the Lords to the King In the 27 a Great Counsel is assembled many of the lay Peers few of the Clergy and of the Shires and Burroughs but one a peece This was for the prosecution of the French wars when honorable peace could not be gotten but the year following a Truce offered the King forbore to entertain until he had the consent of the Peers and Commons which they in Parliament accorded unto before the Popes Notary by publick Instrument The dallying of the French King in conclusion of peace and the falling off of the Duke of Brittany having wrought his end with France by reputation of the English succour is the year following declared in Parliament and their advice and aid required for the Kings proceeding In the 36. year he calleth a Parliament to consult whether war or peace by David King of Scots then offered should be accepted In the 40. the Pope demanding the tribute of King John the Parliament assembled where after consultation apart the Prelats Lords and Commons advise the denyal although it be by the dint of Sword In 43. The King declares to the Peers and Commons that the French against the Articles of the Truce refused payment of the moneys and delivery of the Towns summoning La Brett and others the Kings Subjects in Gascony to make at Paris their appeals and had forraged his of Bontion requiring whether on their breach he might not again resume the stile and arms of France The Lords and Commons had apart consulted they advised the King to both which he approving altered the inscription and figure of his Seal Two years after it was declared to the Peers and Commons that by their advice he had again resumed the stile and quarrel of France and therefore called their advice for the defence of the realm against the French securing of the Seas and pursuing of the Warre of which they consult and resolve to give the King an aid the like of Councel and supply was the year succeeding In the 50 a Parliament to the purposes of the other two was summoned and the year following the King in Parliament declaring how the French combined underhand against him with Spain and Scotland required their advice how Peace at home the Territories abroad Security of the Sea and charge of the War might be maintained I have the longer insisted in observing the carriage of these times so good and glorious after ages having not left the Journal entries of Parliament so full which with a lighter hand I will pass through Richard his Grand child succeeded to the Crown and troubles having nothing worthy his great fortunes but his great birth the first of his Raign he pursued the Steps of his wise Grandfather advising with Peers and Commons how best to resist his Enemies that had lately wronged many of his Subjects upon the Sea coasts In the second year he again consulted with his people how to withstand the Scots who then had combined with the French to break the Truce In the third he called the advice of Parliament how to maintain his regality impaired by the Popes provision how to resist Spain France and Scotland that had raised Wars against him how to suppress his Rebells in Guyen and Ireland and how to defend the Seas The like in the fourth year following at Winsor the year succeeding at a great Councel the King having proposed a voyage Royal into France now called the Parliament to determine further of it and it is worthy observation for the most before any proposition of War or Peace were vented to the Commons a debate thereof proceeded in the great Councel to stay it fitter to Popular advice The quarrel of Spain continuing the Duke of Lancaster offered a voyage against them so that the State would lend him money after consultation they granted aid but not to bind them to any continuance of Wars with Spain In the sixth the Parliament was called to consult about defence of the borders the Kings possessions beyond Sea Ireland and Gascoyne his subjects in Portugall and safe keeping of the Seas and whether the King should proceed by Treaty of Alliance or the Duke of Lancaster by force for the Conquest of Portuguall the Lords approve the Dukes intention for Portuguall and the Commons advise that Thomas Bishop of Norwich having the Popes Croiceris should invade France The same year the State was re-assembled to consult whether the King should go in person to rescue Gaunt or send his Army the Commons after two dayes debate crave a conference with the Lords the effect is not entered in the Roll only they bid Sir Thomas Puckering their speaker protest that Counsells for War did aptly belong to the King and his Lords yet since the Commons were commanded to give their advice they humbly wished a voyage Royal by the King if not that the Bishop of Norwich ought with the advantage of the Popes Croiceris be used in that service who accepted the Charge with ill success he further for the Commons prayed that the Kings Unkle should not be spared out of the Realm before some peace be setled with the Scots and that the Lord de la Sparre sent with Propositions from Spain may first be heard The Chancellor in the seventh year in the name of the King willeth the Lords apart and so the Commons to consult whether Peace or War with Scotland or whether to resist or assail the Kings adventure with Spain France or Flanders Their opinion is not entered in the Rolls an omission usual by the Clarks neglect only their Petition is recorded that the Bishop of Norwich may accompt in Parliament the expence of the monies and be punished for his faults in the service he undertook both which are granted At the next Sessions the same year the Commons are willed to advise upon view of Articles of Peace with the French whether War or such a Unity should be accepted They modestly excused themselves as too weak to consult in such weighty affairs But being charged again as they did tender the honour and right of the King they make this answer Quils intendent que ancunes sermâ—s terres que mesme lour Leeige auroit â—it pur cest accord in Guien si serront tenns dobt Roy Francois par homage service mars ne persont uny que lour dit Leeige voiroit assenter trope legierement de temer dicens Francois pertiel service la villa de Callis aultres terres conquises des francoise per lespreneve verroit la comen ense faest fait si autrement lour perroit bien faire giving their opinions rather for Peace than War Peace with France not succeeding the eighth year the body of the State was willed to advise whether the King in his own person or by sending of forces against the French Spain Flanders and Scotland should proceed This King having assembled at Oxon
