Armies or Multitudes of Armed Men lawfully or unlawfully convented together the right use whereof in all times hath been found most necessary in this Kingdom And further to that Question they cannot Answer for that as they conceive it doth concern his Majesties Regal Power and that the Answer of the other Part of the Question doth properly belong to another Profession whereof they have no Cognizance 9. To the Ninth they say That as the taking of any Oath before any but such Judges or Persons as have Power to give or Demand an Oath for decision of Controversies is by most Divines in most Cases counted to be a rash Oath and so an Offence against God within the third Commandment so the perscribing or demanding of a set Oath by any that cannot derive Power so to do from the Crown where the Fountain of Justice under God doth reside Is an Offence against the Law of the Land and as for Voluntary and Extrajudicial Oaths altho freely taken before Arbitrators or others they say as this Kingdom is Composed in many Particulars as the Nature and Consequence of the Course or the Quality of the Person who taketh or before whom the same is taken may concern the Common-Wealth or the Members thereof such taking of such Oaths or Proceeding or Grounding on such Oath in deciding of Differences according to the several Circumstances that may occur therein or the Prejudice it may introduce to the Common-Wealth may be punishable by the Common Law or if it grow unto an height or general Inconvenience to the Common-Wealth or Members thereof in the Castle-Chamber for thô such an Oath be Voluntary yet in most Cases it is received by him that doth intend to ground his Judgment thereon and after the Oath is taken the Arbitrator or he that intends to yield Faith to the Party that took the Oath doth examine him upon one or more Questions upon the said Oath unto the Answer whereof he doth give Faith and Assent trusting on the said Oath And whereas Oaths by God's Institution were chiefly allowed to be taken before lawful Magistrates for ending Controversies yet common Experience doth teach in this Kingdom That oftentimes Orders and Acts grounded on such Voluntary Oaths beget Strife and Suits and commonly such Orders when they come to be measured by the Rules of Law or Equity in the King's Courts become void after much expence of Time and Charge that we say nothing of that that thereby many Causes proper for the King's Courts are drawn ad aliud examen are thereby the Justice and Courts often defrauded and declined 10. To the Tenth they say That they are not Judges of Rules of Policy but of Law and that they know no certain Rule of Law concerning Reducement of Fines the same being Matters of his Majesties meer Grace after a Man is censured for an Offence And that they know no Law that none shall be admitted to Reducement of his Fines or other Penalties in the Courts in the Question specified until he confess the Fact for which he was Censured But forasmuch as the admittance or Reducement after Conviction for an Offence is Matter of Grace and not Justice It hath been the constant Course of those Courts both here and in England for clearing of his Majesties Justice where the Party will not go about to clear himself by reverfal of the Censure or Decree not to admit him to that Grace until he hath confessed the justness of the Censure pronounced by the Court against him and that the rather for that commonly the Ability or disability of the Party doth not appear in Judgment before them but the Nature and Circumstances of the Offence according to which they gave Sentence against him or them in Terrorem after which when the Party shall make the weakness of his Estate to appear or that the Court is otherwise ascertained thereof they do of Course proportion the Censure or Penalty having regard to his Estate 11. To the Eleventh they say That neither the Judges of the King's Bench as they inform us that are of that Court or Justices of Goal-Delivery or of any other Court do or can by any Law they know deny the Copies of Indictments of Felony or Treason to the Party only Accused as by the said Question is demanded 12. To the Twelfth they say That where Lands are holden of the King by Knights-Service in Capite the Tenant by the strict Course of Law ought in Person to do his Homage to the King And until he hath done his Homage the Ancient Course of the Exchequer hath been and yet is to issue Process of Distringas out of the second Remembrancers Office to distrain the Tenants ad faciendum Homagium or ad faciendum finem pro Homagio suo respectuando upon which Process the Sheriff returneth Issues and if the Tenants do not thereupon appear and compound with the King to give a Fine for Respit of Homage then the Issues are forfeited to the King for the Contempt But if he appear then the Court of Exchequer doth agree with him to Respite his Homage for a small Fine wherein they regulate themselves under the Rate expressed and set down in England by Virtue of a Privy Seal in the 15th year of Queen Elizabeth wherein the Rates are particularly set down according to the yearly value of the Lands which Rates are confirmed by Act of Parliament in the first of King James c. 26. in England before which time there was not any such certainty but the same rested in the discretion of the Court by the Rule of Common Law and so it doth at this day in Ireland Howbeit we conceive that the Court of Exchequer here do well to regulate their discretions by those Rates in England and rather to be under then to exceed the same which the Barons there do as they do inform us that are Judges of the other Courts 13. To the 13th they say That they know no Rule of Law or Statute by which it should be Censurable in the Subjects of this Kingdom to Repair and Appeal unto His Majesty for Redress of Injuries or for other their Lawful occasions unless they be prohibited by His Majesties Writ or Proclamation or other his Command But they find that by the Statute of 5 R. 2. that the passage of the Subjects out of the Realm is prohibited without special License excepting Noblemen and others in the said Statute specially excepted and some inference to that purpose may be made upon that Statute of 25 H. 6. c. 2. in this Kingdom 14. To the Fourteenth they say That some Deanries and Dignities not Deans or Dignitaries as the Question propounds it are properly Et de mero Jure Donative by the King some Elective and some Collative according to the first Foundation and Usage of those Churches And they humbly desire that they may not be required to give any further Answer to this Question for that it may concern many Mens
