LE PRIMER REport des Cases Matters en Ley resolues adiudges en les Courts del Roy en Ireland Collect et digest per S r. Iohn Dauys Chiualer Atturney Generall del Roy en cest Realme Liber librum aperit DVBLIN Printed by Iohn Franckton Printer to the Kings most excellent Maiestie Anno. 1615. TO THE RIGHT HONORABLE MY SINGVLAR GOOD LORD THOMAS LORD ELLESMERE LORD CHAVNcellor of England KIng Henry the Second my most honorable good Lord was the first King of England after the Norman Conquest that was styled Lord of Ireland Yet are there no recordes of that kings time remaining whereby it may appeare that he established any forme of Civill gouernment in this land But it is manifest by many recordes and stories that his sonne King Iohn made the first division of Counties in Ireland published the lawes of England and commaunded the due execution thereof in all those countries which he had made erected the Courts of Iustice made the Standard of Irish moneys equall with the English Breefely hee did order settle the government heere in all pointes according to the Modell of the common-wealth of England And to that end when himselfe in person came over into Ireland the second time which was in the twelfth yeare of his raigne he brought with him many learned persons in the lawe and other Officers ministers of all sorts to put the English lawes in execution whereof there is a notable record in the Tower of London 11. Henr. 3. Patent Membr 3. agreeing with that which is related by Matth. Paris histor magn sol 220 b. After which time the recordes of all legall Actes proceedings namely the Piperolls containing the charge of the revenue both Certaine casuall the Plearolls containing as well Common pleas as pleas of the Crowne Parliament Rolls Charters Patents Commissions Inquisitions were made vp in good forme in euery kings time till the later end of the raigne of King Henry VI when by reason of the dissension of the two Royall houses the state of England neglecting the gouernment of this Realme the Clarks and Officers grewe also negligent in the execution of theire severall places And though many of those auncient recordes haue beene embezeled many haue perished by carlesse keeping yet divers of all sortes doe yet remaine as faire authentique as any I haue seene in England Howbeit during all the time that the lawes of England haue had theire course in Ireland which is nowe full foure hundred yeares there hath not beene any Report made published of any Case in lawe argued or adiudged in this Kingdome but all the arguments reasons of the iudgements resolutions giuen in the Courts of Ireland haue hitherto beene vtterly lost buried in oblivion Which seemeth to me the more straunge because there haue beene within this Realme in euery age since the raigne of King Iohn men sufficienly learned in the lawes who haue deriued theire learning out of the fountaines of lawe in England the Innes of Court there being the most florishing honorable Academy of gentlemen that euer was established in any nation for the study learning of the Municipall lawes thereof And therefore they might haue beene induced to imitate the learned men of England who from the Norman Conquest downewards did continually preseiue the memory of such notable cases as did from time to time arise where argued and ruled in the Courts of Iustice in England by reducing the same into bookes of Reports which may bee called not improperly the Annalles of the lawe For albeit our Reports at large which are published in Print doe beginn with the raigne of king Edw. III. And the broken Cases of elder times which are scattered in the Abridgements are not found higher then the time of king Henry III. yet assuredly there were other Reports digested in yeares Tearmes as auncient as the time of king William the Conqueror as appeareth by that which Chaucer writteth of the Seriaunt at lawe In Termes had hee Cases and Doomes all That fro that time of King William were fall Neither doth Glanuill or Bracton disaffirme this antiquity of the Reports of the lawe in that they affirme that the lawe of England was Ius non scriptum in theire times as your Lordship hath noted in that most learned graue prudent speech of yours touching the Postnati of Scotland For indeede those Reports are but Comments or interpretations vppon the Text of the Common lawe which Text was neuer originally written but hath euer bin preserued in the memory of men though no mans memory can reach to the originall thereof For the Common lawe of England is nothing else but the Common custome of the Realme And a custome which hath obtained the force of a lawe is alwayes said to bee Ius non scriptum for it cannot bee made or created either by Charter or by Parliament which are actes reduced to writting are alwayes matter of Record but being onely matter of fact and consisting in vse practise it can bee recorded and registred no where but in the memory of the people For a Custome taketh beginning groweth to perfection