guerrae emergat c. Vid. Append. When any doubt or difficult case of War or Peace happens in the Kingdom or without let that Case be referr'd and brought in Writing into full Parliament and let it be treated of and debated among the Peers of Parliament and if need be let it be enjoyn'd by the King or in his Name to every degree of the Peers That every degree act by its self and let the Case be delivered to their Clerks in Writing and in the said place let them cause the said Case to be recited before them so that they may consider among themselves how it may in the best manner and most justly be proceeded upon as they would answer before God for the Person of the King and their own proper persons and also the proper persons of them whom they represent And let them report in Writing their Answers and Advice that all their Answers Counsels and Advices on all sides being heard it may be proceeded upon according to the better and more wholesom Counsel But if the Peace of the Kingdom or the Nation People or Commonwealth be weakned by reason of discord between the King and other Great Men so that it seems to the King and his Council What that Council was vid. 2d Part that the matter should be treated of and amended by the consideration of all the Peers of his Kingdom or if the King and Kingdom are disturbed by War or if a difficult Case arise before the Chancellor of England or a difficult Judgment is to be given before the Justices and the like And if it happen that in such deliberations all N 2 a Remedy where equally divided or at least the greater part cannot agree then the Earl Steward Earl Constable and Earl Marshal or Two of them shall chuse Twenty five persons from all parts of the Kingdom viz. Two Bishops and Three Proxies of the Clergy Two Earls and Three Barons Five Knights of Shires Five Citizens and Five Burgesses who make Five and Twenty Et condescendere in eos and they Five and Twenty may chuse Twelve out of themselves and be concluded by what they do The Twelve may chuse Six and be concluded by them The Six Three and be concluded by them But the Three cannot be reduced to fewer without leave of the King And if the King consent the Three may be brought to Two and the Two to One and so at last their Ordinance shall bind the whole Parliament and so by coming from Twenty five to One if the greater number cannot agree to an establishment at last one Person as is said shall Ordain for all because he cannot disagree from himself saving to the King and his Council That they may examin and amend such Ordinances after they are written if they can and will Provided they do this upon the place in full Parliament and with the consent of the Parliament and not out of Parliament According to which the High Steward Constable and Marshal being looked on as Hereditary Officers were entrusted with a means of composing the differences of the Nation when they should happen to be equally divided I find the Authority of the High Steward and Constable more express in a Translation of another Modus tenendi Parl. agreeing in substance with that which I have cited The MS. which I have used seems to be of the time of H. 7. MS. penes Authorem MS. penes Authorem thô Mr. Elsing says That which is in Sir Robert Cotton's Library was written temp E. 2. The Translation of the other was Printed with Royal Privilege in King James his time as I take it It was done in a very pedantick stile by one Anthony Bustard of Lyons-Inn He that wrote the Latine in his Preface speaks of it as the Order setled by W. 1. Pref. That Modus places the Power of chusing the Twenty five in the Steward and Constable It adds That if any of the Ministers act contrary to their Duty the King the Steward and others of the Parliament may remove them from their Office And says particularly That the Steward of England with the Constable and Nobles of the Realm shall send to evil Counsellors willing them to desist from giving Counsel and entreat the King not to listen to them and if they regard not such advertisement they were to send to the King to put such away from him And if King and Counsellors neglect such wholsom Advice then for the safety of the Commonwealth it hath been thought fit and lawful for the Steward and Constable and Nobles and others of the Commons of England with the King's Banner displayed the King's name omitted the said Counsellors to take and keep in Custody till the next Parliament and Seize their Goods Vid. Append. Lands and Hereditaments until they receive Judgment by consideration of the whole Parliament Sir Robert Cotton Of the High Steward c. There is no more in this than is warranted by Sir Robert Cotton's Letters in the Herald's Office part of which seem to be taken from a MS. joyn'd to the Modus in his Library under the name of Fleetwood The High-Steward's Office as I have before observed was annex'd to Land 4 Inst f. 127. Dyer f. 285. b. Kelway f. 170. and