his great Counsel to advise whether he should pass the Seas or no with an Army Royal and they not daring to assent without greater Counsel A Parliament the tenth year to have the advice of the Commons as well as of the Lords was called and how the Realm should be governed in their Sovereign his absence The truce with France was now expired the Parliament was called in the 13th to advise upon what conditions it should be renewed or otherwise how the charge of the War should be susteined at this assembly and by consent of all the Duke of Lancaster is created Duke of Aquitaine the Statute of provisions now past the Commons a party in the Letter to the Pope The year succeeding a Parliament is called for the King would have advice with the Lords and Commons for the War with Scotland and would not without their Counsels conclude a final peace with France The like assembly for the same causes was the year ensuing the Commons interesting the King to use a moderation in the Law of provisions to please at this time their holy Father so that the Statute upon their dislike may again be executed and that to negotiate the peace with France the Duke of Aquitaine may rather than another be imployed To consult of the Treaty with France for Peace the King in the seventeenth calleth a Parliament the answer of the Lords is left unentred in the Roll the Commons upon their faith and allegiance charged advised that with good moderation homage may be made for Guien an appenage of the French Croine so it trench not to involve the other pieces of the English Conquest their answer is large modest and worthy to be marked Now succeedeth a man that first studied a popular party as needing all to support his titles He in the fifth year calleth a Parliament to repress the malice of the Duke of Orleance and to advise of the Wars in Ireland and Scotland neither Counsels or supplies are entred in the Roll and to resist an invasion intended by France and Brittain he assembleth the State again the like was the second year following for France In this the Commons confer with for guard of the Sea and make many Ordinances to which the King assenteth the peace with the Merchants of Bruce and Foins is debated and a Proclamation published as they resolved by the Speaker the Commons complain of 96 pieces of importance lost in Guien the year before need of the defence of the borders and Sea coasts to suppress the Rebellion in Wales and disloyalty of the Earl of Northumberland they humbly desire that the Prince may be dispatched into those parts with speed and that the Castle of Manlion the key of the three realms might be left to the care of the English and not to Charls of Navarre a stranger and to have a vigilant eye of the Scotish prisoners In the tenth the Parliament is commanded to give their advice about the Truce with Scotland and preparation against the malice of the French His Son the wife and happy undertaker advised with the Parliament in the first year how to cherish his Allies and restrain his Enemies for this there was a secret Committee of the Commons appointed to conferr with the Lords the matter being entred into a schedule touching Ireland Wales Scotland Callis Gunien Shipping Guard of the Seas and War provision to repulse the Enemies In the second he openeth to the Parliament his Title to France a quarrel he would prosecute to death if they allowed and ayded death is in his Assembly enacted to all that break the Truce or the Kings safe conduct The year following peace being offered by the French King and the King of the Romans arrived to effect the work the King refuseth any conclusion until he had thereunto advice and assent of the Lords and Commons for which occasion the Chancellor declareth that Assembly In the fourth and fifth no Peace being concluded with France he calleth the State together to consult about the Warr concluding a Treaty of amity with Sigismund King of the Romans by allowance of the three Estates and entred Articles into the Journal Rols The same year by the Duke of Bedford in the Kings absence a Parliament was called to the former purposes as appeareth by the Summons though in the Roll omitted The like in the seventh The Treaty with France is by the Prelates Nobles and Commons of the Kingdom perused and ratified in the 11. of his Raign His Son more holy then happy succeeded adviseth him the second year with the Lords and Commons for the well keeping the Peace with France consulteth with them about the delivery of the Scottish King and the conclusion of it is confirmed by common assent And in the third year they are called to advise and consent to a new Article in the League with Scotland for change of Hostages And in the ninth conclude certain persons by name to Treat a Peace with the Dolphin of France The Treaty at Arras whither the Pope had sent as Mediators two Cardinals not succeeding The King in Parliament Anno 14. sheweth he must either lose his Title Stile and Kingdom of France or else defend it by force the best means for the prevention thereof he willeth them to advise him He summoneth again the next year the State to consult how the Realm might be best defended and the Sea safe kept against his Enemies In the twentieth the Commons exhibite a Bill for the Guard of the Sea ascertain the number of Ships assess wages and dispose prizes of any fortune to which the King accordeth and that the Genoways may be declared enemies for assisting the Turks in the spoyl of the Rhode Knights and that the privileges of the Pruce and Hans Towns Merchants may be suspended till compensation be made to the English for the wrongs they have done them to which the King in part accordeth The King by the Chancellor declareth in Parliament Anno 23. That the Marriage with Margaret the King of Sicils Daughter was contracted for enducing the Peace made with France against which the Lords as not by their advice effected make Protestation and enter it on the Roll. In the 25. the King intended to pass in Person into Franch and there to treat a Peace with the King adviseth with the Lords and Commons in Parliament and Letters of Mart are granted against the Brittains for spoyle done to the English Merchants The Lord Hastings and Abbot of Gloucester declare in Parliament Anno 27. the preparation of the French the breach by them of the Peace the weak defence of Normandy and the expiration shortly of the Truce requiring speedy advice and remedy In the 29. it was enjoined by Parliament to provide for defence of the Sea and Land against the French It was commanded by the King
instructions warrant to restore that right again to the Imperial Throne Charls will follow him from Barcellona with an Army but before he must call a Parliament at Toledo whether by election or affection I dare not divine that Assembly maketh Protestation against their Masters Marriage with England and assign him Isabella of Portugal for a wife the Instruments are sent signed by the Imperial Notary to Henry the 8th And Charls bemoneth the streight he is forced into by them but before all this he had wrought from Rome a Dispensation for his former out-hand Marriage sending not long after Gonzado Ferdinando his Chaplain to invite the Earl of Desmon to rebell in Ireland And to invite James the First by promise of a Marriage to Christian of Denmarks Daughter his Neece to enter the English Borders to busie the English King for asking a strict accompt of that indignity Henry the 8th with Providence and good success over-wrought these dangers and by the League of Italy he forced him to moderate Conditions at the Treaty of Cambray 1529. He being made Caput foederis against the Emperour I may end your Honours trouble with this one Example and with humble prayers That the Catholique may have so much of Princely sincerity as not to intend the like or my good gracious Master a jealous vigilancy to prevent it if it should c. THAT THE SOVERAIGNS PERSON is Required in the Great COUNCELLS OR ASSEMBLIES OF THE STATE As well at the Consultations as at the Couclusions Written by Sir Robert Cotton Knight and Baronet LONDON Printed in the Year 1672. THAT THE SOVERAIGNS PERSON is Required in the Great COUNSELS OR ASSEMBLIES OF THE STATE c. SInce of these Assemblies few Diaries or exact Journal Books are remaining and those but of late and negligently entred the Acts and Ordinances only reported to Posterity are the Rolls this question though clear in general reason and conveniency must be wrought for the particular out of such incident proofs as the Monument of Story and records by pieces leave us And to deduct it the dearer down some essential circumstances of name time place occasion and persons must be in a general shortly touched before the force of particular proofs be laid down This noble body of the State now called the houses in Parliament is known in several ages by several names Consilia the Counsels in the old times after Magnum Commune and Generale Consilium Curia Magna capitalis and Curia Regis sometimes Generale Placitum and sometimes Synodi and Synodalia decreta although aswell the causes of the Common-wealth as Church were there decided The name of Parliament except in the Abbots Chapters not ever heard of until the raign of King John and then but rarely At the Kings Court were these Conventions usually and the Presence Privy Chamber or other room convenient for the King in former times as now then used for what is the presenst House of Lords but so as at this time and was before the fyring of the Pallace at Westminster about the seventeenth of Henry the eighth who then and there recided Improbable it is to believe the King was excluded his own Privie Chamber and unmannerly for guests to barre him the company who gave to them their entertainment It was at first as now Edicto Principis at the Kings pleasure Towards the end of the Saxons and in the first time of the Norman Kings it stood in Custome-Grace to Easter Whitsontide and Christmas fixed The Bishops Earls and Lords Ex more then Assembled so are the frequent words in all the Annalls the King of course then revested with his imperial Crown by the Bishops and Peers assembling in recognition of their pre-obliged faith and present service until the unsafe time of King John by over-potent and popular Lords gave discontinuance to this constant grace of Kings and then it returned to the uncertain pleasure of the Soveraigns summons The causes then as now of such Assemblies were provisions for the support of the State in Men and Money well ordering of the Church and Common wealth and determining of such causes which ordinary Courts nesciebant judicare as Glanvill the grand judge under Henry the second saith where the presence of the King was still required it being otherwise absurd to make the King assentor to the Judgments of Parliament and afford him no part in the consultation The necessity thereof is well and fully deduced unto us in a reverent monument not far from that grave mans time in these words Rex tenetur omni modo personaliter interesse Parliamento nisi per Corporalem agritudinem detineatur Then to acquaint the Parliament of such occasion of either house Causa est quod solebat Clamor Murmur esse pro absentia Regis quia res damnosa periculosa est toto Communitati Parliamenti Regni cum Rex à Parliamento absens fuerit Nec se absentare debet nec potest nisi duntaxat in Causa supradicta By this appeareth the desire of the State to have the Kings presence in these great Counsels by express necessity I will now endeavour to lead the practise of it from the dark and eldest times to these no less neglected of ours From the year 720. to neer 900. during all the Heptarchy in all the Councels remaining composed Ex Episcopis Abbatibus Ducibus satrapis omni dignitate optimatibus Ecclesiasticis scilicet secularibus personis pro utilitate Ecclesiae stabilitate Regni pertractand Seven of them are Rege praecedente and but one by deputy and incongruous it were and almost non-sence to bar his presence that is president of such an Assembly The Saxon Monarchy under Alfred Ethelred and Edgar in their Synods or Placita generalia went in the same practise and since Thus Ethelwald appealed against Earl Leofrick From the County and generale Placitum before King Ethelred and Edgira the Queen against Earl Goda to Eldred the King at London Congregatis Principibus sapientibus Angliae In the year 1502. under Edward the Confessor Statutum est placitum magnum extra Londinum quod Normanni ex Francorum consuetud Parliamentum appellant where the King and all his Barons appealed Goodwin for his Brother Alureds death the Earl denyed it and the King replyed thus My Lords you that are my liege men Earls and Barons of the Land here Assembled together have heard my Appeal and his Answer unto you be it left to do right betwixt us At the great Councel at Westminster 1072. in Easter week the cause of the two Archbishops Lanfrank and Thomas ventilata fuit in praesentia Regis Willielm And after at Winsor finem accepit in proesentia Regis At the same feast in the year 1081. the usual time of such Assemblies the King the Archbishops Bishops