Captainship make any demand of the people of any Exaction nor as a Captain assemble the people of the Shire-Grounds nor as a Captain shall lead those people to do any acts Offensive or Invasive without Warrant under the Great-Seal of England or of the Lord-Deputy Deputy upon penalty that if he do any thing contrary to that Act that then the Offender shall forfeit a Hundred pounds My Lords the Rebels had been out the Courts of Justice scarce sate for defence of the Country divers usurped the place of Captains concluded of War against the Rebels and invaded them without Warrant Invading the Rebels without Authority is a crime This appears further by particular clauses in the Statute none shall exercise any Captainship within the Shire-grounds nor assemble the men of the Shire-grounds to conclude War or lead them to any Invasion That that had anciently been so continued to this time that is the Irish and the English Pale they within the Shire-grounds were within the English Pale and ad fidem legem Angliae The Irish without the Pale were enemies always either in open act of Hostility or upon Leagues and Hostages given for securing the Peace and therefore as here in England we had our Marches upon the frontiers in Scotland and Wales so were there Marches between the Irish and English Pale where the Inhabitants held their Lands by this tenure to defend the Country against the Irish as appears in the close Roll of the Tower in the 20th year of Edw. 3. membrana 15. on the backside and in an Irish Parliament held the 42 year of Edw. 3. it 's declared That the English Pale was almost destroyed by the Irish enemies and that there was no way to prevent the danger but only that the Owners reside upon their Lands for defence and that absence should be a forfeiture This Act of Parliament in a great Council here was affirmed as appears in the close Roll the 22 year of Edw. 3. Membrana 20 dorso Afterwards as appears in the Statute of 28 Hen. 6th in Ireland this Hostility continued between the English Marches and the Irish Enemies who by reason there was no difference between the English Marches and them in their Apparel did daily not being known to the English destroy the English within the Pale Therefore it is enacted that every English-man shall have the hair of his upper Lip for distinction sake This hostility continued until the 10th year of Henry the 7th as appears by the Statute of 10 H. 7th and 17th so successively downwards till the making of this very Statute of 11 Eliz. as appears fully in the 9th Chap. Nay immediately before and at the time of the making of this Statute there was not only enmity between those of the Shire-ground that is the English and Irish Pale but open War and acts of Hostility as appears by History of no less Authority than that Statute it self for in the first Chapter of that Statute is the Attainder of Shane Oneale who had made open War was slain in open War it 's there declared That he had gotten by force all the North of Ireland for an hundred and twenty miles in length and about a hundred in breadth that he had mastered divers places within the English Pale when the flame of this War by his death immediately before this Statute was spent yet the Firebrands were not all quenched for the Rebellion continued by John Fitz-Gerard called the White Knight and Thomas Gueverford this appears by the Statute of the Thirteenth year of Queen Eliz. in Ireland but two years after this of the Eleventh year of Queen Eliz. where they are attainted of High-Treason for Levying of War this Eleventh year wherein this Statute was made So that my Lords immediately before and at the time of the making of this Statute there being War between those of the Shire-Grounds mentioned in this Statute and the Irish the concluding of War and Acts Offensive and Invasive there mentioned can be intended against no others but the Irish Enemies Again The words of the Statute are No Captain shall assemble the people of the Shire-grounds to conclude of Peace or War Is to presume that those of the Shire-grounds will conclude of War against themselves Nor with the Statute Shall carry those of the Shire-grounds to do any Acts Invasive by the construction which is made on the other side they must be carried to fight against themselves Lastly The words are That as a Captain none shall assume the Name or Authority of a Captain or as a Captain shall gather the people together or as a Captain lead them the offence is not in the matter but in the manner If the Acts offensive were against the Kings good Subjects those that were under Command were punishable as well as the Commanders but in respect the Soldiers knew the service to be good in it self being against the enemies and that it was not for them to dispute the Authority of their Commanders the penalty of 100 l. is laid only upon him That as Captain shall assume this Power without Warrant the People commanded are not within this Statute My Lords The Logick whereupon this Argument is framed stands thus because the Statute of the Eleventh year of Queen Elizabeth inflicts a penalty of 100 l. and no more upon any man that as a Captain without Warrant and upon his own head shall conclude of or make War against the King's Enemies Therefore the Statute of the 18th year of Henry the 6th is repealed which makes it Treason to lay Soldiers upon or to levy War against the Kings good People But My Lords Observation hath been made upon other words of this Statute that is that without Licence of the Deputy these things cannot be done this shews that the Deputy is within none of the Statutes My Lords This Argument stands upon the same reason with the former because he hath the ordering of the Army of Ireland for the defence of the people and may give Warrant to the Officers of the Army upon eminent occasions of Invasion to resist or prosecute the Enemy because of the danger that else might ensue forthwith by staying for a Warrant from His Majesty out of England My Lords The Statute of the 10th year of Henry the 7th Chap. 17. touched upon for this purpose clears the business in both points for there is declared That noâ—e ought to make War upon the Irish Rebels and Enemies without Warrant from the Lieutenant the forfeiture 100 l. as here the Statute is the same with this and might as well have been cited for repealing the Statute of the 18th year of Henry the 6th as this of the 11th year of Queen Elizabeth But if this had been insisted upon it would have expounded the other two clear against him Object My Lords It hath been further said although the Statute be in force and there be a Treason within it yet the Parliament hath no Jurisdiction the