so was the Constable's of England as appears by our Law-Books in the Case of the Duke of Buckingham 6 H. 8. who pleaded That Humphrey de Bohun formerly Earl of Hereford was seiz'd in Fee of the Mannors of Harefield Newnam and Whitenhurst in the County of Glocester and held them by the service to be Constable of England which the Judges allowed of as a good Plea Dyer Indeed they held that thô the King might compel him who had the Land at his pleasure to execute the Office so he might at his pleasure resuse to have it Executed But as to that this being an honorary and profitable tenure by Grand Serjeanty it is to be considered 12 Car. 2. c. 4. that the Stat. 12 Car. 2. when it took away those Tenures of the Crown which were burthensom to the Subject provided that it shall not take away the Honorary Services of Grand Serjeanty But H. 8. Dyer thought it sufficient that he disclaimed the Service and the Reason of the disclaimer was because it was very high and dangerous and very chargeable to the King in Fees the last part of which shewed the Subject's property concerned in the question Upon the Duke of Buckingham's claim to this Office Kelway f. 171◠Nevil says it has been a common saying That the Constable of England by virtue of his Office in some case may Arrest the King himself and therefore held it necessary that the King should be appriz'd what Authorities belong to his Office Fineux Chief Justice says We know of no such Authority to belong to any Officer within the Realm by the Common Law of the Land Which he afterwards explains for
exaltationem Sanctae Ecclesiae pacem populi tenendam concessit c. King William being dead the Great Men of England not knowing what was become of Robert Duke of Normandy So R. 1. was call'd but Duke of Normandy till he was chosen King of England the deceased King's Elder Brother who had been five years at the Holy-war were fearful of wavering long without a Government Which when Henry the youngest Brother a very wise young Man cunningly observ'd the Clergy of England and all the people being assembled He promised an amendment of those Laws with which England had been oppressed in the time of his Father and his Brother newly deceas'd that he might stir up the minds of all to his promotion and Love and that they might receive him for King and Patron To these things the Clergy answering and then the Great Men That if with a willing mind he would Grant and Confirm with His Charter those Liberties and ancient Customs which flourish'd in the Kingdom in the time of Holy King Edward they would consent to have him and would unanimously consecrate him King And Henry freely consenting to this and affirming with an Oath that he would perform He was Consecrated King on our Lady day by the Consent of Clergy and People upon whose Head the Crown was immediately set by Maurice Bishop of London and Thomas Archbishop of York As soon as he was Crown'd He granted the under-written liberties for the exaltation of Holy-Church and preserving the Peace of the Kingdom Then follows his Charter containing some Alterations of the Law which had before obtained not only in relation to the Rights of the Crown but of the Subjects particularly whereas the Relief had been Cart. H 1. Siquis Baronum meorum Comitum vel aliorum qui de me tenent mortuus fuerit as Fines now in most Copy-hold Mannors at the Will of the Lords they were reduced to what was just and lawful according to St. Edward's Laws for which as should seem by the Charters of King John and H. 3. declaratory of the Common-Law there were known Rates and H. 1. restored all the Common-Law with the Statutes made for the amendment of it in the time of W. 1. He seem'd in two particulars wisely to have ingratiated himself with the people the first was in gaining to his side the Directers of their Consciences by a concession to the benefit of Church-men which was wholly new and that was That an Archbishop or Bishop or Abbat being dead Vid. Cart. H. 1. he would take nothing of the demean of the Church nor of its tenents until the Successor was inducted which was a departure from that Prerogative which belonged to the Crown upon the Vacancies as appears by the affirmation of H. 2. Vid. Anti. Brit. inf f. 135. Carta Johannis Haec omnia observentur de custodiis Arch. Episcopatuum Abbat Prior Eccles Dignitat vacantium quae ad nos pertinent c. Prerog Regis 17 E. 2. c. 14. the Charter of King John and the Statute of the King's Prerogative 17 E. 2. This Indulgence to the Church without special Provision for keeping it up was withdrawn by the next general Confirmation of the Confessor's Laws and therefore 't is no wonder that it is left out of subsequent Charters If he was not popular in this at least he was in another Action which was his imprisoning Ranulph who had been the great Instrument of oppression in the former Reign Mat. Par. f. 76. and that it was with intention of punishing him