expedient to suppres Popish Practises against the due Allegiance to his Majesty by the strict Execution touching Jesuitâ— and Seminary Priests Or to restrain them to close Prisons during life if no Reformation follow In favour of the first Division I. There are not few who grounding themselves on an Antient Proverb A dead man bites not affirm that such are dangerous to be preserved alive who being guilty condemned and full of fear are likely for purchase of Life and Liberty to inlarge their uttermost in desperate adventures against their King and Countrey II. No less is it to be feared that while the sword of Justice is remiss in cutting off heinous offendors against the Dignity of the Crown the mis-led Papall multitude in the interim may enter into a jealous suspence Whether that forbearance proceed from fear of exasperating their desperate humours or that it is now become questionable Whether the execution of their Priests be simply for matter of State or pretended quarrel for Religon III. And whereas in a remediless inconvenience it is lawful to use the extremity of Laws against some few that many by the terrour of the example may be reformed what hope can there be that Clemency may tame their hearts who interpret His Majesties grace in transporting their Priests out of His Realm to be a meer shift to rid the Prisons of those whom Conscience could not condemn of any capital crime IV. Neither are their vaunting whisperings to be neglected by which they seek to confirm the fearful souls of their party and to inveigle the ignorant doubtful or discontented persons for if the glorious extolling of their powerful friends and the expectance of a golden day be suffered to win credit with the meaner fort the relapse cannot be small or the means easie to reform the error without a general combustion of the State V. Let experience speak somewhat in this behalf which hath evidently descryed within the Current of few years that the forbearance of severity hath multiplied their Roll in such manner that it remains as a Corrosive to thousands of his Majesties well-affected Subjects VI. To what purpose serves it to muster the names of the Protestants or to vaunt them to be ten for one of the Roman Faction as if bare figures of numeration could prevail against an united party resolved and advised before hand how to turn their faces with assurance unto all dangers while in the mean time the Protestants neastling in vain security suffer the weed to grow up that threatneth their hane and merciless ruine VII Sometime the Oath of Supremacy choaked their presumptuous imaginations and yet could not that infernal smoke be smothered nor the Locusts issuing thereout be wholly cleansed from the face of this Land Now that the temporal power of the King conteined in the Oath of Allegiance is by the Papall See and many of the Adorers thereof impudently avowed to be unlawful shall the broachers of such Doctrine be suffered to live yea and to live and be relieved of us for whose destruction they groan daily VIII To be a right Popish-Priest in true English sense is to bear the Character of a disloyal Renegado of his natural obedience to his Soveraign whom if by connivency he shall let slip or chastise with a light hand what immunity may not traiterous Delinquents in lesser degrees expect or challenge after a sort in equity and justice IX If there were no Receivers there would be no Theeves Likewise if there were no harbourers of the Jesuits it is to be presumed that they would not trouble this Isle with their presence therefore rigor must be extended against the Receiver that the Jesuits may be kept out of dores were it then indifferent justice to hang up the Accessary and let the Principal go free namely to suffer the Priest to draw his breath at length whiles the Entertainer of him under his Roof submits his body to the Executioners hands without doubt if it be fit to forbear the chief it will be necessary to receive the second offender in to protection wherewith a mischief must ensue of continual expence and scandalous restraint of so great a number X. Reputation is one of the principal Arteries of the Common-wealth which Maxime is so well known to the Secretaries of the Papacy that by private Forgeries and publique impressions of Calumniations they endeavour to wound us in that vital part howsoever therefore some few of that stamp being better tempered then their fellows in defence of this present Government have not spared to affirm that Tyranny is unjustly ascribed thereunto for so much as freedome of Conscience after a sort may be redeemed for money notwithstanding there want not many Pamphleters of their side who approbriously cast in our teeths the converting of the penalty inflicted on Recusants and refusers of the Oath of Allegiance from the Kings Exchequor to a particular Purse sure we cannot presume that those Libellers may be diswaded from spitting out their venome maliciously against us when they shall see their Priests mewed up without further process of Law for either they will attribute this calm dealing to the justice of their cause the strength of their party or patience or that tract of time hath discovered out Laws importing over much sharpness in good pollicy to be thought fitter for abrogation by Non-usance than repealed by a publique decree XI Moreover it is fore-thought by some tht if these Seminaries be only restrained they may prove hereafter like a Snake kept in the bosome such as Bonner Gardiner and others of the same Livery shewed themselves to be after Liberty obtained in Queen Maries time and if the loss of those Ghostly fathers aggrieve them it is probable that they will take arms sooner and with more courage to free the living then to set up a Trophy to the dead XII Howsoever the Jesuits band is known in their native soyl to be defective in many respects which makes them underlings to the Protestants as in Authority Arms and the protection of the Laws which is all in all Nevertheless they insinuate themselves to forraign Princes favouring their party with promises of strong assistance at home if they may be well backed from abroad To which purpose they have divided the inhabitants of this realm into four sects whereof ranking their troupes in the first place as due to the pretended Catholiques they assumed a full fourth part to their property and of that part again they made a subdivision into two portions namely of those that openly renounced the estabilished Church of England and others whose certain number could not be assigned because they frequented our srevice our sacraments reserving their hearts to the Lord God the Pope The second party they alot to the Protestants who retain yet as they say some reliques of their Church The third rank and largest was left unto the Puritans
and old Customes at London for 1000. Markes monethly to be paid unto the Wardrobe The like he did anno 17. Richard 2. anno 20. letteth out for term of life the Subsidie of Cloth in divers Countries And Edward 4. anno 1. the subsidie and usuage of Cloth Thus did Henry 8. with his Customes and since his time the late Queen and our now Soveraign Master and it was so then in use in the best governed State Rome which let out portions and decim's to the Publicans KIngs raise money and improve the Revenues of the Crown By Regalities 1. Temporal as for Liberties Penalties of Lawes Letters of Favour 2. Mixt. Liberties In granting restraining or renewing them It is a course usual that Kings have raised in money by calling in question the Charters and Liberties of Corporations Leets Free-Warrens and other Royalties Thus did Richard 1. proclaiming Quod omnes chartae et confirmationes quae prioris sigilli impressione roberaverint irritae forent nisi posteriori sigillo roborentur And Henry 3. anno 10. enjoyned all qui suis volebant Libertatibus gaudere ut innovarent chartas suas de novo Regis sigillo getting money thereby Edward 1. by divers Commissions with articles called Articuli de Ragman annexed to them called in question about anno 70. all the liberties and freedomes of England Gilbert de Thorneton his Attorney putting information by Quo warranto against all persons as well bodies Politick as others whereby they were inforced anew to renew their Charters and Fines for their Liberties The like was in anno 13. Edward 3. in whose time anno 9. all clauses of allowances by Charter of Amerciaments Fines c. imposed by the Kings Ministers upon any of the Tenants of other men were adjudged void and the penalties made payable to the Kings Officers unless they made a new purchase of their Liberties And this was one of the usualest and easiest meanes to raise money from the People because it lighteth onely upon the best abilities And if there were now but 20. l. taken of every Corporation of every person that holdeth by Charter his Liberties 5.l for renewing them and of every one that claimeth by prescription 10. l. for purchase of a Charter all which would be easie and acceptable it would amount to above 100000. l. For penal Lawes that have been sometimes but with ill success wrought upon When Richard 2. anno 22. began this course appointing in all his Commissions and instructions Bushey onely to be of the Quorum for compounding with the Delinquents it wrought in the affection of his People such distaste that it grew the death of the one and deposition of the other No less fatal was the like to Empson and there is no string will sooner jâ—rre in the Common-Wealth then this if it be generally touched For Letters of Favâ—â—â— Either for mitigation of dispatch of Justice Of the first sort there be many found in Henry 6. and Edward 4. time sometimes of protection although by course of the Common Law none are warrantable but to such as are going in obsequium Regis or ibidem moraturi sometimes freeing men from Arrests by calling them up to appear before the Kings Councel Sometimes in causes highly criminal releiving the Prisoner in commanding the Judges to make stay of all proceeding upon supposal of indirect practises until the King was better informed Of the second sort there are many in Henry 7. time where the King hath taken money for writing to the Judges of Assize his Letters of Favour For Offices Thus did King John with the Chancellor-ship selling it for term of life to Gray for 5000. Markes divers offices now in the gift of the Master of the Rolls were engaged to the Chancellour and Treasurer of England as are to be found in Record of Henry 4. Henry 5. and Henry 6. to be passed by warrant of the Kings hand and upon some consideration And Henry 7. renewed this course using Dudley as his instrument to compound with Suitors of those and any other places And by that Record we find the Chancellor the Chief Justice the Keepers of most of the Records the Clerks of the Assizes and Peace the Masters of his Game and Parks and what else carrying either profit or reputation paid to the King some proportion of money for their places Neither is this different from the course of other States For in France Lewis 12. called the Father of his Country did so with all Offices not being of Judicature which his Successors did not forbear In Spain it is usual and Vasqui the Spanish Advocate defendeth the lawfulness of it And Charles the fifth prescribeth it to his Son as a rule in his last instruction drawing his ground of reason and conveniency from the example and practise of the See at Rome The like might be of all inferiour promotions that are or may be in the Kings gift whether Ecclesiastical or Temporal if they were after the true value in profit and reputation listed into rankes according to the several natures of their imployments respectively For Honours And that either by Power legal or Election Of the first it is only in respect of Land whereby every man is to fine when the King shall require that hath ability to be made a Knight and is not of this sort there be plenty of Examples The other out of choise and Grace as Hugo de Putiaco Bishop of Durham was by King Richard 1. created Earl of Northumberland for a great sum of money And I doubt not but many of these times would set their ambition at as high a price And for his Majesty now to make a degree of honour hereditary as Barronets next under Barons and grant them in tail taking of every one 1000. l. in fine it would raise with ease 100000. l. and by a judicious election be a meanes to content those worthy persons in the Common-Wealth that by the confused admission of many Knights of the Bath held themselves all this time disgraced For the Coine and Bullion By which although some Kings out of a last shift have seemed to relieve themselves yet was it in truth full of danger and distrust to the Common-wealth being an assured token of a bankrupt state and to the Prince in conclusion of most disadvantage For the Revenues of the Crown being commonly incertain Rents they must in true value howsoever in verbal sound be abated to the proportion that the Money shall be abased And every man will rate his Commodity in Sale not according to the accompt of pence or pounds but to the weight of pure Silver contained in the currant money As for example That which was before the decâ—ying of the Coine worth five shillings the pouud weight will if the allay be to the half be held at ten shillings and so in every proportion respectively For money is not meerly to be esteemed in respect of the Sculpture or Figure
in exposition of Statutes and Deeds to avoid inconveniences and to make it stand with the rest and with Reason and it may be Collected that by the Law of the Land in Magna charta by the course of the Law in 2 5. Edward 3. by due process of the Law in 28. Ed. 3. other due process to be made by the Law 36. Edward 3. process of the Law 37. Edward 3. and by due process and Writ Original 42. Edward 3. are meant one and the same thing the latter of these Statutes referring alwayes to the former and that all of them import any due and regular proceeding of Law upon a cause other then a trial by Jury And this appeareth Cook 10. 74. in the case of the Marshaâ—â—â—c and Cook 1.99 Sir James Bagg's case where it is understood of giving jurisdiction by Charter or Prescription which is the ground or a proceeding by course of Law and in Sâ—ldâ—rs Notes ou 〈◊〉 fol. 29. where it is expounded for Wager of Law which is likewise a TRYAL at Law by the Oath of the party differing from that of Jury and it doth truly comprehend these and all other regular proceedings in Law upon cause which gives authority to the Constable to arrest upon cause and if this should not be the true exposition of these words per legem terrae the King's Council were desired to declare their meaning which they never offered to do And yet certainly these words were not put into the Statute without some intention of consequence And thereupon M. Serjeant Ashley offered an interpretation of them thus namely that there were divers Laws of this Realm As the Common Law the Law of the Chancery the Ecclesiastical Law the Law of Admiralty or Marine Law the Law of Merchants the Martial Law and the Law of State And that these words per legam terrae do extend to all those Laws To this it was answered That we read of no Law of State and that none of those Laws can be meant there save the Common which is the principal and general Law and is always understood by way of Excellency when mention is made of the Law of the Land generally and that though each of the other Laws which are admitted into this Kingdom by Custome or Act of Parliament may justly be called a Law of the land yet none of them can have that preheminency to be stiled the Law of the Land and no Stature Law-book or other Authority printed or unprinted could be shewed to prove that the Law of the Land being generally mentioned was eâ—er intended of any other Law than the Common Law and yet even by these other Laws a man may not be committed without a cause expressed but it standeth with the Rule of other legal expositions that per legem terrae must be meant the Common Law by which the general and universal Law by which men hold their Inheritances and therfore if a man speak of Escuage generally it is understood as Littleton observeth plt 99. of the incertain Escuage which is a Knightâ—s serviec tenure for the defence of the Realm by the body of the Tenant in time of VVar and not of the certain Escuage which giveth only a contribution in money and no personal service And if a Statute speak of the King's Courts of Record it is meant only of the four at Westminster by way of Excellency Cook 6. 