of supposed prerogative and finding a greedy desire of one Merchant to prevent another of his market restrained by that Act or Statute which tyed them to one time and to one Port Callaice for all staple commodities they used to sell Licences with a clause of Non obstante of any statute whereby they dispensed with multitudes to trade with what commodities and to what places they would To the Merchants of Newcastle Richard 2. gave leave to carry wool-fells c. to any other Port besides Callaice upon condition that they should pay for them Custome and Subsidie according Le sage discretion de vouz ou de vostre sage Counceil To diverse Citizens of London Henry 4. in the like sort dispenceth for great quantity of Tinne for seven years paying 400. 1. yearly above the usual Custome Henry 6. annis 5. 21. 30. reneweth to the Town of Newcastle the same licence they had anno 20. Richard 2. and granteth 600. sacks of Wool to Benedict Benoni Merchant of Florence with non obstante any statute or restraint In this year such Licences were so frequent that the Town of Callaice complained in Parliament of their decay thereby yet without relief as it seemeth For the same King anno 36. giveth leave to Lawrence Barbarico to transport from London to Cicester 12000. sacks of Wool to what Ports he list And Edward 4. anno 10 borrowing 12000 l. of divers Merchants permitteth them non obstante any Law to carry any staple commodities to the Straits of Morocco until they were satisfied their sum Henry the 7. raiseth much money by giving leave to many Merchants to trade inward and outward Commodities prohibited as to Alonso de Burgues great proportions of Ode Anno 6. and to a multitude of others all kind of grain and other forbidden things as in annis 20 21 22. KIngs raise money and improve the Revenues of the Crown by improving customes By 1. Farming out of Ships 2. Raising the book of Rates 3. Farming the Customes 1. Farming out of Ships To the Merchants and taking security of them either to bting in or carry out yearly asmuch Commodities as shall yield the King in Customes the sum agreed on or else to make it up out of their own money Thus did Henry 7. many years not only with his Ships but with divers stocks of money 2. Raising the Book of Rates This was in some sort done Consensis Mercatorum by Edward 1. and Edward 3. and again in Henry 8. time of which the house of Burgundie complained as against the treaty of entercourse and of late so stretched as it is feared it will prove the overthrow of trade neither do I find this course at any other time As a branch of this may aptly fall out the benefit Princes made by a prerogative power of imposing inward and outward upon Commodities over and above the antient Custome of Subsidie The first that used this course after the Statute was settled from a King of voluntary government after the Conquest when as Kings ruled more by the edge of the Sword then by rule of Law was Henry 3. about the entrance of his Reign But finding it to be an apparent overthrow of Commerce and Trade and against the great Charter made proclamation anno 16. in all Ports of England that all Merchants might come faciendo rectas et debitas consuetudines nec sibi timeant de malis toltis for it had no better name then Maletolts Some impositions being laid by Edward 1. he in anno 25. taketh them away with promise that neither he nor his Successors should do any such thing without assent of the Parliament granting in anno 31. to the Merchants many immunities as release of prisage for which they requite him with some increase of Customes but not as imposed by his own power For he in anno 34. declareth that no tallage or aide should be levied without the assent of Parliament nor nothing to be taken of Woolls by colour of Maletolt In Edward 2. time it appeareth that levying of new Customes and raising of old was the destruction of Traffique and therefore repealeth all Maletoltes only in anno 11 12. taketh by way of Lone and with leave of the Merchants some former increase upon Wools ascribing nothing to any supream power to impose The like did Ed. the 3. anno 1. confirming in anno 2. the great Charter for free traffique but having about anno quinto granted certain Commissions for a new kind of raising tallage the People complained the year following whereupon he repealed the said Commissions and promiseth never to assess any but as in time of his Ancestors After in anno 11. by reason of a Statute then made restraining all men upon pain of death for transporting any Wools without licence from the King and Councel Edward the third made great advantage by selling of Dispensations of that Law and grounded upon it many impositions but it grew so heavy upon the People that their discontentments so far increased that the King was enforced to cause the Arch-bishop of Conterbury to perswade them to patience by his Godly exhortations yet notwithstanding he continued by gentle intermissions the advantage he had by that late undecimo taking an improvement of Custome for opening the passage that thereby was shut in anno 13. until the same year the State made purchase of their former freedome and discharge of the Malotolt by granting the tenth sheafe and fleece c. And thus it continued all his reign being a time of great necessity and expence by reason of his Wars he sometimes taking an advantage either to raise an imposition or else to gain aide from the People in discharge thereof they continually urging the injury in barring them their birth-right And the King on the other side the greatness of his own occasions and it may be gathered by Record that thus it held on until the 15. Richard 2. in which year is the last petition against impositions generally grounded in likelyhood from the Kings power in restraining or permitting trade all the time after though licences with non obstante were ordinary yet were they to private persons and for particular proportions of Commodities whereby the Kings succeeding raised no less benefit then by sale of any general permission To this of imposition I may add the rule I find anno 12. Henry 6. made in Councel that the value of all goods for the payment Subsidie shall be rated of Commodities domestique as they may be sold between Merchant and Merchant And if forreign then so it shall appear upon Oath of the Merchant or his Factor they stood them in at the first and the general Maxime which limits all regall advantage upon trade of Merchants is ut Causa honesta sit et necessaria ratio facilis tempus idoneum 3. Farming out of Customes So did Edward 3. with the new
Desiderius Luitprandus and the Mother Church discontinued amongst the Lombards as soon as they grew Civilized in Italy yet it continued till of late with us as a mark of our longer barbarisme Neither would we in this obey the See of Rome to which we were in many respects observant children which for that in the Duell Condemnandus saepe abslovitur quia Deus tentatur decreed so often and streightly against it In England this single Combat was either granted the party by license extra-judiciall or legall process The first was ever from the King as a chief flower of his Imperiall Crown and it was for exercise of Arms especially Thus did Richard 1. give leave for Tournaments in five places in England inter Sarum Winton inter Stamford Wallingford c. ita quod pax terrae nostrae non infringetur nec potestas justiciara minorabitur For performance whereof as likewise to pay unto the King according to their qualities or degrees a sum of money proportionable and that of a good value and advantage to the Crown they take a solemn Oath The like I find in 20 E. 1. and 18 E. 3. granted Viris militaribus Comitatus Lincoln to hold a Just there every year Richard Redman and his three Companions in Arms had the licence of Rich. 2. Hastiludere cum Willielmo Halberton cum tribus sociis suis apud Civitat Carliol The like did H. 4. to John de Gray and of this sort I find in records examples plentifull Yet did Pope Alexand. the fourth following also the steps of his Predecessors Innocentius Eugenius prohibit throughout all Christendome Detestabiles nundinas vel ferias quas vulgo Torniamenta vocant in quibus Milites convenire solent ad oftentationem virium suaram audaciae unde mortes hominum pericula animarum saepe conveniunt And therefore did Gregory the tenth send to Edward the first his Bull pro subtrahenda Regis praesentia à Torniamentis à partibus Franciae as from a spectacle altogether in a Christian Prince unlawfull For Gladiatorum sceleribus non minus cruore profunditur qui spectat quà m ille qui facit saith Lactantius And Quid inhumanius quid acerbius dici potest saith Saint Cyprian then when homo occiditurs in voluptatem hominis ut quis possit occidere peritia est usus est ars est Scelus non tantùm geritur sed docetur Disciplina est ut primere quis possit Gloria quòd periunt And therefore great Canstantine as a fruit of his conversion which Honorius his Christian successor did confirme established this edict Cruenta spectacula in otio civili domesticâ quiete non placent quapropter omninò Gladiatores esse prohibemus And the permission here amongst us no doubt is not the least encouragement from foolish confidence of Skill of so many private quarrells undertaken Combats permitted by Law are either in causes Criminal or Civil as in appeals of Treason and then out of the Court of the Consâ—able and Marshal as that between Essex and Montford in the raign of Henry the first for forsaking the Kings Standard That between Audley and Chatterton for betraying the fort of Saint Salviours in Constant the eighth year of Richard the second And that of Bartram de Vsano and John Bulmer coram Constabulario Mariscallo Angliae de verbis proditoris Anno 9. H. 4. The form hereof appeareth in the Plea Rolls Anno 22. E. 1. in the case of Vessey And in the Book of the Marshals Office in the Chapter Modus faciendi Duellum coram Rege In Appeals of Murther or Robbery the Combat is granted out of the Court of the Kings Bench. The Presidents are often in the books of Law and the form may be gathered out of Bracton and the printed Reports of E. 3. and H. 4. All being an inhibition of the Norman Customes as appeareth in the 68th chapter of their Customary from whence we seem to have brought it And thus far of Combats in Cases Criminall In Cases Civill it is granted either for Title of Arms out of the Marshals Court as between Richard Scroop and Sir Robert Grosvenor Citsilt and others Or for Title of Lands by a Writ of Right in the Common-Pleas the experience whereof hath been of late as in the Case of Paramour and is often before found in our printed Reports where the manner of darraigning Battail is likewise as 1 H. 6. and 13 Eliz. in the L. Dyer expressed To this may be added though beyond the Cognisance of the Common Law that which hath in it the best pretext of Combat which is the saving of Christian â—loud by deciding in single fight that which would be otherwise the effect of publick War Such were the Offers of R. 1. E. 3. and R. 2. to try their right with the French King body to body and so was that between Charles of Arragon and Peter of Terracone for the Isle of Sitilie which by allowance of Pope Martin the 4th and the Colledge of Cardinalls was agreed to be fought at Burdeux in Aquitain Wherein under favour he digressed far from the steps of his Predecessors Eugenius Innocentius and Alexander and was no pattern to the next of his name who was so far from approving the Combat between the Dukes of Burgundy and Glocester as that he did inhibit it by his Bull declaring therein that it was Detestabile genus pugnoe omni divino humano jure damnatum fidelibus interdictum And he did wonder and grieve quod ira ambitio vel cupiditas honoris humani ipsos Duces immemores faceret Legis Domini salutis aeternae qua privatus esset quicunque in tali pugna decederat Nam saepe compertum est superatum fovere justitiam Et quomodo existimare quisquam potest rectum judicium ex Duello in quo immicus Veritatis Diabolus dominatur And thus far Combates which by the Law of the Land or leave of the Soveraign have any Warrant It rests to instance out of a few Records what the Kings of England out of Regal Prerogative have done either in restraint of Martial exercises or private quarrels or in determining them when they were undertaken And to shew out of the Registers of former times which what eye the Law and Justice of the State did look upon that Subject that durst assume otherwise the Sword or Sceptre into his own hand The restraint of Tournaments by Proclamation is so usuall that I need to repeat for form sake but one of many The first Edward renowned both for his Wisedome and Fortune Publice fecit proclamari firmiter inhiberi ne quis sub forisfactura terrarum omnium tenementorum torneare bordeare justas facere aventuras quaerere seu alias ad arma ire praesumat sine Licentia Regis speciali By Proclamation R. 2. forbad any