Irish Statute or Custom Object But it will be said that Writs of Error are only upon failure of justice in Ireland and that suits cannot originally be commenced here for things done in Ireland because the Kings Writ runs not in Ireland Answ This might be a good Plea in the Kings-Bench and inferior Courts at Westminster-Hall the question is Whether it be so in Parliament The Kings Writ runs not within the County-Palatine of Chester and Durham nor within the Five Ports neither did it in Wales before the Union of Henry the 8th's time after the Laws of England were brought into Wales in King Edw. the 1. time Suits were not originally commenced at Westminster-Hall for things done in them yet this never excluded the Parliament-suits for Life Lands and Goods within these jurisdictions are determinable in Parliament as well as in any other parts of the Realm Ireland as appears by the Statute of the Thirtieth year of Henry 3. before-mentioned is united to the Crown of England By the Statute of the Eight and twentieth year of Hen. 6th in Ireland it is declared in these words That Ireland is the proper Dominion of England and united to the Crown of England which Crown of England is of it self and by it self wholly and intirely endowed with all Power and Authority sufficient to yield to the Subjects of the same full and plenary remedy in all Debates and Suits whatsoever By the Statute of the Three and twentieth year of Henry the 8th the first Chapter when the Kings of England first assumed the Title of King of Ireland it is there Enacted that Ireland still is to be held as a Crown annexed and united to the Crown of England So that by the same reason from this that the Kings Writs run not in Ireland it might as well be held that the Parliament cannot originally hold Plea of things done within the County-Palatine of Chester and Durham nor within the Five Ports and Wales Ireland is a part of the Realm of England as appears by those Statutes as well as any of them This is made good by constant practice in all the Parliament Rolls from the first to the last there are Receivers and Tryers of Petitions appointed for Ireland for the Irish to come so far with their Petitions for Justice and the Parliament not to have cognizance when from time to time they had in the beginning of the Parliament appointed Receivers and Tryers of them is a thing not to be presumed An Appeal in Ireland brought by William Lord Vesey against John Fitz-Thomas for Treasonable words there spoken before any Judgment given in Case there was removed into the Parliament in England and there the Defendant acquitted as appears in the Parliament Pleas of the Two and twentieth year of Edw. 1. The Suits for Lands Offices and Goods originally begun here are many and if question grew upon matter in Fact a Jury usually ordered to try it and the Verdict returned into the Parliament as in the Case of one Ballyben in the Parliament of the Five and thirtieth year of Edw. the 1. If a doubt arose upon a matter tryable by Record a Writ went to the Officers in whose custody the Record remained to certifie the Record as was in the Case of Robert Bagott the same Parliament of the Five and thirtieth year of Edw. the 1. where the Writ went to the Treasurer and Barons of the Exchequer Sometimes they gave Judgment here in Parliament and commanded the Judges there in Ireland to do execution as in the great Case of Partition between the Copartners of the Earl-Marshal in the Parliament of the Three and thirtieth of Edward the 1. Where the Writ was awarded to the Treasurer of Ireland My Lords The Laws of Ireland were introduced by the Parliament of England as appears by Three Acts of the Parliament before cited It is of higher Jurisdiction Dare Leges then to judge by them The Parliaments of England do bind in Ireland if Ireland be particularly mentioned as is resolved in the Book-Case of the First year of Henry the Seventh Cook 's Seventh Report Calvin's Case and by the Judges in Trinity-Term in the Three and thirtieth year of Queen Elizabeth The Statute of the Eighth year of Edward the 4th the first Chapter in Ireland recites That it was doubted amongst the Judges whether all the English Statutes though not naming Ireland were in force there if named no doubt From King Henry the 3d his time downwards to the Eighth year of Queen Elizabeth by which Statute it is made Felony to carry Sheep from Ireland beyond Seas in almost all these Kings Reigns there be Statutes made concerning Ireland The exercising of the Legislative Power there over their Lives and Estates is higher than of the Judicial in question until the 29th year of Edward the 3d erroneous Judgments given in Ireland were determinable no where but in England no not in the Parliament of Ireland as it appears in the close Rolls in the Tower in the 29th year of Edward the 3d. Memb. 12. Power to examine and reverse erroneous Judgments in the Parliaments of Ireland is granted from hence Writs of Error lye in the Parliament here upon erroneous Judgments after that time given in the Parliaments of Ireland as appears in the Parliament Rolls of the Eighth year of Henry the 6th N o 70. in the Case of the Prior of Lenthan It is true the Case is not determined there for it 's the last thing that came into the Parliament and could not be determined for want of time but no exception at all is taken to the Jurisdiction The Acts of Parliament made in Ireland have been confirmed in the Parliaments of England as appears by the close Rolls in the Tower in the Two and fortieth year of Edward the 3d. Memb. 20. Dorso where the Parliament in Ireland for the preservation of the Countrey from Irish who had almost destroyed it made an Act That all the Land-Owners that were English should reside upon their Lands or else they were to be forfeited this was here confirmed In the Parliament of the Fourth year of Henry the 5th Chap. 6. Acts of Parliament in Ireland are confirmed and some priviledges of the Peers in the Parliaments there are regulated Power to repeal Irish Statutes Power to confirm them cannot be by the Parliament here if it hath not cognizance of their Parliaments unless it be said that the Parliament may do it knows not what Garnsey and Jersey are under the Kings subjection but are not parcels of the Crown of England but of the Duchy of Normandy they are not governed by the Laws of England as Ireland is and yet Parliaments in England have usually held Plea of and determined all Causes concerning Lands or Goods In the Parliament in the 33 Edward 1. there be Placita de Insula Jersey And so in the Parliament 14 Edw. 2. and so for Normandy and Gascoigne and always as long as any part of