20. Gregories case So the Canonists by the Excommunication if simply spoken do intend the greater Excommunication and the Emperor in his Institutions saith that the Civil Law being spoken generally is meant of the Civil Law of Rome though the Law of every City is a Civil Law as when a man names a Poet the Grecians understand Homer the Latinists Virgil. Secondly admit that per legem terrae extend to all the Laws of the Land yet a man must not be committed by any of them but by the due proceedings that are exercised by those Laws and upon cause declared Again it was urged that the King is not bound to express a cause of imprisonment because there may be in it matter of State not fit to be revealed for a time least the Confederates thereupon make means to escape the hands of Justice and therefore the Statutes cannot be intended to restrain all Commitments unless a cause be expressed for that it would be very inconvenient and dangerous to the State to publish the cause at the very first Hereunto it was replyed by the Commons That all danger and inconvenience may be avoided by declaring a general Cause as for Treason for suspition of Treason Misprision of Treason or Felony without specifying the particular which can give no greater light to a confederate then will be conjectured by the very apprehension or upon the imprisonment if nothing at all were expressed It was further alleadged that there was a kind of contradiction in the Position of the Commons when they say that the party committed without a cause shewed ought to be delivered or bailed bailing being a kind of imprisonment delivery a total freedome To this it was answered that it hath alwayes been the discretion of the Judges to give so much respect to a commitment by the Command of the King or the privie Councel which are ever intended to be done on just and weighty causes that they will not presently set him free but baile him to answer what shall be objected against him on his Majesties behalf But if any other inferiour Officer commit a man without cause shewed they do instantly deliver him as having no cause to expect their pleasure so the delivery is applyed to an imprisonment by the command of some mean Minister of justice bailing when it is done by the command of the King or his Councel It was urged by Master Attorney That bailing is a grace and favour of a Court of Justice and that they may refuse to do it This was agreed to be true in divers cases as where the cause appeareth to be for felony or other crime expressed for that there is another way to discharge them in convenient time by their tryal And yet in those cases the constant practise hath been antiently and modernly to bayle men but where no cause of the imprisonment is returned but the command of the King there is no way to deliver such persons by tryal or otherwise but that of Habeas Corpus and if they should be then remanded they may be perpetually imprisoned without any remedy at all and consequently a man that had committed no Offence might be in worse case then a great Offendor for the latter should have an ordinary tryal to discharge him the other should never be delivered It was further said that though the Statute of West I. cap 15. as a Statute by way of provision did extend only to the Sheriff yet the Recital in that Statute touching the 4. Causes wherein a man was not replevisable at Common Law namely those that were
Councels in this kind but what we borrow in the Rolls of Summons wherein the form stood various according to the occasions until it grew constant in the form it is now about the entrance of Rich. 2. The Journal Rolls being spoiled by the injury of times or private ends This King in the fifth of his Raign called a Parliament and therein advised with his Lords and Commons for suppressing of Llewellen Prince of Wales and hearing that the French King intended to invade some pieces of his Inheritance in France he summoned a Parliament Ad tractand ordinand faciend cum Praelatis Proceribus aliis Incolis Regni quibuslibet hujusmodi periculis excogitatis malis sit objurand Inserting in the Writ that it was Lex justissima provida circumspectione stablita That Quod omnes tangit ab omnibus approbetur In 34. Super ordinatione stabilimento Regis Scotiae he made the like Convention His Son the second Edward pro solennitate Sponsalium Coronationis consulted with his people in his first year in his sixth year super diversis negotiis statum regni expeditionem Guerrae Scotiae specialiter tangentibus he assembled the State to advise the like he did in the eighth The French King having invaded Gascoin in the thirteenth year the Parliament was called super arduis negotiis statum Gasconiae tangentibus And in 16. To consult ad refraenand Scotorum obstinentiam militiam Before that Edward the 3. in his first year would resolve whether Peace or War with the Scotish King he summoned the Peers and Commons super praemissis tractare consilium impendere The Chancellor in Anno quinto declareth from the King the cause of that Assembly And that it was to consult and resolve whether the King should proceed with France for recovery of his Signiories by alliance of marriage or by war And whether to suppress the disobedience of the Irish he should pass thither in Person or no The year following he re-assembleth his Lords and Commons and requireth their advice whether he should undertake the Holy Expedition with the French King that year or no The Bishops and Proctors of the Clergy would not be present as forbidden by the Canons such Councels the Peers and Commons consult applauding the Religious and Princely forwardness of their Sovereign to this holy enterprize but humbly advise a forbearance this year for urgent occasions The same year though at another Sessions the King demanded the advice of his people Whether he should pass into France to an enterview as was desired for the exepediting the treaty of marriage The Prelates by themselves the Earls and Barons by themselves and the Knights of the Shires by themselves consulted apart for so is the Record and in the end resolved That to prevent some dangers likely to arise from the North it would please the King to forbear his journey and to draw towards those parts where the perils were feared his presence being the best prevention which advice he followed In the following Parliament at York the King sheweth how by their former advice he had drawn himself towards the North parts and now again had assembled them to advise further for his proceedings to which the Lords and Commons having consulted apart pray further time to resolve until a full assembly of the State to which the King granting adjourneth that Sessions At the next meeting they are charged upon their Allegiance and Faith to give the King their best advice the Peers and Commons consulting apart deliver their opinions and so the Parliament ended In the 13. year the Grands and Commons are called to consult and advise how the Domestick quiet may be preserred the Marches of Scotland defended and the Sea secured from forrein Enemies the Peers and Cammons having apart consulted the Commons after their desire not to be charged to counsel in things Des quenx ils mont pas cognizance answer That the Guardians of the Shires assisted by the Knights may effect the first if pardons of Felony be not granted The care of the Marches they humbly leave to the King and his Counsel and for the safeguard of the Seas they wish that the Cinque Ports Marine towns discharged for the most part from the main burthens of the In-land parts may have that left to their charge and care and that such as have lands neer the Coasts be commanded to reside on those possessions The Parliament is the same year reassembled Avisamento Praelatorum procerum necnon communitatis to advise de expeditione guerrae in partibus transmarinis at this Ordinances are made for provision of Ships arraying of men for the Marches and defence of the Isle of Jersey naming such in the Record as they conceive fit for the imployment The next year De la Pool accompteth in Parliament the expences of the wars a new aid is granted and by several Committees in which divers are named that were no Peers of Parliament the safeguard of the seas and defence of the borders are consulted of In the 15 year De assensu Praelatorum Procerum aliorum de consilio the Kings passage into France is resolved of Anno 17. Badlesmere instead of the Councel declareth to the Peers and Commons That whereas by their assents the King had undertaken the wars in France and that by mediation of the Pope a truce was offered which then their Soveraign forbore to entertain without their well allowance the Lords consult apart and so the Commons returning by Sir William Trussel an answer their advice and desire is to compose the Quarrel approve the Truce and the Popes mediation The Popes undertaking proving fruitless and delays to the French advantage who in the mean space allied with Scotland and others practized to root out the English Nation in France This King again assembled the year following in which the Peers and Commons after many days meditation resolve to end it either by Battel or Peace and no more to trust upon the mediation or message of his Holiness In the 21 year the chief Justice Thorpe declaring to the Peers and Commons that the French Wars began by their advice first the True after by their assents accepted and now ended the Kings pleasure was to have their Counsels in the prosecution the Commons being commanded Que ils se deveroyent trait ensemble se quils ensenteroient monstrer au Roy aux gravitur de son consilio Who after four days consulting humbly desire the King to be advised by his Lords and others more experienced then themselves in such affairs To advise the King the best for his French imployments a Parliament was summoned Anno 25. Herein the King for a more quick dispatch willeth the Commons to elect 24. or 30. of their house to consult with the Lords these to relate to their fellows and the conclusion general by
to the States assembled Anno 33. to advise for well ordering of his House payment of the Soldiers at Callis guard of the Sea raising of the siege of Barwicke made by the Scots against the Truce dispoiling of the number of 13000 Soldiers arrayed the last Parliament according of differences amongst the Lords restraining transportation of Gold and Silver and acquitting the disorders in Wales of all which Committees are appointed to frame Bills Edward the fourth by the Chancellor declareth in his seventh year to the Lords and Commons that having made peace with Scotland entred League with Spaine and Denmark contracted with Burgundy and Britany for their ayd in the recovery of his right in France he had now called them to give their Counsels in proceeding which Charge in a second Sessions was again proposed unto them The like was to another Parliament in his twelfth year After this time their Journalls of Parliament have not been well preserved or not carefully entred for I can find of this nature no Record untill the first of Hen. 7. wherein the Commons by Thomas Lovell their Speaker Petition the King to take to Wife Elizabeth Daughter to Edw. 4. to which the King at their request agreeth The next is the third of Hen. the 8. in which from the King the Chancellor declareth to the three Estates the cause of that Assembly The first to devise a course to resist the Invasion of the Scots next how to acquit the quarrel between the King of Castile and the Duke of Geldres his Allie lastly for assisting the Pope against Lewis King of France whose Bull expressing the injuries done the Sea Apostolick was read by the Master of the Rolls in open Parliament The Chancellor the Treasurer and other Lords sent down to the Commons to confer with them The last in the 32d of the same year where the Chancellor remembring the many troubles the State had undergone in doubtful titles of Succession declareth that although the Convocation had judged void the marriage of Anne of Cleve yet the King would not proceed without the Counsel of the three Estates The two Archbishops are sent to the Commons with the Sentence sealed which read and there discussed they pass a Bill against the Marriage In all these passages of publick Counsells wherein I have been much assisted by the painful labour of Mr. Elsings Clerk of the Parliament and still observe that the Soveraign Lord either in best advice or in most necessities would entertain the Commons with the weightiest causes either forrain or domestique to apt and bind them so to readiness of charge and they as warily avoyding it to eschew expence their modest answers may be a rule for ignorant liberty to form their duties and humbly to entertain such weighty Counsells at their Soveraigns pleasure and not to the wild fancy of any Factious spirit I will add one forrain example to shew what use have been formerly made by pretending Marriages and of Parliaments to dissolve them their first end served Maximilian the Emperour and Ferdinand of Spain the one to secure his possessions in Italy the other to gain the Kingdom of Navarre to both which the French King stood in the way projected a Marriage of Charls their Grand-child with Mary the King of Englands sister it was embraced and a Book published of the benefits likely to ensue the Christian world by this match upon this Ground Ferdinando beginneth to incite Henry the 8th to war with France presents him with succours and designs him Guien to be the mark and Dorset sent with men and munition to joyn with the Spanish forces then on the Borders of Navarre the noise is they came to assist Ferdinand in the conquest of that Kingdom which though false gained such reputation that Albred was disheartned and Ferdinand possesed himself of that his Successors since retained his end served the English Army weak and weather-beaten are returned fruitless Maximilian then allureth the young and active King to begin with France on the other side Turwin and Turney is now the object whither Henry goeth with victory but better advised with that pittance makes an end by peace with France whose aim and heart was set on Millain A new bait the old Emperour findeth out to catch the Ambitious young man he would needs resign unto him the Empire too heavy for his age to bear The Cardinal Sedunensis is sent over to sign the Agreement which he did and France must now again be made an Enemy To prevent this danger Francis released his Title to Naples and offereth Laogitia his Daughter to Maximilians Granchild Charls at Noyon this is acted in the dark and at Arno the French Commissioners came up the back stairs with 60000 Florins and they engrossed Covenants when the abused King of Englands Ambassador Pace went down the other the good Cardinal returneth home meeteth by the way this foul play of his Master and writ to the King of England not in excuse but in complaint Contra perfidiam Principum an honest Letter Ferdinand and Maximilian dead Francis and Charls are Competitors for the Empire Henry the 8th is courted for his help by both the one with the tye of Alliance for the Infant Dolphin had affyed Henry the 8ths Daughter the other with the like and Daughter he will make his Daughter a Queen in praesente which the Dolphin cannot do and by his favour an Empress To further France was but to win Ambition to prey upon all his Neighbours the English King is won and winneth for Spain the Imperial wreath which Charls in two Letters I have of his own hand then thankfully confessed From Aquisgrave he cometh Crowned in haste to England wedded at Windsor the Kings Daughter contracteth to joyn in an invasion of France to divide it with his Father in Law by the River of Rodon and sweareth at the Altar in Pauls to keep faith in all Bourbon is wrought from France and entreth the Province with an Army paid with King Henries money Suffolke passeth with the English Forces by Picardy But Charles the Emperour who should have entred Guyen-faileth drawing away Burbon from a streight siege Marseilles to interrupt Francis then entred Italy and so the enterprize of France is defeated the French King as it Pavie taken Prisoner by Pescaro led to Grone hurried into Spain by the Emperours Galleys and forced at Madrid to a hard bargain without privity of Henry the 8th or provision of him who had been at the greater charge of that War Now the Emperour affecteth that Monarchy that hath ever since as some say infected the Austrian Family Rome the fatal old Seat of Government must be the Seat of his Empire Burbon and after Moncado are directed to surprize it Angelo the observant Fryer is sent before the Pope consigned by the Emperours Election who meant as his own