the short account yielded the King of such Ecclesistiacal tenths and duties as were often or Annually paid unto the Pope in former times and now by Statute invested in the Crown for in former times the See of Rome received them not as only out of the meer Spiritualities but also from out of all the Temporalities of Spiritual persons which Land being now divided from the Church into the hands of the Laity yet ought they to pay this duty since they were settled in the Crown by a former Law and no subsequent ever hath discharged them AN ANSVVER TO CERTAIN ARGUMENTS Raised from Supposed Antiquity And urged by some MEMBERS of the lower HOUSE of PARLIAMENT To prove that Ecclesiastical Laws Ought to be Enacted by Temporal Men. Written by Sir ROB. COTTON Knight and Barronet LONDON Printed in the Year 1672. AN ANSVVER TO CERTAIN ARGUMENTS Raised from Supposed Antiquity And urged by some Members of the Lower House of PARLIAMENT To Prove that Ecclesiastical Lawes Ought to be Enacted by Temporal Men. WHat besides self-regard or siding faction hath been the main reason of the lower Lay-house labour in Parliament to deal with Lawes of the Church the milder Members have yielded a Right which they would maintain by former Presidents raising the same from 1. Primitive use 2. Middle practise 3. Interrupted continuance Professing the same by the Laws of 1. The Roman Empire 2. The Saxon Kings 3. The English Parliaments so to do Which since it may raise a prejudice to the Church's peace or to the Soveraign's power unopposed I will make way in a word or two to the better answer of some other Pen. What they say is not to be denied that in course of civil Laws under the Christian Emperours there be often constitutions Ecclesiastical and in the Councels of the Church frequent the Soveraign's power and sometimes the presence of lay-Ministers yet may their assertion admit to the first this answer of Justinian Principes Sapientes Episcoporum monita pro fide Religione Christiana Leges Synodicis Canonibus conformes edidere recte judicantes Sacerdotum Sanctiones merito Majestatis Regiae nuturoborari So that those decrees of the Civil Lawes will prove but confirmative of former Canons as may be gathered by that of Volentinian and Martian Emperours who wrote unto Paladius their Praefectus Pratorii that all constitutions that were against the Canon of the Church should stand void And to the second that their presence was to dignifie and not to dispute the direction proveth that the Emperor Theodosius gave to Candidianus an Earl by him to the Ephesian Councel sent Non ut Quaestiones seu Expositiones communicaret cum sit illicitum quia non fit in ordine sanctissimorum Episcoporum Ecclesiasticis tractatibus intermisceri And Valentinian the elder though petitioned by the Bishops to be present at their Synod said Sebi qui unus e Laicorum numero esset non licere hujusmodi negotiis se interponere And by the Council of Carth. and Affrican likewise it appeared that even Princes would intermeddle with these matters but Saepius rogati ab Episcopis And the Emperor Gratian taught as Zozimus saith Omnes Laicos nihil potestatis inres Ecclesiasticas posse sibi vindicare And the former Emperor enacted In causa Ecclesiastici alicujus ordinis cum judicare debere qui nec manere impar est nec jure dissimilis Sacerdotes de Sacerdotibus judicare According to that Saying of Constantine the Great Vos enim a Deo nobis dati estis Dii conveniens non est ut homo judicet Deos. Thus then stood the practice of the primitive Church which when it was in those times otherwise as under Constantius the Arrian Athanas saith of him Haereseos veneno imbutos milites Sicarios Eunuchos Comites faciebat Sacerd. Judices cogebat umbratiles Synodas quibus ipse cum monstris illis praesiperet Whereas otherwise that Emperor even in the height of Pagan Greatness ascribed to their Pontifices and Sacerdotes in Common Right Propter Religionem comitia habere propria and that Stabili Sententiâ rarum erat quod tres Pontifices communi decreto statuissent The second Objection Ecclesiastical Laws enacted in Parliament To the second as it is in the former true that many Canons of the Church are interlaced with the Common-wealths although the Saxon Laws and that the establishment should be by Parliament which they infer out of the Frontispian of Inas Statutes in these words Ego Inae Rex ex tractatione Episcoporum et omnium Aldermannorum meorum seniorum sapientu◠Regni mei confirmatione Populi mei do ordain c. Yet may receive this answer First that the Commons did but confirm and not dispute which to this day is in their summons comprized only ad consuet udinen But whosoever shall collate the transcript copy with the original called Textus Roffensis will find these ordinances not called Leges but Synodalia and almost all by the King and Church-men onely made Neither was it new in this Isle that Priests directed alone the government when as the best Record of our eldest memory saith that the Druides a religious Pagan order not only divinis intersunt Religiones interpretantur but de omnibus as Caesar saith controversis publicis privatisque confirment sive de heridet amento sive de finibus praemia paenas constituunt And if any sive privatus aut populus decreto eorū non stererit sacrificiis interdicunt And this excommunication amongst them was paena gravissima Neither did the times of Christianity here bereave the Church of all such will For in the Saxon time they intermedled in the framing of the Temporal Lawes and ought as appeareth by an Ordinance of that time de Officiis Episcopi Cum seculi judicibus interesse ne permittent si possint ut illinc aliqua pravitatum germina pullulaverint And surely since these time until of late the inferiour Ministers of the Church aswel as Bishops had suffrage in Parliament For John de Rupescissa a story as old as King John's time saith Anno 1210. Convocatum est Parliamentum Londoniae Presidente Archiepiscopo cum toto Clero tota secta Laicali And in the 8. of Edward the 3. the Members of Parliament defective in their appearance the King chargeth the Arch-bishop to punish the defaults of the Clergie as he would the like touching the Lords and Commons And in third of Richard the second against a Petition in Parliament contradicting Provisions the Prelates and whole Clergy make their protestations And to a demand of the Lay-Commons for the King's aide the year following the whole Clergy answered that they used not to grant any but of their free will And in the eleventh of the same King the Archbishop of Canterbury made openly in
had let at large by Sureties amongst others one William the Sonne of Walter le Persons against the will and command of the King whereas the King had commanded him by Letters under his Privy Seal that he should do no favour to any man that was committed by the command of the Earl of Warwick as that man was VVhereunto the Sheriff answered that he did it at the request of some of the King's Houshold upon their Letters And because the Sheriff did acknowledge the receipt of the King's Letters thereupon he was committed to Prison according to the form of the Statute To this I answer that the Sheriff was justly punished for that he is expresly bound by the Statute of West 1. which was agreed from the beginning But this is no proof that the Judges had not power to baile this man The next Authority is 33. Henry 6 in the Court of Common Pleas fol. 28. b. 29 where Robert Poynings Esq was brought to the Bar upon a Capias and it was returned that he was committed per duos de Concilio which is strongest against what I maintain pro diversis causis Regem tangentibus And he made an Attorney there in an Action Whence it is inferred that the Return was good and the Party could not be delivered To this the answer is plain First no Opinion is delivered in that Book one way or other upon the Return neither is there any testimony whether he were delivered or bailed or not Secondly it appears expresly that he was brought thither to be charged in an Action of Debt at another mans Suit and no desire of his own to be delivered or bailed and then if he were remanded it is no way material to the question in hand But that which is most relyed upon is the Opinion of Stanford in his book of the Pleas of the Crown Lib. 2. cap. 18. fol. 72. 73 in his Chapter of Mainprise where he reciteth the Chapter of West 1. cap. 15. and then saith thus By this Statute it appears that in 4. Causes at the Common Law a man was not replevisable to wit those that were taken for the death of a man by the command of the King or of his Justices or for the Forrest Thus far he is most right Then he goeth on and saith As to the command of the King that is understood of the command by his own mouth or his Council which is incorporated unto him and speak with his mouth or otherwise every Writ of Capias to take a man which is the Kings command would be as much And as to the command of the Justices their absolute commandment for if it be their ordinary Commandment he is replevisable by the Sheriff if it be not in some of the Cases prohibited by the Statute The answer that I give unto this is that Stamford hath said nothing whether a man may be committed without cause by the Kings command or whether the Judges might not baile him in such Case but only that such an one is not replevisable which is agreed for that belongs to the Sheriff and because no man should think he meant any such thing he concludes his whole sentence touching the command of the King and the Justices that one committed by the Justice's ordinary command is replevisable by the Sheriff So either he meant all by the Sheriff or at least it appears not that he meant that a man committed by the King or the Privy Council without cause is not baileable by the Justices and then he hath given no opinion in this Case What he would have said if he had been asked the question cannot be known Neither doth doth it appear by any thing he hath said that he meant any such thing as would be inforced out of him And now my Lords I have performed the command of the house of Commons and as I conceive shall leave their Declaration of personal liberty an antient and undoubted truth fortifyed with seven Acts of Parliament and not opposed by any Statute or Authority of Law whatsoever The Objections of the Kings Councel with the Answers made thereunto at the two other conferences touching the same matter IT was agreed by Master Attorney General that the seven Statutes urged by the Commons were in force and that Magna Charta did extend most properly to the King But he said that some of them are in general words and therefore conclued nothing but are to be expounded by the Presidents and others that be more particular are applied to the suggestions of Subjects aud not to the Kings command simply of it self Hereunto is answered that the Statutes were as direct as could be which appeareth by the reading of them and that though some of themspeak of suggestions of the Subjects yet others do not and they that do are as effectual for that they are in qual reason a commitment by the command of the King being of as great force when it moveth by a suggestion feom a Subject as when the King taketh notice of the cause himself the rather for that Kings seldome intermeddle with matters of this nature but by information from some of their People 2. Master Attorney objected that per legem terrae in Magna Charta which is the Foundation of this question cannot be understood for process of the Law and Original Writ for that in all Criminal proceedings no Original Writs is used at all but every Constable may arrest either for felony or for breach of the Peace without process or Original Writ And it were hard the King should not have the power of a Constable and the Statutes cited by the Commons make process of the Law and Writ Original to be all one The Answer of the Commons to this Objection was that they do not intend Original Writs only by the Law of the Land but all other legal process which comprehend the whole proceedings of Law upon the cause other then the tryal by Jury per judicium parium unto which it is opposed Thus much is imposed ex vi termini out of the word process and by the true acceptation thereof in the Statute have been urged by the Commons to maintain their declaration and most especially in the Statutes of 25. Edward 3. câ— p. 4. where it appeareth that a man ought to be brought in to answer by the course of the Law having made former mention of process made by Original Writ And in 28. Edward 3. cap. 3. by the course of the Law is rendred by due process of the Law And 36. Edward 3. Rot. Parl. nu 20. the Petition of the Commons saith that no man ought to be imprisoned by special command without Indictment or other due process to be made by the Law 37 Edward 3. cap 18. calleth the same thing process of the Law And 42. Edward 3. cap. 3. stileth it by due process and Writ Original where the Conjunctive must be taken for a Disjunctive which change is ordinary