severely appears by Ranulph's making his escape out of Prison by means of those great Treasures which he had heaped up from the Spoils of the People Ranulph no doubt could at a much cheaper rate have applied himself to such a Lawyer as the Author of the Magistracy vindicated if such an one could have been found in that Age of less corruption Vid. the last part of the Magistracy and Government vindicated p. 8. I 'll not mention the Argument from the Vacancy that the Government was dissolved every thing reduced into its Primitive State of nature all Power devolved into Individuals and the particulars only to provide for themselves by a new Contract for if so there 's no new consent for punishment of Acts done before the dissolution and consequently revenge for that is at an end Vid. ib. p. 2. who might have advised him to rest satisfied that it would not be consistent with the Wisdom and Justice of a Prince who came in upon a Vacancy of the Throne as H. 1. did not standing next in the Line to punish any Criminals of the foregoing Reign but Ranulph was wiser in running away and perhaps more modest than to think that for his useful parts employed in the pillaging and destroying innocent men he might pretend to merit under the Successor H. 1. having truly shewn a Fatherly care of the people no man then raised any foolish scruple upon the manner of the Proceedings where the Substance was pleasing to all But that which has been done by them who could get together upon the intervals of Government has been held valid that the Vacancies might be as short as possible unless the general sense of the people has immediately appear'd against it and thus Harold having been Crown'd by surprize when the Friends of W. 1. were at the Confessors Buryal some Authors upon that very Account Vid. 2. part will have it that Harold was an Usurper But that it may be seen how little apt people are to dispute Forms when a King acts agreeably to the sense of a Nation I shall shew that H. 1. acted as King even before he was Crown'd immediately upon his Election for which Huntindon is my Author who having mentioned the death of W. 2. says Henricus frater ejus junior ibidem in Regem electus Hen. Huntin f. 216. b. de H. 1. dedit episcopatum Wincestriae W. Giffard pergensque Londoniam sacratus est ibi a Mauritio Londonensi Episcopo His younger Brother Henry being there chosen King gave the Bishoprick of Winchester to W. Giffard and going on to London was consecrated there by Maurice Bishop of London And I am much mistaken if what he did in relation to another Bishop Anselm who had been Archbishop of Canterbury in the time of W. 2. is not an additional evidence to what I have already produced that the Convention in which he was Crown'd was turn'd into a Parliament or acted as one Ordericus Vitalis says Anselmus enim Dorebornensis Archiep. exulabat Eadmerus f. 38 39 40. shews this was at a Council at Winchester ubi says he ex condicto venimus Mat. Far. f. 25. Trajacere quidem liberum esse sed inconsulte id facturum siquidem nullam revertendi spem in posterum ei futuram Eadmerus Anselm as appears by the circumstances of the story had been condemned to perpetual Banishment by Parliament in the time of
THE Fundamental Constitution OF THE English Government PROVING KING WILLIAM and QUEEN MARY our Lawful and Rightful KING and QUEEN In Two Parts In the First is shewn The ORIGINAL CONTRACT with its Legal Consequences allowed of in former Ages In the Second All the Pretences to a Conquest of this Nation by Will 1. are fully examin'd and refuted With a large Account of the Antiquity of the English Laws Tenures Honours and Courts for Legislature and Justice And an Explanation of material Entries in Dooms-day-Book By W. A. Author of the first Answer to the late Chief Justice Herbert on the Dispensing Power Errat siquis existimat tutum ibi esse Regem ubi nihil à Rege tutum est securitas securitate mutuâ paciscenda est Sen. London Printed by J. D. for the Author 1690. To the Right honble AUBREY DE VERE Earl of Oxford Baron of Bolebec Sandford and Badlesnere Lieutenant General of their Majesties Forces Colonel of the Royal Regiment of Horse-Guards Lord Lieutenant for their Majesties in the County of Essex Knight of the most honourable Order of the Garter and one of His Majesty's most honourable Privy-Council My LORD THEY who observe what License has been given as well as taken to blemish the Instruments under God and our King in the greatest Deliverance with the most immediate appearance of God in it perhaps of any next to that of his chosen People of old would think the Nature of things to be inverted Triumph to belong to the Conquer'd and the most desir'd Deliverance to be worse than the deprecated Bondage or to lose its Nature because it was the return of Prayers and Tears and not purchas'd by Rivers of Blood And after-times I have seen an exact Pedegree o◠the Earl's Family from Syford a noble Norman Gothick Extraction Vid. Pref. who was eminent under Rollo who Anno 912 obtain'd Normandy by Treaty with Charles the Simple and marrying his Daughter This Syford made the like bargain with Arald the first Earl of Flanders from which Marriage the Earls of Flanders and the Veres Earls of Guisnes in Flanders descended Alberic or Aubrey de Vere or Ver as he stands enter'd in Dooms-day Book is suppos'd to have come into England with W. 1. 