Abbots Earls and chief Nobility of the Kingdom present for so are the words of the Records the cause between Arsast Bishop of Norway and Baldwyne Abbot of Bury was also argued Et ventilata in publica jubet Rex teneri Judicium Causis auditis Amhorum The diligence of his Son the Learned Henry the first in executing of this part of his kingly function is commended to posterity by Walter Mape a Learned man trained up and in favour with Henry the second in these words Omnia Regali more moderamine faciebat neminem volebat agere justitia vel pace Constituerat autem ad tranquilitatem omnium ut diebus vacationis vel in domo magna subsidio copiam sui faceret usque ad horam sextam which was till twelve as we now accompt secum habens Comites Baronet Proceres Vavasores to hear and determine causes whereby he attained the surname of Leo Justitiae in all stories and so out-went in quiet guidance of the State his best progenitors The next of his name that succeeded is remembred every where for his debates and his disputes he had in person with Thomas the Archbishop and others of his part at the great Counsels both at London Clarendon and Northampton for redress of the many complaints of the Commons against the outrages and extortions of the Clergy one thousand five hundred and fifty seven Die Penticostis apud sanctum Edmundum the same King Diademate Insignitus with the Bishops Abbots Earls and Barons of the Kingdome sate daily himself and heard all the debates concerning the Liberties and Charters of Battle Abbey The interlocutory Speeches as well of the King as Lords and parties are at full related in a Register of that Church The sute between the Church of Lincolne and Saint Albanes in praesentia Regis Henry Archepiscop Episcop omnium Angliae Comitum Baronum Regni was at Westminster debated and ended And had alone of memory and truth been a protector of the publick Records of the State as awe of the Clergies sensure was a guard to theirs in tempestuous times we had not been now left to the only friendship of Monkes diligence for example in this kind At Lincolne the Archbishops some Bishops but all the Earles and Barons of the Realme una Cum Rege Johanne Congregati ad colloquium de concordia Regis Scotiae saith the Register of that Church This use under King Henry the third needeth no further proofe than the Writ of summons then framed expressing that Kings mind and practise It is Nobiscum Praelatis Magnatibus nostris quos vocari fecimus super praemissis tractare Consilium impendere which word Nobiscum implieth plainely the Kings presence what the succeeding practise was from the fifteenth year of the second Edward the proper Records of this inquiry the Journall Books being lost I am enforced to draw from out the Rolls of Acts wherein sometimes by chance they are remembred Edward the second was present in Parliament in the fifteenth year of his Raigne at the complaint against the Spencers and at the second Parliament that year for the repeale of that banishment In the fourth of Edward the third the King was present at the accusation of Roger Mortimer but not at the Tryall And the next year in the treaty of the French affaires In the sixth year Intererat Rex in Causa Johannis de Gray Willielmi de Zous The same year the second day in Parliament the King was present at the debate about his Voyage into Scotland In the fifteenth year the King in the Painted Chamber sitting with the Lords in consultation the Archbishop after pardon prayed that for better clearing himself he might be tryed in full Parliament by his Peers which was granted In the seventeenth in Camera Alba now the Court of requests Rex cum magnatibus conveniunt Communes super negotiis Regni In the tenth of Richard the second the King departed from the Parliament in some discontent when after some time Lords are sent to pray his presence and informe his Majesty that if he forbear his presence amongst them fourty dayes that then Ex antiquo Statuto they may returne absque doâ—igerio Regis to their severall homes Henry the fourth began his first Parliament the first of November and was the twenty seventh of the same moneth at a debate about the Duke of Brittany the thirtieth day the Cause of the Archbishop of Canterbury was before him proposed only The third of November he was at the debate whether the Commons had right of Judicature yea or no. On the tenth he was with the Lords in their consultation about the expedition against the Scots the creation of the Duke of Lancaster and prohibition of a new sect for entring his Kingdom Some Ordinances were at this time consulted of before him about the staple and the sentence against Haxey after dispute revoked This King began his second Parliament the twentieth of January and on the ninth of February was present to make agreement betwixt the Bishop of Norwich and Thomas of Erpingham On the twentieth day of the same moneth he was present at Counsell for repressing the Welch Rebells for revocation of stipends and concerning the Priors Aliens On the 26. they advise before the King of the Cistertians order On the second of March of the Statute of Provisions the Keeper of the privy Seal of relieving the two Universities And on the ninth of March they mediate before the King a reconciliation betwixt the Earl of Rutland and the Lord Fitzwater He also began a Parliament in the fifth year upon the fifteenth of January and on the twentieth they advise before the King of guarding the Seas and the Welsh rebellion On the eighth of February the Earl of Northumberland is charged before the King and in his presence and by his permission divers of whom he knew no harme were removed from the Court. The next day at the Petition of the Commons he took upon him to reconcile the Earles of Northumberland and Westmerland And on the two and twentieth of February of the Earles of Northumberland and Dunbarre In a Parliament of 27 of Hen. the 6. a Challenge of seate in Parliament betwixt the Earles of Arundell and Devonshire was examined and appointed by the KING with the advice of the Lords In that great capitall cause of the Duke of Suffolke the 28 of Hen. 6. I finde not the King once present at the debates but the Duke appealing from his tryall by Peerage to the King is brought from out of the house of Lords to a private Chamber where the King after the Chancellor in gross had declared his offence and his refusall the King himself but not in place of judgement adjudged his banishment By the Rolls of Edward the fourth it appeareth that he was many dayes
besides the first and last of Parliament and there was entred some Speeches by him uttered but that of all the rest is most of remark the reporter then present thus tells it This of the Duke of Clarence and the King Tristis disceptatio inter duos tantae humanitatis Germanos nemo arguit contra ducem nisi Rex nemo respondit Regi nisi dux some other testimonies are brought in with which the Lords are satisfied and so Formârunt in eum sententiam damnations by the mouth of the Duke of Buckingham the Steward of England all which was much distasted by the House of Commons The Raigne of Henry the seventh affords us upon the Rolls no one example The journall Bookes are lost except so much as preserves the passages of eight dayes in the twelfth year of his Raigne in which the King was some dayes present at all debates and with his own hand the one and thirtieth day of the Parliament delivered in a bill of Trade then read but had the memorials remained it is no doubt but he would have been as frequent in his Great Councell of Parliament as he was in the Starre-Chamber where by the Register of that Court it appeareth as well in debate of private causes that toucheth neither life nor Member as those of publique care he every year of all his raign was often present Of Henry the eighth memory hath not been curious but if he were not often present peradventure that may be the cause which the learned Recorder Fleetwood in his preface to the Annalls of Edward the fifth Richard the third Henry the seventh and Henry the eighth hath observed in the Statutes made in that Kings dayes for which cause he hath severed their Index from the former And much lay in the will of Wolsey who ever was unwilling to let that King see with his own eyes Edward the sixth in respect of his young years may be vvell excused but that such was his purpose it appears by a memorial of his own hand vvho proportioning the affairs of Councell to several persons reserved those of greatest vveight to his own presence in these vvords These to attend the matters of State that I will sit with them once a week to hear the debating of things of most importance Unfitness by sex in his two succeeding sisters to be so frequent present as their former Ancestors led in the ill occasion of such opinion and practise Most excellent Majesty your most humble servant in discharge of obedience and zeal hath hastned up this abstract vvhich in all humility he offers up unto your gracious pardon Presumption to enter the Closet of your Counsell is far from his modesty and duty vvhat hath been your powerfull Command he hath made his Work vvhat is fit to be done vvith it is only your divine judgment He dares not say Presidents are vvarrants to direct The success is as vvorthy observation as the knowledge of them sometimes have made ill example by extension of Regal power through ill Counsels vvith ill success Some as bad or vvorse vvhen the people have had too much of that and the King too little the danger no less To cut out of either of these patterns to follovv vvere but to be in Love vvith the mischief for the example The clearer I present this to your Highness the nearer I approach the uprightness of your heart the blessed fortune of your happy Subjects Pardon most Sacred Majesty that I offer up unto your admired vvisdome my vveak but dutifull observations out of all the former gathering In Consultations of State and decisions of private plaints it is clear from all times the King not only present to advise and hear but to determine also in Cases Criminal and not of Bloud to bar the King a part vvere to exclude him the Star-chamber as far from reason as example The doubt is then alone in Crimes meer Capital I dare not commend too much the times that lost these patterns either for the Causes or Effects but vvish the one and other never more To proceed by publick Act of Commons Peers and King vvas most usuall Appeals are given by Lavv of Hen. 4. of this in novv debate the vvay I fear as yet obscure as great advice to State is needfull for the manner as for the Justice The example in the cause of the Duke of Suffolke 28 Hen. 6. vvhere the King gave judgement vvas protested against by the Lords That of the Duke of Clarence of Edw. 4. vvhere the Lords and the high Stevvard the Duke of Buckingham gave judgement vvas protested against by Commons in both of these the King vvas sometimes present but vvhich of those may suit these times I dare not guess That of Primo Rich. 2. of Gomeneys and Weston accused by the Commons plaint for Treason vvas tried by the Lords in absence of the King but sentenced by the Lord Scroop Stevvard for the King The Accused vvere of the rank of the Accusers Commons and not Lords Hovv this vvill make a President to judg in causes Capital a Peer of Parliament I cannot tell But if I should conceive a vvay ansvverable as well to Parliament as other Courts if the King and the Lords vvere Tryers and the Commons assenters to the judgment to hear together the Charge and evidence The Lords as doth the Jury in other Courts to vvithdravv to find the Verdict and then the Stevvard for the King to pronounce the Sentence It passeth so by vvay of Act and Course that carrieth vvith it no exception and likely to avoid all curious questions of your Highness presence there If your humble servant hath in this expression of his desire to do you service presumed too far his Comfort is that vvhere zeal of duty hath made the fault benignity of goodness vvill grant the Pardon A DISCOURSE OF THE LAWFULLNES OF COMBATS To be performed in the presence of the KING or the Constable and Marshall of ENGLAND Written by Sir Robert Cotton Knight and Baronet 1609. LONDON Printed in the Year 1672. A DISCOURSE OF THE LAWFULLNES OF COMBATS To be performed in the presence of the KING c. COMBAT WHere difference could not be determined by legal proof or testimony there was allowed the party his purgation Which was either Canonicall or Legall The first by Oath and called Canonicall because it is Lawfull The other which was either Per aquam candentem ferrum ignitum or Duellum called vulgare because it was brought in by the barbarous people without the pretext of any Law untill the Gothish and Lombard Kings seeing their Subjects more addicted to Martiall Discipline than to Civill Government reduced those trialls to Form and Rule Which Constitutions are now incorporated in the Civill Law From the Northern Nations of which the Saxons and Normans or Northmanni are part it was brought into this Land And although it grew long ago both by the Decrees of