Cottoni Posthuma DIVERS CHOICE PIECES OF THAT Renowned Antiquary Sir ROBERT COTTON Knight and Baronet Preserved from the injury of Time and Exposed to publick light for the benefit of Posterity By J. H. Esq LONDON Printed for Richard Lowndes at the White Lion in Duck Lane near Smith-field and Matthew Gilliflower at the Sun in Westminster-Hall 1652. To his worthily Honoured Friend Sir Robert Pye Knight at his House in Westminster SIR THe long interest of Friendship and nearness of Neighbourhood which gave you the opportunity of conversing often with that worthy Baronet who was Author of these ensuing Discourses induced me to this Dedicatory Address Among the Greeks and Romans who were the two Luminaries that first diffused the rayes of Knowledge and Civility through these North-west Clymes He was put in the rank of the best sorts of Patriots who preserv'd from putrefaction and the rust of Time the Memory and Works of Vertuous Men by exposing them to open light for the generall Good Therefore I hope not to deserve ill of my Country that I have published to the World these choice notions of that learned Knight Sir Robert Cotton who for his exact recerchez into Antiquity hath made himself famous to Posterity Plutarch in writing the lives of Others made his own everlasting So an Antiquary while he feels the pulse of former Ages and makes them known to the present renders Himself long-liv'd to the future There was another inducement that mov'd me to this choice of Dedication and it was the high respects I owe you upon sundry obligations and consequently the desire I had that both the present and after times might bear witness how much I am and was Sir 3. Nonas April 1651. Your humble and truly devoted Servant James Howell To the Knowing Reader touching these following Discourses and their AUTHOR THe memory of some men is like the Rose and other odoriferous flowers which cast a sweeter and stronger smell after they are pluck'd The memory of Others may be said to be like the Poppie and such Vegetalls that make a gay and specious shew while they stand upon the stalk but being cut and gather'd they have but an ill-favour'd scent This worthy Knight may be compared to the first sort as well for the sweet odor of a good name he had while he stood as also after he was cut down by the common stroke of Mortality Now to augment the fragrancy of his Vertues and Memory these following Discourses which I may term not altogether improperly a Posie of sundry differing Howers are expos'd to the World All who ever knew this well-weighed Knight will confess what a great Zâ—lâ—t he was to his Countrey how in all Parliaments where he fervid so often his main endeavours were to assert the publick Liberty and that Prerogative and Priviledge might run in their due Channels He would often say That he Himself had the least share in Himself but his Countrey and his Friends had the greatest interest in him He might be said to be in a perpetual pursuit after Vertue and Knowledge He was indefatigable in the search and re-search of Antiquity and that in a generous costly manner as appears in his Archives and copious Library Therefore he may well deserve to be ranked among those Worthies Quorum Imagines lambunt Hederae sequaces For an Antiquary is not unfitly compar'd to the Ivie who useth to cling unto ancient fabriques and Vegetals In these Discourses you have 1. A Relation of proceedings against Ambassadors who have miscarried themselves and exceeded their Commission 2. That the Kings of England have been pleased to consult with their Peers in Parliament for marriage of their Children and touching Peace and War c. 3. That the Soveraigns Person is required in Parliament in all Consultations and Conclusions 4. A Discourse of the legality of Combats Duells or Camp-fight 5. Touching the question of Precedency between England and Spain 6. Touching the Alliances and Amity which have interven'd betwixt the Houses of Austria and England 7. A Discourse touching Popish Recusants Jesuits and Seminaries 8. The Manner and Means how the Kings of England have supported and improv'd their States 9. An Answer to certain Arguments urg'd by a Member of the House of Commons and raised from supposed Antiquity to prove that Ecclesiastical Laws ought to be Enacted by Temporal men 10. The Arguments produc'd by the House of Commons concerning the Priviledge of every Free-born Subject 11. A Speech delivered in the House of Commons Assembled at Oxford in the sirst year year of the last King 12. A Speech delivered before the Councell Table touching the alteration of Coyn. 13. Valour Anatomized in a Fancy by Sir Philip Sidney 14. A brief Discourse concerning the Power of the Peers and Commons of Parliament in point of Judicature 15. Honesty Ambition and Fortitude Anatomized by Sir Francis Walsingham 16. The Life and Raign of Henry the Third complied in a Criticall way These Discourses being judiciously read will much tend to the enriching of the understanding and improvement of the Common stock of Knowledge A RELATION OF THE PROCEEDINGS AGAINST AMBASSADORS Who have miscarried themselves c. IN humble obedience to your Grace's Command I am emboldened to present my poor advice to this the greatest and most important cause that ever happened in this State the Quiet of the Kingdom the Honour of the Prince the safety of the Spanish Ambassadors Person exposed hereby to the fury of the People all herein involved A consideration not the least for the reputation of the State and Government though he little deserved it The information made to his sacred Majesty by him That your Grace should have plotted this Parliament Wherein if his Majesty did not accord to your designs then by the Authority of this Parliament to confine his sacred Person to some place of pleasure and transfer the Regal Power upon the Prince This Information if it were made by a Subject by the Laws of the Realm were high Treason to breed a rupture between the Soveraignty and the Nobility either by Reports or Writings and by the Common Law is adjudged no less The Author yet knowing that by the representing the Person of a soverain Prince he is by the Law of Nations exempt from Regal tryal all actions of one so qualified being made the Act of his Master until he disavow And injuries of one absolute Prince to another is Factum hostilitatis and not Treason The immunity of whom Civilians collect as they do the rest of their grounds from the practice of the Roman State deducing their Arguments from these Examples The Fabii Ambassadors from Rome were turned safe from the Chades with demand of justice against them onely although they had been taken bearing Arms with the Ethrurian their Enemies The Ambassadors of the Tarquines Morte affligendos Romani non judicârunt quanqnam visi sunt ut hostium loco essent justamen Gentium voluit
And where those of Syphax had plotted the murder of Masinissa Non aliud mihi factum quà m quod sceleris sui reprehensi essent saith Appian The Ambassadors of the Protestants at the Counsell of Trent though divulging there the Doctrine of the Churches contrary to a Decree there enacted a crime equivalent to Treason yet stood they protected from any punishment So much doth public conveniency prevail against a particular mischief That the State of Rome though in case of the most capital crime exempted the Tribunes of the people from question during the year of office And the Civilians all consent that Legis de Jure Gentium indictum est eorum corpora salva sint Propter necessitatem legationis ac ne confundant jura comercii inter Principes The redress of such injuries by such persons the example of Modern and best times will lead us to Vivia the Popes Legate was restrained by Henry the Second for exercising a power in his Realm not admitted by the King in disquiet of the State and forced to swear not to act any thing in Praejudicium Regis vel Regni Hen. 3. did the like to one of the Popes Ambassadors another flying the Realm secretly fearing timens pelli sui as the Record saith Edward 1. so restraining another until he had as his Progenitors had informed the Pope of the fault of his Minister and received satisfaction of the wrongs In the year 1523. Lewis de Pratt Ambassador for Charles 5. was commanded to his house for accusing falsly Cardinal Wolsey to have practised a breach between Hen. 8. and his Master to make up the Amity with the French King Sir Michael Throgmorton by Charles the 9. of France was so served for being too busie with the Prince of Condy in his faction Doctor Man in the year 1567. was taken from his own house in Madriil and put under a Guard to a straiter Lodging for breeding a Scandal as the Conde Teri said in using by warrant of his Place the Religion of his Country although he alledged the like permitted to Ghusman de Silva their Ambassador and to the Turk no less then in Spain In the year 1568. Don Ghuernon d' Espes vvas ordered to keep his house in London for sending scandalous Letters to the Duke d' Alva unsealed The Bishop of Rosse in the year 1571. vvas first confined to his house after to the Tower then committed for a good space to the Bishop of Ely his care for medling with more business then belonged to the place of his imployment The like was done to Dr. Alpin and Malvisett the French Ambassadors successively for being busie in more then their Masters affairs In the time of Philip the second of Spain the Venetian Ambassador in Madrill protecting an offendor that fled into his house and denying the Heads or Justices to enter his house vvhere the Ambassador stood armed to vvithstand them and one Bodavario a Venetian whom they committed to Prison for his unruly carriage and they removed the Ambassador unto another house until they had searched and found the Offendor Then conducting back the Ambassador set a guard upon his house to stay the fury of the people enraged The Ambassador complaining to the King he remitted it to the Supreme Councel they justified the proceeding condemning Bodavario to lose his head and other the Ambassadors servants to the Galleys all vvhich the King turned to banishment sending the whole process to Inego de Mendoza his Ambassador at Venice and declaring by a publick Ordinance unto that State and all other Princes that in case his Ambassadors should commit any offence nnworthily and disagreeing to their professions they should not then enjoy the privilege of those Officers referring them to be judged by them vvhere they then resided Barnardino de Mendoza for traducing falsly the Ministers of the State to further his seditious Plots vvas restrained first and after commanded away in the year 1586. The last of Spanish Instruments that disquieted this State a benefit vve found many years after by their absence and feel the vvant of it now by their reduction Having thus shortly touched upon such precedent examples as have fallen in the vvay in my poor observation I humbly crave pardon to offer up my simple opinion what course may best be had of prosecution of this urgent cause I conceive it not unfit that vvith the best of speed some of the chief Secretarries vvere sent to the Ambassador by vvay of advice that they understanding a notice of this