in this manner When a reasonable act once done is found to bee good beneficiall to the people agreeable to theîre nature disposition then do they vse it practise it againe agaîne so by often iteration multiplication of the act it becometh a Custome being continued without interruption time out of minde it obtaineth the force of a lawe And this Custumary lawe is the most perfect most excellent and without comparison the best to make preserue a commonwealth for the written lawes which are made either by the edicts of Princes or by Counselles of estate are imposed vppon the subiect before any Triall or Probation made whether the same bee fitt agreeable to the nature disposition of the people or whether they will breed any inconvenience or no. But a Custome doth neuer become a lawe to binde the people vntill it hath bin tried approued time out of minde during all which time there did thereby arise no inconuenience for if it had beene found inconuenient at any time it had beene vsed no longer but had beene interrupted consequently it had lost the vertue force of a lawe Therefore as the lawe of nature which the schoolmen call Ius commune which is also Ius non scriptum being written only in the hart of man is better then all the written lawes in the worlde to make men honest happy in this life if they would obserue the rules thereof So the custumary lawe of England which wee do likewise call Ius commune as comming neerest to the lawe of Nature which is the roote touchstone of all good lawes which is also Ius non scriptum written onely in the memory of man for euery custome though it tooke beginning beyond the memory of
any liuing man yet it is continued preserued in the memory of men liuing doth farre excell our written lawes namely our Statutes or Actes of Parliament which is manifest in this that when our Parliaments haue altered or changed any fundamentall pointes of the Common lawe those alterations haue beene found by experience to bee so inconuenient for the commonwealth as that the common lawe hath in effect beene restored againe in the same points by other Actes of Parliament in suceedîng ages And as our Custumary vnwritten lawe doth excell our Parliament lawes which are written so for the gouernment of the Common-weale of England which is as well instituted established as any Common-weale in Christendome Our natiue Common lawe is farre more apt agreeable then the Ciuill or Canon lawe or any other written lawe in the worlde besides howsoeuer some of our owne Countrimen who are Ciues in aliena Republica hospites in sua may perâ—â—ppes affirme the contrary But certaine it is That the greate and wise-men of England in the Parliament of Merton did not preferre a Forreine lawe before theire owne when motion being made by the Clergie that Children borne before Marriage might be adiudged legitumate They all made aunswere with one voice Nolumus Leges Angliae mutari And againe in II. R. 2. when a newe course of proceeding in Criminall Causes according to the forme of the Ciuill lawe was propounded in that vnruly Parliament Aunswere was made by all the Estates That the Realme of England neither had bin in former times nor hereafter should bee Ruled and gouerned by the Ciuill law Rot Parliam II. R. 2. in Archiv Turris And heere I may obserue for the Honour of our Nation and of our Auncestors who haue founded this Common-weale wherein wee liue and enioy so many felicities That England hauing had a good and happie Genius from the beginning hath bin enhabited alwaies with a vertuous wise people who euer embraced honest and good Customes full of Reason and conveniencie which being confirmed by common vse practise and continued time out of minde became the common lawe of the Land And though this lawe bee the peculiar inuention of this Nation and deliuered ouer from age to age by Tradition for the common lawe of England is a Tradition learned by Tradition as well as by Bookes yet may wee truly say That no humaine lawe written or vnwritten hath more certainty in the Rules and Maximes more coherence in the parts thereof or more harmony of reason in it nay wee may confidently averr that it doth excell all other lawes in vpholding a free Monarchie which is the most excellent forme of gouernment exalting the prerogatiue Royall and being very tender and watchfull to preserue it and yet maintaining withall the ingenuous liberty of the subiect Breefely it is â—o framed and sitted to the nature disposition of this people as wee may properly say it is connaturall to the Nation so as it cannot possibly bee ruled by any other lawe This lawe therefore doth demonstrate the strength of witt and reason and selfe sufficiencie which hath beene alwayes in the people of this land which haue made theire owne lawes out of their wisdome experience like a silke worme that formeth all her webb out of her selfe onely not begging or borrowing a forme of a common-weale either from Rome or from Greece as all other nations of Europe haue done