whom they hate deadly in respect they will hold no indifferent quarter with Papistry The fourth and last maniple they assign to the politicians huomoni say they senza dio senza anima men without fear of God or regard of their Souls who busying themselves only in matter of State retain no sense of Religion Without doubt if the Authors of this partition have cast their accompt aright we must confess that the latter brood is to be ascribed properly unto them for if the undermyning of the Parliament house the scandalizing of the King in print who is Gods anointed and the refusal of natural obedience be marks of those that neither stand in awe of God or conscience well may the Papists boast that they are assured of the first number and may presume likewise of the last friendship when occasion shall be offered for the preventing of which combination it is a sure way to cut off the heads that should tie the knot or at least to brand them with a mark in the forehead before they be dismissed or after the opinion of others to make them unwelcome to the feminine sex which now with great fervency imbraceth them These are for the most part Arguments vented in ordinary Discourse by many who suppose a Priests breath to be contagious in our English air Others there are who maintain the second part of the Question with reasons not unworthy of observance In favour of the second Division I. DEath is the end of temporal woes but it may in no wise be accounted the Grave of memory therefore howsoever it is in the power of Justice to suppress the Person of a man the opinion for which he suffered conceived truly or untruly in the hearts of a multitude is not subject to the edge of any sword how sharp or keen soever I confess that the teeth are soon blunted that bite only out of the malice of a singular faction but where Poyson is diffused through the Veins of a Common-wealth with inermixture of bloud good and bad separation is to be made rather by patient evacuation than by present incision the greatest biter of a State is Envy joyned with the thirst of Revenge which seldome declares it self in plain colours until a jealousie conceived of personal dangers breaketh out into desperate resolutions hence comes it to pass that when one male-contented member is grieved the rest of the body is sensible thereof neither can a Priest or Jesuit be cut off without a general murmur of their Secretaries which being confident in their number secretly Arm for opposition or confirmed with their Martyrs Bloud as they are perswaded resolve by patience and sufferance to glorifie their cause and merit Heaven Do we not daily see that it is easier to confront a private enemy than a Society or Corporation and that the hatred of a State is more immortal than the Spleen of a Monarchy therefore except it be demonstrated that the whole Roman City which consists not of one brood may be cut off at the first stroke as one entire head I see no cause to think our State secured by setting on the skirts of some few Seminaries leaving in the mean time a multitude of Snarlers abroad who already shew their Teeth and only wait opportunity to bite fiercely I will not deny that what we fear we commonly hate provided alwayes that no merit hath interceded a reconciliation for there is great difference between hatred conceived against him that will take away the life and him that may justly do it and yet in clemency forbears to put it in effect for the latter breedeth reverend aw whereas the former subjecteth to servile fear alwayes accompanied with desire of innovations and although it hath been affirmed of the Church of Rome Quod Pontificium genus semper crudele nevertheless out of Charity let us hope that all devils are not so black as they are painted some or perhaps many of them there are whom conscience or in default thereof pure shame of the world will constrain to confess that his Majesty most graciously distinguisheth the Theory of Popery from the Active part thereof as being naturally inclined Parvis peccatis veniam magnis Severitatem commodare nec poena semper sed saepius poenitentia contentus esse II. Mistaking of punishments Legally inflicted commonly proceeds from fond pitty or the interest which we have in the same cause both which beget blind partiality admit then that the Papall side affecting merit by compassion may be nearly touched with the restraint of their Seminaries it cannot be denyed I hope except they had the hearts of Tygers that in humanity they will prefer their ease of durance before the rigor of death and albeit that Parsons Bellarmin and the Pope himself constrain their spiritual Children to thrust their fingers into the fire by refusing the Oath of Allegiance notwithstanding we have many testimonies in judicial Courts and printed Books that the greater part of them are of that Theban hunters mind who would rather have seen his Dogs cruel acts then have felt them to his own cost Garnett himself also in one of his secret Letters that after his death he should not be inrolled amongst the Martyrs because that no matter of Religion was objected against him yet it plainly appeared in his demeanour that he would gladly have survived the possibility of that glory if any such hopes had remained Neither is it to be presumed that being in Prison he would ever have conceived that we durst not touch his Reverence or that the Law was remiss which had justly condemned him and left his life to the Kings mercy It was the distance of the place and not Parsons that interpreted the sending over-seas of the Priests to be a greater argument of their innocency than of his Majesties forbearance For had Father Parsons himself been Coram nobis his Song would rather have been of mercy then justice It is truly said that we are all instructed better by examples then precepts therefore if the Laws printed and Indictments recorded cannot controul the Calumniations of those that wilfully will mistake Treason for Religion By the execution of two or three of that back-biting number I doubt not but the question may readily be decided Namque immedicabile vulnus Ense recidendum est Ne pars sincera trahatur III. To dally with pragmatical Papists especially with those that by their example and Counsel pvevert his Majesties Subjects I hold it a point of meer injustice For what comfort may the good expect when the bad are by connivency free to speak and imboldened to put their disloyal thoughts into execution For explaning therefore of my meaning it is necessary to have a regard unto the nature of the Kings Liege-People that are to be reformed by example of justice and others Forraigners who will we nill we must be censurers of our actions It
be the voice of God is to be credited the poorer sort is skipt over as if they owed no souls to God nor duty to their Soveraign A poor Man saith one is to be pittied if he offend through necessity but if he do amiss voluntarily he is more severely to be chastised for so much as wanting friends and meanes to bear him out if sheweth that this fault proceeds from presumption X. Let us now pre-suppose that all the whole Regiment of Jesuits of Seminaries were lodged in safe custody may we then perswade our selves that Popery will vanish like a dumb shew I am clearly resolved that though it receive a great eclipse notwithstanding without other helps the Kingdome of Antichrist will onely be hidden as a weed that seems withered in the Winter and is ready to sprout out vvith the Spring Temporall armes are remedies serving for a time but the Spirituall sword is permanent in operation and by an invisible blow workes more than mortall man can imagine The word of God carrieth this two-edged weapon in his mouth which is to be used by faithfull Ministers of the Church whom pure zeal without respect to worldly promotion or persons ought to encourage Of Judges the Scripture saith Estote fortes and daily we see that sitting in their judiciall seats God inspireth them with greater courage than when as private persons they are to give their opinions no less is the power of the Holy Ghost in his servants that out of the Pulpit are to deliver his Ambassage let them therefore not be dismaid to speak out plainly and tell the truth without running a middle course between heat and cold unprofitable discanting upon the Scripture with an Old postile or for want of better matter waste the poor time shut up in an hour-glass with skirmishing against the worthy Pillars of our own profession Rumor which is ever ready to take hold of evill hath raised a secret though as I hope a causless suspicion that there should be some combination underhand by changing the state of questions to put us in our old dayes to learn a new Catechisme and when they have brought us out of conceipt with the Reverend Interpreters of the Word to use us then as the Wolves mentioned in Demosthenes Apology handled the Shepheards when they had delivered up their Dogs Most sacred was that Speech of our gracious King concerning Vorstius He that will speak of Canaan let him speak the language of Canaan How can we draw others to our Church if we cannot agree where and how to lay our foundation or how may we cleanse the Leprous disease of dissention which the Papists which are least assured to themselves and most doubtfull of their Salvation are not ashamed to ascribe unto many of us I would not have Ministers indiscreet like Dogs to barke against all whether they know or know them not I like better the opinion of Aristotle who adviseth those that stand in guard of a place to be curst onely to such as are about to endammage the City If Pursevants or other Civil Officers would learn to keep this rule they might go about their business with much credit The imagined fear of inviting the Romish Faction by force to deliver their Ghostly Fathers out of Prison moves me not a whit for I cannot believe that they esteeme them at so dear a price as they would runne the hazard by freeing others out of hold to put themselves into their places Some will say that a man of Straw is a head good enough for a discontented multitude That the Papists are very chollerique it appears sufficiently by their writings yet it hath pleased God to send those curst Cowes short hornes that when they should not finde a man of sufficiency to serve their turn they were faine to do homage to Garnetts straw forgetfull as they are that such stubble cannot endure the tryall of fire But unto us that ought to be Doers as well as Professors of the Gospell let this remain as a memorable Theorem Religion is the Mother of good order Good order is the cause of prosperous Fortune and happy Successe in all Counsells and enterprises Therefore in what estate soever there wanteth good order it is an evident Argument that Religion goes backward XI I have ever held it for a kinde of Injustice to omit the execution of mean Lawes made to prevent the effects of Idleness and then to apply main extremity of the sword when the proling habit gotten by that vice comes to light no less is the course uncharitable with pardon for this presumption be it spoken when we spare them that have no Religion at all and censure those that can give an accompt of somewhat tending to that purpose He that is in misery must be born withall if he speake miserably and when the child from his mothers brest hath sucked nothing but Popery a man had need to be angry with discretion if he hear him speake in the voice of a Papist God calleth some by miracle but the ordinary meanes is his Word if that meanes in any place of this Land be wanting of what Religion is it likeliest the people will be I suppose that few men will gainesay my assertion that outward sence will direct them to Popery which is fuller of Pageants than of spirituall doctrine and what is the cause that after so many yeares preaching of the Gospell the Common people still retaine a scent of the Roman perfume the Cause is for that the formall obedience of coming to Church hath been more expected than the instruction of private families publique Catechizing is of great use but the first Elements thereof are to be learnt at home and those things which we learn from our Parents sticke more surely in our mindes what was the cause why the Spartans continued their Government so many Revolutions of times without mutation Histories record that learning their Countrey Customes from their Infancy they could not be induced to alter them And in this our native soile we perceive that the Common Lawes which rely on antient Customes are better observed than late Statutes of what worth soever they be So doth it fare with the poore people which being once seasoned with the old dreggs of Papisme will hardly be drawn from it till the Learning of the true Faith be growne to a Custome I will prescribe no order nor Officers to effect this but I suppose that the antient laudable course by the Bishops confirmation will not be sufficient to fulfill so great a taske the Minister must and ought to be the Principall and immediate hand to give assistance to so gracious a worke and in case any be defective in their duty the Reverend BISHOPS may take notice thereof in their severall Visitations Perhaps it will be thought a hard task to constrain old people to learn the A. B. C. of their Christian beliefe but how hard soever it be
