page]

CHAP. XL. A summary Conclusion upon the whole matter.

IN the stating of this whole account; I shall first glance upon the naturall constitution of the People of England, and then gather up the scattered Notions into one form, because the one doth not a little illustrate the other, and shew the same to be radicall and not by any forced inoculation.

The People are of a middle temper according to their Climate: The Northern Melancholly, and the Southern Choller, meeting in their generall Constitution doth render them ingenious and active; which nourished also under the wings of Liberty, inspires a courage generous and not soon out of breath. Active they are, and so nigh to pure act that nothing hurts them more then much quiet; of which they had little experience, from their first transmigration till the time of King James; but ever were at work either in building (as before the Norman times) or after in repairing their ruines, occasioned by tempestous pretentions from Rome, and Forrain Princes, or by earth-quakes of Civill contention about the Title between the two Houses of Yorke and Lancaster, or intrenchments of the Crown upon the Liberty of the People. But King James conquering all enmity, spake Peace abroad and sang Lullaby at home: Yet like a dead calm in a hot spring, treasured up in store sad distempers against a back Winter. Their Ingenuity will not allow them to be excellent at the cheat; but are rather subject in that kinde to take then give: and supposing others as open hearted as themselves, are many times in Treaties overmatched by them whom they overmatch in Armes. Upon the same account they are neither imperous over those beneath, nor [Page] stubborn against them above; but can wel discern both person and time. Man, Woman, or Child, all is one with them, they will honor Majesty where ever they see it. And of the twain tender it more when they see it set upon infirmity: as if they knew how to command themselves only in order to the publique good.

Nevertheless they love much to be free, when they were under awe of the Popes Curse, they bore off designes by the Head and Shoulders; but afterwards, by watchfullnesse, and fore-sight; and having attained a light in Religion that will own their Liberties, of them both they make up one Garland not to be touched by any rude hand, but as if it were the bird of the eye the whole body startles forthwith, the allarme is soon given and taken, and whether high or low none are spared that stand in their way. This they do owe to the Easterne People, from whom they fetch their Pedegree. So as the only way to conquer them is to let them have their Liberties, for like some Horses, they are good for carriage, so long as their burthens are easy and sit loose upon them, but if too close girt they will break all, or cast their load, or dy. And therfore Q. Elizabeth gained much to the Crown by faire carriage, good words, and cleanly conveyance, which was not soon discoverd nor easily parted with. But Henry the eighth by heighth of Spirit and great noise, and therefore was no sooner off the stage but what was gotten by the snatch was lost by the catch, and things soon returned into their ancient posture again.

The first Government of the People before their departure out of Germany, was in the two States of Lords and Commons. The Clergy came not into pomp, and power, till Austins time, and soon came to the heighth of a third state appendent to the former, and so continued till Henry the eighths time; then they began to decay in power, and in Queen Elizabeths time utterly lost the same, and so they can no longer be called a State although they still keep state.

The two States of Lords and Commons in their transmigration, being then in the nature of an army of Souldiers, had [Page] a Generall by their Election, under whom after they had obtained a Peaceable setling, they named anew by the name of Konning, or the Wise man, for then was Wisdome more necessary then Valour. But after the Clergy had won the day, and this Konning had submitted himself and his people to their Ghostly Father, they baptized him by a new name of Rex, and so he is stiled in all written Monuments which we owe only to Ecclesiasticks; although the vulgar held their appellation still, which by contraction, or rather corruption, did at length arive into the word King; a notion which as often changeth the sense as the aire: some making the person all in all, others some in all, and some nothing at al but a complement of State. The Clergy gave him his Title in the first sense, and are willing he should have a power over the Estates in order to their designe, which then was to rule the King and by him all his People, he doing what be listeth with them, and the Clergy the like with him. The Saxons take the word in the second sense, for though they had put upon the Common-Wealth one Head, and on that Head one Crown, yet unto that Head did belong many eyes and many braines, and nothing being done but by the common sense; a power is left to him much like to that of the outward Members, Executory.