'T is certain at the time of the great Survey he was a Proprietor in several Counties particularly in Essex and Humphrey the Son of Alberic had at that time several Mannors in Norfolk and Suffolk 'T is probable that this Son of Alberic dy'd in his Father's Life-time I should take the Comes Albericus who is enter'd in Dooms-day Book in several Counties as a Proprietor from before the reputed Conquest to have been Alberic de Ver and the rather because otherwise he and his Descendents from that time are wholly lost and besides no place in England can be found of which any Alberic or Aubrey was Earl till the time of H. 2. when Aubrey the third of his Name was created Earl of Oxford But before that time the Office of High Chamberlain belonged to the Family and as appears by Records which I have seen in the Tower was annex'd to their Barony But that of Bolebec belong'd not to it till about the time of King John when Earl Robert married the eldest Daughter of the Lord of Bolebec the Barony of Sandford came by another Marriage about the time of H. 3. the Barony of Badesmere came not till the time of E. 3 with the eldest Sister and Co-heir of Bartholomew Lord Badlesmere in which your Lordship 's Great Name will flourish taking root downwards as it has spread upwards to the first Ages will treat their Memories with Contempt who would inure the Brand of Disloyalty and Unchristian Behaviour upon your Lordship and the Followers of so bright an Example Selden Dissert ad Flet. f. 519. speaking of the time of Will. 2. sub idem tempus c. eminentissimus erat pristini planè commatis juris sine ullâ Caesarci intermixtione peritus atque exercitatissimus apud nos Albericus de Ver. Nor was your Ancestor Earl Aubrey more eminent in the time of W. 2. for his Skill in the unmix'd English Laws than your Lordship is and will be to Posterity for your generous Defence of them Certain it is how much soever some pretend to passive Valour they cannot bear the Reproach of such extraordinary Vertue and are forced to shut their weak Eyes at that shining Bravery with which your Lordship strugled with the Flatteries and Threats of Fortune and of Power Becoming in the Language of the Heathen Philosopher a Spectacle most pleasing to the Gods the Effects of which Pleasure your Lordship has felt in the admir'd Tranquillity of your own Mind and in the Glory permitted you of being signally accessary towards the present Happiness of your Country not only by your resolute Vndertaking but even by your Sufferings I must own the Sufferings of others to have contributed to it by accident as those things may well be said to be which happen contrary to the intention of the Agent and nature of the Action But the Nation was glad to find their private Resentments and self-Defence to carry them along with the Publick Interest which some of them had sacrificed to low Ends or stupidly neglected being as unconcern'd at publick Calamities as if their former Exemptions which they seem'd to aim at had made them of another distinct Community Such as these deservedly lost the Credit of their share in this Revolution not only as they had drawn their Sufferings upon themselves and others by tempting those whom they flattered to make Experiment of the force of their Doctrine but as their subsequent Carriage has demonstrated upon what narrow Principles they engag'd not in the Cause of their Country but their Own Their lowness of Spirit makes them resemble those fawning Creatures whom the least Gentleness raises to Familiarity but notwithstanding the Advantages which they enjoy under this Government 't is not to be presum'd that they are given them otherwise than to reclaim and wean them from Notions as destructive as they are useless to this equal Administration They who now pretend to merit by transplanting the Doctrine of the Bow-string into the Service of this Government would do well to consider whether in the late Reign it really profited any but themselves and whether they kept to it any longer than while they found their account in it As it is our Happiness to have a King born and acting for the Good of Mankind it is not to be fear'd that he should cherish what is contrary to their common Sense and Interest or that he will countenance Reflections upon those noble Patriots who ventur'd every thing dear to them in the same Cause with himself while Success was doubtful and whose Reputations next to his own facilitated that Revolution for which late Posterity shall praise those of this Generation One would think that such a Cause should not stand in
