fear of some disorder likely to ensue of this information if it be not aforehand taken up by a fair legal tryal in that High Court Neither want there fearful examples in this kind in the Ambassadors Genoa upon a far less ground in the time of Parliament and is house demolished by such a seditious tumult The Parliament therefore as well to secure his Lordships person followers and friends from such outrages to preserve the honour of the State which needs must suffer blemish in such misfortunes they were sent thither to require a fair discovery of the ground that led his Lordship so to inform the King that they might so thereupon provide in Justice and Honor and that the reverence they bear unto the dignity of his Master may appear the more by the mannerly carriage of his Message The two that are never imployed but to the King alone were at this time sent and that if by negligence of this fair acceptance there should happen out any such disaster and danger the World and they must justly judge as his own fault If upon the delivery of this Message the Ambassador shall tell his charge and discover his intelligence then there will be a plaine ground for the Parliament to proceed in Examination and Judgment But if as I believe he will refuse it then is he Author Scandali both by the Common and Civil Laws of this Realm and the Parliament may adjudge it false and untrue and declare by a public Act the Prince and your Grace innocent as was that of the Duke of Gloucester 2 Rich. 2. and of York in Henry the sixth his time then may the Parliament joyntly become Petitioners to his Majesty first to confine his Ambasiador to his house restraining his departure until his Majesty be acquainted with his offence and aswell for security as for further practice to put a Guard upon the place and to make a Proclamation that none of the Kings Subjects shall repair to his house without express leave And to send withal a Letter with all speed of complaint against him to the King of Spaine together with a Declaration under the Seals of all the Nobility and Speaker of the Commons in their names as was 44 Hen. 3. to the Pope against his Legat and 28 Edw. 1. Requiring such Justice to be done in this case as by the Leagues of Amity and Law of Nations is usual which if the King of Spain refuse or delay then it it Transactio Criminis upon himself and an absolution of all Amity and friendly intelligence and amounts to no less then a War denounced Thus have I by your leave and command delivered my poor opinion and ever will be ready to do your Grace the best service when you please to command it THAT THE KINGS OF ENGLAND Have been pleased usually to consult with their Peers in the Great Councel and Commons in Parliament of Marriage Peace and War Written by Sir Robert Cotton Knight and Baronet Anno 1621. LONDON Printed in the Year 1672. That the Kings of England have been pleased usually to consult with their Peers in the Great COUNCIL c. TO search so high as the Norman Conquest it is necessary to lay down the form and Government of those times wherein the state of affairs then lead in another form of publick Councels for the people brought under by the Sword of William and his followers to subjected vassallage could not possess in such assemblies the right of their former liberties division and power having mastered them and none of their old Nobility being left either of credit or fortune what he retained not in providence as the Demesnes of the Crown or reserved not in piety for the maintenance of the Church he parted to those Strangers that sailed along with him in the Bark of his adventure leaving the Natives for the most part as appeareth by his survey in no better condition then Villenage He moulded their Customs to the manner of his own Country and forbore to grant the Laws of the Holy Edward so often called for To supply his occasions of men mony or provisions he Ordered that all those that enjoyed any fruit of his Conquest should hold their lands proportionably by so many Knights fees of the Crown and admitted them to infeoff their followers with such part as they pleased of their own portions which to ease their charge they did in his and his Sons time by two infeoffments the one de novo the other de veteri This course provided him the body of his War the money and provision was by Hydage assessed on the common people at the consent of their Lords who held in all their Signiories such right of regality that to their Vassals as Paris saith quot Domini tot Tyranni and proved to the King so great a curb and restraint of power that nothing fell into the care of Majesty after more then to retrench the force of this Aristocracy that was like in time to strangle the Monarchy Though others foresaw the mischief betimes yet none attempted the remedy until King John whose over hasty undertakings brought in those broyls of the Barons Wars There needed not before this care to advise with the