information amongst the common people that they cannot but conceive a just fear of uncivil carriage towards his Lordship or his followers if any the least incitement should arise and therefore for quiet of the State and security of his person they vvere bound in love to his Lordship to restrain as vvell himself as followers until a further course be taken by legal examination vvhere this aspertion begun the vvay they onely conceived secure to prevent the danger this fear in likelyhood vvill be the best motive to induce the Ambassador to make discovery of his intelligence when it shall be required I conceive it then most fit that the Prince and your Grace to morrow should complain of this in Parliament and leaving it so to their advice and justice to depart the House the Lords at the instant to crave a conference of some small number of the Commons and so conclude of a Message to be sent to the Ambassador to require from him the charge and proofs the Persons to be sent the two Speakers of the two Houses vvith some convenient company of either to have their Maces and ensigns of Office born brfore them to the Ambassadors Gate and then forborn to shew fair respect to the Ambassadors then to tell them that a relation being made that day in open Parliament of the former information to the King by his Lordship they vvere deputed from both Houses the great Councel of the Kingdom to the vvhich by the fundamental Law of the State the chief care of the Kings safety and public quiet is committed they vvere no less the high Court of Justice or Supersedeas to all others for the examining and correcting all attempts of so high a nature as this if it carry truth That they regarded the honour of the State for the Catholicks immoderate using of late the Lenity of Soveraign Grace to the scandal and offence of too many and this aspersion now newly reflecting upon the Prince and others meeting vvth the former distaste which all in publique conceive to make a plot to breed a rupture between the King and State by that party maliciously layd hath so inflamed and sharpned the minds of most that by the access of people to Term and Parliament the City more filled then usual and the time it selfe neer May day a time by custom apted more to licentious liberty then any other cannot but breed a just jealousie and
his great Counsel to advise whether he should pass the Seas or no with an Army Royal and they not daring to assent without greater Counsel A Parliament the tenth year to have the advice of the Commons as well as of the Lords was called and how the Realm should be governed in their Sovereign his absence The truce with France was now expired the Parliament was called in the 13th to advise upon what conditions it should be renewed or otherwise how the charge of the War should be susteined at this assembly and by consent of all the Duke of Lancaster is created Duke of Aquitaine the Statute of provisions now past the Commons a party in the Letter to the Pope The year succeeding a Parliament is called for the King would have advice with the Lords and Commons for the War with Scotland and would not without their Counsels conclude a final peace with France The like assembly for the same causes was the year ensuing the Commons interesting the King to use a moderation in the Law of provisions to please at this time their holy Father so that the Statute upon their dislike may again be executed and that to negotiate the peace with France the Duke of Aquitaine may rather than another be imployed To consult of the Treaty with France for Peace the King in the seventeenth calleth a Parliament the answer of the Lords is left unentred in the Roll the Commons upon their faith and allegiance charged advised that with good moderation homage may be made for Guien an appenage of the French Croine so it trench not to involve the other pieces of the English Conquest their answer is large modest and worthy to be marked Now succeedeth a man that first studied a popular party as needing all to support his titles He in the fifth year calleth a Parliament to repress the malice of the Duke of Orleance and to advise of the Wars in Ireland and Scotland neither Counsels or supplies are entred in the Roll and to resist an invasion intended by France and Brittain he assembleth the State again the like was the second year following for France In this the Commons confer with for guard of the Sea and make many Ordinances to which the King assenteth the peace with the Merchants of Bruce and Foins is debated and a Proclamation published as they resolved by the Speaker the Commons complain of 96 pieces of importance lost in Guien the year before need of the defence of the borders and Sea coasts to suppress the Rebellion in Wales and disloyalty of the Earl of Northumberland they humbly desire that the Prince may be dispatched into those parts with speed and that the Castle of Manlion the key of the three realms might be left to the care of the English and not to Charls of Navarre a stranger and to have a vigilant eye of the Scotish prisoners In the tenth the Parliament is commanded to give their advice about the Truce with Scotland and preparation against the malice of the French His Son the wife and happy undertaker advised with the Parliament in the first year how to cherish his Allies and restrain his Enemies for this there was a secret Committee of the Commons appointed to conferr with the Lords the matter being entred into a schedule touching Ireland Wales Scotland Callis Gunien Shipping Guard of the Seas and War provision to repulse the Enemies In the second he openeth to the Parliament his Title to France a quarrel he would prosecute to death if they allowed and ayded death is in his Assembly enacted to all that break the Truce or the Kings safe conduct The year following peace being offered by the French King and the King of the Romans arrived to effect the work the King refuseth any conclusion until he had thereunto advice and assent of the Lords and Commons for which occasion the Chancellor declareth that Assembly In the fourth and fifth no Peace being concluded with France he calleth the State together to consult about the Warr concluding a Treaty of amity with Sigismund King of the Romans by allowance of the three Estates and entred Articles into the Journal Rols The same year by the Duke of Bedford in the Kings absence a Parliament was called to the former purposes as appeareth by the Summons though in the Roll omitted The like in the seventh The Treaty with France is by the Prelates Nobles and Commons of the Kingdom perused and ratified in the 11. of his Raign His Son more holy then happy succeeded adviseth him the second year with the Lords and Commons for the well keeping the Peace with France consulteth with them about the delivery of the Scottish King and the conclusion of it is confirmed by common assent And in the third year they are called to advise and consent to a new Article in the League with Scotland for change of Hostages And in the ninth conclude certain persons by name to Treat a Peace with the Dolphin of France The Treaty at Arras whither the Pope had sent as Mediators two Cardinals not succeeding The King in Parliament Anno 14. sheweth he must either lose his Title Stile and Kingdom of France or else defend it by force the best means for the prevention thereof he willeth them to advise him He summoneth again the next year the State to consult how the Realm might be best defended and the Sea safe kept against his Enemies In the twentieth the Commons exhibite a Bill for the Guard of the Sea ascertain the number of Ships assess wages and dispose prizes of any fortune to which the King accordeth and that the Genoways may be declared enemies for assisting the Turks in the spoyl of the Rhode Knights and that the privileges of the Pruce and Hans Towns Merchants may be suspended till compensation be made to the English for the wrongs they have done them to which the King in part accordeth The King by the Chancellor declareth in Parliament Anno 23. That the Marriage with Margaret the King of Sicils Daughter was contracted for enducing the Peace made with France against which the Lords as not by their advice effected make Protestation and enter it on the Roll. In the 25. the King intended to pass in Person into Franch and there to treat a Peace with the King adviseth with the Lords and Commons in Parliament and Letters of Mart are granted against the Brittains for spoyle done to the English Merchants The Lord Hastings and Abbot of Gloucester declare in Parliament Anno 27. the preparation of the French the breach by them of the Peace the weak defence of Normandy and the expiration shortly of the Truce requiring speedy advice and remedy In the 29. it was enjoined by Parliament to provide for defence of the Sea and Land against the French It was commanded by the King
to the States assembled Anno 33. to advise for well ordering of his House payment of the Soldiers at Callis guard of the Sea raising of the siege of Barwicke made by the Scots against the Truce dispoiling of the number of 13000 Soldiers arrayed the last Parliament according of differences amongst the Lords restraining transportation of Gold and Silver and acquitting the disorders in Wales of all which Committees are appointed to frame Bills Edward the fourth by the Chancellor declareth in his seventh year to the Lords and Commons that having made peace with Scotland entred League with Spaine and Denmark contracted with Burgundy and Britany for their ayd in the recovery of his right in France he had now called them to give their Counsels in proceeding which Charge in a second Sessions was again proposed unto them The like was to another Parliament in his twelfth year After this time their Journalls of Parliament have not been well preserved or not carefully entred for I can find of this nature no Record untill the first of Hen. 7. wherein the Commons by Thomas Lovell their Speaker Petition the King to take to Wife Elizabeth Daughter to Edw. 4. to which the King at their request agreeth The next is the third of Hen. the 8. in which from the King the Chancellor declareth to the three Estates the cause of that Assembly The first to devise a course to resist the Invasion of the Scots next how to acquit the quarrel between the King of Castile and the Duke of Geldres his Allie lastly for assisting the Pope against Lewis King of France whose Bull expressing the injuries done the Sea Apostolick was read by the Master of the Rolls in open Parliament The Chancellor the Treasurer and other Lords sent down to the Commons to confer with them The last in the 32d of the same year where the Chancellor remembring the many troubles the State had undergone in doubtful titles of Succession declareth that although the Convocation had judged void the marriage of Anne of Cleve yet the King would not proceed without the Counsel of the three Estates The two Archbishops are sent to the Commons with the Sentence sealed which read and there discussed they pass a Bill against the Marriage In all these passages of publick Counsells wherein I have been much assisted by the painful labour of Mr. Elsings Clerk of the Parliament and still observe that the Soveraign Lord either in best advice or in most necessities would entertain the Commons with the weightiest causes either forrain or domestique to apt and bind them so to readiness of charge and they as warily avoyding it to eschew expence their modest answers may be a rule for ignorant liberty to form their duties and humbly to entertain such weighty Counsells at their Soveraigns pleasure and not to the wild fancy of any Factious spirit I will add one forrain example to shew what use have been formerly made by pretending Marriages and of Parliaments to dissolve them their first end served Maximilian the Emperour and Ferdinand of Spain the one to secure his possessions in Italy the other to gain the Kingdom of Navarre to both which the French King stood in the way projected a Marriage of Charls their Grand-child with Mary the King of Englands sister it was embraced and a Book published of the benefits likely to ensue the Christian world by this match upon this Ground Ferdinando beginneth to incite Henry the 8th to war with France presents him with succours and designs him Guien to be the mark and Dorset sent with men and munition to joyn