the Wars with France Hall in 8 R. 2. by declaring the King 's Right thereunto to the effusion of much Christian Blood and to the loss of all we had there To expiate which he built a Colledg in Oxenford to pray for the Souls Slain in France Though what he did then deliver was true of the King 's Right much Christian Blood and to the loss of all we had there To expiate which he built a Colledg in Oxenford to pray for the Souls Slain in France Though what he did then deliver was true of the King 's Right of France as was also the other of John Arch-Bishop of the same See in Edw. the Third's time and no less true was that of Carlisle against H. 4th's Title Yet I may say it was not the Office or Function of a Bishop to incense Wars Domestique or Foreign Nay this Bishop did set this War on foot to divert the King from Reformation of the Clergy For in that Parliament held at Leicester there was a Petition declaring that the Temporal Lands which were bestowed on the Church were superfluously and disorderly spent upon Hounds and Hawks Horses and Whores which better imployed would suffice for the maintenance of 15 Earls 1500 Knights 6200 Esquires and hundred Alms-houses and besides of Yearly Rent to the Crown 20000 pounds From him I come to his Son Henry the Sixth H. 6 I read many Accusations that Glocester the good Protector did lay to the Charge of Beaufort the Cardinal of Winchester and Lord Chancellor Fox Mart. in H. 6. Great Uncle to the King Living Son to John of Ghent alledging him a Person very dangerous both to the King and State his Brother of York a Cardinal also together with other Bishops no better For we read of Arch-Bishop Bourchier and other Bishops that they did shamefully countenance the distraction of the time These as I delivered before though bad in Parliaments yet too great to put out I will not now speak of many other Particulars that I might either in this King's Reign or his Successors to King Henry the Eighth for that I desire to declare what they did since the Reformation yet therein will be as brief as I may having already too much provoked your Patience for which I crave humble Pardon To Henry the Sixth succeeded Edward the Fourth E. 4 who indeed had the better Title to the Crown notwithstanding Arch-Bishop Nevil Brother to the King Maho Warwick with others did Conspire and attempt his Dethroning and after took him Prisoner and kept him in his Castle of Midleham and after in Parliament at Westminster did they not declare him a Traytor and Usurper confiscate his Goods revoke abrogate and make frustrate all Statutes made by him and intayl the Crown of England and France upon Henry and his Issue-Male in default thereof to Clarence and so disabling King Edward his Elder Brother But to hasten I will pass over Edw. the Fifth E. 3 whose Crown by means of the Prelates as well as the Duke of Buckingham was placed on the head of his Murtherous Uncle that Cruel Tyrant for had not the Cardinal Arch-Bishop by his perswasion with his Mother taken the Brother Richard Duke of York out of Sanctuary the Crown had not been placed on his Uncle's Head nor they lost their Lives and not to speak of Doctor Pinker and Doctor Shaw's Sermons and other foul passages of Prelates as Morton and others who sought also the destruction of King Richard and that when his Nephews were dead R. 3 and none had Right before him to the Crown which he then wore what disloyal long Speeches made he to the Duke of Buckingham to perswade the said Duke to take the Crown to himself From Richard I pass to Henry the Seventh I told you before H. 7 that Morton would have perswaded Buckingham to dethrone King Richard the Third and take the Kingdom to himself to which he had no Right and failing therein he addressed himself to Henry then Earl of Richmond and as by his Counsel he prevailed with him so he prevailed against and won from Richard the Garland This perswader and furtherer of bad Titles was advanced to the See of Canterbury his desire whereof perhaps caused his disloyalty and being in high favour with this Prince by his special Recommendations procured one Hadrian de Castello an Italian to be made first Bishop of Hereford after of Bath and Wells who also was made Cardinal by that Antichristian Goodw. Catal. of Bishops in Bath c. pag. 309. Paulus Jovius and devilish Pope Albert the Sixth and as Moreton had endeavoured the dethroning of his Lord and King so did the other Conspire the Murther of Pope Leo the Tenth when he was told by a Witch That one named Hadrian should succeed him As to Henry the Eighth I need not speak much of his Opinion of Bishops who he saith were but half Subjects if Subjects at all to him when he caused Sir Thomas Audeley Speaker to Read the Oath of Bishops in Parliament Spede And that it was so appeared when Wolsey and Campeius refused to give Judgment for the Unlawfulness of the Marriage of H. 8. and thereupon a Divorce whereupon the Duke of Suffolk said and that truly It was never merry in England since Cardinal Bishops came amongst us It were too large to repeat all the Petitions and Supplications and Complaints of Divines against them in this King's Reign as of Doctor Barnes Latimer Tindall Beane Barns Supplic alii and others This last named saith That the Bishops alone have the Keys of the English Kingdom hanging at their Girdles and what they traiterously Conspire among themselves the same is bound and loosed in Star-Chamber Westminster-Hall Privy Council and Parliament This and much more he But as their sitting there hath been obnoxious so it is useless as may appear by the Statute of 31 H. H. 8.31 8. yet in force where it is Enacted That as the then Lord Cromwell so all other that should thereafter be made Vice-Gerents should sit above the Arch-Bishop in Parliament Nay hold general Visitations in all the Diocesses of the Realm as well over the Arch-Bishops Bishops Arch-Deacons as Laiety to enquire and Correct their Abuses to prescribe Injunctions Rules and Orders for Reforming of Religion for abolishing Superstition and Idolatry and Correction of their Lives and Manners c. And read we not that in the 37 of the King's Reign Letters Patents were granted to Lay-men to exercise all manner of Ecclesiastical Jurisdiction H. 8.37 as the King's Officers not the Bishops Thus we see the Government of Bishops as well as their Sitting in Parliament may be spared And that neither have nor heretofore had any Ecclesiastical Jurisdiction in making of Canons or Constitutions Henry 8.25 but by the King 's Writ nor Promulge or Execute any such without the King 's Royal Assent and Licence under Pain appears by the Statute of