Commons in any publick assemblies when every man in England by tenure held himself to his great Lords will whose presence was ever required in those Great Councels and in whose assent his dependent Tenants consent was ever included Before this Kings time then we seek in vain for any Councel called he first as may be gathered though darkly by the Record used their Counsels and assents in the sixth year of his Raign Here is the first summons in Records to the Peers or Barons Tractaturi de magnis arduis negotiis it was about a War of defence against the French And that the Commons were admitted at this time may be fitly gathered by this Ordinance viz. Provisum est assensu Archiepiscoporum Comitum Baronum omnium fidelium nostrorum Angliae quod novem militis per Angliam inveniend decimarum c. and this was directed to all the Sheriffs in England the ancient use in publishing Laws From this there is a breach until the 18 Hen. 3. where the next summons extant is in a Plea Roll of that year but the Ordinances are lost From hence the Records afford us no light until the 49 of the same King where then the forme of summons to Bishops Lords Knights and Burgesses are much in manner though not in matter to those of our times This Parliament was called to advise with the King pro pace assecuranda firmanda they are the words of the Writ and where advice is required consutation must needs be admitted To this King succeeded Edward his Son a wise a just and fortunate Prince his Raign and so long to the fourth of his Grandchild we have no light of publick
but his Officers and some few excepted to carry any Sword or long Bastard under pain of forfeiture and Imprisonment The same King in the 19th of his raign and upon the Marriage with the French Kings daughter commanded by Proclamation Ne quis Miles Armiger seu alius Ligeus aut Subditus suus cujuscunque status aliquem Francigenam seu quemcunque alium qui de potestate obedientia regis existerit Vpon what pretence soever ad aliqua facta Guerâ—â—rum seu actus armorum exigat sub forisfactura ominum quae Regi forisfacere poterit And as in the Kings power it hath ever rested no forbid Combates so it hath been to determine and take them up Thus did R. 2. in that so memorable quarrel between Mowbray and Hereford by exiling them both And when Sir John de Anestie and Tho. de Chatterton were ready to fight candem quaerelam Rex in manum suam recepit saith the Record And De mandato Regis direptum est praelium inter Johannem Bolmer Bartramum de Vesana in the time of Henry the fourth Sir John Fitz-Thomas being produced before the Earl of Glocester Deputy of Ireland and there Challenged by Sir William deVessy to have done him wrong in reporting to the King that Sir William aforesaid should have spoken against the King defamatory words of which Sir John there presented a Schedule Willielmus audito tenore Schedulae praedictae dementitus est praedictum Johannem dicendo mentitus est tanquam falsus proditor denegavit omnia sibi imposita tradidit vadium in manum Justiciarij qui illud ad misit Et Praedictus Johannes advocavit omnia dementitus est simil dictum Willielm Whereupon the Combat was granted and the time and place inrolled but the Process was adjourned into England before the King who with his Counsell examining the whole proceeding and that Quia Willielmus attachiatus fuit ad respondend Johanni praedicto super diffamatione principaliter non sit citatus in Regno isto placitare in Curia Regis placita de diffamationibus aut inter partes aliquas Duellum concedere in placitis de quibus cognitio ad curiam Regis non pertinet And for that the Judge vadia praedictorum Johannis Willielmi cepit priusquam Duellum inter eos consideratum adjudicatum fuit quod omnino contra legem est consuetudinem Regni Therefore per ipsum Regem Concilium concordatum est quod processus totaliter adnulletur And that the said John and Willlam eant inde sine die salva utrique eorum actione sua si alias de aliquo in proedicto processu contento loqui voluerint In a Combat granted in a Writ of right Philip de Pugill one of the Champions oppressus multitudine hominum se defendere non potuit Whereupon the People against him in perpetuam defamationem suam in eodem Duello Creantiam proclamabant which the King understanding Assensu Concilii statuit quod praedict Philippus propter Creantiam praedict liberam legem non omittat sed omnibus liberis actibus gauderet sicut ante Duellum gaudere consuevit What penalty they have incurred that without law or license have attempted the practise of Arms or their own Revenge may somewhat appear by these few Records following William Earl of Albemarle was Excommunicated Pro Torniamento tento contra praeceptum Regis To which agreeth at this day for the Duell the Councel of Trent and that held at Biturio in Anno 1584. John Warren Earl of Surrey was fined at a thousand marks pro quadam transgressione in insultu facto in Alanum de la Zouch Talbois