with the Spanish forces then on the Borders of Navarre the noise is they came to assist Ferdinand in the conquest of that Kingdom which though false gained such reputation that Albred was disheartned and Ferdinand possesed himself of that his Successors since retained his end served the English Army weak and weather-beaten are returned fruitless Maximilian then allureth the young and active King to begin with France on the other side Turwin and Turney is now the object whither Henry goeth with victory but better advised with that pittance makes an end by peace with France whose aim and heart was set on Millain A new bait the old Emperour findeth out to catch the Ambitious young man he would needs resign unto him the Empire too heavy for his age to bear The Cardinal Sedunensis is sent over to sign the Agreement which he did and France must now again be made an Enemy To prevent this danger Francis released his Title to Naples and offereth Laogitia his Daughter to Maximilians Granchild Charls at Noyon this is acted in the dark and at Arno the French Commissioners came up the back stairs with 60000 Florins and they engrossed Covenants when the abused King of Englands Ambassador Pace went down the other the good Cardinal returneth home meeteth by the way this foul play of his Master and writ to the King of England not in excuse but in complaint Contra perfidiam Principum an honest Letter Ferdinand and Maximilian dead Francis and Charls are Competitors for the Empire Henry the 8th is courted for his help by both the one with the tye of Alliance for the Infant Dolphin had affyed Henry the 8ths Daughter the other with the like and Daughter he will make his Daughter a Queen in praesente which the Dolphin cannot do and by his favour an Empress To further France was but to win Ambition to prey upon all his Neighbours the English King is won and winneth for Spain the Imperial wreath which Charls in two Letters I have of his own hand then thankfully confessed From Aquisgrave he cometh Crowned in haste to England wedded at Windsor the Kings Daughter contracteth to joyn in an invasion of France to divide it with his Father in Law by the River of Rodon and sweareth at the Altar in Pauls to keep faith in all Bourbon is wrought from France and entreth the Province with an Army paid with King Henries money Suffolke passeth with the English Forces by Picardy But Charles the Emperour who should have entred Guyen-faileth drawing away Burbon from a streight siege Marseilles to interrupt Francis then entred Italy and so the enterprize of France is defeated the French King as it Pavie taken Prisoner by Pescaro led to Grone hurried into Spain by the Emperours Galleys and forced at Madrid to a hard bargain without privity of Henry the 8th or provision of him who had been at the greater charge of that War Now the Emperour affecteth that Monarchy that hath ever since as some say infected the Austrian Family Rome the fatal old Seat of Government must be the Seat of his Empire Burbon and after Moncado are directed to surprize it Angelo the observant Fryer is sent before the Pope consigned by the Emperours Election who meant as his own
besides the first and last of Parliament and there was entred some Speeches by him uttered but that of all the rest is most of remark the reporter then present thus tells it This of the Duke of Clarence and the King Tristis disceptatio inter duos tantae humanitatis Germanos nemo arguit contra ducem nisi Rex nemo respondit Regi nisi dux some other testimonies are brought in with which the Lords are satisfied and so Formârunt in eum sententiam damnations by the mouth of the Duke of Buckingham the Steward of England all which was much distasted by the House of Commons The Raigne of Henry the seventh affords us upon the Rolls no one example The journall Bookes are lost except so much as preserves the passages of eight dayes in the twelfth year of his Raigne in which the King was some dayes present at all debates and with his own hand the one and thirtieth day of the Parliament delivered in a bill of Trade then read but had the memorials remained it is no doubt but he would have been as frequent in his Great Councell of Parliament as he was in the Starre-Chamber where by the Register of that Court it appeareth as well in debate of private causes that toucheth neither life nor Member as those of publique care he every year of all his raign was often present Of Henry the eighth memory hath not been curious but if he were not often present peradventure that may be the cause which the learned Recorder Fleetwood in his preface to the Annalls of Edward the fifth Richard the third Henry the seventh and Henry the eighth hath observed in the Statutes made in that Kings dayes for which cause he hath severed their Index from the former And much lay in the will of Wolsey who ever was unwilling to let that King see with his own eyes Edward the sixth in respect of his young years may be vvell excused but that such was his purpose it appears by a memorial of his own hand vvho proportioning the affairs of Councell to several persons reserved those of greatest vveight to his own presence in these vvords These to attend the matters of State that I will sit with them once a week to hear the debating of things of most importance Unfitness by sex in his two succeeding sisters to be so frequent present as their former Ancestors led in the ill occasion of such opinion and practise Most excellent Majesty your most humble servant in discharge of obedience and zeal hath hastned up this abstract vvhich in all humility he offers up unto your gracious pardon Presumption to enter the Closet of your Counsell is far from his modesty and duty vvhat hath been your powerfull Command he hath made his Work vvhat is fit to be done vvith it is only your divine judgment He dares not say Presidents are vvarrants to direct The success is as vvorthy observation as the knowledge of them sometimes have made ill example by extension of Regal power through ill Counsels vvith ill success Some as bad or vvorse vvhen the people have had too much of that and the King too little the danger no less To cut out of either of these patterns to follovv vvere but to be in Love vvith the mischief for the example The clearer I present this to your Highness the nearer I approach the uprightness of your heart the blessed fortune of your happy Subjects Pardon most Sacred Majesty that I offer up unto your admired vvisdome my vveak but dutifull observations out of all the former gathering In Consultations of State and decisions of private plaints it is clear from all times the King not only present to advise and hear but to determine also in Cases Criminal and not of Bloud to bar the King a part vvere to exclude him the Star-chamber as far from reason as example The doubt is then alone in Crimes meer Capital I dare not commend too much the times that lost these patterns either for the Causes or Effects but vvish the one and other never more To proceed by publick Act of Commons Peers and King vvas most usuall Appeals are given by Lavv of Hen. 4. of this in novv debate the vvay I fear as yet obscure as great advice to State is needfull for the manner as for the Justice The example in the cause of the Duke of Suffolke 28 Hen. 6. vvhere the King gave judgement vvas protested against by the Lords That of the Duke of Clarence of Edw. 4. vvhere the Lords and the high Stevvard the Duke of Buckingham gave judgement vvas protested against by Commons in both of these the King vvas sometimes present but vvhich of those may suit these times I dare not guess That of Primo Rich. 2. of Gomeneys and Weston accused by the Commons plaint for Treason vvas tried by the Lords in absence of the King but sentenced by the Lord Scroop Stevvard for the King The Accused vvere of the rank of the Accusers Commons and not Lords Hovv this vvill make a President to judg in causes Capital a Peer of Parliament I cannot tell But if I should conceive a vvay ansvverable as well to Parliament as other Courts if the King and the Lords vvere Tryers and the Commons assenters to the judgment to hear together the Charge and evidence The Lords as doth the Jury in other Courts to vvithdravv to find the Verdict and then the Stevvard for the King to pronounce the Sentence It passeth so by vvay of Act and Course that carrieth vvith it no exception and likely to avoid all curious questions of your Highness presence there If your humble servant hath in this expression of his desire to do you service presumed too far his Comfort is that vvhere zeal of duty hath made the fault benignity of goodness vvill grant the Pardon A DISCOURSE OF THE LAWFULLNES OF COMBATS To be performed in the presence of the KING or the Constable and Marshall of ENGLAND Written by Sir Robert Cotton Knight and Baronet 1609. LONDON Printed in the Year 1672. A DISCOURSE OF THE LAWFULLNES OF COMBATS To be performed in the presence of the KING c. COMBAT WHere difference could not be determined by legal proof or testimony there was allowed the party his purgation Which was either Canonicall or Legall The first by Oath and called Canonicall because it is Lawfull The other which was either Per aquam candentem ferrum ignitum or Duellum called vulgare because it was brought in by the barbarous people without the pretext of any Law untill the Gothish and Lombard Kings seeing their Subjects more addicted to Martiall Discipline than to Civill Government reduced those trialls to Form and Rule Which Constitutions are now incorporated in the Civill Law From the Northern Nations of which the Saxons and Normans or Northmanni are part it was brought into this Land And although it grew long ago both by the Decrees of
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
instant Vortigern a Native of this Isle first established here a free Kingdom four hundred and fifty years after Christ and so left it to the Saxons from whom her Majesty is in discent Lineal and it is plain that as we were later then Spain reduced under the Roman yoak so we were sooner infreed Subsequence of Spain Spain since the dissolution of the Roman Empire entituled no King till of late for Attalaricus from whom they would upon slender warrant ground their dissent was never stiled Rex Hispaniae but Gothorum and the Kingdom of Castile wherein the main and fairest antiquity of Spain rested begun not before the year of Christ 1017. whereas they were but Earls of Castile before so that the Kingdome of the English began which was alwayes as Beda observeth a Monarch in a Heptarchie 460. years at the least before the Kingdom of Castile or Spain Precedency of England in respect of Antiquity of Christian Religion JOSEPH of Aramathea planted Christian Religion immediately after the passion of Christ in this Realm And Aristobulus one of them mentioned by Saint Paul Romans 6. was Episc Brittanorum and likewise Simon Zelotes The first Christian King in Europe was Lucius Surius The first that ever advanced the papacy of Rome was the Emperour Constantinus born at Yorke Of whom in the Roman Laws near his time is written Qui veneranda Christianorum fide Romanum munivit imperium And to him peculiarly more than to other Emperours are these Epithitons attributed Divus Divae memoriae divinae memoriae orbis Liberator quietis fundator Reipublic instaurator publicae libertatis auctor Magnus Maximus Invictus Restitutor urbis Romae atque orbis And there have been more Kings and Princes of the bloud Royall Confessors and Martyrs in England than in any one Province in Europe And from Ethelbert King of Kent Converted Anno 596 untill this day Christianity hath been without interruption continued Subsequence of Spain In the time of Claudius Saint James preached in Spain but gained only nine Souls So did he in Ireland as Vincentius saith and they cannot count Christian religion to be then planted in Spain which shortly after was first tainted with the heresie of Priscilian then with Gothish Arianism and after defaced with Moorish Mahumetism from 707 years after Christ in continuance 770 years untill Ferdinando King of Arragon and Castilia utterly expelled the Moors Precedency of England in respect of the more absolute Authority Politicall THe Queen of Englands power absolute in acknowledging no superior nor in vassallage to Pope or Emperour For that subjection which by King John was made to Innoâ—entius