but it must value in pecunia quantum in massa And Silver is a Commodity as other Wares and therefore holdeth his estimation as they do according to the goodness And the Lord Treasurer Burleigh in Anno 1561. when the currant of State-Councel affected an abasement of Coine after a grave deliberation advised the Queen from it and never would give way to any such resolution in his time But that benefit which truly the King might more make of Bullion then now he doth is to erect again Cambium Regis his own exchange An office as antient as before Henry 3. and so continued unto the middle of Henry 8. the profit of it being now ingrossed among a few Gold-Smiths and would yield above 10000. l. a year if it were heedfully regarded and then should the King himself keep his Mint in continual work and not stand at the devotion of others to supply Bullion and should never want the materials if two things were observed The one to permit all men bringing in Bullion to trade outward the value thereof in domestick Commodities at an abated Custome The other to abate the mighty indraught of forreign manufactures and unnecessary Wares that the outward trade might over-balance the inward which otherwise will as it hath done draw on this desperate consumption of the Common-Wealth Which anno 27. Edward 3. was otherwise for then the Exitus exceeded the Introitus by far and in the last times of the late Queen as in anno 1573. For at this time the unmeasurable use of luxurious Commodities was brought in as Wines Spices Silk and fine Linnens c. for of the latter sort of above ten groats the Ell there is above 360000. l. yearly spent which is half the value of our cloths transported maketh the State to buy more then they do sell whereas a good Father of a family ought to be vendacem and not emacem Besides the condition of our People is now such that the greater part neither get nor save which in a private house is an apparent argument of ruining and must be no less in a Common-Wealth And it is observed generally that hence the want of Bullioin now is such that there is not money in Specie sufficient to pay the lenders their principal so that usury is paid for money upon supposition and not really If then his Majesty shall be pleased by advise of his Councel to advantage himself any otherwise by coinage it will be safer to do it upon a simple mettal then by any implyant or beater suite which well governed States both modern and antient used For Rome in her increase and greatest pitch of glory had their money aere argento auro puto puro and so have all the Monarchies absolute at this day in Christendome And I believe it may be wrought to his Majesty of good value and to the State of much ease if it may be put in practise with discreet caution and constant resolution for the danger onely may be in the venting of the quantity which may clogge the State with useless money or extension of the example which may work in by degrees an embasement of Bullion The proportion that I would hold beneficial and safe should be in the Mass at first 120000. l. by which his Majesty should gain 10000. clearly the increase annual 12000. l. in which his Majesty should gain 1000. And the limitation that none be enforced to take any but in summes under 20 s. and then but the twentieth part proportionably Against this some may object that it will either not advantage the King so much as it projected either from the difficulty in venting or facility in Counterfeiting or else prejudice the estate with a worthless money The benefit to the King will easily fall out if he restrain Retailers of victual and small Wares from using their own tokens for in and about London there are above 3000. that one with another cost yearly 5. l. apiece of leaden Tokens whereof the tenth remaineth not to them at the years end and when they renew their store which amounteth to above 15000. l. And all the rest of this Realm cannot be inferiour to the City in proportion And the form and figure may with an Engine so subtilly be milled that the charge will prevent all practise of false play For the prejudice since London which is not the 24. part of the People of the Kingdome had in it found above 800000. by a late inquiry by order of the late Queen and so falleth out to be 2 d. a person in the intire state it may nothing either of loss by the first uttering being so easie nor burthen any with too great a Mass at a time since continual use will disperse so small a quantity into so many hands But on the other side will be to the meaner sort except the Retailers that made as much advantage formerly of their own Tokens as the King shall now of necessary use and benefit For the buyers hereafter shall not by tyed to one Seller and his bad Commodities as they are still when his tokens hereafter made currant by authority shall leave him the choise of any other Chapman and to the Poor in this time of small charity it will be of uch relief since men are like to give a farthing Almes that will not part with a greater sum Besides it cannot but prevent much waste of Silver that is by the minting pence and half pence occasioned there will be no cause hereafter to cut any Bullion into proportion so apt for losse what that hath been may be conjectured if we mark but of the great quantities from the peny downward since Henry 8. time stamped how few remain whereas of all the Coines from three pence upward which are manual plenty pass still in dayly payment Regalities mixt As for restitution of the temporalities of Abbots and Bishops For which Henry 7. received great sums Corrodies in Cathedral Churches And having in every Cathedral and Collegiate Church as incident to his Crown a Corradary made money of it at the highest rate he could Vacancy of Bishopricks The benefit at the vacancy of any Bishop some Kings have used to their best advantage making a circular remove of as many as in reputation and profit was inferiour to the place void Concurrent Jurisdiction as the Pope had in former times Besides there are two of no mean commodity The one is grounded upon a concurrent Jurisdiction with every Ordinary in the Diocess which the King by having the power Papall in that point invested in him by Act of Parliament may exercise by his Commission or otherwise remit to the Ordinary for some valuable respect Thus did Cardinal Woolsey with Warham the Arch-bishop and all other the Bishops of the Kingdome after he had got his Legative power And this if it were put in practise would draw to the King 20000. l. in his Coffers Tenths of the Church-Lands now in the Laity The other is
in Henry 8. time had first the ground in Parliament it is manifested by the dates of their Acts in convocations that they all had properly in that place the first original And that this was the use of old nothing will leave it so clear as to observe the fruitless success of the Laity in all their endeavours to establish Ecclesiastical Laws And this I will manifest by the Kings answer out of Record so far as the Rolls of Parliament will admit me successively Until the 11. of Edward the first there is no Record extant but in that the Commons petition to the King that a Law may be made against Usurers The King gave answer that it must be remedyed coram Ordinariis And when they desired remedy de multimodis injustis vexationibus eis factis per Officiales alios ministros Ecclesiae The King replyed Cancellarius emendat in temporalibus Archiepiscopus faciâ—t in spiritualibus From hence there is a lack of Record near to the 8. of Edward 3. In which Parliament the Commons desire an Act to restrain the Clergie in their trivial citations whereunto they received from the King but this answer onely That the King will charge the Bishops to see it remedyed And the first of Richard the 2. preferring the like petition against corruption of Ordinaries to do according to the Lawes of Holy Church And in the fifth of the same King they complain against abuses in Ecclesiastical Courts Respons The King will charge the Clergy to amend the same And in the 15. year when they required an Act to declare the age of the titheable Wood they had for answer The King would move the Bishops for order between this and the next Parliament And in the 17 of Richard 2. when they petiotioned for a residing learned Ministry so as the Flock for want might not perish they had replyed That the King willeth the Bishops to whom that Office belongeth to do their duties Henry the 4. in his second year desired by the Lords and Commons to pacify the Schisme of the Church Answereth he will charge the Bishops to consider the same And in his fourth year being importuned for an Act for residency of Ministers replyed Le Roy command an Prelats et perentrecy ils empurvoient de remedie And in the eleventh of the same King to the like petition Respons Ceste matiere appartient a St. Eglise et remede en la darraine Convocation In Parliament under the 5. Henry and his first year the King answereth the Commons petition against oppressing Ordinaries If the Bishops do not redtess the same the King will And in Anno 3. Henry 6. to a Petition that Non-Residents should forfeit the profit of their living gave answer that he had delivered the Bill to my Lord of Canterbury and semblably to my Lord of York charging them to purvey meanes of remedy And in the year following to a petition that Patrons may present upon Non-Residencie Respons There is remedy sufficient in the Law spiritual Since then it is plain by these rehearsed answers that from the Conquest they have received but weak admittance And by the edict of the first King William in these words a sharp restraint Defendo et mea authoritate interdico ne ullus laicus homo de legibus quae ad Episcopum pertinent se intromittat And that the Saxon Synodals are rather Canon-Laws then Lay-mens Acts. And the practise of the primitive Church if well understood but a weak prop to their desire It may not seem distastful from the King walking in the Steps of his Ancestors Kings of this Land to return as formerly the Commons desires to their proper place the Church-mans care And to conclude this point in all Parliaments as Martian the Emperor did the Chalcedon Councel Cessat jam profana contentio nam vere impius sacrilegus est qui posttot sacerdotum sententiam opinionisuae aliquid tractandum reliquit And with the Letter of Gods Law Qui superbicrit nolens obedire sacerdotis imperio ex decreto Judicis morietur hono THE ARGUMENT Made by the COMMAND Of the House of COMMONS Out of the Acts of Parliament and Authority of Law expounding the same at a CONFERENCE with the LORDS CONCERNING THE LIBERTIE of the person of every FREEMAN Written by Sir ROB. COTTON Knight and Barronet LONDON Printed in the Year 1672. THE ARGUMENT Made by the COMMAND Of the House of COMMONS Out of the Acts of Parliament and Authority of Law expounding the same at a Conference with the LORDS Concerning the Liberty of the person of every FREEMAN My LORDS VPon the occasions delivered by the Gentlemen your Lordships have heard the Commons have taken into their serious consideration the matter of the personal liberty and after long debate thereof of on divers dayes aswell by solemn Arguments as single proportions of doubts and answers to the end no scruples might remain in any mans breast unsatisfyed They have upon a full search and clear understanding of all things pertinent to the question unanimously declared That no Freeman ought to be committed or detained in Prison or otherwise restrained by the command of the King or the Privy Councel or any other unless some cause of the commitment deteinor or restraint be expressed for which by Law he ought to be committed detained or restrained And they have sent me with other of their Members to represent unto your Lordships the true grounds of such their resolution and have charged me particularly leaving the reasons of Law and Presidents for others to give your Lordships satisfaction that this Liberty is established and confirmed by the whole State the King the Lords Spiritual and Temporal and the Commons by several Acts of Parliament the authority whereof is so great that it can receive no answer save by interpretation or repeal by future Statutes And those that I shall mind your Lordships of are so direct to the point that they can bear no other exposition at all and sure I am they are still in force The first of them is the grand Charter of the Liberties of England first granted 17. Johannis Regis and revived 9. Hen. 3 and since confirmed in Parliament above 30. times The words are these cap. 29. Nullus liber homo capiatur vel imprisonetur aut disseisetur de libero tenemento suo vel Libertatibus vel liberis consuetudinibus suis aut ut lagetur aut exuletur aut aliquo modo dâ—struatur nec super eum ibimus nec super eum mittemus nisi per leg ale â—udiciuâ— parium suorum vel per legem terrae These words Nullus liber homo c. are express enough Yet it is remarkable that Mathew Paris an Author of especial credit doth observe fol. 432 that the Charter 9. Henry 3. was the very same as that of the 17. of King John in nullo
them aswel of things done out of the Forrest of the King as for other things That it would please our said Lord to command those to be delievered that are so taken by special command against the form of the Charters and Statutes aforesaid The Answer is The King is pleased that if any man find himself greived that he come and make his complaint and right shall be done unto him 37. Edward 3. cap. 18. agreeth in substance when it saith Though that it be contained in the great Charter that no man be taken nor imprisoned nor put out of his Freehold without process of the Law Nevertheless divers People make false Suggestions to the King himself as well for malice or otherwise whereof the King is often grieved and divers of the Realm put in damage against the form of the the said Charter wherefore it is ordained that all they which make suggestions shall be sent with the same suggestions before the Chancellour Treasurer and his grand Council and that they there find Surety to pursue their suggestions and incur the same pain that the other should have had if he were attainted in case that his suggestion be found evil and that then process of the Law be made against them without being taken and imprisoned against the form of the Charter and other Statutes Here the Law of the Land in the grand Charter is explained to be without process of the Law 42. Edward 3. at the request of the Commons by their Petitions put forth in this Parliament to eschew mischief and damage done to divers of his Commons by false Accusers which oftentimes have made their accusation more for revenge and singular benefit than for the profit of the King or of his People which accused persons some have been taken and sometime caused to come before the Kings Council by Writ or otherwise upon grievous pains against the Law It is assented and accorded for the good governance of the Commons that no man be put to answer without presentment before Justices or matter of Record or by due process and Writ original according to the old Law of the Land and if any thing from henceforth be done to the contrary it shall be void in the Law and holden for Error But this is better in the Parliament-Roll where the Petition and Answer which make the Act are set down at large 42. Edward 3. Rot. Parl. n. 12. The Petition Item because that many of the Commons are hurt and destroyed by false Accusers who make their Accusations more for their revenge and particular gaine than for the profit of the King or his People And those that are accused by them some have been taken and others are made to come before the King's Councel by Writ or other Command of the King upon grievous pains contrary to the Law That it would please our Lord the King and his good Council for the just Government of his People to ordain that if hereafter any Accuser purpose any matter for the profit of the King that the matter be sent to the Justices of the one Bench or the other or the Assizes to be enquired and determined according to the Law and if it concern the Accuser or Party that he take his Suit at the Common Law and that no man be put to answer without presentment before Justices or matter of