being ask'd by the King upon the report made by the Justices of their resolution for the Duke what things the Constable can do by reason of his Office Sir says he this Point belongs to your Law of Arms of which we have no experience nor cognizance This may shew what occasion Cardinal Wolsey had to strain a point of Law against that Duke and to have one who durst insist upon a Right to be Constable of England by inheritance Vid. Inf. 2d Part. to be taken off by an High Steward out of Parliament made for that turn And what Fineux says of the Power of the Constable may account for the silence of Bracton Fleta and other Ancient Common-Lawyers in relation to the Authority of the Constable and Marshal Flet. lib. 2. c. 31. yet Fleta shews that the Constable had a Seat in the Exchequer and overlooked Accompts relating to Soldiers Forts and Castles and gives a shrewd hint concerning the Earl Marshal speaking of the Exchequer The Justices says he sitting there were all Barons Fleta lib. 2. c. 26. because Barons used to sit in their places while the Earl of Norfolk and Martial of England had his Place and Seat there as Chief Justice of the Kingdom of England whose Place the Treasurer possesses at this day but he cannot occupy his Office This shews that in the Exchequer the Earl Marshal had place above the Constable accordingly when 25 E. 1. they came into the Exchequer to forbid the Levying of the Tax The Barons in their account of this to the King say There came to the Bar of the Exchequer Vid. Append. the Earl Marshal and the Earl of Hereford and the Earl-Marshal and the others declared they would not suffer it to be Levied That this Office was of extraordinary Authority Rot. Pat. 42. H. 3. M. 4. appears by a Record 42 H. 3. which shews That the Precept for executing the Provisions at Oxford were by the King and his Council in Parliament deliver'd to the Earl-Marshal and if we consider the Authority exercised by the Earls Marshal in the time of H. 3. and E. 1. with the approbation of Parliaments Vid. Mat. Par. 28 H. 3. it may be thought that he was an hereditary Conservator of the Kingdom notwithstanding which in the 28th of H. 3. the Parliament insisted upon it as their right to have four Conservators chosen by them This Office perhaps is the only one which was enjoyed in gross and went along with the name of Marshal till the time of H. 3. when Hugh Bigod Earl of Norfolk Bar. 1. Vol. f. 133. Married Maud the Daughter of William Marshal Earl of Pembroke Sir William Dugdale says the first mention which he finds of the Name and Family of Mareschal Ib. f. 599. was in the time of H. 1. but in all probability that Name and Office went together from before the time of W. 1. I am sure Roger Mareschal was a very considerable Proprietor in Doomsday-Book Vid. 2 d Part. Indeed the first contest about the Office was in the time of H. 1. when it was adjudged to belong to the Family of the Mareschals Vid. Appendix Rot. Pat. 1. Johan N. 85. M. 12. as appears by the Record of the Confirmation 1º Johannis CHAP. VIII The Third Head of Positive Law The Kingdom founded in Monarchy yet Elective sub modo The Form of Government not dissolv'd with the Contract between Prince and People The Argument from Election of Kings as it is used by the Author of the Sighs of France enslaved The Crown of England proved Elective Sub modo 1. From the Saxon Pontifical and the Council of Calcuth Anno 789. 2. From the Practise till the supposed Conquest 3 From the Confessor's Law received by W. 1. and the Expressions of Ancient Historians and Lawyers since the time of W. 1. 4. The Common usage in asking the People's consent at Coronations 5. The Opinion of Kings themselves 6. The Old Oaths of Allegiance 7. The Liberty even after a Settlement of the Crown 8. The Breaches in the Succession 9. The Statute 11 H. 7. Answers to the Objections 1. That the King never dies 2. The supposition of a Testamentary Heir 3. The Declaration temp E. 3. against consenting to the disherison of the King and His Heirs 4. The claims of Right between Two Families 10. A qualified Election of Kings of England confirmed by observing how it has been in other Nations descended from the same Common Stock THE Kingdom I own is founded in Monarchy and so is Poland which yet is absolutely Elective Nor is there any consequence that the dissolution of the Contract between the immediate Prince and People This objected by the Author of Elementa Politica Of the Magistracy c. vindicated and others Vid. Pufendorf de Interregnis p. 267. Post decretum circa formam Regiminis novo pacto opus erit quando constituuntur ille vel illi in quem vel in quos Regimen coetûs confertur should destroy the form of Government for that depends upon a Prior Contract which the People entred into among themselves And that by virtue of