the third after in Parliament Per praeceptum Domini Papae septimo Julii Cum fidelitate homagio relaxatur omnino Sir Thomas Moore in his debellation saith the Church of Rome can shew no such deed of subjection neither that the King could grant it of himself And Engubinus in his defence of Constantines dodation nameth not England where he recited all the foedary Kingdomes of the Papacy the Peter-pence were not duties but Eleemosina Regis neither the Rome-Scot but Regis larga benignitas Parem non habet Rex Angliae in Regno suo multo fortius nec superiorem habere debet saith Bracton Ipse non debet ess e sub homie sed sub Deo habet tantum superiorem Judicem Deum Likewise in appointing Magistrates pardoning Life Appeal granting privileges taking homage and his Jura Majestatis not limited in censu nummorum Bello judicando Pace ineunda Eleutherius the Pope 1400 years ago in his Epistle to Lucius King of Brittain stiled him Vicarius Dei in Regno suo so is the King of England in Edgars Lawes and Baldus the Lawyer saith Rex Angliae est Monarcha in regno suo and Malmesbury Post conversionem ad fidem tot tantas obtinuit Libertates quot imperator imperia Subsequence of Spain The King of Spain hath no Kingdom but is foedory either to France or Castila enthralled by oath of subjection and vassallage from King Henry to Charles the fifth of France 1369. Ex foedere contracto And for the Netherlands there is homage due to the French King or the Papacy as Arragon to Innocentius the third by King Peter 1204. confirmed by Ferdinand and Alphonsus 1445. and from James by the like oath 1453. And to Sardinia and Corsica the King of Arragon from the Bishops of Rome were under oath of subjection invested Ex formula fiduciae The Kingdom of Portugall in vassallage to the Pope under an Annuall Tribute And the Canaries Hesperides and Gorgon Islands subjected to the See of Rome under the chief Rent of four hundred Florins by Lewis King of Spain 1043. Of both the Indies Alexander did reserve the regalities of Sicilia the Church is chief Lord. And Granado and Navarre were made foedary to the Pope under Julius the second Naples at every change sendeth a Palfrey as a Heriot due to the Church of Rome and of the Empire he holdeth the Dukedom of Millaine So that it is questionable among Civilians whether he be Princeps which holdeth in feodo all of others His absolute authority restrained in Arragon by Justitia Arragonica In Biscay and other places by particular reservations And his Jura Majestatis in Censu Nummorum Bello judicando Pace ineunda c. Limited by the priviledges of the State as at Brabant and elsewhere in his Spanish Territories Ex propriis constitutionibus privilegiis Precedency of England in respect of more absolute authority Ecclesiastical HEr Majesties power more absolute in this confirmed by ancient Custome and privilege than any other Christian Prince For no Legat de Latere in England de jure allowed but the Archbishop of Canterbury If any admitted by courtesie he hath no Authority to hold plea in the Realm contrary to the the Laws thereof Placita 2 Hen. 4. and before he was admitted and entered the Realm he was to take oath to do nothing derogatory to the King and his Crown Placita Anno primâ— Henri 7. No man might denounce the Popes excommunication nor obey his authority on pain to forfeit all his goods without assent of the King or his Counsel Placita 23 and 34 Edw. Rot. Dunelm Henry the First called a Provincial Councel so did Canutus and others No appeal to Rome without the Kings licence Anno 32 34 Edw. 1. Inventure of Bishops and Churchmen in the Kings hand Ex Matt. Paris Hen. Huntington De gestis Pontific Donelm Placita 32 Edw. 1. and in the 32 Edw. 3. Where the reason of the Kings Ecclesiastical authority to suspend or bestow Church livings is yielded Quia reges Angliae unguntur in Capite Subsequence of Spain The King of Spain can prescribe no custome to prohibit the Popes Legat nor useth any Authority Penall over the Clergy Spain can
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
expedient to suppres Popish Practises against the due Allegiance to his Majesty by the strict Execution touching Jesuitâ— and Seminary Priests Or to restrain them to close Prisons during life if no Reformation follow In favour of the first Division I. There are not few who grounding themselves on an Antient Proverb A dead man bites not affirm that such are dangerous to be preserved alive who being guilty condemned and full of fear are likely for purchase of Life and Liberty to inlarge their uttermost in desperate adventures against their King and Countrey II. No less is it to be feared that while the sword of Justice is remiss in cutting off heinous offendors against the Dignity of the Crown the mis-led Papall multitude in the interim may enter into a jealous suspence Whether that forbearance proceed from fear of exasperating their desperate humours or that it is now become questionable Whether the execution of their Priests be simply for matter of State or pretended quarrel for Religon III. And whereas in a remediless inconvenience it is lawful to use the extremity of Laws against some few that many by the terrour of the example may be reformed what hope can there be that Clemency may tame their hearts who interpret His Majesties grace in transporting their Priests out of His Realm to be a meer shift to rid the Prisons of those whom Conscience could not condemn of any capital crime IV. Neither are their vaunting whisperings to be neglected by which they seek to confirm the fearful souls of their party and to inveigle the ignorant doubtful or discontented persons for if the glorious extolling of their powerful friends and the expectance of a golden day be suffered to win credit with the meaner fort the relapse cannot be small or the means easie to reform the error without a general combustion of the State V. Let experience speak somewhat in this behalf which hath evidently descryed within the Current of few years that the forbearance of severity hath multiplied their Roll in such manner that it remains as a Corrosive to thousands of his Majesties well-affected Subjects VI. To what purpose serves it to muster the names of the Protestants or to vaunt them to be ten for one of the Roman Faction as if bare figures of numeration could prevail against an united party resolved and advised before hand how to turn their faces with assurance unto all dangers while in the mean time the Protestants neastling in vain security suffer the weed to grow up that threatneth their hane and merciless ruine VII Sometime the Oath of Supremacy choaked their presumptuous imaginations and yet could not that infernal smoke be smothered nor the Locusts issuing thereout be wholly cleansed from the face of this Land Now that the temporal power of the King conteined in the Oath of Allegiance is by the Papall See and many of the Adorers thereof impudently avowed to be unlawful shall the broachers of such Doctrine be suffered to live yea and to live and be relieved of us for whose destruction they groan daily VIII To be a right Popish-Priest in true English sense is to bear the Character of a disloyal Renegado of his natural obedience to his Soveraign whom if by connivency he shall let slip or chastise with a light hand what immunity may not traiterous Delinquents in lesser degrees expect or challenge after a sort in equity and justice IX If there were no Receivers there would be no Theeves Likewise if there were no harbourers of the Jesuits it is to be presumed that they would not trouble this Isle with their presence therefore rigor must be extended against the Receiver that the Jesuits may be kept out of dores were it then indifferent justice to hang up the Accessary and let the Principal go free namely to suffer the Priest to draw his breath at length whiles the Entertainer of him under his Roof submits his body to the Executioners hands without doubt if it be fit to forbear the chief it will be necessary to receive the second offender in to protection wherewith a mischief must ensue of continual expence and scandalous restraint of so great a number X. Reputation is one of the principal Arteries of the Common-wealth which Maxime is so well known to the Secretaries of the Papacy that by private Forgeries and publique impressions of Calumniations they endeavour to wound us in that vital part howsoever therefore some few of that stamp being better tempered then their fellows in defence of this present Government have not spared to affirm that Tyranny is unjustly ascribed thereunto for so much as freedome of Conscience after a sort may be redeemed for money notwithstanding there want not many Pamphleters of their side who approbriously cast in our teeths the converting of the penalty inflicted on Recusants and refusers of the Oath of Allegiance from the Kings Exchequor to a particular Purse sure we cannot presume that those Libellers may be diswaded from spitting out their venome maliciously against us when they shall see their Priests mewed up without further process of Law for either they will attribute this calm dealing to the justice of their cause the strength of their party or patience or that tract of time hath discovered out Laws importing over much sharpness in good pollicy to be thought fitter for abrogation by Non-usance than repealed by a publique decree XI Moreover it is fore-thought by some tht if these Seminaries be only restrained they may prove hereafter like a Snake kept in the bosome such as Bonner Gardiner and others of the same Livery shewed themselves to be after Liberty obtained in Queen Maries time and if the loss of those Ghostly fathers aggrieve them it is probable that they will take arms sooner and with more courage to free the living then to set up a Trophy to the dead XII Howsoever the Jesuits band is known in their native soyl to be defective in many respects which makes them underlings to the Protestants as in Authority Arms and the protection of the Laws which is all in all Nevertheless they insinuate themselves to forraign Princes favouring their party with promises of strong assistance at home if they may be well backed from abroad To which purpose they have divided the inhabitants of this realm into four sects whereof ranking their troupes in the first place as due to the pretended Catholiques they assumed a full fourth part to their property and of that part again they made a subdivision into two portions namely of those that openly renounced the estabilished Church of England and others whose certain number could not be assigned because they frequented our srevice our sacraments reserving their hearts to the Lord God the Pope The second party they alot to the Protestants who retain yet as they say some reliques of their Church The third rank and largest was left unto the Puritans