Quod erat probandum Object 1. It remains now to answer some Objections which are made against these Positions And First a Canon which they urge was made at Westminster by Richard Arch-Bishop of Canterbury that Persons in Holy-Orders should not agitare Judicium sanguinis To which it is Answered That this is part of one of the Canons of Toledo which never were any part of the Common or Statute Law of this Land even in times of Popery much less obliging now since the Reformation but however the very Canon it self is perverted for the Prohibition explains it self unde prohibemus ne aut per se Membrorum truncationes faciant aut inferendas Judicent they were prohibited personally to be the Executioners in dismembring or to pronounce the Judgment or Sentence in Cases of that Nature Two Offices of which neither the Lords the Bishops nor the most inferior of the Clergy will at this time contend for or be ambitious of Object 2. It is Objected Secondly that in the 11. of Richard the Second the Bishops in Cases of Blood entred a Solemn Protestation in Parliament which was Assented to by the King the Lords Temporal and Commons with these words Non licet nobis aut alicui eorum juxta Sacrorum Canonum instituta quomodolibet interesse That according to the Canon Law it was not lawful for them or any of them in any manner to be present To this it is answered That the Protestation saith as Peers they had Right as per Baroniam de Domino Rege tenentes in Parliamentis Regis quibuscunque personaliter interesse cum caeteris Paribus aliis de Regni negotiis consulere Tractare Ordinare Statuere definire ac caetera facere quae Parliamenti tempore ibidem imminent facienda holding of our Lord the King by Baronage to be personally present in all Parliaments of the King together with the rest of the Barons and others to Consult Treat Order Appoint and Determin of the Affairs of the Kingdom and to do all other things which in the time of Parliament were there to be done And it is plain the King Temporal Barons and Commons allowed they had this Right But it being a troublesome time the Kings Ministers being to be Impeached in that Parliament which was called Parliamentum sine Misericordia because the King gave up all his Court Ministers to be Sacrificed to the Animosities of the Potent Faction of the Lords binding himself not to pardon any without their consent the Bishops were willing to get out of harms way and therefore pleaded the Canons in excuse And possibly both sides might have their several ends in consenting to this protestation the King that so he might call in Question the Acts done without them as it happened 21. R. 2. when all done in this Parliament was Repealed and made void for this Reason the Lords might consent to the Bishops withdrawing that so their Affairs might proceed without opposition against the Kings Ministers But however as before these Canons being not the Law of the Land neither then nor now could be no real Barr to their Right Nor did they upon other occasions think them so as appears by several Instances beforementioned upon the second Position It is Objected in the third place Object 3 That there was a Parliament held 25 E. 1. at St. Edmonds-Bury Excluso clero And notwithstanding many good Laws were there made and that upon this Case in Kelway's Reports it is said to be the Opinion of the Judges that the King may hold his Parliament without the Bishops To this it is answered First That it is but one single Instance and an Extraordinary Case and that it is not only ill but dangerous arguing and concluding universally from one single president for if a Parliament may be good without one Estate why not without another and according to their Position who make the King Lords and Commons the three Estates any one of the three may be Excluded upon the same reason Secondly The Bishops in this Parliament were not Excluded by the King and the other two Estates but by their own voluntary action And the occasion of it was a Bull of Pope Boniface the 8. prohibiting the Clergy to give any more Subsidies which whatever Influence it had then can have none upon the Bishops since the Reformation And whereas it is said many good Laws were made in that Parliament never since questioned it is evident by the Rolls that all that was done in that Parliament was the granting of a 12th by the Laity to the King As for Kelway's reason in his Reports that they might be excluded because they have no places in Parliament by reason of their Spiritualty but only by reason of their Temporal Baronies it will hold as well against the other Barons And that this is but one President of a Parliament without Bishops agaâ—nst a Multiutde of others wherein they were present Et consuetudo Parlamenti est Lex Parlamenti and that Law is the Law of the Land It is Objected Object 4 That if they were a distinct Estate they would have a distinct-Negative I think the best answer to this is the former that Consuetudo Parlamenti est lex Parlamenti and though former Parliaments have ever owned them a distinct Estate yet as the Author observes they sit there now not in their Spiritual Capacity as formerly in the Saxon times before Baronies but in their Temporal Capacities as Barons by Tenures and they have ever Voted in Common with the other Lords according to Custom of Parliament which is the Law of Parliament In the last place it is Objected Object 5 if they were Peers of the Realm they would according to Magna Charta be tried by their Peers but they are in Capital Cases tried by Juries of the Commons To this it is answered First That they have challenged and had this Priviledg in Parliament So John Stratford Arch-Bishop of Canterbury Antiq. Brit. p. 223. Rot. Par. 15. E. 3. n. 7. tanquam major par Regni post Regem vocem primam in Parliamento habere debens put himself upon Trial by his Peers and after great debate it was at length resolved that the Peers should be tried only by Peers in Parliament and he had appointed to examin the Articles against him 4 Bishops viz. London Hereford Bath and Exceter 4 Earls Arundel Salisbury Huntington and Suffolk 4 Barons Percy Wake Basset and Nevil After which he was admitted to answer for himself in Parliament devant les Piers before his Peers 21. R. 2. Tho. 21. R. 2. Arundel Arch-Bishop of Canterbury was Impeached of High-Treason before the King and Lords in Parliament The Kings answer was that forasmuch as this Impeachment did concern so High a Person Pier de Son Roialm a Peer of the Realm he would be advised But soon after he was condemned for Treason by the House the Proxy of the Bishops Sir Thomas Percy giving his