was committed to the Tower for attempting to have slain the Lord Cromwell And because Robertus Garvois insultum fecit percussit Edwardum filium Williel mi inquisitio facta est de omnibus tenementis catallis praedicti Roberti Edw. Dallingrige accused by Sir John St. Leger before the Kings Justices Prâ— venatione aliis transgressionibus answered that these accusations were false and threw down his Glove and challenged disrationare materias praedictas versuâ— praedictum Johannem per Duellum Sed quis contra legem terrae vadiavit inde Duellum he was committed to Prison quousque satisfaceret Domino Regi pro contemptu Sir Nicholas de Segrave a Baron Challenged Sir John de Cromwell and contrary to the Kings prohibition because he could not fight with him in England dared him to come and defend himself in France therein as the Record saith subjecting as much as in him lay the Realm of England to the Realm of France being stayed in his passage at Dover was committed to the Castle brought after to the Kings Bench and there arraigned before the Lords confesled his fault submitted himself to the King de alto basso Wherefore judgement is given in these words Et super hoc Dominus Rex volens habere avisamentum Comitum Baronum Magnatum aliorum de consilio suo injunxit eisdem in homagio fidelitate ligeantia quibus ei tenentur quod ipsi considerent quails poena pro tali facto fuerit infligenda Qui omnes habito super hoc consilio dicunt quod hujusmodi factum moeretur poenam amisionis vitae Whereupon he was committed to the Tower Ro. Archerd that attended him into France was committed to prison arraigned fined at 200 marks In the end aftermuch intercession the L. Segrave was pardoned by the King but could not obtain his liberty until he had put in security for his good behaviour But this course holdeth proportion with an ancient law made by Lotharius the Emperor in these words De hiis qui discordiis contentionibus studere solent in pace vivere noluerint inde convicti fuerint similiter volumus ut per fidejussores ad nostrum Palatium veniant ibi cum nostris fidelibus considerâ—bimus quid de talibus hominibus faciendum sit A BREIF ABSTRACT Of the Question of PRECEDENCIE BETWEEN ENGLAND AND SPAINE Occasioned by Sir Henry Nevill The Queen of Englands Ambassador and the Ambassador of Spain at Calais Commissioners appointed by the French King who had moved a Treaty of Peace in the 42. year of the same QUEEN Collected by Robert Cotton Esquire at the commandment of her Majesty Anno Domini 1651. LONDON Printed in the Year 1672. A BRIEF ABSTRACT ACT Of the Question of Precedency between England and Spain c. Precedency of the King in respect of place Antiquity as a Kingdom or a Christian Kingdom or Eminency of the Throne Royal or person Nobility of bloud or Antiquity of Government Precedencie of England in respect of the Antiquity of the Kingdome TO seek before the decay of the Roman Empire the antiquity of any Kingdome is meer vanity when as the Kingdomes of Christendome now in being had their rising from the fall thereof at which
produce no Example of any Provincial Councel by call of the King For. Bodin lib. 1. cap. 6. towards the end writeth that the Kings of Spain Non sine magna mercede impetraverunt Sixti Pontificis Romani rescripto ne perigrinis sacerdotia tribuerentur Appeals from the King to Rome allowed So the Kings of Spain have meerly no power Ecclesiastical having dispoyled himself of all by inthralling their Kingdom to the Church of Rome Precedency of England in respect of Eminency of Royall Dignity THe Kings of England are anointed as the Kings of France who only have their preheminence before other Kingdoms declared by miracle in the cure of the Regius morbus which they can effect only and that of antiquity For Edward the Confessor healed many 2. They are superiour Lords of the Kingdome of Scotland and Man and Vicarii Imperii as Edward the third and Oswald intituled Rex Christianissimus ve Peda lib. 2. 3. They are named Filii adoptivi Ecclesiae as the Emperour Filius Primogenitus and the King of France Filius natu minor vide Platina 4. They are accompted among Reges super illustres in this order Imperator Rex Franciae Rex Angliae Franciae vide Corsettus 5. England in the General Councels at Constance and Pisa was made a Nation when as all Christianity was divided into four Nations Itallicam Gallicam Germanicam Anglicam Ex lib. sacrarum Ceremoniarum Ecclesiae Romanae 6. Whereupon seat accordingly was allowed at the three General Councels viz. Constance Pisa Sienna to the English Ambassadors next to the Emperour on the left hand and to the King of France on the right hand which were their Ancient seats before the Spaniards at Basill 1431. begun to contend for Precedency Where it was in the first Session ordered that all Legats should hold such their places as they had enjoyed heretofore according to their worth and antiquity Yet in the Councel of Trent the precedency of