this to avoid endless competitions our Kings have generally from the first erection of the English Monarchy been chosen out of the same Family appears beyond contradiction If our Monarchy will appear from the foundation to be no otherwise an inheritance than as it is setled on a Family with a latitude for choice within the Family no Man can doubt but it will tend greatly towards removing objections against our present Settlement 't is certain the Learned Author of The Sighs of France improves the Argument farther than is needful for us Soupirs de France Mem. ' It is says he indubitable That they who have power to Chuse ' have power to Depose Every Nation says he that makes a King P. 81. preserves to its self a right to unmake him when he goes beyond the bounds of his duty and when he ruines the Estate instead of preserving it and this very thing makes it appear That Elected Princes neither are nor can be Soveraigns of an Arbitrary Power I know some talk of a Birthright and Inheritance in the Crown of England which is not founded in the statutes Jovian p. 87. but on the original Custom and Constitution of the English Government which is thought to be an hereditary Monarchy according to proximity of blood But I would desire all Men of this Opinion impartially to weigh these following particulars 1. Mr. Selden in his Titles of Honour shews us the form of Prayer used at the Coronation of Saxon Kings wherein they pray God to bless him whom they chuse for King and call him one chosen to be Crowned King Et hunc electum in Regem coronandum bene Titles of Honour f. 157. Out of the Saxon Pontifical At Calcuth Anno 789. Spel. Concil 1 Vol. f. 291. dicere consecrare digneris
Ordinary nor is not so to be receyvid but it must recyve a Tryal directly by th' Ordinary whose Certificate must proceede accordinge to such mater as may informe a Truthe or ells it must receyve the Tryall by a Jury of twelve Men according to the common usage of Tryalles And whoe can thinke if the cause of eny such separation stirred upon no just Motion but onely of corrupte or fleshly disposition shuld come now in question that either eny Ordinary or ells eny Jury in so playne and open Bastardy wold either so farre forgeete or hazard theimselfes or elles exceede the Bondes of their Dutyes to God their Countrey or all honest Reputation to the World to certify such Issues to be ligitimate wherby no Controversy shuld be decyded but rather dangerously encreased and the whole Government of such a Noble Realme therby brought unto a double Bastardy as the case now standith For touchinge th' Issues betweene the Duke and the French Queene yf question be askyd whether they be lawfull answer is made They are not because the Duke was first lawfully marryed to the Lady Mortymer and contynued with her aboue seven Yeres and that he was maryed after to the French Queene duringe the sayd Lady Mortymer's Lyfe whoe overlyved the byrth of all the French Queenes Children Which answer by our Law cleerly distroyeth the seconde Mariage and makith it voyde and so all the Issues cleerly Bastardes And this is th' absolute Judgementof our Lawe so as now th' Issues of the French Queene cannot eny way help theimselfes but they must first destroy the first maryage which our Lawe will never disallowe untill it be first disanulled And therfore yf the Duke of Suff. had had eny Issue by the L. Mortimer those Issues shuld haue ben allowed his Heyres by our Lawe notwithstandinge the Mariage after with the French Queene And therfore for that the French Queenes Issues rest dissabled in poynt of Common Lawe they must make theimselfes able by some such proofe as may satisfye the same Lawe before they can be receyvid And yf they seeke their relief by eny dispensation from Rome as is sayd it servith not although ther wer a Dyvorce to be proovyd by eny such Instrument And it is most true that they ar able to proove no lawfull Devorce within the Realme though by search it hath not onely ben perceyvid but is evidently to be provyd howe meny corrupte and subtile attemptes by sundry meanes hath ben taken in hande to cowntenance those matches with the French Queene and other as by a supposition of a Sute sued betweene one Anne Browne and the said Charles Brandon wherof shuld aryse the displeasure betweene the Lady Mortimer and the said Charles her Husband seven Yeres and more after their Mariage During which time the said A. B. God wotte never tooke it so earnestly as she once complaynid to the Lawe or ever thought of the Mater nor as it seemith wold ever haue done yf in this tyme the sayd Charles had not consumyd the sayd Lady Mortimers Welth and Lyvelyhoode and found her Yeres not answerable to his Yeouth and wanton Disposition for satisfyenge wherof this Acquayntance that Bely risinge and these Practises after hapt with the same Anne Wherof riseth now these feeble-groundid Histories this Speche and these Devices that