but hauing sufficient prouision of lawe Iustice within the land haue no neede Iustitiam iudicium aâ— alienigenis emendicare as King Iohn wrote most nobly to Pope Innocent the third Matth Parishistor magn pag 215. En populus sapiens intelligens gens magna As it is said of Gods chosen people 4. Deuter. Neither could any one man euer vaunt that like Minos Solon or Lycurgus he was the first Lawegiuer to our Nation for neither did the King make his owne prerogatiue nor the Iudges make the Rules or Maximes of the lawe nor the common subiect prescribe and limitt the liberties which he enioyeth by the lawe but as it is said of euery Art or Science which is brought to perfection Per varios vsus artem experientia fecit so may it properly bee said of our lawe Per varios vsus legem experientia fecit Long experience many trialles of what was best for the common good did make the Common lawe But vppon what reason then doth Polidor Virgill other writers affirme that King William the Conqueror was our Lawegiuer caused all our lawes to bee written in French Assuredly the Norman Conqueror found the auncient lawes of England so honorable profitable both for the Prince people as that he thought it not fitt to make any alteration in the fundamentall pointes or substance thereof the change that was made was but in formulis iuris he altered some legall formes of proceeding to honor his owne language for a marke of Conquest withall he caused the pleading of diuers Actions to be made entred in French sett forth his publique Ordinances Acts of Counsell in the same tongue which forme of pleading in French continued till 36. Edw. 3. when in regard that the French tongue begann to growe out of vse which for many yeares after the Norman Conquest was as common as the English among the Gentry of England it was ordained by Parliament that all pleas should bee pleaded debated Iudged in the English tongue entred enrolled in Latine And as for our statutes or Acts of Parliament the billes were for the most part exhibited in French passed and enrolled in the same language euen till the time of King H. 7. And so are they printed in Rastalles first Abridgment of statutes published in the yeare 1559. But after the begining of King Henry 7. his raigne wee finde all our Acts of Parliament recorded in English Onely our Reports of the Cases resolutions and Iudgments in the lawe whereof our bookes of the lawe do consist haue euer vntill this day beene penned published in that mixt kinde of speech which wee call the lawe French differing indeede not a litle from the French tongue as it is now refined and spoken in Fraunce as well by reason of the words of Art and forme called the Tearmes of the lawe as for that wee doe still retaine many other old wordes Phrases of speech which were vsed foure hundred yeares since are now become obsolete out of vse among them but are growne by long continuall vse so apt so naturall so proper for the matter subiect of these Reports as no other language is significant enough to expresse the same but onely this lawe french wherein they are written And this is the true onely cause why our Reports other books of the lawe for the most part are not sett forth in English Latine or the moderne french for that the proper peculiar phrase of the common
causes that come in question either quaestio facti or questio Iuris must first bee decided before a man can receaue the benefitt of the lawe for as the wise man saieth Deus fecit hominem rectum sed ipse miscuit se infinitis quaestionibus what a meritorious worke is it to resolue these troublesome questions which arise in the Ciuill life of man either by laying open the truth of the fact or by clearing the doubtfull point in lawe that speedie equall Iustice may bee done vnto all euery one may haue enioy his owne in peace how often would the truth bee concealed suppressed How oft would fraud ly hid vndiscouered How many times would wrong escape passe vnpunished but for the wisdome diligence of the Professors of the lawe Doth not this profession euery day comfort such as are greeued counsell such as are perplexed releeue such as are circumuented preuent the ruine of the improuident saue the innocent support the impotent take the Pray out of the mouth of the oppressor protect the Orphan the widowe the stranger Is shee not Oculus caeco pes claudo as Iob speaketh Doth shee not withall many times stretch forth brachium saculare in defence of the Church true Religion All which are workes of mercy of singular merit Againe doth shee not register keepe in memory â—he best Antiquities of our Nation Doth shee not preserue our auncient Customes forme of gouernment wherein the wisedome of our Auncestors doth shine farr aboue the policie of other kingdomes Are not the Recordes of her actes proceedings so precious as they are kept in the Kinges Treasury like Iewelles of the Crowne reputed a principall part of the Roiall treasure Lastly is not a worthie Prosessor of the lawe a starr in the