France with Spain was made questionable Augustus de Cavalles as the strongest reason to bar the French Interest inferred the Queen of England from her Ancestors both in respect of Inheritance Conquest and Gift de jure Queen of France By which reason when he doth shake or overthrow as he thinketh the Precedency of France he doth consequently strengthen the Precedency of England And in Treaty between Henry the seventh and Philip of Castile 1506 the Commissioners of England did subsign betore the other And in the Treaty of Marriage with Queen Mary Anno 1553 those of England are first rehearsed And at Burbrough Anno 1588. they gave it to her Majesties Ambassadors And yet in respect of the Eminency of this Royal throne to the See of Canterbury was granted by Vrbane at the Councel of Claremount Anno 1096. for ever the seat in General Councel at the Popes right foot who at that time uttered these words Includamus hunc in orbe nostro tanquam alterius orbis Pontificem Maximum Subsequence of Spain 1. The Kings of Castile are never anointed neither hath the Spanish Throne that vertue to endow the King therein invested with the power to heal the Kings evil For into France do yearly come multitudes of Spaniards to be healed thereof 2. No Kingdom held in fee of him 3. Spain then not remembred one of the Sons of the Church 4. The King of Spain placed last after the King of England inter super illustres by the said Corsettus 5. The Kingdome was then comprised under Itallica natio and no Nation of it self as in old it was called Iberia minor as a member of Italy Iberia major England being Britannia major At which time the Spaniard contented himself with the place next to the King of France Precedency of England before Spain in respect of the Nobility of Blood HEr Majesty in Lineal discent is deduced from Christian Princes for 800 years by Ethelbert a Christian 596. and the Matches of her progenitors most Royal with France Germany Spain Subsequence of Spain For their Antiquity of discent as Kings of Spain is chiefly from the Earls of Castilia about 500 years since For they cannot warrant their discent from Atalaricus the Goth and as Dukes of Austria from the Earls of Hapsburgh only about 390 years since Their matches anciently for the most part with their subjects and of late in their own blood Precedency of England in respect of antiquity of Government HEr Majesty having raigned now most happily 42 years This we would not have alledged but that the Spanish Ambassador at Basil objected in this respect the minority of Henry the sixth Her sex herein nothing prejudicial when as both divine and humane Laws do allow it and accordingly Spain England and Hungary insomuch that Mary Queen of the last was always stiled Rex Mario Hungariae Vide Tilius Subsequence of Spain The King of Spain yet in the Infancy of his Kingdome For the Precedency may be alledged viz. The Antiquity of the Kingdom when as Castile Arragon Navar and Portuguall had their first Kings about 1025. The ancient receiving of the Christian Faith by Joseph of Aramathea Simon Zelotes Aristobulus yea by St. Peter and St. Paul as Theodoretus and Sophrinius do testifie The Kingdome is held of God alone acknowledging no superiour and in no vassalage to the Emperour or Pope as Naples Sicilia Arragont Sardinia and Corsica c. Sir Thomas Moore denyeth that King John either did or could make England subject to the Pope and that the Tribute was not paid pag. 296. but the Preter-pence were paid to the Pope by K. John by way of Alms. The absolute power of the King of England which in other Kingdomes is much restrained England is accompted the fourth part of Christendome For in the Councel of Constance all Christianity was divided in nationem viz. Italicam Germanicam Gallicanam Anglicanam and accordingly gave voices England in the opinions of the Popes is preferred because in it is conteined in the Ecclesiastical division two large Provinces which had their several Legatinati when as France had scantly one The Emperour is accompted major filius Papae the King of France filius minor the King of England filius adoptivus The Archbishops of Canterbury are accompted by the people tanquam alterius orbis Papae and anointed to have place in General Councels at the Popes right foot The title of Defensor fidei as honourably and as justly bestowed upon the Kings of England as Christianissimus upon the French or Catholicus upon the Spaniard Edward the third King of England was created by the Emperour Vicarius Perpetuus Imperii cum jure vitae necisque in omnes Imperii snbditos and the Kings of England Papae Vicarii by Pope Nicholas the second vide COPGRAVE Innocentius the fourth the Pope said vere hortus deliciarum est Anglia vere pateus inexhaustus ubi