and old Customes at London for 1000. Markes monethly to be paid unto the Wardrobe The like he did anno 17. Richard 2. anno 20. letteth out for term of life the Subsidie of Cloth in divers Countries And Edward 4. anno 1. the subsidie and usuage of Cloth Thus did Henry 8. with his Customes and since his time the late Queen and our now Soveraign Master and it was so then in use in the best governed State Rome which let out portions and decim's to the Publicans KIngs raise money and improve the Revenues of the Crown By Regalities 1. Temporal as for Liberties Penalties of Lawes Letters of Favour 2. Mixt. Liberties In granting restraining or renewing them It is a course usual that Kings have raised in money by calling in question the Charters and Liberties of Corporations Leets Free-Warrens and other Royalties Thus did Richard 1. proclaiming Quod omnes chartae et confirmationes quae prioris sigilli impressione roberaverint irritae forent nisi posteriori sigillo roborentur And Henry 3. anno 10. enjoyned all qui suis volebant Libertatibus gaudere ut innovarent chartas suas de novo Regis sigillo getting money thereby Edward 1. by divers Commissions with articles called Articuli de Ragman annexed to them called in question about anno 70. all the liberties and freedomes of England Gilbert de Thorneton his Attorney putting information by Quo warranto against all persons as well bodies Politick as others whereby they were inforced anew to renew their Charters and Fines for their Liberties The like was in anno 13. Edward 3. in whose time anno 9. all clauses of allowances by Charter of Amerciaments Fines c. imposed by the Kings Ministers upon any of the Tenants of other men were adjudged void and the penalties made payable to the Kings Officers unless they made a new purchase of their Liberties And this was one of the usualest and easiest meanes to raise money from the People because it lighteth onely upon the best abilities And if there were now but 20. l. taken of every Corporation of every person that holdeth by Charter his Liberties 5.l for renewing them and of every one that claimeth by prescription 10. l. for purchase of a Charter all which would be easie and acceptable it would amount to above 100000. l. For penal Lawes that have been sometimes but with ill success wrought upon When Richard 2. anno 22. began this course appointing in all his Commissions and instructions Bushey onely to be of the Quorum for compounding with the Delinquents it wrought in the affection of his People such distaste that it grew the death of the one and deposition of the other No less fatal was the like to Empson and there is no string will sooner jâ—rre in the Common-Wealth then this if it be generally touched For Letters of Favâ—â—â— Either for mitigation of dispatch of Justice Of the first sort there be many found in Henry 6. and Edward 4. time sometimes of protection although by course of the Common Law none are warrantable but to such as are going in obsequium Regis or ibidem moraturi sometimes freeing men from Arrests by calling them up to appear before the Kings Councel Sometimes in causes highly criminal releiving the Prisoner in commanding the Judges to make stay of all proceeding upon supposal of indirect practises until the King was better informed Of the second sort there are many in Henry 7. time where the King hath taken money for writing to the Judges of Assize his Letters of Favour For Offices Thus did King John with the Chancellor-ship selling it for term of life to Gray for 5000. Markes divers offices now in the gift of the Master of the Rolls were engaged to the Chancellour and Treasurer of England as are to be found in Record of Henry 4. Henry 5. and Henry 6. to be passed by warrant of the Kings hand and upon some consideration And Henry 7. renewed this course using Dudley as his instrument to compound with Suitors of those and any other places And by that Record we find the Chancellor the Chief Justice the Keepers of most of the Records the Clerks of the Assizes and Peace the Masters of his Game and Parks and what else carrying either profit or reputation paid to the King some proportion of money for their places Neither is this different from the course of other States For in France Lewis 12. called the Father of his Country did so with all Offices not being of Judicature which his Successors did not forbear In Spain it is usual and Vasqui the Spanish Advocate defendeth the lawfulness of it And Charles the fifth prescribeth it to his Son as a rule in his last instruction drawing his ground of reason and conveniency from the example and practise of the See at Rome The like might be of all inferiour promotions that are or may be in the Kings gift whether Ecclesiastical or Temporal if they were after the true value in profit and reputation listed into rankes according to the several natures of their imployments respectively For Honours And that either by Power legal or Election Of the first it is only in respect of Land whereby every man is to fine when the King shall require that hath ability to be made a Knight and is not of this sort there be plenty of Examples The other out of choise and Grace as Hugo de Putiaco Bishop of Durham was by King Richard 1. created Earl of Northumberland for a great sum of money And I doubt not but many of these times would set their ambition at as high a price And for his Majesty now to make a degree of honour hereditary as Barronets next under Barons and grant them in tail taking of every one 1000. l. in fine it would raise with ease 100000. l. and by a judicious election be a meanes to content those worthy persons in the Common-Wealth that by the confused admission of many Knights of the Bath held themselves all this time disgraced For the Coine and Bullion By which although some Kings out of a last shift have seemed to relieve themselves yet was it in truth full of danger and distrust to the Common-wealth being an assured token of a bankrupt state and to the Prince in conclusion of most disadvantage For the Revenues of the Crown being commonly incertain Rents they must in true value howsoever in verbal sound be abated to the proportion that the Money shall be abased And every man will rate his Commodity in Sale not according to the accompt of pence or pounds but to the weight of pure Silver contained in the currant money As for example That which was before the decâ—ying of the Coine worth five shillings the pouud weight will if the allay be to the half be held at ten shillings and so in every proportion respectively For money is not meerly to be esteemed in respect of the Sculpture or Figure
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
in Henry 8. time had first the ground in Parliament it is manifested by the dates of their Acts in convocations that they all had properly in that place the first original And that this was the use of old nothing will leave it so clear as to observe the fruitless success of the Laity in all their endeavours to establish Ecclesiastical Laws And this I will manifest by the Kings answer out of Record so far as the Rolls of Parliament will admit me successively Until the 11. of Edward the first there is no Record extant but in that the Commons petition to the King that a Law may be made against Usurers The King gave answer that it must be remedyed coram Ordinariis And when they desired remedy de multimodis injustis vexationibus eis factis per Officiales alios ministros Ecclesiae The King replyed Cancellarius emendat in temporalibus Archiepiscopus faciâ—t in spiritualibus From hence there is a lack of Record near to the 8. of Edward 3. In which Parliament the Commons desire an Act to restrain the Clergie in their trivial citations whereunto they received from the King but this answer onely That the King will charge the Bishops to see it remedyed And the first of Richard the 2. preferring the like petition against corruption of Ordinaries to do according to the Lawes of Holy Church And in the fifth of the same King they complain against abuses in Ecclesiastical Courts Respons The King will charge the Clergy to amend the same And in the 15. year when they required an Act to declare the age of the titheable Wood they had for answer The King would move the Bishops for order between this and the next Parliament And in the 17 of Richard 2. when they petiotioned for a residing learned Ministry so as the Flock for want might not perish they had replyed That the King willeth the Bishops to whom that Office belongeth to do their duties Henry the 4. in his second year desired by the Lords and Commons to pacify the Schisme of the Church Answereth he will charge the Bishops to consider the same And in his fourth year being importuned for an Act for residency of Ministers replyed Le Roy command an Prelats et perentrecy ils empurvoient de remedie And in the eleventh of the same King to the like petition Respons Ceste matiere appartient a St. Eglise et remede en la darraine Convocation In Parliament under the 5. Henry and his first year the King answereth the Commons petition against oppressing Ordinaries If the Bishops do not redtess the same the King will And in Anno 3. Henry 6. to a Petition that Non-Residents should forfeit the profit of their living gave answer that he had delivered the Bill to my Lord of Canterbury and semblably to my Lord of York charging them to purvey meanes of remedy And in the year following to a petition that Patrons may present upon Non-Residencie Respons There is remedy sufficient in the Law spiritual Since then it is plain by these rehearsed answers that from the Conquest they have received but weak admittance And by the edict of the first King William in these words a sharp restraint Defendo et mea authoritate interdico ne ullus laicus homo de legibus quae ad Episcopum pertinent se intromittat And that the Saxon Synodals are rather Canon-Laws then Lay-mens Acts. And the practise of the primitive Church if well understood but a weak prop to their desire It may not seem distastful from the King walking in the Steps of his Ancestors Kings of this Land to return as formerly the Commons desires to their proper place the Church-mans care And to conclude this point in all Parliaments as Martian the Emperor did the Chalcedon Councel Cessat jam profana contentio nam vere impius sacrilegus est qui posttot sacerdotum sententiam opinionisuae aliquid tractandum reliquit And with the Letter of Gods Law Qui superbicrit nolens obedire sacerdotis imperio ex decreto Judicis morietur hono THE ARGUMENT Made by the COMMAND Of the House of COMMONS Out of the Acts of Parliament and Authority of Law expounding the same at a CONFERENCE with the LORDS CONCERNING THE LIBERTIE of the person of every FREEMAN Written by Sir ROB. COTTON Knight and Barronet LONDON Printed in the Year 1672. THE ARGUMENT Made by the COMMAND Of the House of COMMONS Out of the Acts of Parliament and Authority of Law expounding the same at a Conference with the LORDS Concerning the Liberty of the person of every FREEMAN My LORDS VPon the occasions delivered by the Gentlemen your Lordships have heard the Commons have taken into their serious consideration the matter of the personal liberty and after long debate thereof of on divers dayes aswell by solemn Arguments as single proportions of doubts and answers to the end no scruples might remain in any mans breast unsatisfyed They have upon a full search and clear understanding of all things pertinent to the question unanimously declared That no Freeman ought to be committed or detained in Prison or otherwise restrained by the command of the King or the Privy Councel or any other unless some cause of the commitment deteinor or restraint be expressed for which by Law he ought to be committed detained or restrained And they have sent me with other of their Members to represent unto your Lordships the true grounds of such their resolution and have charged me particularly leaving the reasons of Law and Presidents for others to give your Lordships satisfaction that this Liberty is established and confirmed by the whole State the King the Lords Spiritual and Temporal and the Commons by several Acts of Parliament the authority whereof is so great that it can receive no answer save by interpretation or repeal by future Statutes And those that I shall mind your Lordships of are so direct to the point that they can bear no other exposition at all and sure I am they are still in force The first of them is the grand Charter of the Liberties of England first granted 17. Johannis Regis and revived 9. Hen. 3 and since confirmed in Parliament above 30. times The words are these cap. 29. Nullus liber homo capiatur vel imprisonetur aut disseisetur de libero tenemento suo vel Libertatibus vel liberis consuetudinibus suis aut ut lagetur aut exuletur aut aliquo modo dâ—struatur nec super eum ibimus nec super eum mittemus nisi per leg ale â—udiciuâ— parium suorum vel per legem terrae These words Nullus liber homo c. are express enough Yet it is remarkable that Mathew Paris an Author of especial credit doth observe fol. 432 that the Charter 9. Henry 3. was the very same as that of the 17. of King John in nullo
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