firmament of the common-wealth Is he not Lux in tenebris wheresoeuer hee dwelleth Is not his house as it were an Oracle not onely to a Towne or Citty but to a whole country round about him So as hee may truly say of the people that seeke his counsell as Apollo Pithius spoke in Ennius of such as resorted vnto his Temple Suarum rerum incerti quos ego ope mea Ex incertis Certos compotesque consilij Deâ—itto ne res temere tractent turbidas Therefore one of the Romaine Emperors doth not without cause giue this honorable testimony of the Professors of the lawe Aduocati qui dirimunt ambigua facta causarum suaeque desensionis viribus tam publicis in rebus quam in priuatis lapsa erigunt satigata reficiunt non minus humanâ— generi prouident quam si praelijs atque vulneribus patriam parentesque saluarent neque enim solos nostro Imperio militare credimus qui gladijs elypeis Thoracibus nituntur sed etiam aduocatos Militant namque causarum Patroni qui laborantium spem vitam posteros defendunt For if it bee a worthie deede as doubtlesse it is for a man to defend his freindes or country with his right hand his sword onely what an excellent seruice is it to defend them with his speech his reason wisedome wherein the excellency of man doth principally consist Therefore both the Schooleman the Politike do preferr Iustice before Fortitude the Statute of 31. Henr. 8. cap. 10. which ranketh the great Officers of the kingdome in their due places doth place the Constable Marshall beneath the Chauncellor in all assemblies of Counsell For Ille semel saieth Cicero speaking of the Martiall man Hic semper proderit Reipublicae meaning the learned man of the long robe And in very troth as the common-wealth is much beholding to the Profession of the lawe so are the Professors of the lawe not a litle beholding to the common-wealth For if they procure preserue her peace her plenty doth not shee requite them againe with riches with honor Doth shee not aduance them to her cheefe Benches Offices trust them with the liuelyhoode liues of all her people Neither do our learned men of the lawe growe to good estates in the common-wealth by any illiberall meanes as enuy sometime suggesteth but in a most ingenous worthie manner For the fees or rewardes which they receaue are not of the nature of wages or pay or that which wee call salery or hire which are indeede duties certeine growe due by contract for labour or seruice but that which is giuen to a learned Counsellor is called honorarium not merces being indeede a gift which giueth honor as well to the Taker as to the giuer neither is it certeine or contracted for for no price or rate can bee sett vppon Counsell which is vnualuable inestimable so as it is more or lesse according to circumstances namely the ability of the Client the worthinesse of the Counsellor the weightynesse of the cause the custome of â—he Country Breefely it is a gift of such a nature giuen taken vppon such tearmes as albeit the able Client may not neglect to giue it without noate of ingratitude for it is but a gratuity or token of thankefullnesse yet the worthie Counsellor may not demaund it without doing wrong to his reputation according vnto that morall rule Multa honestè accipi possunt quae tamen honesté peti non possunt Lastly it is an infallible argument that the estates of such as rise by the lawe are builded vppon the foundation of vertue in that Gods blessing is so manifestly vppon them not onely in raising but in preseruing their houses posterities whereof there are examples not a fewe those not obscure in euery shire of England of the English Pale in this kingdome of Ireland If then our common lawe of England bee cleare from those vulgar imputations which ignorance doth conceaue enuy report thereof if the Profession or science of the lawe bee more noble more necessary more meritorious then any other temporall Art or Science if the dignity of this profession do accordingly dignifie all the Professors thereof which are qualified with learning and vertue fitt for so worthy a Calling for such as are ignorant or dishonest as they are to receiue no grace by the Profession so the profession is to suffer no disgrace by them how highly is that person honored whose true merit hath aduaunced him to the most transcendent place of honor that can possibly bee attained by that Profession This is that great place or Office which your Lordship most worthily holdeth long may you hold the same vnder his Maiestie which though it bee the highest pinnacle of honor that any secular person of the long Robe can in re or spe aspire to vnder any Monarch yet was it giuen vnto your Lordship nec expetenti nec expectanti by the wisest most renowned Queene that euer raigned in Europe who leauing her Crowne together with the faithfull seruants thereof vnto the wisest Iustest King vppon