Record or by due process and Original Writ according to the antient Law of the Land and if any thing henceforward be done to the contrary that it be void in Law and held for error Here by due process and Original Writ according to the antient Law of the Land is meant the same thing as per legem terrae in Magna Charta And the abuse was that they were put to answer by the Commandment of the King The King's answer is thus Because that this Article is an Article of the Grand Charter The King will that this be done as the Petition doth demand By this appeareth that per legem terrae in Magna Charta is meant by due process of the Law Thus your Lordships have heard Acts of Parliament in the point But the Statute of Westminster the first cap. 15. is urged to disprove this opinion where it is expresly said that a man is not replevisable who is committed by command of the King Therefore the command of the King without any cause shewed is sufficient to commit a man to Prison And because the strength of the Argument may appear and the answer be better understood I shall read the words of that Statute which are thus And forasmuch as Sheriffs and others which have taken and kept in Prison persons detected of Felony and oftentimes have let out by Replevin such as were not replevisable because they would gaine of the one party and grieve the other And forasmuch as before this time it was not certainly determined what persons were replevisable and what not but onely those that were taken for the death of a man or by commandment of the King or of his Justices or for the Forrest it is provided and by the King commanded that such Prisoners as before were outlawed and they which have abjured the Realm Provers and such as be taken with the manner and those which have broke the Kings Prison Theives openly defamed and known and such as be appealed by Provers so long as the Provers be living if they be not of good name and such as be taken for burning of Houses feloniously done or for false money or for counterfeiting the Kings Seal or Persons excommunicate taken at the request of the Bishop or for manifest offences or for treason touching the King himself shall be in no wise replevisable by the common VVrit or without VVrit But such as be Indicted by Larceny by Inquests taken before Sheriffs or Bayliffs by their Office or of light suspition or for petty Larceny that amonnteth not above the value of 12 d. if they were not guilty of some other Larceny aforetime or guilty of receipt of Felons or of commandment or force or of aid in Felony done or guilty of some other Trespass for which one ought not to lose Life or Member and a man appealed by a Prover after the death of the Prover if he be no common Thief nor defamed shall from henceforth be let out by sufficient Surety whereof the Sheriff will be answerable and that without giving ought of their Goods And if the Sheriff or any other let any go at large by Surety that is not replevisable if he be the Sheriff Constable or any other Bayliff of Fee which hath keeping of Prisons and thereof be attained he shall lose his Fee and Office for ever And if the Under-Sheriff Constable or Bayliff of such as hath Fee for keeping of Prisons do it contrary to the will of his Lord or any other Bayliff being not of Fee they shall have 3. years imprisonment and make a fine at the King's pleasure And if any
had let at large by Sureties amongst others one William the Sonne of Walter le Persons against the will and command of the King whereas the King had commanded him by Letters under his Privy Seal that he should do no favour to any man that was committed by the command of the Earl of Warwick as that man was VVhereunto the Sheriff answered that he did it at the request of some of the King's Houshold upon their Letters And because the Sheriff did acknowledge the receipt of the King's Letters thereupon he was committed to Prison according to the form of the Statute To this I answer that the Sheriff was justly punished for that he is expresly bound by the Statute of West 1. which was agreed from the beginning But this is no proof that the Judges had not power to baile this man The next Authority is 33. Henry 6 in the Court of Common Pleas fol. 28. b. 29 where Robert Poynings Esq was brought to the Bar upon a Capias and it was returned that he was committed per duos de Concilio which is strongest against what I maintain pro diversis causis Regem tangentibus And he made an Attorney there in an Action Whence it is inferred that the Return was good and the Party could not be delivered To this the answer is plain First no Opinion is delivered in that Book one way or other upon the Return neither is there any testimony whether he were delivered or bailed or not Secondly it appears expresly that he was brought thither to be charged in an Action of Debt at another mans Suit and no desire of his own to be delivered or bailed and then if he were remanded it is no way material to the question in hand But that which is most relyed upon is the Opinion of Stanford in his book of the Pleas of the Crown Lib. 2. cap. 18. fol. 72. 73 in his Chapter of Mainprise where he reciteth the Chapter of West 1. cap. 15. and then saith thus By this Statute it appears that in 4. Causes at the Common Law a man was not replevisable to wit those that were taken for the death of a man by the command of the King or of his Justices or for the Forrest Thus far he is most right Then he goeth on and saith As to the command of the King that is understood of the command by his own mouth or his Council which is incorporated unto him and speak with his mouth or otherwise every Writ of Capias to take a man which is the Kings command would be as much And as to the command of the Justices their absolute commandment for if it be their ordinary Commandment he is replevisable by the Sheriff if it be not in some of the Cases prohibited by the Statute The answer that I give unto this is that Stamford hath said nothing whether a man may be committed without cause by the Kings command or whether the Judges might not baile him in such Case but only that such an one is not replevisable which is agreed for that belongs to the Sheriff and because no man should think he meant any such thing he concludes his whole sentence touching the command of the King and the Justices that one committed by the Justice's ordinary command is replevisable by the Sheriff So either he meant all by the Sheriff or at least it appears not that he meant that a man committed by the King or the Privy Council without cause is not baileable by the Justices and then he hath given no opinion in this Case What he would have said if he had been asked the question cannot be known Neither doth doth it appear by any thing he hath said that he meant any such thing as would be inforced out of him And now my Lords I have performed the command of the house of Commons and as I conceive shall leave their Declaration of personal liberty an antient and undoubted truth fortifyed with seven Acts of Parliament and not opposed by any Statute or Authority of Law whatsoever The Objections of the Kings Councel with the Answers made thereunto at the two other conferences touching the same matter IT was agreed by Master Attorney General that the seven Statutes urged by the Commons were in force and that Magna Charta did extend most properly to the King But he said that some of them are in general words and therefore conclued nothing but are to be expounded by the Presidents and others that be more particular are applied to the suggestions of Subjects aud not to the Kings command simply of it self Hereunto is answered that the Statutes were as direct as could be which appeareth by the reading of them and that though some of themspeak of suggestions of the Subjects yet others do not and they that do are as effectual for that they are in qual reason a commitment by the command of the King being of as great force when it moveth by a suggestion feom a Subject as when the King taketh notice of the cause himself the rather for that Kings seldome intermeddle with matters of this nature but by information from some of their People 2. Master Attorney objected that per legem terrae in Magna Charta which is the Foundation of this question cannot be understood for process of the Law and Original Writ for that in all Criminal proceedings no Original Writs is used at all but every Constable may arrest either for felony or for breach of the Peace without process or Original Writ And it were hard the King should not have the power of a Constable and the Statutes cited by the Commons make process of the Law and Writ Original to be all one The Answer of the Commons to this Objection was that they do not intend Original Writs only by the Law of the Land but all other legal process which comprehend the whole proceedings of Law upon the cause other then the tryal by Jury per judicium parium unto which it is opposed Thus much is imposed ex vi termini out of the word process and by the true acceptation thereof in the Statute have been urged by the Commons to maintain their declaration and most especially in the Statutes of 25. Edward 3. câ— p. 4. where it appeareth that a man ought to be brought in to answer by the course of the Law having made former mention of process made by Original Writ And in 28. Edward 3. cap. 3. by the course of the Law is rendred by due process of the Law And 36. Edward 3. Rot. Parl. nu 20. the Petition of the Commons saith that no man ought to be imprisoned by special command without Indictment or other due process to be made by the Law 37 Edward 3. cap 18. calleth the same thing process of the Law And 42. Edward 3. cap. 3. stileth it by due process and Writ Original where the Conjunctive must be taken for a Disjunctive which change is ordinary
great Debts high Engagements and present wants The noise whereof I wish may ever rest inclosed within these Walls For what an incouragement it may be to our Enemies and a disheartning to our Friends I cannot tell The danger of those if any they have been the cause is great and fearful It was no small motive to the Parliament in the time of Henry 3. to banish the Kings half-Brethren for procuring to themselves so large proportion of Crown Lands Gavâ—ston and Spencer for doing the like for themselves and their followers in Edward the 2. time and the Lady Vâ—ssy for procuring the like for her Brother Beaumont was banished the Court. Michael de la Poole was condemned the 20. of Richard 2. in Parliament amongst other Crimes for procuring Lands and Pensions from the King and having imployed the Subsidies to other ends then the grant intended His Grand-Child William Duke of Suffolk for the like was censured 28. Henry 6. The great Bishop of Winchester 50. Edward 3. was put upon the Kings mercy by Parliament for wasting in time of Peace the Revenues of the Crown and gifts of the People to the yearly oppression of the Common-VVealth Offences of this Nature were urged to the ruining of the Last Duke of Somerset in Edward 6. time More fearful Examples may be found too frequent in Records Such Improvidence and ill Council led Henry the third into so great a strait as after he had pawned some part of his Forreign Territories broke up his House and sought his Diet at Abbies and Religious houses ingaged not onely his own Iewels but those of the Shrine of Saint Edward at Westminster he was in the end not content but constrained to lay to pawne as some of his Successors after did Magnam Coronam Angliae the Crown of England To draw you out to life the Image of former Kings extremities I will tell you what I found since this Assembly at Oxford written by a Reverend man twice Vice-Chancellour of this place his name was Gascoign a man that saw the Tragedy of De la Poole He tells you that the Revenues of the Crown were so Rent away by ill Councel that the King was inforced to live de Tallagiis Populi That the King was grown in debt quinque centena millia librarum That his great Favourite in treating of a Forrieign Marriage had lost his Master a Forreign Dutchie That to work his ends he had caused the King to adjourn the Parliament in Villis remoti partibus Regni where few People propter dâ—fectum hospitii victualium could attend and by shifting that assembly from place to place to inform I will use the Authors words illos paucos qui remanebunt de Communitate Regin concedere Regi quamvispessima VVhen the Parliament endeavoured by an Act of Resumption the just and frequent way to repair the languishing State of the Crown for all from Henry 3. but one till the 6. of Henrry 8. have used it this great man told the King it was ad dedecus Regis and forced him from it To which the Commons answered although vexati laboribus expensis Quod nunquam concederent taxam Regi until by authority of Parliament râ—suâ—eret actualiter omnia pâ—rtinentia Coronae Anglioe And that it was magis ad dedecus Regis to leave so many poor men in intolerable VVant to whom the King stood then indebtad Yet nought could all good Councel work until by Parliament that bad great man was banished which was no sooner done but an Act of Resumption followed the inrollment of the Act of his Exilement That was a speeding Article against the Bishop of Winchester and his Brother in the time of Edward 3. that they had ingrossed the person of the King from his other Lords It was not forgotten against Gaveston and the Spencers in Edward 2. time The unhappy Ministers of Richard 2. Henry 6. and Edward 6. felt the weight to their Ruine of the like Errors I hope we shall not complain in Parliament again of such I am glad we have neither just cause or undutiful dispositions to appoint the King a Councel to redress those Errors in Parliament as those of the 42. H. 3. We do not desire as 5. H. 4. or 29. H. 6. the removing from about the King of evil Councellors We do not request a choise by name as 14. E. 3. 3. 5. 11. R. 2. 8. H. 4. or 31. H. 6. nor to swear them in Parliament as 35 E. 1. 9. E. 2. or 5. R. 2. or to line them out their directions of rule as 43. H. 3. and 8. H. 6. or desire that which H. 3. did promise in his 42. year se actâ—oâ—nia per assensum Magnatum de Concilio suo electorum sine eor assensu nihil We only in loyal duty offer up our humble desires that since his Majesty hath with advised Judgement elected so wise religious worthy Servants to attend him in that high imployemnt he will be pleased to advise with them together a way of remedy for those disasters in State led in by long security and happy peace and not with young and single Councel A SPEECH Made by Sir ROB. COTTON Knight and Baronet before the Lords of his Majesties most Honourable PRIVYCOVNCEL At the Councel Table being thither called to deliver his Opinion touching The ALTERATION OF COYNE 2. Sept. Annoque Regni Regis Caroli 2. LONDON Printed in the Year 1672 A SPEECH Touching the ALTERATION OF COYNE My LORDS SInce it hath pleased this Honourable Table to command amongst others my poor Opinion concerning this weighty Proposition of money I must humbly ctave pardon if with that Freedome that becomes my duty to my good and gratious Master and my obedience to your great command I deliver it so up I cannot my good Lords but assuredly conceive that this intended Project of enhauncing the Coyne will trench both into the Honour the Justice and the Profit of my Royal Master very farre All Estates do stand Mag is Famâ quam Vi as Tacitus saith of Rome and Wealth in every Kingdome is one of the Essential marks of their Greatness and that is best expressed in the Measure and Puritie of their Monies Hence was it that so lohg as the Roman Empire a Pattern of best Government held up their Glory and Greatness they ever maintained with little or no charge the Standard of their Coine But after the loose times of Commodus had led in Need by Excess and so that Shift of Changing the Standard the Majesty of that Empire fell by degrees And as Vopiscus saith the steps by which that State descended were visibly known most by the gradual alteration of their Coine And there is no surer Symptome of a Consumption in State then the corruption in money What renown is left to the Posterity of Edward the first in amending the Standard both in purity and weight from that of elder and more barbarous times must stick