multa abundant c. King Hen. 2. elected King of Jerusalem by the Christians Richard the first conquered the Kingdome of Cyprus and gave it unto Guy Lusigrian whose posterity raigned there until of late years Kings of England are superiour Lords of the Kingdom of Scotland and are absolute Kings of all the Kingdom of Ireland England is not subject to Imperial and Roman Laws as other Kingdoms are but retaineth her ancient Laws and Pura municipialia King Henry the sixth was Crowned King of France at Paris The Kings of England did use the stile of a Soveraign viz. Alti conantis Dei Largiflua Clementiae qui est Rex Regum Dominus Dominorum Ego Edgarus anglorum 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Omniumque Regum Insularumque Oceani Britanici Circumjacentium cunctarumque Nationum quae infra cam includuntur Imperator ac Dominus A REMONSTRANCE OF THE TREATIES OF AMITY AND MARRIAGE Before time and of late of the House of AVSTRIA and SPAIN with the Kings of England to advance themselves to the Monarchy of Europe Written by Sir Robert Cotton Knight and Baronet LONDON Printed in the Year 1672. A REMONSTRANCE OF THE TREATIES OF AMITY AND MARRIAGE Before time and of late of the House of AVSTRIA and SPAIN c. Most Excellent Majesty WE your Lords Spiritual and Temporal and the Commons of your Realm Assembled in this your Parliament having received out of your meer grace your Royal command to declare unto your Highness our advice and Counsel for the further continuing or final breaking of the two Treaties between your Majesty the Emperor and the Spanish King touching the rendition of the Palatinate to the due and former obedience of your Illustrious Son the Prince Palatine and that of Marriage between the Lady Mary Infant of Spain and the most excellent Prince your Son now Prince of Wales We conceive it not unfit to offer up to your admired wisdom and consideration these important Motives that induced our subsequent advice and resolution By contemplation whereof we assume to our selves that your Majesty apparently seeing the infinite Calamity fallen of late unto the Christian world by means of these disguised Treaties of Amity and Marriage before time frequently used with your progenitors and now lately with your self by the House of Austria and Spain to advance themselves to the Monarchy of Europe will graciously be pleased to accept our humble advice Maximilian the Emperor and Ferdinand of Spain uniting by marriage the possessions of the House of Austria the Netherlands Arragon Castile Sciciliae and their new discoveries to one succeeding heir began though a far off to see a way whereby their Grandchild Charls might become the Master of the Western world and therefore each endeavoured by addition of Territories to facilitate that their desired end France was the only obstacle whose ambition and power then was no less than theirs he lay in their way for Gelders by siding with Duke Charls for Navarre by protecting Albert their King for their peeces in Italy by confederation with the State of Venice and for Naples and Millain by pretence of his own They were too weak to work out their way by force and therefore used that other of craft Lewis is offered for his daughter Claude the Marriage of Charls their Grandchild it is at Bloys accepted and to them confirmed by oath the claim of France to Naples by this released one hundred thousand Crowns yearly by way of recognition only to France reserved who is besides to have the investure of Millain for a sum of money which the Cardinal D'amboyes according to his Masters Covenant saw discharged Ferdinand thus possessed of what he then desired and Maximilian not meaning to strengthen France by addition of that Dutchy or repayment of the money broke off that Treaty to which they were mutually sworn affiancing Charls their Heir to Mary the Daughter of Henry the 7th to whose son Arthur Ferdinand had married Katharine his youngest daughter This double knot with England made them more bold as you see they did to double with France but he Prince of Wales his untimely death and his fathers that shortly followed enforced them to seek out as they did another tye the Spirit and power of Lewis and their provocations justly moving it they make up a second Marriage for Katharine with Henry the eighth Son of Henry the seventh and are enforced to make a Bull dated a day after the Popes death to dispence with it and consummate per verba de praesenti by Commissioners at Callis the former Nuptuals of Charles and Mary publishing a Book in print of the benefit that should accrew to the Christian world by that Alliance Henry the eighth left by his father young and rich is put on by Ferdinand to begin his right to France by the way of Guyen and to send his forces into Spain as he did under the Marquess Dorset to joyn with his Father in Law for that design by reputation whereof Albert of Navarre was enforced to quit that State to Spain who intended as it proved no further use of the English Army than to keep off the French King from assisting Albert until he had possessed himself of that part of Navarre which his successors ever