Declarat Deanries and other Ecclesiastical Dignities of this Realm are not de Mero Jure donative but some are Donative and some Elective and some are Collative according to their respective Foundations and the Confirmation of the Bishops Grant by a Dean de Facto having actually stallum in Choro et vocem in Capitulo together with the Chapter is good in Law 15. Quest Whether the issuing of Quo Warranto's out of the Kings-Bench or Exchequer against Boroughs that antiently and recently sent Burgesses to the Parliament to shew Cause why they sent Burgesses to the Parliament be Legal If not what punishment ought to be inflicted upon those that are or have been the Occasioners Procurers and Judges of and in such Quo Warranto's Declarat The Issuing of Quo Warranto's out of the Court of Kings-Bench Court of Exchequer or any Court against Boroughs that anciently or recently sent Burgesses to the Parliament to shew Cause why they sent Burgesses to Parliament and all the Proceedings thereupon are Coram non Judice Illegal and void and the Right of sending Burgesses to the Parliament is Questionable in Parliament only and the Occasioners Procurers and Judges in such Quo Warranto's and Proceedings are Punishable as in Parliament shall be thought consonant to Law and Justice 16. Quest By what Law are Jurors that give Verdict according to their Conscience and are the sole Judges of the Fact Censured in the Castle-Chamber in great Fines and sometimes Pillored with loss of Ears and bored through the Tongue and marked sometimes in the Forehead with an Hot Iron and other like Infamous Punishment Declarat Jurors are the sole Judges of the Matter in Fact and they ought not for giving their Verdict to be bound over to the Court of Castle-Chamber by the Judge or Judges before whom the Verdict was or shall be given 17. Quest By what Law are men Censurable in the Castle-Chamber with the Matilation of Members or any other Brand of Infamy and in what Cases and what punishment in each Case there is due without Respect to the Quality of the Person or Persons Declarat No Man ought to be Censured in the Castle-Chamber in the Mutilation of Members or any other Brand of Infamy otherwise or in other Cases then is expresly Limited by the Statutes of the Realm in such Case provided 18. Quest Whether in the Censure in the Castle-Chamber Regard be to be had to the words of the Great Charter viz. Salvo Contenemento c. Declarat In the Censures in the Castle-Chamber especial Regard ought to be had to the Words of the Great Charter viz. Salvo Contenemento c. 19. Quest Whether if one that steals a Sheep or commits any other Felony and after flyeth the Course of Justice or lyeth in Woods or Mountains upon his keeping be a Traytor If not whether a Proclamation can make him so Declarat A Felon who Flies the Course of Justice and lyeth in Woods Mountains or elsewhere upon his keeping is no Traitor and a Proclamation cannot make him a Traitor 20. Quest Whether the Testimony or Evidence of Rebels Traytors Protected Thieves or other infamous Persons be good Evidence in Law to be pressed upon the Tryals of Men for their Lives or whether the Judge or Jurors ought to be Judge of the matter Declarat The Testimony of Convicted or Protected Rebels Traitors or Felons is no sufficient Evidence in Law upon the Tryal of any Person for his Life and the Credit of the Testimony of Persons Accused or Impeached and not convicted of Felony or Treason ought to be left to the Jury who are sole Judges of the Truth and Validity of the said Testimony 21. Quest By what Law are Fairs and Markets to be held in Capite when no other express Tenure is mentioned in his Majesties Letters Patents or Grants of the same Fairs and Markets Altho the Rent or Tearly Sum be reserved thereout Declarat The King grants Lands to be held in Free and common Socage as of a Castle or Mannor by Letters Patents under the Great Seal and by the same Letters Patents or by other Letters Patents Grants a Fair and Market reserving a yearly Rent or Summ without expressing any Tenure as to the said Fair or Market the said Fair or Market is not held by Knights Service in Capite or otherwise in Capite I cannot omit one remarkable passage which I find mentioned in Dr. Borlase's Hist of Ireland p. 12. Borlase's History which seems plainly to evince that during this time when they appeared so Zealous for the Redressing of Publick Grievances and removing the obstructions of Justice therein following the very same steps with the Faction of the Parliament of England and Scotland they were at the same time complotting to shake off the Soveraignty of His Majesty by an open Rebellion as the Scots had done in Effect and the English Parliamentary Faction presently after did Which may teach Posterity hereafter to be very Cautious of such pretences and pretenders who through the sides of the prime Ministers of State endeavour to wound Majesty it self and to cover the Designs of Teason and Rebellion with the Popular Cloak of Reformation which were the very steps by which these Three Rebellions one upon the neck of another advanced themselves within the compass of little less then three Years The passage was this During the Summer Sessions which began the 11th of May 1641. Some of the chief Conspirators and among whom the Lord Macguire was one the most busie pretending a suspition That some of the Servants of the late Earl of Strafford to revenge his death to which it seems by this their own guilt acknowledged the Irish very instrumental intended some mischief to the Parliament moved the House and accordingly had Orders that the Lords Justices would let His Majesties Stores for Powder and Arms be searched lest any should be placed near the Parliament Houses which being granted and a diligent search being made but nothing found yet were they not satisfied but procured a new Order to the Lords Justices to be admitted to see the Stores of Powder and Arms placed in other Rooms in and about the Castle To whom the Lord Justice Borlase answered That those were the King 's precious Jewels and not to be shewed without especial Cause but withal assuring them upon his Honor that there was no Powder underneath either of the Houses of Parliament with which answer they were not more discontented then his Lordship seemed surprised with this repeated Order which raised such a sudden Emotion in his blood that he could not but often after reflect upon the reiterated importunity of the enquiry as aiming at something further then was at present discernable Which plainly appears to be to get a perfect knowledge both of the quantity of the martial Stores and the certain place where they were deposited that thereby their intended surprisal of them might be with more ease effected To Sum up what hath