In time of War, how unruly soever the humors be, yet must the Law be his rule; he cannot ingage the People either to make, continue, or determin, any offensive War, without their consent; nor compell them to arme themselves, nor command them out of their Counties for War, nor impose Military charge upon them against their free consent, or contrary to the known Law.

In calmer times much rather, he can neither make new Law nor alter the old; form new Judicatories, Writs, Process, Judgments, or new executions, nor inable or disable any conveyances of Estates. He may seem possessed of more power in Church government, yet De jure, can neither make nor alter Doctrine, or Worship, or Government in the Church: nor grant dispensations, or Licences Ecclesiastical; nor [Page] Commissions of jurisdiction other then according to the Law. And as a close to all, by one oath taken at the Coronation he not onely giveth to the People security of the Peace and good behaviour, but beareth witness that he oweth Allegiance both to the Law and the people, different from that of the Peoples in this, that the Kings Allegiance is due to the Law, that is originally from the Peoples Election, but the peoples to the King, under a Law of their own framing.

This leadeth on the consideration of a higher degree of power then that of Kings: For though Law as touching morallity in the generall be of Heavenly birth; yet the positive Lawes arising from common Prudence concerning the Honour, Peace, and profit, of every Nation; are formed by humane constitution, and are therefore called Honesta, or justa, because by common vote they are so esteemed, and not because any one man supposeth them to be such. The words of the Summons to the Parliament doth hold for this, Quae de communi consilio ordinari contigerint, and the words in the Coronation Oath, Quos vulgus elegerit, do speak no less, whether they be taken in the Preterperfect tence or Future tence, 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 Councell, 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 then 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 the Throne.

This is done in the convention of States, which in the first times consisted rather of Individuals rather then Specificalls. The great men doubtless did many things even before they saw the English shore; that Tacitus noteth, yet in the publike convention of all, did nothing alone til of one House they became two. The particular time of the seperation is uncertain, and the occasion more: It may be the great Lords thought the [Page] mysteries of State too sacred to be debated before the vulgar, least 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 Royall 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, when as in no case is any negative found upon Record, but a modest waving to 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 de disdetermined by one or a few, whose Councells are for the most part but Notionary, and grounded upon private inconveniences, and not upon experimentalls of most publique concernment; or that the vent or Soit fait, which formerly held the roome onely of a Manifesto of the regall will to execute the Law then made (as his Coronation Oath to execute all Lawes formerly established) should now be taken to be a determination of the justnesse or honesty of the thing: When as this Royall assent is many times given by a King that knowes no difference between good and evill, and is never competent Judge in matters that in his opinion do fall into contradistinction between his own private interest and the benefit of the People.