since retain For that work ended the English Forces were returned home in Winter nothing having advanced their Masters service The next year to assure Henry the eighth grown diffident by the last carriage of Maximilian and Ferdinand whose only meaning was to lie busying of the French King at home to make an easie way abroad to their former ends project to the English King an enterprise for France to which they assured their assistance by mutuall confederacy at Mecklin for which Bernard de Mesa and Lewis de Carror for Castile and Arragon and the Emperor in person gave oath who undertook as he did to accompany Henry the eighth to Turwyn Ferdinand in the mean time dispatching the Vice-roy of Naples into Italy to busie the French King and Venetian that the English King with facility might pursue the conquest of France Henry the eighth had no sooner distressed the French King but Ferdinand respecting more his profit than his faith closed with Lewis who renounced the protection of Navarre and Gelders so bee and Maximilian would forsake the tye they had made with Henry the eighth The Vice-Roy of Naples is instantly recalled from Bressa a true with Spain and France concluded Quintean sent to the Emperor to joyn in it Don John de Manuel and Diego de Castro imployed to work the Emperor and Charles the Grandchild to exchange the marriage of Mary Henry the eighths Sister with Reve the second daughter of the French King and Lewis himself to take Elanor their Neece to wife and to clear all dispute about the conditions a blanck is sent from Spain to the French King to over-write what he please Henry the eighth perceiving this
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
Parliament a solemne protestation for himself and the whole Clergie of his Province entered by word the effect whereof was That albeit they might lawfully be present in all Parliaments yet for that in those Parliament matters of treason were to be intreated of whereas by the Canon law they ought not to be present they therefore absented themselves saving their liberties therein otherwise And in the 21. of Richard the 2. for that divers judgements were heretofore undon for that the Clergie were not present the commons prayed the King that the Clergie would appoint some to be their common Proctor with sufficient authority thereunto The Bishops and Clergie therefore being severally examined appointed Sir Thomas Piercy their Proctor to assent as by their Instruments appeareth And the same year upon the devise of Sir Thomas Bussey most of the Bishops and Lords were sworne before the King again upon the Cross of Canterbury to repeal nothing in this year enacted So did sundry the Proctors of the Clergy and most of the Commons by holding up one of their hands affirmed that they the same would do In the judgement of the Duke of Norfolk and Earl of Warwick the same year the name and assent of the Procurator of the Clergy alleadged And in the first of Henry 4. the Bishop of Assaph for Arch-bishop and Bishops the Abbot of Glassenbury for all Religious Persons the Earl of Gloucester for Dukes and Earls the Lord of Barkley for Barons and Barronets Sir Thomas Irpingham Chamberlain for Batchelors and Commons of the South Sir Thomas Gray for Batchelors and Commons of the North Sir William Thirming and John Mekham Justices for the whole Estates came to the Tower to King Richard to whom Sir William Thirming for and in the name of them all pronounced the sentence of deposition and the words or resignation of homage and loyalty And when it was enacted anno 6. Henry 6. by the King Lords Temporal and Commons that no man should contract or marry himself to any Queen of England without the special licence and assent of the King on pain to lose all his Goods and Lands The Bishops and all the Clergie to this Bill assented so far as it was not against the Law of God And thus far for answer to the second part The third Reason Ecclesiastical Lawes enacted in Parliament The last which they granted from Presidents Parliaments since the Conquest they infer out of the Phrase and out of the practise The first by these words Rex Wintoniae celebravit magnum Concilium coram Episcopis Comitibus Baronibus mistaking the word as intending a Provincial Synod whereas it was in those dayes equal and usual for their Parliament that French Phrase never having admission in that sence here untill the time of Henry 2. and then but rarely That great assembly being formerly instiled Magnum Consilium and until of late often enjoyed the same name And this is evident out of the words of Benedictus Abbas in the life he wrote of the 2. 