Fifth and 6 Sixth 5 W. C. 6 Mr. S.S. That I go the way to spoyl all their work so I hope I do 7. A Seventh 7 Dr. B. from others That it is said I am fallen from Grace so some men seem desperately to look into the Ark of God 8. An Eighth 8 Dr. W. That I have contraried all that I said before let the Doctor shew me that now 9. A Ninth is told 9 R. L. B. That I am Apostated I doubt his Religion in quantum it differs from that of the Church of England is an Apostacy 10. A Tenth 10 Mr. F. That I am gone over to their Adversaries 11. An Eleventh and Twelfth 11 S. A. H. 12 T. W. That the Primate of Ireland and Dr. Brownrig have infected me I dare drink their poyson 13. That the two Learned and Painful Equals without match 13 G. H. Mr. Reading and Mr. Abbot abusing my trust in them and good opinion of them do mislead me a slander upon three at once 14. That Dr. Burges and I have conferred Notes 14 S. E. P. I wish we had 15. That I am for Bishops 15 Mr. K. for Crosses and for Images true and false 16. That if I had held where I was there had not been a Bishop in the Land before August last a false Wizard I did hold where I was and yet the Bishops are where they were 16 I. K. 17. That I have lost the prayers of many Thousands 17 Civis Ignotus 18. That I have lost the honour I had and that my Conscience is not so good as it was in the beginning of this Parliament 18 T. C. Good Mr. C. you who would have Bishops out of their Chairs come you out of the chair of the scornful You are one of them who jog our elbowes and boar our Parliament Ears with Babylon Antichrist and the Mystery of Iniquity which I dare say is grosly misunderstood by your self and many others of your Rooting Tribe Before this Parliament was convened you would have joyed upon that day when the sting of ill executed Episcopie the high Commission had been taken away and the pest of the Chair soleship of power retrenched One is done and both had been effected if you and such as you had not over-heated a Furnace that was burning hot before and with pressing for Ruine have betrayed the time of a blessed Reforming Take it unto you for upon you and the blind ignorant wilfulness of such as you I do here charge the sad account of the loss of such a glorious Reformation as being the revived image of the best and purest Ages would with its Beauty and Piety have drawn the Eye and Heart of all Christendom unto us The Horse-leaches daughters do cry Give give And you that might have had enough do still cry More more The greedy Vulture of an insatiate appetite is incurable To reform Episcopacy it is in your esteem too faint Prov 30.15 Mr. F. too cold a work it is labour ill bestowed and unthankfully accepted nay one of you said in my hearing It is a sin to labour in the dressing and proining of that Plant which say you is not of God and must be digged up And with Episcopacy away with the burden of our Liturgy a a S. M. If you take not off this burden also it will be girded upon us closer and stronger then ever Away with the thought of a National Church also b b Protestation protested p. 20. It hath no pattern in the Scripture c c Mich. Quintin p. 4. It is impossible for a National Church to be the true Church of Christ Let us have no Church but Congregations d d Eaton 's Sermon vouched by Sir Th. Aston p. 4. and let them be without all superintendency As much to say as let every Family be a Church and have Religion as they please Away with all e e Assertion of Scotrish Government p. 3. 5. distinction of Clergy and Laity it is Popish and Antichristian Let us then banish from us such Popish Names and send them home to Rome f f Quintin p. 9. The Church is a Body of parity whose members are all Kings and Priests g g Spincers Pamphlet And every man must exercise his Gifts in common So also the Learned but herein absurd and gross h h Thought to be Salmasius against Petavius p. 397 398. Walo Messalinus Omnes olim Presbyteri erant Laici And again Waldenses Lutherus crediderunt justos ac fideles Laicos posse omnes quae in Ecclesiâ Dei agi necesse est agere omnibus muneribus Ecclesiasticis defungi These things thus pressed and pursued I do not see but on that rise of the Kingship and Priestship of every particular man the wicked sweetness of a popular parity may hereafter labour to bring the King down to be but as the first among the Lords and then if as a Gentleman of the House professed his desire to me we can but bring the Lords down into our House among us again 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 All 's done No rather all 's undone by breaking asunder that well-ordered Chain of Government which from the Chair of Jupiter reacheth down by several golden even Links to the protection of the poorest creature that now lives among us What will the issue be when hopes grow still on hopes and one aim still riseth upon another as one wave follows another I cannot divine In the mean time you of that party have made the work of Reformation far more difficult than it was at the day of our meeting and the vulgar mind now fond with imaginary hopes is more greedy of new Atchievements then thankful for what they have received Satisfaction will not now be satisfactory They and you are just in a a De Benef. l. 2. c. 27. Seneca's description Non patitur aviditas quenquam esse gratum Nunquam enim improbae spei quod datur satis est Eo majora cupimus quo majora venerunt Aequè ambitio non patitur quenquam in eâ mensurâ conquiescere quae quondam fuit ejus impudens votum Vltra se cupiditas porrigit foelicitatem suam non intelligit Learn moderation Mr. C. unless as b. J. H. H. M. some of you Rooters do seem to hold you do think moderation it self a Vice The Stoick was in that point more Pious then such Christians Epictetus his Motto was and your Lesson is 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 The Bill for securing Papists Tuesday Novemb 23. being presented by the King's Council was read a first and second time this Day and committed to a Committee who with some few amendment of Names and little Alterations presented it again to the House it was read thrice and being approved was Ordered To be Ingrossed and receiving the last reading it was upon the Question Resolved to pass as a