an Irish man will say perhaps these lawes were made in England and that the Irish Nation gaue no particular consent therevnto onely there was an implicite consent wrapt and folded vp in generall tearmes giuen in the statute of â—0 Henr. 7. cap. 22. whereby all statutes made in England are establisht and made of force in Ireland Assuredly though the first Parliament held in Ireland was after the first lawe against Prouisors made in England yet haue there beene as many particular lawes made in Ireland against Prouisions Citations Bulls and Breâ—ues of the Court of Rome as are to bee found in all the Parliament Rolls in England What will you say if in the selfe same Parliament of 10. Henr 7. cap. 5. a speciall lawe were made enacting authorising and confirming in this Realme all the statutes of England made against Prouisors if before this the like lawe were made 32. Henr. 6. cap 4. and againe 28 Henr. 6 cap. 30 the like And before that the like lawe were made 40. Edw. 3 cap. 13. in the famous Parliament of Kilkenny If a statute of the same nature were made 7. Edw 4. cap 2. and a seuerer lawe then all these 16. Edw 4 cap. 4. That such as purchase any Bulls of Prouision in the Court of Rome as soone as they haue published or executed the same to the hurt of any incumbent should bee adiudged traytors which Act if it bee not repealed by the statute of Queene Mary may terrifie Maister Lalor more then all the Actes which are before remembred But let vs ascend yet higher to see when the Popes vsurpation which caused all these complaints began in England with what successe it was continued and by what degrees it rose to that heigth that it weiny ouer topp't the Crowne whereby it will appeare whether hee had gained a title by prescription by a long and quiet possession before the making of these lawes When the Pope began first to vsurpe vpon theliberties of the Crowne of England The first encrochment of the Bishop of Rome vppon the liberties of the Crowne of England was made in the time of King William the Conquâ—ror For before that time the Popes writt did not runne in England his Bulls of excommunication and prouision came not thither no citation no appeales were made from thence to the Court of Rome Our Archbishops did not purchase their Palls there neither had the Pope the inuestiture of any of our Bishopricks A comparison of the spirituall Monarchy of y t Church with the teÌ„porall Monarchies of the world For it is to bee obserued that as vnder the Temporall Monarchie of Rome Brittany was one of the last Prouinces that was wonne and one of the first that was lost againe So vnder this spirituall Monarchy of the Pope of Rome England was one of the last countries of Christendome that receaued his yoke and was againe one of the first that did reiect and cast it of And truely as in this so in diuers other points the course of this spirituall Monarchy of the Pope may bee aptlie compared with the course of the temporall Monarchies of the world For as the temporall Monarchies were first raised by intrusion vppon other Princes and Common-weales so did this spirituall Prince as they now 〈◊〉 him growe to his greatnes by vsurping vppon other States and Churches As the temporall Monarchies following the course of the Sunne did rise in the East and settle in the West so did the Hierarchie or gouernment of the Church Of the foure temporall Monarchies the first two were in Asia the later two in Europe but the Romane Monarchy did surpasse and suppresse them all So were there foure great Patriarches or Ecclesiasticall Hierarchies two in the East and two in the West but the Romane Patriarch exalted himselfe and vsurped a Supremacie aboue them all And as the rising of the Romane Empyre was most opposed by the State of Carthage in Affrica amula Romae Carthago So the Councell of Carthage and the Affrican Bishops did first forbid appeales to Rome and opposed the Supremacie of the Pope And doth not Daniels image whose head was of gold and legges and feete of iron and clay represent this spirituall Monarchy as wâ—ll as the temporall whereas the first Bishops of Rome were golden Priests though they had but wooden Chalices and that the Popes of later times haue beene sor the most part worldly and earthly minded And as the Northern Nations first reuolted from the Romane Monarchy and at last brake it in peeces haue not the North and Northwest Nations first fallen away from the Papacie and are they not like in the end to bring it to ruine The Pope had no iurisdiction in England in the time of the Brittons But to returne to our purpose The Bishop of Rome before the first Norman Conquest had no iurisdiction in the Realme of England neither in the time of the Brittons nor in the time of the Saxons Eleutherius the Pope within lesse the 200. yeares after Christ writes to Lucius the Brittish King and calls him Gods vicar within his kingdome which title hee would not haue giuen to that King if himselfe vnder pretence of being Gods Vicar generall in earth had claimed iurisdiction ouer all Christian kingdomes Pelâ—gius the Moncke of Bangor about the yeare 400. being cited to Rome refused to appeare