she forsooth shuld be precontracted to him before and had a Childe which Childe eight Yeres after is knowen well inoghe was but two or three Yeres olde at the moste A strange case and yet she had it at seventeen or ninteen and was but twenty at the tyme of this supposed Divorce when the sayd Charles and she came togither Well I say no more for the Case is skant worth the speakinge of but yf this Mater wer to be shewid ye shuld see such a patron of a Divorce as they that faynest wold have it wold soonest be ashamyd to countenance their Title upon the same and yet these Passages thus hapt in these Dayes and in that Lyfe from better to worse advoutry upon advoutry and such other stuff But how vayne is it to wryte or to occupy yow with these Digressions as with what mought haue ben what is supposed to haue bene or such other vayne and frivolous practises or shifts as heerafter may be when it behoovith so much presently to consyder what in this case properly may and ought to be And therfore because it is one of the most assuryd wayes to understand what the Lawe willeth or is in eny question to admitte that the Mater were at present to be decided by dewe course of Lawe with all the Pollicies that on bothe partes may be used for their most avayle and purpose and so to bringe the same in Forme of Lawe to such a poynt as judgement may be therof gyven rightly Take heerin for Ensample that I. S. made a Gifte of Lande to Charles Duke of Suff. and the Frenche Queene after their Mariage and the Heires of their Bodyes and now the same I.S. bringith his Action of Forme-downe in reverter for the same Lande agaynst the Lady K. and her Sister and the resydue of that Lyne and supposeth that the Land ought to him to revert for lacke of Issue lawfully begotten betweene the Duke and the French Queene and they come and pleade by way of Barr the Mariage betweene the French Queene and the Duke and convey the Pedegree lineally Wherunto I. S. replieth and shewith a former Maryage with the Lady Mortimer and averrith her Lyfe after their Birth And the Lady K. and the rest cannot by Lawe maynteyne their Barr and destroy his Title unlesse they pleade a lawfull Divorce and yf they pleade eny such yet the same shall not be under the Pope's Bulle but by the Certificate of th' Ordinary and for that th' Ordinary hath no Recorde or other lawfull Proofe wherupon he can lay eny Foundation to certify any lawful Divorce therfore the Certificate cannot be avaylable And so to conclude ther is no doubt in the troth of the case and by lyke reason no doubt in Lawe if you will allowe the Proceedinges accordinge to troth but that the Bastardie remaynith and is not able to be purged And yf the Bulle shuld have ben to make the Children of the sayd Queene and Duke of Bastardes legitimat besydes the Reasons before alledgid which ar as effectuall in this purpose as in the other yet it is most true that such legitimation had ben of no more force or Vertue heere in this Realme of Englande then they be of in those Contreyes that ar at the Pope's Obedience And who soever is legitimated ther of the Pope is not to be understandid for all that to be legitimate to inherite but in the Lands that do belonge vnto the Churche (i) Imo in ca. per venerabilem qui filii sint legi And besydes who soever is legitimate and abled generally to eny Dignitie is not in that neither to be understandid legitimatid vnto
so happe as God forbidd but also it is so penall that if such ill Chaunce shuld unfortunately befall it makith Traytors of those that will clayme their Inheritance although their intent were but to try their Titles And it is a Learninge by the Common Lawes of England that longe hath ben so receyvid that in every such case as eny of these happen no Exposition is to be allowed but the Lawe willith us to cleve to the Letter without eny further wrestinge therof then the Letter naturally and strictly will reache unto So that if it be not a stricte observation of the Letter according to his natural entent in any of these cases the Common Lawe allowith it not And the rather the Lawe is precise herin for that it is a newe Statute which seldome ar taken by equite in eny point because they ar all pennyd at large As for Example I will remember one or twoe which may suffice to such as be Learnyd to search for other of lyke effect wherof ther ar not a few In Anno 1. of Kinge Edward the 6 th ther was a Statute made That if eny were condemnid for the stealinge of Horses and Mares they should lose their Clergy and because the words Horses and Mares were the plurall nombre it was taken not to extende to one Horse or to one Mare And so for that cause a new Statute was made Anno 2. of the same K. that made lyke Lawe for stealinge one Horse or one Mare And the chief cause of this was because it is a Penall Statute in takinge from a Man that wherby his Lyfe might be savid In K. Richard the 3 ds Tyme there was a