However unequall it may seem, yet both that and other advantages were gained by the House of Lords after the seperation was once made, as many of the ancient Statutes (by them only made) do sufficiently hold forth, which although in the generall do concern matters of Judicature, wherin the Lords originally had the greatest share, yet other things also escaped the Commons Vote which in after ages they recovered into their consideration again. And the condition of the People in those times did principally conduce hereunto: For untill the Norman times were somwhat settled, the former ages had ever been uncertain, in the changes between [Page] War and Peace, which maintained the distance between the Lords and their Tenants, and the Authority of the one over the other, savouring of the more absolute command in War. And after that the Sword was turned into the plough-share, the distance is established by compact of Tenure by Service, under perill of default, although in a different degree; for the Service of a Knight, as more eminent in War, so in Peace it raised the minde to regard of publique Peace: but the Service of the plough supporting all, is underneath all, yet still under the common Condition of free men equally as the Knight. Peace now had scarcely exceeded its minority before it brought forth the unhappy birth of Ambition; Kings would be more absolute, and Lords more Lordly; the Commons left far behinde seldom come into mention amongst the publique Acts of State, and as uselesse set aside; this was the lowest ebb that ever the Commonage of England indured, which continued till Ambition brought on contention amongst the great men, and thence the Barons Warrs, wherein the Commons parting asunder, some holding for the King, who promised them Liberty from their Lords; others siding with the Lords, who promisied them Liberty from the King; they became so minded of their Liberties, that in the conclusion they come off upon better advantage for their Liberties then either King or Lords, who all were Loosers before their reckoning was fully made. These Wars had by experience made the King sensible of the smart of the Lords great Interest with the People, and pointed him to the pin upon which the same did hang; to take which away, a Designe is contrived to advance the value of the Commoners, and to levell the Peerage, that they both may draw in one equall yoke the Chariot of Prerogative. The power of the Commons in publique Councells was of some efficacy but not much Honour, for their meetings were tumultuary; time brought forth a cure hereof, the flowers of the People are by Election sent to the Representative; and so the Lords are matched if not over-matched, the People lesse admiring the Lords, and more regarding themselves. This [Page] was but a dazle, an eclips ensues; for Kings having duely eyed the Nature of Tenures between the Lords and Commons, look upon it as an out-work or block-house in their way of approach: Their next endeavour is therefore to gain the Knighthood of England within the compass of their own Fee, and so by priority to have their Service as often as need should require, by a trick in Law; as well for their own safety in time of War, as for their benefit in time of Peace: This was a work of a continuing Nature, and commended to Successors to accomplish by degrees, that the whole Knighthood of England is become no more the Lords till Kings be first served; and thus the power of the People is wholly devolved into the Kings Command, and the Lords must now stand alone, having no other foundation then the affections of the People gained by beneficense of Neighbourhood, and ordinary society, which commonly ingratiates the inferiour rank of men to those of higher degree, especially such of them as affect to be popular. Henry the seventh found out this sore, and taught his Successors the way to avoid that occasion of jealousy, by calling up such considerable men to attend the Court, without other wage but fruitlesse hopes; or under colour of Honour to be had by Kings from the presence of such great men, in their great Traines; or of other Service of speciall note to be done onely by men of so high accomplishment. And by this meanes Lordship, once bringing therewith both Authority and Power unto Kings, before Kings grew jealous of their greatness, in these later dayes is become a meer jelly, and neither able to serve the Interest of Kings (if the People should bestir themselves) nor their own any longer: henceforth the Commons of England are no mean Persons, and their representative of such concernment, as if Kings will have them to observe him, he must serve them with their Liberties and Lawes; and every one the publique good of the People: No mans work is beneath, no mans above it, the best Honour of the Kings work is to be,Ae [...]ian. lib. 2. Var. hist. cap. 20. Nobilis servitus (as Antigonus said to his Son) or in plain English, supreame Service above all and to the whole. I [Page] now conclude, as I found this Nation a Common-Wealth, so I leave it, and so may it be for ever; and so will it be, if we may attain the happinesse of our Fore-Fathers the ancient Saxons, Quilibet contentus sorte propria. Tacit

A Table of the Principall Matters conteined in this Book.

[Page]

[Page]

A

A

A Betting of Felony made Felony. 299

Administration granted to the next of the Kindred. 51

Admirals power from the Parliament, 41. formerly under many, brought into one, 42. once gained jurisdiction to the high water-mark, 44. and his Power regulated by Law, ibid. over Sea-men, Ports, and Ships. 44

Allegiance according to Law, 18. vide Supremacy, the nature thereof in general, 79. its not natural, 79, 89. not absolute or indefinite, 82. not to the King in his natural capacity, 86. it obligeth not the People to serve in forrain War, 10 [...]. it is due to the person of the King for the time being, 246, 279. what it is in time of War, and relation thereunto, 247. Henry the seventh, and Henry the eighth indeavoured to advance it in relation to the Crown, but effected it not, 204.

Appeals in cases Ecclesiastical restrained from Rome, and given in the Kings case to the Convocation and in the cases of the People, the Archbishop afterwards to the Delegates, and were never setled in the Crown 227, 233. vide Archbishop.

Archbishop hath the lawfull power of the Pope in Appeals, and Dispensations, Licenses, and Faculties, 233. the Archbishop of York looseth his jurisdiction over the Scottish Bishops. 193

Arrays, Commission of Array, [Page] 178, vide War.