2. Henry Circa festum sancti Pauli venit Dominus Rex usque Northampton magnum ibi celebravit Consilium de Statutis Regni sui coram Episcopis Comitibus Baronibus terrae suae per Consilium Militum hominum suorum Here the intent manifesteth the nature of that assembly and the fuller in that the same Author in the same year saith that Richardus Cantuar. Archiepiscopus and Rogerus Eboracensis cum Sufraganeis suis congregatis apud Westmonasterium in Capella Monachorum infirmiorum tenuerunt Consilium or their convocation which had been needless if in their first they might have done their Church-affaires Here might I enter into a large and just discourse as well of the authority as antiquity of their Convocation or Synod Provincial no less antient as Beda mentioneth then in the year 686. when Austin adjutorio Regis c. assembled in Councel the Brittain Bishops from which unto this day there is successive Record of Councels or Convocations less interrupted then of Parliament Practice Now touching our practise to ordain in Parliaments Lawes Ecclesiastical either meer or mixt although it be by Record evident yet must it admit this difference First that it sprung not from our dispute or desire but solely from the Petitions of the Church as usual is in all the Rolls of Parliament receiving their distinct Title from those of the Commons And this they did to adde Seculare Brachium to their former Cannons too weak to reach to corporal punishments as in the fifth of Richard 2. when to suppress the Schismes the Clergy became in Parliament the Petitioners to the Kings Laity where these words of their assistance are excluding the Commons from any Power of advice Habita prius bona matura deliberatione de communi Consilio ipsius Archiepiscopi Suffraganeorum suorum aliorumque Clericorum super quo idem Archiepiscopus supplicavit ut pro debita castigatione illorum qui conclusiones Schismaticas praedicare voluerint animo obstinato dignaremur apponere brachium Regiae potestatis â—idem And this aide was in order in the Conquerors time who by edict commanded that every Marshal Episcope Deo faceret rectum secundum Canones Episcopales leges Which if he doth not after excommunication Fortitudo et Justitia Regis adhibeatur And this even in the Primitive Church was thought convenient because as Saint Ambrose saith for the like intent to the Emperor Valentinian Non tantas vires sermo mecus habiturus est pro Trinitate bellum gerens quantum edictum tuum Hence it is that at this day the King's authority is annexed ever to the Convocation as in the antient Church were the like decrees of Kings as those of Eruigius ratifying the twelfth Councel of Toledo Nemo illiciator vel contemptor vigorem his Institutionibus subtrahat sed generaliter per cunctas Regni nostri provincias hoec Canonum instituta nostrae gloriae temporibus acta et autoritatis debitae fastigia praepollebunt irrevocabili judiciorum exercitie prout constituta sunt in omnibus Regni nostri Provinciis celebres habebuntur Si quis autem haec instituta contemnat contemptor se noverit damnari sententia Id est ut juxta voluntatem nostrae gloriae et excommunicatas à nostro caetâ—resiliat in super decimam partem facultatis suaefisci partibus sociandam amittat But that the Church-laws ever moved from the Lay-members I take it as far from President as it is besides nhe nature of their Commission The Bishops and Clergy being onely called in the Writ to that service the word being to come in fide delectione ad declarandum Consilium avisamentum ad consentiendum iis quae tunc de avisamento assensu Cleri nostri and not the Commons cotigerit affirmari But if any shall object unto me that many Laws as that of the Supremacy
dissimilis are his words and that of King John he setteth down verbatim fol. 342. And there the words are directly Nec â—um in carcerem mittemus and such a corruption as in now in the point might easily happen betwixt 9. Henry 3. and 28. Edward 1. when this charter was first exemplified but certainly there is sufficient left in that which is extant to decide this question for the words are that no Freeman shall be taken or imprisoned but by the lawful judgement of his Peers which is by Jury Peers for Peers ordinary Juryes for other who are their Peers or by the Law of the Land Which Law of the Land must of necessity be understood to be of this notion to be by due process of the Law and not the Law of the land generally otherwise it would comprehend Bondmen whom we call Villaines who are excluded by rhe word liber For the general Law of the Land doth allow their Lords to imprison them at their pleasure without cause wherein they only differ from the Freeman in respect of their persons who cannot be improsoned without a cause And that this is the true understanding of these words per legem terrae will more plainly appear by divers other Statutes that I shall use which do expound the same accordingly And though the words of this grand Charter be spoken in the third person yet they are not to be understood of suits betwixt party and party at least not of them alone but even of the Kings suits against his Subjects as will appear by the occasion of the getting of that Charter which was by reason of the differences between those Kings and their People and therefore properly to be applied unto their power over them and not to ordinary questions betwixt Subject and Subject Secondly the words per legale judicium parium suorum immediately preceeding the other of per legem terrae are meant of trials at the Kings suit and not at the prosecution of a Subject And therefore if a Peer of the Realm be arraigned at the Suite of the King upon an Indictment of murder he shall be tryed by his Peers that is by Nobles but if he be appealed of murder by a Subject his tryal shall be by an ordinary Jury of 12. Freeholders as appeareth in 10. Edward 4 6. 