vppon the Popes citation affirming that Brittany was neither within his Dioces nor his prouince After that about the yeare 600. Augustine the Moncke was sent by Gregory the great into England to conuert the Saxons to Christian Religion the Brittish Bishops then remayning in Wales regarded not his Commission nor his doctrine as not owing any dutie nor hauing any dependancie on the Court of Rome but still retained their ceremonies and traditions which they receaued from the East Church vppon the first plantation of the faith in that Iland being diuers and contrarie to those of the Church of Rome which Augustine did endeaunor to impose vppon them The like doth Beda write of the Irish priests and Bishops For in the yeare 660 hee reporteth that a conuocation of the Cleargie being called by King Oswif there rose a disputation betweene Colman one of our Irish Saints then present in that Synod and Wâ—lfrid a Saxon priest touching the obseruation of Easter wherein the Brittish and Irish Churches did then differ from the Church of Rome Colman for the celebration of Easter vsed in Ireland affirmed it was the same quod beatus Euangelista â—oannes discipulus specialiter â Domino dilectus in omnibus quibus praerat Ecclesijs celebrasse legitur On the other part Wilsrid alleaged that all the Churches of Christendome did then celebrate Easter after the Romane manner except the Churches of the Brittons and Picts qui contra totum orbem said hee stulto labore pugnant Wherevnto Colman replied Miror quarâ— stultum laborem appellas in quo tanti Apoâ—â—oli qui super pectus Domini
recumbere dignus suit exempla sectamur Nunquid reuerendissimum patrem nostrum Columbam eius successores viros à Deo dilectos diuâ—nis pagâ—â—â—s contraria sapuisse aut egisse credendum est In this disputation or dialogue two things may bee obserued first that at this time the authority of the Bishop of Rome was of no estimation in these Ilands next that the Primitiue Churches of Briâ—tany and Ireland were instituted according to the forme and discipline of the East Churches and not of the West and planted by the disciples of Iohn and not of Peter Thus much for the time of the Brittons The Pope had no iurisdiction in England in the time of the Saxons For the Saxons though King Ina gaue the Peter pence to the Pope partly as Almes and partly in recompence of a house erected in Rome for entertainment of English pilgrimes yet it is certaine that Alfred and Athelstane Edgar and Edmund Canutus and Edward the Consessor and diuers other Kings of the Saxon race did giue all the Bishopricks in England Per annulum baculum without any other ceremony as the Emperour and the French King and other Christian Princes were wont to doe They made also seuerall lawes for the gouernment of the Church Among others Saint Edward begins his lawes with his protestation that it is his Princely charge Vt populum Domini super omnia sanctam Ecclesiam regat guberâ—et And King Edgar in his Oration to his English Cleargie Egâ— saieth hee Constantini vos Petri gladium habetis iungamus dextras gladium gladio copulemus vt ciâ—ciantur extra Castra leprosi purgetur sanctuarium Domini So as the Kings of England with their owne Cleargie did gouerne the Church and therein sought no ayd of the Court of Rome And the troth is that though the Pope had then long hands yet hee did extend them so farre as England bycause they were full of businesse neerer home in drawing the Emperour and the French King vnder his yoke The first vsurpatioÌ„ of the Pope vpon the crowne began in the time of king William the CoÌ„querour But vppon the conquest made by the Norman hee apprehended the first occasion to vsurpe vppon the liberties of the Crowne of England For the Conquâ—rour came in with the Popes Banner and vnder it wonne the battaile which gott him the garland and therefore the Pope presumed hee might boldly plucke some flowers from it being partly gained by his countenance and blessing Heerevppon hee sent two Legates into England which were admitted and receaued by the Conquerour With them hee called a Synod of the Clergie and deposed old Stigand Archbishop of Canterbury bycause he had not purchased his Pal in the Court of Rome hee displaced many Bishops and Abbots to place his Normans in their Romes By sending Legates into England And amongst the the rest it is to bee noted that the King hauing earnestly moued Wolstan Bishop of Worcester being then very aged to giue vp his staffe his answere was that hee would giue vp his staffe onely to him of whome hee first receaued the same Inter Epist Lanfr Archiepiscopi Cant. M. S. in Archiâ— Robert Coâ—â—on Eq. Aur. And so the old man went to Sanit Edwards Tombe and there offred vp his staffe and Ring with these words Of thee O holy Edward I receaued my staffe and my Ring and to thee I doe now surrender the same againe which pâ—oues that before the Norman Conquest the King did inuest his Bishops per annulum baculum as I said before In the time of William Ruffus the