how many delays there were we may easily see that such a sum by Parliament granted is far sooner and more easily gathered If any will make the successes of times to produce an inevitable necessity to enforce it levied whether in general by excise or imposition or in particular upon some select persons which is the custom of some Countreys and so conclude it as there for the publick State Suprema lege he must look for this to be told him That seeing necessity must conclude always to gather money as less speedy or assured then that so practised which cannot be fitter then by Parliament the success attendeth the humors of the heedless multitude that are full of jealousie and distrust and so unlike to comply to any unusual course of Levy but by force which if used the effect is fearful and hath been fatal to the State whereas that by Parliament resteth principally on the regal person who may with ease and safety mould them to his fit desire by a gracious yielding to their just Petitions If a Parliament then be the most speedy assured and safe way it is fit to conceive what is the safest way to act and work it to the present need First for the time of the usual Summons reputed to be 40. days to be too large for the present necessity it may be by dating the Writ lessened since it is no positive law so that a care be had that there may be one County day after the Sheriff hath received the Writ before the time of sitting If then the sum to be levyed be once agreed of for the time there may be in the body of the Grant an Assignment made to the Knights of every County respectively who under such Assurance may safely give Security proportionable to the Receipts to such as shall in present advance to the Publick service any sums of money The last and weightiest consideration if a Parliament be thought fit is how to remove or comply the differences between the King and Subject in their mutual demands And what I have learned amongst the better sort of the Multitude I will freely declare that your Lordships may be the more enabled to remove and answer those distrusts that either concern Religion Publick safety of the King and State or the just liberties of the Common-Wealth For Religion a matter that they lay nearest to their conscience they are led by this groâ—â—d of jealousie to doubt some practise against it First for that the Spanish match which was broken by the grateful Industry of my Lord of Bucking out of his Religious care as he there declares that the Articles there demanded might lead in some such sufferance as might endanger the quiet if not the State of the reformed Religion here Yet there have when he was an Actor principal in the Conditions with France as hard if not worse to the preservation of our Religion passed then those with Spain And the suspect is strengthened by the close keeping of this Agreement in that point there concluded It is no less an Argument of doubt to them of his Affections in that his Mother end others many of his Ministers of neer imployment about him are so affected They talk much of his advancing men Papistically devoted some placed in the camp of nearest service and chief Command And that the Recusants have gotten these late years by his power more of courage and assurance then before If to clear these doubts which perhaps are worse in fancy then in truth he took a good course it might much advance the Publick service against those squeymish humors that have more violent passion then setled judgment are not the least of the opposite number in the Common-Wealth The next is The late misfortunes and losses of Men Munition and honour in our late Vndertakings abroad Which the more temperate spirits impute to want of Councel and the more sublime wits to practise They begin with the Palatinate and by the fault of the loss there on the improved credit of Gondomar distrusting him for the staying of supplyes to Sir Horace Vere when Colonell Cecill was cast on that imployment by which the King of Spain became Master of the King's Children's Inheritance And when Count-Mansfield had a Royal Supply of Forces to assist the Princes of our part for the Recovery thereof either plot or error defeated the Enterprize from Us to Spains great advantage That Sir Robert Mansfield's expedition to Algiers should purchase only the security and guard of the Spanish Coasts To spend so many hundred thousand pounds in the Cales Voyage against the advice of Parliament onely to warn the King of Spain to be in a readiness so to weaken our selves is taken for such a sign of ill affection to him amongst the multitude The spending of so much Munition Victuals and Money in my Lord Willoughbie's journey is conceived an Vnthrifty Error in the Director of it to disarm our selves in fruitless Voyages nay to some over-curious seems a plot of danger to turn the quarrel of Spain our antient enemy that the Parliament petitioned and gave supply to support upon our Ally of France and soon after a new happy Tye gave much talk that we were not so doubtful of Spain as many wish since it was held not long ago a fundamental Rule of Their security and Our's by the old Lord Treasurer Burleigh That nothing can prevent the Spanish Monarchy but a fastness of the two Princes whose Amity gave countenance and courage to the Netherlands and German Princes to make head against his Ambition And we see by this dis-union a fearful defeat hath happened to Denmark and that party to the great advantage of the Austrian Family And thus far of the Waste of publick Treasure in fruitless Expeditions An important cause to hinder any new supply in Parliament Another fear that may disturb the smooth and speedy passage of the King's desires in Parliament is the late waste of the Kind's Lively-hood Whereby is like as in former times to arise this Jealousie fear That when he hath not of his own to support his ordinary charge for which the Lands of the Crown were setled unalterable and called Sacrum Patrimonium Principis that then he must of necessity rest on those Assistances of the people which ever were only collected consigned for the Common-Wealth From hence is is like there will be no great labour or stiffness to induce his Majesty to an act of Resumption since such desires of the State have found an easie way in the will of all the Princes from the third Henry to the last But that which is like to pass deeper into their disputes and care is the late pressures they suppose to have been done upon the publick libertie and freedom of the Subject in commanding their Goods without assent by Parliament confining their persons without especial cause declared and that made good against them by the Judges lately and pretending a Writ
to make the Body a Stranger to Pain both in taking from it the Occasion of Diseases and making the outward Inconveniences of VVant as Hunger and Cold if not delightful at least suffareble Fr. Walsingham A Brief DISCOURSE Concerning the Power of the PEERES AND COMMONS OF PARLIAMENT In point of JUDICATURE Written by Sir Robert Cotton at the request of a Peer of this REALM LONDON Printed in the Year 1672. A Brief DISCOURSE Concerning the POWER Of the PEERS c. SIR To give you as short an accompt of your desire as I can I must crave leave to lay you as a ground the frame or first model of this State When after the Period of the Saxon time Harold had lifted himself into the Royal Seat the great Men to whom but lately he was no more than equal either in fortune or power disdaining this Act of Arrogancy called in William then Duke of Normandy a Prince more active than any in these Western Parts and renowned for many Victories he had fortunately atchieved against the French King then the most potent Monarch of Europe This Duke led along with him to this work of Glory many of the younger Sons of the best Families of Normandy Picardy and Flanders who as Undertakers accompanied the Undertaking of this fortunate Man The Usurper slain and the Crown by War gained To secure Certain to his Posterity what he had so suddenly gotten he shared out his purchase retaining in each County a portion to support the Dignity Soveraign which was stiled Domenia Regni now the antient Demeans And assigning to others his Adventurers such portions as suited to their quality and expence retaining to himself dependency of their personal service except such Lands as in free Alms were the portion of the Church these were stiled Barones Regis the Kings immediate Free-holders for the word Baro imported then no more As the King to these so these to their followers sub-divided part of their shares into Knights Fees and their Tenants were called Barones Comites or the like for we find as the Kings write in their Writs Baronibus suis Francois Anglois the Soveraigns Gifts for the most part extending to whole Counties or Hundreds an Earl being Lord of the one and a Baron of the inferiour Donations to Lords of Townships or Mannors AS thus the Land so was all course of Judicature divided even from the meanest to the highest portion each several had his Court of Law preserving still the manner of our Ancestors the Saxons who jura per pagos reddebant and these are still termed Court Barons or the Freeholders Court twelve usually in number who with the Thame or chief Lord were Judges The Hundred was next where the Hundredus or Aldermanus Lord of the Hundred with the chief Lords of each Township within their limits judged Gods People observed this form in the publique Centuriones Decani judicabant plebem onni tempore The County or generale placitum was the next This was so to supply the defect or remedy the Corruption of the Inferiour Vbi Curiae Dominarum probantur defecisse pertinent ad Vicecomitem Provinciarum The Judges here were Comitos Vicecomites Barones Comitatus qui liberas in eo terras hâ—bent The last and supream and proper to our question was Gener ale Placitum apud London Vniversalis Synodus in Charters of the Conqueror Capitalis Curia by Glanvile Magnum Commune consilium coram Rege Magnatibus suis In the Rolls of Hen. the third it is not stative but summoned by Proclamation Edicitur generale placitum apud London saith the Book of Abingdon whither episcopi Duces Principes Satrapae Rectores Causidici ex omni parte confluxerunt ad istan Curiam saith Glanville Causes were referred propter aliquam dubitationem quae emergit in Conitatu cum Comitatus nescit dijudicare Thus did Ethelweld Bishop of Winton transfer his Suit against Leoftine from the County â—d generale placitum in the time of King Ethildred Queen Edgin against Goda from the County appealed to King Etheldred at London Congregatis principibus sapientibus Aogliae A Suit between the Bishops of Winton and Durham in the time of Saint Edward Coram Episcopis Principibus Regni in praesfentia Regis ventilata finita In the 10. year of the Conqueror Episcopi Comites Barones Regia potestate e diversis Provinciis ad universalem Synodum pro causis audiendis tractandis convocati saith the Book of Westminster and this continued all along in the succeeding Kings Reigns until towards the end of Henry the third As this great Court or Councel consisting of the King and Barons ruled the great affairs of State and controlled all inferiour Courts so were there certain Officers whose transcendent power seemed to be set to bound in the execution of Princes Wills as the Steward Constable and Marshal fixed upon Families in Fee for many Ages They as Tribunes of the People or Ephori amongst the Athenians grown by an unmannerly Carriage fearful to Monarchy fell at the Feet and mercy of the King when the daring Earl of Leicester was slain at Eversham This Chance and the dear experience Henry the third himself had made at the Parliament at Oxford in the 40. year of his Reign and the memory of the many streights his Father was driven unto especially at Runny-mead near Stanes brought this King wisely to begin what his Successors fortunately finished in lessening the strength and power of his great Lords And this was wrought by searching into the Regality they had usurped over their peculiar Soveraigns whereby they were as the Book at St. Albans tearmeth them Quot Domini tot Tyranni and by weakening that hand of power which they carried in the Parliaments by commanding the service of many Knights Citizens and Burgesses to that great Councel Now began the frequent sending of Writs to the Commons their assents not only used in Money Charge and making Laws for before all Ordinances passed by the King and Peers but their consent in Judgements of all natures whether Civil or Criminal In proof whereof I will produce some few succeeding Presidents out of Record When Adomar that proud Prelate of Winchester the Kings half Brother had grieved the State with his daring power he was exised by joynt sentence of the King the Lords and Commons and this appeareth expresly by the Letter sent by Pope Alexander the fourth expostulating a revocation of him from Banishment because he was a Church-man and so not subject to Lay Censures In this the Answer is Si Dominus Rex Regni majores hoc vellent meaning his revocation Communitas tamen ipsius ingressum in Angliam jam nullatenus sustineret The Peers subsign this Answer with their names and Petrus de Montford vice totius Communitatis as Speaker or Proctor of the Commons For by this stile Sir J. Tiptoft Prolocutor affirmeth under his Arms the Deed of