33. Henry 8. Brooke title trials 142 Stamf. pleas of the Crown lib. 3. cap. 1. fol. 152. And in 10 Edward 4. it is said such is the meaning of Magna Charta By the same reason therefore as per judicium parium suorum extends to the Kings suit so shall these words per legem terrae And in 8. Edward 3. rot Parl. m. 7. there is a petition that a Writ under the privy Seal went to the Guardian of the Great Seal to cause Lands to be seized into the Kings hands by force of which there went a Writ out of the Chancery to the Escheator to seize against the form of the Grand Charter that the King or his Ministers shall out no man of Free-hold without reasonable Judgement and the Party was restored to his Land which sheweth the Statute did extend to the King There was no invasion upon this personal Liberty until the time of King Edward 3. which was eftsoon resented by the Subject For in 5. Edward 3. cap. 9. it is ordained in these words It is enacted that no man from henceforth shall be attached by any accusation nor fore-judged of Life or Limb nor hâ—s Lands Tenements Goods nor Chattels seized into the Kings hands against the form of the great Charter and the Law of the Land 25. Edward 3 cap. 4. is more full and doth expound the words of the grand Charter and is thus Whereas it is contained in the great Charter of the Franchises of England that none shall be imprisoned nor put out of his Freehold nor of his Franchise nor free Custome unless it be by the Law of the Land It is accorded assented and established that from henceforth none shall be taken by Petition or Suggestion made to our Lord the King or to his Counsel unless it be by Indictment or Presentment of his good and lawful People of the same Neighbourhood where such deeds be done in due manner or by process made by Writs Original at the common Law nor that none be put out of his Franchises nor of his freeholds unless he be due brought in answer and forejudged of the same by the course of the Law and if any thing be done against the same it shall be redressed and holden for none Out of this Statute I observe that what in Magna Charta and the Preamble of this Statute is termed by the Law of the Land is by the body of this act expounded to be by process made by Writ Original at the Common Law which is a a plain interpretation of the words Law of the Land in the Grant Charter And I note that this Law was made upon the Commitment of divers to the Tower no man yet knoweth for what 28 Edward 3. cap. 3. is yet more direct this liberty being followed with fresh Suit by the Subject where the words are not many but very full and significant That no man of what Estate or condition soever he be shall be put out of his Lands or Tenements nor taken nor imprisoned nor disinherited nor put to death without he be brought in answer by due process of the Law Here your Lordships see the usual words of the Law of the Land are rendered by due process of the Law 36. Edward 3. Rot. Parl. n. 9. amongst the Petitions of the Commons one of them being translated into English out of French is thus First that the great Charter and the Charter of the Forrest and the other Statutes made in his time and in the time of his Progenitors for the profit of him and his Communalty be well and firmly kept and put in due execution without putting disturbance or making arrest contrary to them by special command or in other manner The Answer to the Petition which makes it an Act of Parliament is Our Lord the King by the assent of the Prelates Dukes Earles Barons and the Communalty hath ordained and established that the said Charters and Statutes be held and put in execution according to the said Petition It is observeable that the Statutes were to be put in execution according to the said Petition which is that no Arrest should be made contrary to the Statutes by special command This concludes the question and is of as great force as if it were printed For the Parliament-Roll is the true warrant of an Act and many are omitted out of the Books that are extant 35. Edward 3. Rot. Parl. nu 20. explaineth it further For there the Petition is Item as it is contained in the grand Charter and other Statutes That no man be taken or imprisoned by special command without Indictment or other process to be made by the Law upon
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