Statute made to Auctorize Cest a que use to enter vpon his Feoffees and make Feoffementes And it was in question in Anno 9. of H. the 7 th yf he made a Letter of Atturney whether this were good by the Statute and lefte therfore a doubtfull question by reason the Statute gyveth auctoryte onely which must in all poyntes be observed And ther is a greate deale more coulour to make that Feoffement goode being by Letter of Atturney then to make this Will to this purpose goode not signed with the Kinges owne Hande For if eny other put his Hande therunto and not the Kinge himself then it is signed with an other Hande and not the Kinges Hande And yf I gyve Auctorytie to my Executors to sell my Landes and say no further then yf they sell the same by Wrytinge or without Wrytinge it is sufficient but if I adde these wordes That they shall sell my Landes so that they do it by Wrytinge signed with their proper Handes yf now they sell the same and th' one cause the Residue in all their presence to wryte all their Names as thoughe every one had severally subscrybed I hold it no question but this Sale is not good for they must pursue their Auctorytie strictlye and otherwyse it is of no effect And consyderinge as is partly before remembryd how greate a mater it was to committe such a Trust it were a greate lacke and slander to the whole Parliament to thinke that they wold condiscend to the committinge of so high and weightie a Confidence as wherof the whole Estate and Weale of the Realme shuld depend but that they did forsee that their doinges therein shuld not be blynded by a Wrytinge signed with a Stampe The same thing was urg'd by Lethington the Secretary of Scotland in a Letter to Sir Will. Cecil Appendix to the 2d Vol. of the Hist of the Ref. F. 269. which might be put vnto either when the Kinge was voyde of Memory or els when he was deceassid as indeed it after happenyd as most manifestly appeeryd by open declaration made in Parliament by the late L. Paget and others that King Henry did not signe it with his owne Hande as it is playne and probable inough by the Pardon obteynid for one William Clerke for puttinge the Stampe vnto the sayde Will after the Kinge was departid and who doubtith but yf his meaninge had ben such so to haue disposed of the Crowne but that he wold have put this mater out of doubte by signifyenge the same with his owne proper Hande And touchinge the two chief Examples that ar brought foorth the one of the 21 and 33 of K. H. th' Eight wherby K. H. was aucthorized to gyve his Royall Assent to Actes of Parliament by his Letters Patentes and so foorth and th' other for that Queene Mary omittyd the style that was apoyntid by Parliament in 35 of H. th' Eight in her Parliament Writts howe little they make to the matter every Man may judge For the Statutes of 21 and 33 of H. 8. were only made in affirmance of the Common Lawe and such a Royal Assent wold suffice by Letters Patents without eny assurance thereof by the Signe And this Statute was but to put such matter out of question for if the Common Law had ben such before there is no doubt but that he must haue signed every Patent with his proper Hande and so these Cases are no way lyke And touchinge the seconde yf the Statute that conteynith the King's Style be well consyderid there wold be made thereof no such Collection For the same apoyntith a punishment to such Subjects as of purpose depryve the K. of the Realm of that Stile But there is no doubt but the Writts that wantyd the Stile were in Lawe sufficyent and the Parties that made the same punishable So that these Examples cannot be wrestid to serve eny whit for the purpose And where ther is made a great mater by reason the Will was inrollid in the Chancery and Constats thereof made under the Broade Seale and the Legacyes thereof in all poyntes performyd To that may be answerd That all that is therein affirmed may easily be confessed and yet it proovith nothinge to th' intent applied for it was his Will is ever he condescendid thervnto though he did never signe it with his Stampe nor with his Hande and a goode and a perfect Will to all Entents and Purposes whereof he had by Common Lawe Authoritye to make his Will of But it is not or cannot be the more a perfect Will to this respect or purpose vnlesse he did execute the auctoritie apoyntid by the Statute of 35 of H. 8. as is before remembryd Since then the Duke had a Wyfe lyvinge when he maryd the Frenche Queene and by the Statute ther is nothinge to be Claymid onles K. Henry had passed eny things either by his Letters Patentes under the Broade Seal of Englande or ells by his last Will signed with his most gracious Hande And that it is trewe that he had a Wyfe lyvinge when he maryd the Frenche Queene that so if it were requisite or hereafter may be there mought be avouchid more then one with much other matter touchinge that poynt of Illegitimacion and Inhabilitie as well in