Pope atteÌ„pted to draw appeales to Rome but prâ—uailed not Thus wee see by the admission of the Popes Legates the first step or entrie made into his vsurped iurisdiction in England Albeit the King still retained the absolute power of inuesting Bishops and seemed onely to vse the aduise and assistance of the Legates in Ecclesiasticall matters for that no decâ—ee passed or was put in execution without his Royall assent therevnto Besides how farre forth hee submitted himselfe to the Pope it appeareth by a short Epistle which hee wrote to Gregory the. 7. in this forme Excellentissimo sanctae Ecclesiae Pastori Gregâ—rio gratia Dei anglorum Rex Dux Normannorum Willielmus salutem cum Aâ—…icitia Hubertus Legatus tâ—us Religiose Pater ad me veâ—iens ex tua parte me admonuit vt tibi successoribus tuis fidâ—lâ—tatem facerem de pecunia quam antecessores mei ad Romanâ—â— Ecclesiam â—â—â—…ere solebant melius cogiâ—arem Vnum admisi alterum non admisâ— fidelitatem facere nolui nec volo quia â—â—c ego promisi ncc antecessores â—â—os antecessoribus tuis id secrsse comperio Pecuâ—ia tribus ferè annis in Gallijs me agente negligentur collecta est nunc vâ—ro diâ—ina misericordia me in Regnum meum reuersâ— quod Collectum est per praefatum Legatum mittetur quod reliquum est per Legatos Lanâ—ranci Archichiscopi â—â—delis nostri cum opportunum fuerit transmittetur c. But in the time of his next successor King William Rufus they attempted to passe one degree farther that is to drawe appeales to the Court of Rome For Anselme being made Archbishop of Cauterbury and being at some difference with the King besought his leaue to goe to Rome vnder pretence of fetching his Pall. The King knowing hee would appeale to the Pope denied him leaue to goe and withall told him that none of his Bishops ought to bee subiect to the Pope but the Pope himselfe ought to bee subiect to the Emperour and that the King of England had the same absolute liberties in his Dominions as the Emperour had in the Empyre And that it was an auncient custome and lawe in England vsed time out of minde before the Conquest that none might appeale to the Pope without the Kings leaue and that hee that breaketh this lawe or custome doth violate the Crowne and dignitie Royall and hee that violates my Crowne saieth hee is mine enemie and a traytor How answere you this quoth the King Christ himselfe answeres you saith the Archbishop Tu es Petrus super hanc petram c. Wherewith the King was nothing satisfied And therevppon Anselme departing out of the Realme without licence the King seised his temporalities and became so exasperate and implacable towards the Bishop as hee kept him in perpetuall exile during his Raigne albeit great intercession were made for his returne as well by the Pope as the King of France In the time of king HeÌ„ry the first the Pope vsurpeth the donation of Bishopricks c. In the time of the next King Henr 1. though hee were a learned and a prudent Prince yet they sought to gaine a further point vppon him and to plucke a flower from his Crowne of greater value namely the patronage and donation of Bishoprickes and all other benefices Ecclesiasticall For Anselme being reuok't
adiudged high treason to bring in Bulls of Excommunication whereby the Realme should bee cursed 7 That no decree should bee brought from the Pope to bee executed in England vppon paine of imprisonment and confiscation of goods To these and other Constitutions of the like nature made at Claringdon all the rest of the Bishops and great men did subscribe and bound themselues by oath to obserue the same absolutly onely the Archbishop would not subscribe and sweare but with a Sauing saluosuo ordine bonore sancte Ecclesiâ— yet at last hee was content to make the like absolute subscription and oath as the rest had done but presently hee repented and to shewe his repentance suspended himselfe from celebrating Masse till he had receaued absolution from the Pope Then he began to maintaine and iustifie the exemption of Clarkes againe whereat the Kings displeasure was kindled a new and then the Archbishop once againe promised absolute obedience to the Kings lawes See the ficklenes mutability of your constant Martyr The King to bind fast this slippery Proteus called a Parliament of the Bishops and Barons and sending for the Roll of those lawes required all the Bishops to set their seales therevnto They all assented but the Archbishop who protested he would not set his seale nor giue allowance to those lawes The King being highly offended with his rebellious demeanor required the Barons in Parliament to giue Iudgement of him who being his subiect would not be ruled by his lawes Cito facite mihi iustitiam de illo qui homo meus ligeus est stare Iuri in Curia mearecusat Wherevppon the Barons proceeding against him being ready to condemne him I prohibit you quoth the Archbishop in the name of Almighty God to proceed against mee for I haue appealed to the Pope and so departed in contempt of that high