them aswel of things done out of the Forrest of the King as for other things That it would please our said Lord to command those to be delievered that are so taken by special command against the form of the Charters and Statutes aforesaid The Answer is The King is pleased that if any man find himself greived that he come and make his complaint and right shall be done unto him 37. Edward 3. cap. 18. agreeth in substance when it saith Though that it be contained in the great Charter that no man be taken nor imprisoned nor put out of his Freehold without process of the Law Nevertheless divers People make false Suggestions to the King himself as well for malice or otherwise whereof the King is often grieved and divers of the Realm put in damage against the form of the the said Charter wherefore it is ordained that all they which make suggestions shall be sent with the same suggestions before the Chancellour Treasurer and his grand Council and that they there find Surety to pursue their suggestions and incur the same pain that the other should have had if he were attainted in case that his suggestion be found evil and that then process of the Law be made against them without being taken and imprisoned against the form of the Charter and other Statutes Here the Law of the Land in the grand Charter is explained to be without process of the Law 42. Edward 3. at the request of the Commons by their Petitions put forth in this Parliament to eschew mischief and damage done to divers of his Commons by false Accusers which oftentimes have made their accusation more for revenge and singular benefit than for the profit of the King or of his People which accused persons some have been taken and sometime caused to come before the Kings Council by Writ or otherwise upon grievous pains against the Law It is assented and accorded for the good governance of the Commons that no man be put to answer without presentment before Justices or matter of Record or by due process and Writ original according to the old Law of the Land and if any thing from henceforth be done to the contrary it shall be void in the Law and holden for Error But this is better in the Parliament-Roll where the Petition and Answer which make the Act are set down at large 42. Edward 3. Rot. Parl. n. 12. The Petition Item because that many of the Commons are hurt and destroyed by false Accusers who make their Accusations more for their revenge and particular gaine than for the profit of the King or his People And those that are accused by them some have been taken and others are made to come before the King's Councel by Writ or other Command of the King upon grievous pains contrary to the Law That it would please our Lord the King and his good Council for the just Government of his People to ordain that if hereafter any Accuser purpose any matter for the profit of the King that the matter be sent to the Justices of the one Bench or the other or the Assizes to be enquired and determined according to the Law and if it concern the Accuser or Party that he take his Suit at the Common Law and that no man be put to answer without presentment before Justices or matter of Record or by due process and Original Writ according to the antient Law of the Land and if any thing henceforward be done to the contrary that it be void in Law and held for error Here by due process and Original Writ according to the antient Law of the Land is meant the same thing as per legem terrae in Magna Charta And the abuse was that they were put to answer by the Commandment of the King The King's answer is thus Because that this Article is an Article of the Grand Charter The King will that this be done as the Petition doth demand By this appeareth that per legem terrae in Magna Charta is meant by due process of the Law Thus your Lordships have heard Acts of Parliament in the point But the Statute of Westminster the first cap. 15. is urged to disprove this opinion where it is expresly said that a man is not replevisable who is committed by command of the King Therefore the command of the King without any cause shewed is sufficient to commit a man to Prison And because the strength of the Argument may appear and the answer be better understood I shall read the words of that Statute which are thus And forasmuch as Sheriffs and others which have taken and kept in Prison persons detected of Felony and oftentimes have let out by Replevin such as were not replevisable because they would gaine of the one party and grieve the other And forasmuch as before this time it was not certainly determined what persons were replevisable and what not but onely those that were taken for the death of a man or by commandment of the King or of his Justices or for the Forrest it is provided and by the King commanded that such Prisoners as before were outlawed and they which have abjured the Realm Provers and such as be taken with the manner and those which have broke the Kings Prison Theives openly defamed and known and such as be appealed by Provers so long as the Provers be living if they be not of good name and such as be taken for burning of Houses feloniously done or for false money or for counterfeiting the Kings Seal or Persons excommunicate taken at the request of the Bishop or for manifest offences or for treason touching the King himself shall be in no wise replevisable by the common VVrit or without VVrit But such as be Indicted by Larceny by Inquests taken before Sheriffs or Bayliffs by their Office or of light suspition or for petty Larceny that amonnteth not above the value of 12 d. if they were not guilty of some other Larceny aforetime or guilty of receipt of Felons or of commandment or force or of aid in Felony done or guilty of some other Trespass for which one ought not to lose Life or Member and a man appealed by a Prover after the death of the Prover if he be no common Thief nor defamed shall from henceforth be let out by sufficient Surety whereof the Sheriff will be answerable and that without giving ought of their Goods And if the Sheriff or any other let any go at large by Surety that is not replevisable if he be the Sheriff Constable or any other Bayliff of Fee which hath keeping of Prisons and thereof be attained he shall lose his Fee and Office for ever And if the Under-Sheriff Constable or Bayliff of such as hath Fee for keeping of Prisons do it contrary to the will of his Lord or any other Bayliff being not of Fee they shall have 3. years imprisonment and make a fine at the King's pleasure And if any
in exposition of Statutes and Deeds to avoid inconveniences and to make it stand with the rest and with Reason and it may be Collected that by the Law of the Land in Magna charta by the course of the Law in 2 5. Edward 3. by due process of the Law in 28. Ed. 3. other due process to be made by the Law 36. Edward 3. process of the Law 37. Edward 3. and by due process and Writ Original 42. Edward 3. are meant one and the same thing the latter of these Statutes referring alwayes to the former and that all of them import any due and regular proceeding of Law upon a cause other then a trial by Jury And this appeareth Cook 10. 74. in the case of the Marshaâ—â—â—c and Cook 1.99 Sir James Bagg's case where it is understood of giving jurisdiction by Charter or Prescription which is the ground or a proceeding by course of Law and in Sâ—ldâ—rs Notes ou 〈◊〉 fol. 29. where it is expounded for Wager of Law which is likewise a TRYAL at Law by the Oath of the party differing from that of Jury and it doth truly comprehend these and all other regular proceedings in Law upon cause which gives authority to the Constable to arrest upon cause and if this should not be the true exposition of these words per legem terrae the King's Council were desired to declare their meaning which they never offered to do And yet certainly these words were not put into the Statute without some intention of consequence And thereupon M. Serjeant Ashley offered an interpretation of them thus namely that there were divers Laws of this Realm As the Common Law the Law of the Chancery the Ecclesiastical Law the Law of Admiralty or Marine Law the Law of Merchants the Martial Law and the Law of State And that these words per legam terrae do extend to all those Laws To this it was answered That we read of no Law of State and that none of those Laws can be meant there save the Common which is the principal and general Law and is always understood by way of Excellency when mention is made of the Law of the Land generally and that though each of the other Laws which are admitted into this Kingdom by Custome or Act of Parliament may justly be called a Law of the land yet none of them can have that preheminency to be stiled the Law of the Land and no Stature Law-book or other Authority printed or unprinted could be shewed to prove that the Law of the Land being generally mentioned was eâ—er intended of any other Law than the Common Law and yet even by these other Laws a man may not be committed without a cause expressed but it standeth with the Rule of other legal expositions that per legem terrae must be meant the Common Law by which the general and universal Law by which men hold their Inheritances and therfore if a man speak of Escuage generally it is understood as Littleton observeth plt 99. of the incertain Escuage which is a Knightâ—s serviec tenure for the defence of the Realm by the body of the Tenant in time of VVar and not of the certain Escuage which giveth only a contribution in money and no personal service And if a Statute speak of the King's Courts of Record it is meant only of the four at Westminster by way of Excellency Cook 6. 20. Gregories case So the Canonists by the Excommunication if simply spoken do intend the greater Excommunication and the Emperor in his Institutions saith that the Civil Law being spoken generally is meant of the Civil Law of Rome though the Law of every City is a Civil Law as when a man names a Poet the Grecians understand Homer the Latinists Virgil. Secondly admit that per legem terrae extend to all the Laws of the Land yet a man must not be committed by any of them but by the due proceedings that are exercised by those Laws and upon cause declared Again it was urged that the King is not bound to express a cause of imprisonment because there may be in it matter of State not fit to be revealed for a time least the Confederates thereupon make means to escape the hands of Justice and therefore the Statutes cannot be intended to restrain all Commitments unless a cause be expressed for that it would be very inconvenient and dangerous to the State to publish the cause at the very first Hereunto it was replyed by the Commons That all danger and inconvenience may be avoided by declaring a general Cause as for Treason for suspition of Treason Misprision of Treason or Felony without specifying the particular which can give no greater light to a confederate then will be conjectured by the very apprehension or upon the imprisonment if nothing at all were expressed It was further alleadged that there was a kind of contradiction in the Position of the Commons when they say that the party committed without a cause shewed ought to be delivered or bailed bailing being a kind of imprisonment delivery a total freedome To this it was answered that it hath alwayes been the discretion of the Judges to give so much respect to a commitment by the Command of the King or the privie Councel which are ever intended to be done on just and weighty causes that they will not presently set him free but baile him to answer what shall be objected against him on his Majesties behalf But if any other inferiour Officer commit a man without cause shewed they do instantly deliver him as having no cause to expect their pleasure so the delivery is applyed to an imprisonment by the command of some mean Minister of justice bailing when it is done by the command of the King or his Councel It was urged by Master Attorney That bailing is a grace and favour of a Court of Justice and that they may refuse to do it This was agreed to be true in divers cases as where the cause appeareth to be for felony or other crime expressed for that there is another way to discharge them in convenient time by their tryal And yet in those cases the constant practise hath been antiently and modernly to bayle men but where no cause of the imprisonment is returned but the command of the King there is no way to deliver such persons by tryal or otherwise but that of Habeas Corpus and if they should be then remanded they may be perpetually imprisoned without any remedy at all and consequently a man that had committed no Offence might be in worse case then a great Offendor for the latter should have an ordinary tryal to discharge him the other should never be delivered It was further said that though the Statute of West I. cap 15. as a Statute by way of provision did extend only to the Sheriff yet the Recital in that Statute touching the 4. Causes wherein a man was not replevisable at Common Law namely those that were