Assent of the King to Acts of Parliament, serveth onely to the execution of the Law, and not to the making thereof 21

Association of the People for the common safety, before the Statute inabling the same, 298

B

B.

BAstardy, not to be determined by the Ordinary before Summons to the Pretendors of Title to be heard. 156

Bench, the Kings Bench at Westminster abated in power by the Commissions of Oyer and Terminer, and Gaol delivery. 92, 165

Benevolence, first used by Edward the fourth, 184. taken away by Richard the third, 185. taken up again by Henry the seventh. 196

Bishops, not impeachable before the civil Magistrate, 49. their Temporalties to be neither seised nor wasted in the vacancy, 50. vide Ordinary.

Buggery made Felony. 299

C

C.

CAnons, their power anciently in debate, 61. such as are not according to the Law are taken away. 236

Castles and Gaols restored to the County, 113. vide Forts and Fortifications.

Chancery, once an Office, afterwards a Court, 35. the power grows by Act of Parliament, 36, 162. the manner of the Proceedings, 38. Keeper of the great Seal increaseth in power. 162

Chancellor elected by the Parliament. 39

Cheshire made a Principality. 11

Children carried into Cloisters remedied. 163

Clergy, priviledged from Arrest, 52. discharged of purveyance and free quarter, 52. their Temporalties in question, 63. the Commons love not their persons, 147. their first declining from Rome in the matter of Provisors, 150. they gain free process in matters Ecclesiastical, 192. their defection from Rome, and submission to the Crown. 206

Clergy upon Triall but once allowed, 257. in some cases [Page] disallowed. 250, 298

Commissioners Ecclsiastical, 288. High Commission. ibid.

Conjuration, vide Witchcraft.

Conservators of the Truce. 162

Constables Court, vid. Marshals Court.

Convocation established by Parliament, 151. it then undertook great matters, but much more after the Clergies forsaking the Pope. 229

Councels, the Privy Councel ordered by Parliament, 21, 33, 141. of use for suddain motions, 27. their Oath, 29. and jurisdiction, 31. and power. 142

Magnum Concilium, or the grand Councel of Lords. 28

Crown intitled not by Discent, 128, 277. but intailed, 128. vide 188. Womanhood, 270. Coverture. 273

Custos Regni, a formality of State under the Parliaments Order, 134. many times conferred upon Children, 137. and upon a Woman. 252

D

D.

DElegates, though named by the King, yet by Authority of the Parliament. 227

Defender of the Faith, 213

Dispensations, Licenses and Faculties, never in the Crown, but by the Parliament given to the Archbishop under Limitations. 234, 238

Duels, ordered by the Martiall as Subservient to the Common Law. 108

E

E.

EDward the third his Reign, 3. his Title upon Entry by Election. ibid.

Edward the fourth his Reign, though had Title of Inheritance, yet entred by Election. 181

Edward the fifth approached the Crown by Inheritance, but never put it on. 184

Edward the sixth his Reign, his Title, and Possession did meet, though he was a Childe, and his Sister Mary grown in age. 259

Ecclesiastical power, vide Prelacy and Prelates.

[Page] Elizabeth Queen, her Reign, 264. her Title by Election. 278

Englishire taken away. 95

Episcopacy, vide Prelates and Prelacy.

Errors, vide Heresie.

Exchange ordered by the statute. 75

Excommunication, 271. the Writ de excommunicato capiendo ordered, 289. vide Parliament exportation. 72

F

F.

FAlse News punished. 112

Felony by riding in armed Troops. 95, 113, 172, 257, 299

First-fruits regulated, 153. taken away from Rome. 222

Forcible Entries. 173

Forts, Fortificacations, and Castles, ordered by Parliament. 252, 295

G

G.

GAol-delivery by the Judges of the Benches, 92, 165. vide Judges.

Gaols regulated. 113, 254

Guard for the Kings Person brought in by Henry the seventh. 195

Gipsies made Felons. 299

H

H.