Court Omnibus clamantibus saith Houenden quo progrederis proditor expecta audi iudicium tuum After this he lurked secretly neere the Sea shore and changing his apparell and name like a Iesuit of these times he tooke shipping with a purpose to flie to Rome but his passage being hindred by contrary windes hee was summoned to a Parliament at Northampton where he made default wilfully for which contempt his temporalties were seised and his body being attacht he was charged with so great an account to the King as that he was found in arreare thirty thousand markes and committed to prison whence hee found meanes to escape shortly after and to passe out of the Realme to Rome Hee was no sooner gone but the King sends writts to all the Shiriffs in England to attach the bodies of all such as made any appeales to the Court of Rome herevppon many messages and letters passing to froe all the suffragans of Canterbury ioyne in a letter to the Pope wherein they condemne the fugitiue Archbishop and iustifie the Kings proceedings Vppon this the Pope sends two Legates to the King being then in Normandy to mediate for the Archbishop They with the mediation of the French King preuailed so farre with King Henry as that he was pleased to accept his submission once againe and promised the King of France that if he would be obedient to his lawes he should enioy as ample liberties as any Archbishop of Canterbury euer had and so sent him into England with recommendation vnto the young King his Sonne then lately Crowned who hearing of his comming commaunded him to forbeare to come to his presence vntill he had absolued the Archbishop of Yorke others whome he had excommunicated for performing their duties at his Coronation The Archbishop returned answere that they had done him wrong in vsurping his office yet if they would take a solmne oath to become obedient to the Popes commaundement in all things concerning the Church he would absolute them The Bishops vnderstanding this protested they would neuer take that oath vnlesse the King willed them so to doe King Henry the father being hereof aduertised into France did rise into great passion and choler and in the hearing of some of his seruants vttered words to this effect Will no man reueng mee of mine enemies Wherevppon the foure Gentlemen named in the storyes of that time passed into England and first mouing the Archbishop to absolue the Bishops whome he had excommunicated for performing their duties at the young Kings Coronation and receauing a peremptory answere of deniall from the Archbishop they laid violent hands vppon him and slew him for which the King was faine not onely to suffer corporall pennance but in token of his humiliation to kisse the knee of the Popes Legate And this is the abridgement of Beckets troubles or rather treasons for which he was celebrated for so famous a Martyr Foure points of iurisdiction vsurped vppon the crowne of England by the Pope before the raigne of K. Iohn And thus you see by what degrees the Court of Rome did within the space of one hundred and odd yeares vsurpe vppon the Crowne of England foure points of Iurisdiction viz. First sending of Legats into England SecoÌ„dly drawing of appeales to the Court of Rome Thirdly donation of bishopricks and other Ecclesiasticall benefices and fourthly exemption of Clarkes from the secular power And you see withall how our Kings and Parliaments haue from time to time opposed and withstood this vniust vsurpation Now then the Bishop of Rome hauing claimed and welny recouered full and sole iurisdiction in all causes Ecclesiasticall and ouer all persons Ecclesiasticall with power to dispose of all Ecclesiasticall benefices in England whereby he had vppon the matter made an absolute conquest of more then halfe the kingdome for euerie one that could read the Psalme of Miserere was a Clarke the Cleargie possessed the moytie of all temporall possessions There remained now nothing to make him owner and proprietor of all but to geâ—â— a surrender of the Crowne and to make the King his Farmer and the people his Villaines which he fully accomplisht and brought to passe in the times of King Iohn and of Henr. 3. The cause of the quarrell betweene K. Iohn the Pope The quarrell betweene the Pope and King Iohn which wrested the Sceptor out of his hand and in the end brake his heart began about the election of the Archbishop of Canterbury I call it election and not donation or inuestiture for the manner of inuesting of Bishops by the Staffe and Ring after the time of King Henr. 1. was not any more vsed but by the Kings licence they were Canonically elected and being elected the King gaue his Roiall assent to their election and by restitution of their temporalties did fully inuest them And though this course of election began to be in vse in the time of Rich. 1. and Henr. 2. Yet I finde it not confirmed by any Constitution or Charter before the time of King Iohn who by his Charter dated the fifteenth of Ianuary in the