this House Mr. Cromwell Cromwell an Informer afterwards the infamous Usurper and Mr. Walton two Members of the House informed against a Gentleman of Huntingtonshire for Words of a high and dangerous Consequence whereupon it was Ordered That Mr. Speaker shall grant forth his Warrant to bring the Gentleman in safe Custody that spake the Words and likewise an Order to Summon the Informer their Names being first made known unto him by Mr. Cromwell and Mr. Walton After which by Vote upon the Question the House did adjourn it self till Thursday morning next at 8 of the Clock But leaving the Faction in England for a while driving on towards a Rupture with the King Let us see how the Affairs of their Brethren in Rebellion in Ireland proceeded And first I will present the Reader with a List of the principal Rebels which I found among the Papers in the Clerk of the Commons House of Parliaments Office which was as follows The Names of the Chieftains and Septs of the meer Irish who have taken Arms in Ireland and rebelled against his Majesty and the Crown of England in the Province of Vlster SIr Phelomy O Neil A List of the principal Persons in the Rebellion in Ireland called by the Irish Phelony Roe O Neil Captain General of all the Rebels and Chieftain of the O Neils O Hagaus O Quyus O Mellaus O Hanlous O Corrs Mac Cans Mac Cawells Mac Enallyes O Gormeleyes and the rest of the Irish Sept in the Counties of Tyrone and Ardmagh Tirlagh O Neil Brother of the said Sir Phelomy is his chiefest Councellor and is a very sad Man well seen in the Laws of England which he Studied in Lincoln's-Inn and was of good repute there Both these are extracted from Con More O Neil the Father of Con Bacagh O Neil the first Earl of Tirone whereby Sir Phelomy is reputed by the Irish to be the rightful O Neil with Title and Appellation with the Dignities and Jurisdiction conceived to belong thereunto of Old he hath now assumed Captain Rory Maguire Brother of Conner Lord Maguire Lord Baron of Empkilm and Donoghbane Maguire their Vncle are Chieftains of the Maguires and all other the Irish Septs in the County of Permanagh he is of a Cruel and Bloody Disposition and hath shed much English Blood as is reported Brian Mac Collo Mac Mahon Brian Mantagh Mac Mahon and Neil Mac Kenna of the Trough are Chieftains of the Mac Mahon's Mac Kenna's Mac Ardells O Connellies the O Duffies and all other the Irish Septs in the County of Monoghan the former of those three is a soft elderly Man the two latter are Young and Rude though each of them hath been brought up to Civility and Learning being Wards to the King 〈…〉 Inquire of the Lord Blaney more particularly who are the most Eminent Men of those Rebels of Monoghan Sir Con Magenys Knight and his Brother Daniel Sons of â—ld Sâ—r Arthur Magenys late Lord Viscount Iveagh and Vncles of the now Viscount are Chieftains of the Magenysses Mac Cartans and all the other Irish Septs in the County of Down Philip Mac Hugh Mac Shane O Rely is Chieftain of the O Relyes O Gownes Mac Cabes Mac Echies the Bradies and all the other Irish Septs in the County of Cavan This Philip Mac Hugh Mac Shane O Rely for his Estate and Parts is made Chieftain but Edmond O Rely is the chiefest of the O Relyes and Edmonds Brother Philip Mac Mullmore O Rely is a more active and experienced Man and hath done some Courtesies to the Distressed English for which they say he is made Prisoner by the other Philip but it is more probable there is Emulation between them Mullmore O Rely Son of the said Edmond being Sheriff of the County of Cavan when the Rebellion began and commanded all the Country in the King's Name by vertue of his Office to rise and take Arms and continueth still a Captain of the Rebels Shane Mac Philip Mac Mullmore O Rely Son of the said Philip Mac Mullmore O Rely is a Captain of the Rebels Tirlagh O Neil Grandson of Sir Tirlagh Mac Henry O Neil and the Son of Hugh Boy O Neil whose Name Sir Faithful Fortescue knoweth are Captains of the O Neils of the Fues a Baroni in the County of Ardmagh within six Miles of Dundalk in the County of Louth which Town was never taken by the Rebels in any former Rebellion but now is surprised by the O Neils of the Fues The Lords Justices and Council finding the Storm grow every day Louder and more Threatning dispatched fresh Letters of Advice to England to give an account of their Affairs particularly this following to the Lords of his Majesties Privy Council May it please your most Honourable Lordships SInce our last dispatch to the Lord Lieutenant A Letter from the Lords Justices Council in Ireland to the Lords of the Privy Council in England Nov. 5. 1641. Dated the 25th of October concerning the present Rebellion begun there the Rebells have with great Multitudes proceeded in their out-rages even to great cruelty against the English and Protestants in all places where they came They have Seized the Houses and Estates of almost all the English in the Counties of Monoghan Cavan Fermanagh Armagh Tirone Donegall Letrim Longford and a great part of the County of Downe some of which are Houses of good Strength and dispossessed the English of their Arms and some of the English Gentlemen whose Houses they Seized even without any resistance in regard of the suddenness of their surprise the Rebels most Barbarously not only Murdered but as we are informed hewed some of them to pieces They Surprised the greatest Part of a Horse Troop of his Majesties Army commanded by the Lord Grandison in the County of Armagh and possessed themselves of their Arms. They apprehended the Lord Caulfield and Sir Edward Trevor a Member of this Beard and Sir Charles Pomtes and Mr. Branthwait Agent to the Earl of Essex and a great number of other Gentlemen of good Quality of the English in several Parts whom they still keep Prisoners as also the Lord Blayney's Lady and Children and divers other Ladies and Gentlewomen They have wasted destroyed and spoyled wheresoever they came and now their fury begins to threaten the English Plantations in the Queens County and Kings County and by their Example the Sheriff of the County of Longford a Native and Papist is likewise Risen in Arms and followed by the Irish there where they Rob Spoyl and Destroy the English with great Cruelty In these their Assaults of the English they have Slain many Robbed and Spoyled thousands reduced men of good Estates in Lands who lived Plentifully and well to such a condition as they left them not so much as a Shirt to cover their Nakedness They turned out of their Estates many of considerable Fortunes in Goods and left them in great want and misery and even the Irish Servants and Tenants of