HEnry the fourth his Reign, doubtfull in his Title, but rested upon Election, chosen by Parliament, sitting when there was no King. 116, &c.

Henry the fifth his Reign, his Title by an Intail, by the Parliament. 119, &c.

Henry the sixth his Reign, his Title by the Intail last mentioned, though a Childe, he is admitted to the Crown. 123, &c.

Henry the seventh first settled a constant Guard, his sixfold Right to the Crown, and his gaining Prerogative in the Person and Estates of the People, ibid. 194, &c.

Henry the eighth his natural Endowments, 199, &c. his power in the matters Ecclesiastical, 206, &c. in Tempoporals. 213, &c.

H

H.

HEresie and Error in Doctrine under the cognisance of the Civil Magistrate, [Page] 62, 156. not punishable by death by Law till Henry the eighths time, 216, 236. the Writ De Heretico comburendo hath no legal ground in any of those former Times, 63, 158, 161, 216, 236.

Honors, vide Parliament.

Hospitals visited by the Prelacy. 154

I

I.

IMportation. 70

Judges of Assize. 165, 244

Jurisdiction Ecclesiastical not originally in the Prelacy, nor absolutely. 235

Justices of the Peace, their residency and quality, their number various, their work also, 109, 171. one Justice, 112. and the settling of their Sessions, ibid. their power to take Bail. 254

K

K.

KIngs, vide Parliament, Allegiance, Supremacy, Militia.

L

L.

LAbourers, their Work and Wages, 70. ordered by the Justices of the Peace. 110

Lancaster, the Princes of that House freinds to the Clergy in policy. 146

Laws made by the Successors of Henry the eighth, during their minority annulled, 217. Ecclesiastical Laws, vide Parliament.

Leiges by Birth, though not born within the Allegiance of England. 97

Liveries and Tokens inhibited to the Lords, 112, 177. and limited in the Kings person, 177. means of jealousie between the King and his People. 244

Libels in the Spiritual Court to be delivered in Copies upon demand. 154

Licenses, vide Dispensations.

Lords, their power and jurisdiction in the Parliament, 23. in Councel. 29, 242

Lunacy, no impediment in Triall of Treason. 258

M

[Page]

M.

MAry Queen, her Reign, 261. her Title by Election, 278. she prejudiced her Supremacy by Marriage. 275

Marque and Reprisal. 279

Martials Court. 107

Matrimonial Causes after the Reformation by Henry the eighth, in the Cognisance of the Clergie by leave. 238

Militia, 98, 175, 245, 290 vide War.

Mint, 74, 142. vide Parliament.

Monastries dissolved, 220 maintained by Henry the fourth. 147

Money out of England to Rome stopped. 54

N

N.

NAvy Royall, as Forts for the publique safety maintained at the publique charge. 253

Nisi prius. 167

Non-residency. 238

Noble Ladies Triall. 174

O

O.

OYer & Terminer. 92, 165

Ordinary not to be questioned in the Civil Courts for things under Ecclesiastical jurisdiction, 47, 49. hath Cognisances, of Ʋsury, 47. of Avoidances, Bigamy, and Bastardy, 48. grant Administration, 51. visit Hospitals, and call Executors to account, 154. hath power to fine and imprison, 157, 239. to keep Courts, but the Authority doubtfull, 235. have Cognisance of the Heresie 156, 236. Matrimony, Non-residency, 236. In Queen Elizabeths time their jurisdiction left in doubt, 286, &c.

Oath ex Officio first brought in by the Church-men in matters Ecclesiastical, 157. afterwards by the Parliament into the Star-chamber, in cases criminal. 244

P

P.

PArdon of Crimes not absolutely in the King. 19

Parliament without the King consisting of three States, 117. without the Clergie. 58

[Page] Parliaments power in ordering of the Crown, 127, 228; 277

In ordering the Kings Person by Protectors, 14. vide Protector.

In ordering their children.

In ordering their Family. 15, 129

In ordering their Revenues. 16, 129, 115

In ordering their Councel. 141

In the Militia, vide Militia and War.

In conferring places of Honor and Trust. 20, 39

In ordering the Mint, vide Mint.

In making Ecclesiastical Laws.

Concerning Church-Government. 224, &c. 208, 281

Concerning Doctrine. 211, 224, 236, &c.

Concerning Worship. 224

Concerning Church-censures- 240

In granting Licenses and Dispensations. 234

In final Appeals. 227

In ordering it self. 24, 130

In judicature. 25, 190

Parliament not inconstant, though mutable. 188

Peace, Justices and their Sessions. 109, &c. 170, &c. 253, &c. 297, &c.

Penal Laws executed to get money. 184, 196

Pleadings in English. 98

Popes power in England abated, 56, &c. vide Ordinary, Supremacy, Arch-bishop.

Prelacy not favoured by the Canon, 239. their power since the time of Queen Mary, 283. their dignity and power distinguished. 46, 58

Preists Wages. 70, 155

Praemunire and Provisors. 54, 58, &c. 151

Proclamations made equal to Laws, 214. altered, 269.

Protectors, variety of them makes a doubtfull Government. 4, 8, 123

Purveyance regulated. 53, 65

R

R.

RAvishment consented to, forfeits Jointure. 96

Requests Court established by Cardinal Woolsey. 241

Richard the second his Reign, 6. endeavours to over-rule the Parliament, but failed in the Conclusion. 11

Richard the thirds Reign, 184. his Title by Ʋsurpation, and Murder. ibid.

Riots. 173

S

[Page]

S.

SAnctuaries changed into fewer priviledged places. 257

Servants imbesselling Felony. 258, 299

Sheriffs Courts regulated, 254. Election of Sheriffs, 93. Farm of the County, 168. continuance in service, ibid. Extortion. ibid.

Souldiers, vide War.

Staple. [...]72, &c. [...]90

Star-chamber. 31, &c. 242

Stealers of Men and Women Felony. 299

Supremacy, supreme Head, 206. certainly not absolute or arbitrary power, nor a Legislative power, 208, &c. Supreme Governour, 270. in causes Ecclesiastical, 270, &c. in Temporal. ibid.

T

T.

TEnths and first-fruits. 222

Torniament. 108

Tonnage and Poundage. 189

Trade. 64, 190

Treason, 76. &c. By thoughts, by marriage, and counterfeiture, 255, 256. tryed where the King will, 258. Petty Treason, 94.

W

W.

WAles subdued by Henry the fourth, 118. Ʋnited to the English Crowne by Henry the eighth. 241

Warr by advice of Parliament, 98, 175. Levying of men, 101, 176, 248, 290. Jurati & obligati ad arma, taken away, 100. Arming of men, 100, 290. Conduct to their Rendezvous, 101. Runing from their Colours, 101, 180, 296. Plunder satisfied, 101. Their pay, 176.251, 296. Offensive and defensive, 291.

Watches, inquired into by Justices of the Peace, 173.

Wickleif, 60.

Wills probate, 154.

Witchcraft made Felony, 257, 299.

FINIS.

Information about this book

Title statement

The continuation of An historicall discourse of the government of England, untill the end of the reigne of Queene Elizabeth with a preface, being a vindication of the ancient way of parliaments in England / by Nath. Bacon of Grais-Inne, Esquire.

Bacon, Nathaniel, 1593-1660.

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1651

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A28585

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Wing B348

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52042

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— The continuation of An historicall discourse of the government of England, untill the end of the reigne of Queene Elizabeth with a preface, being a vindication of the ancient way of parliaments in England / by Nath. Bacon of Grais-Inne, Esquire., Bacon, Nathaniel, 1593-1660., Bacon, Nathaniel, 1593-1660. Historicall and political discourse of the laws & government of England..

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[26], 307, [8] p.

Printed by Tho. Roycroft for Matthew Walbanck, and Henry Twyford ...,. London :: 1651.. (Reproduction of original in Harvard University Libraries.)

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