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
Abbots Earls and chief Nobility of the Kingdom present for so are the words of the Records the cause between Arsast Bishop of Norway and Baldwyne Abbot of Bury was also argued Et ventilata in publica jubet Rex teneri Judicium Causis auditis Amhorum The diligence of his Son the Learned Henry the first in executing of this part of his kingly function is commended to posterity by Walter Mape a Learned man trained up and in favour with Henry the second in these words Omnia Regali more moderamine faciebat neminem volebat agere justitia vel pace Constituerat autem ad tranquilitatem omnium ut diebus vacationis vel in domo magna subsidio copiam sui faceret usque ad horam sextam which was till twelve as we now accompt secum habens Comites Baronet Proceres Vavasores to hear and determine causes whereby he attained the surname of Leo Justitiae in all stories and so out-went in quiet guidance of the State his best progenitors The next of his name that succeeded is remembred every where for his debates and his disputes he had in person with Thomas the Archbishop and others of his part at the great Counsels both at London Clarendon and Northampton for redress of the many complaints of the Commons against the outrages and extortions of the Clergy one thousand five hundred and fifty seven Die Penticostis apud sanctum Edmundum the same King Diademate Insignitus with the Bishops Abbots Earls and Barons of the Kingdome sate daily himself and heard all the debates concerning the Liberties and Charters of Battle Abbey The interlocutory Speeches as well of the King as Lords and parties are at full related in a Register of that Church The sute between the Church of Lincolne and Saint Albanes in praesentia Regis Henry Archepiscop Episcop omnium Angliae Comitum Baronum Regni was at Westminster debated and ended And had alone of memory and truth been a protector of the publick Records of the State as awe of the Clergies sensure was a guard to theirs in tempestuous times we had not been now left to the only friendship of Monkes diligence for example in this kind At Lincolne the Archbishops some Bishops but all the Earles and Barons of the Realme una Cum Rege Johanne Congregati ad colloquium de concordia Regis Scotiae saith the Register of that Church This use under King Henry the third needeth no further proofe than the Writ of summons then framed expressing that Kings mind and practise It is Nobiscum Praelatis Magnatibus nostris quos vocari fecimus super praemissis tractare Consilium impendere which word Nobiscum implieth plainely the Kings presence what the succeeding practise was from the fifteenth year of the second Edward the proper Records of this inquiry the Journall Books being lost I am enforced to draw from out the Rolls of Acts wherein sometimes by chance they are remembred Edward the second was present in Parliament in the fifteenth year of his Raigne at the complaint against the Spencers and at the second Parliament that year for the repeale of that banishment In the fourth of Edward the third the King was present at the accusation of Roger Mortimer but not at the Tryall And the next year in the treaty of the French affaires In the sixth year Intererat Rex in Causa Johannis de Gray Willielmi de Zous The same year the second day in Parliament the King was present at the debate about his Voyage into Scotland In the fifteenth year the King in the Painted Chamber sitting with the Lords in consultation the Archbishop after pardon prayed that for better clearing himself he might be tryed in full Parliament by his Peers which was granted In the seventeenth in Camera Alba now the Court of requests Rex cum magnatibus conveniunt Communes super negotiis Regni In the tenth of Richard the second the King departed from the Parliament in some discontent when after some time Lords are sent to pray his presence and informe his Majesty that if he forbear his presence amongst them fourty dayes that then Ex antiquo Statuto they may returne absque doâ—igerio Regis to their severall homes Henry the fourth began his first Parliament the first of November and was the twenty seventh of the same moneth at a debate about the Duke of Brittany the thirtieth day the Cause of the Archbishop of Canterbury was before him proposed only The third of November he was at the debate whether the Commons had right of Judicature yea or no. On the tenth he was with the Lords in their consultation about the expedition against the Scots the creation of the Duke of Lancaster and prohibition of a new sect for entring his Kingdom Some Ordinances were at this time consulted of before him about the staple and the sentence against Haxey after dispute revoked This King began his second Parliament the twentieth of January and on the ninth of February was present to make agreement betwixt the Bishop of Norwich and Thomas of Erpingham On the twentieth day of the same moneth he was present at Counsell for repressing the Welch Rebells for revocation of stipends and concerning the Priors Aliens On the 26. they advise before the King of the Cistertians order On the second of March of the Statute of Provisions the Keeper of the privy Seal of relieving the two Universities And on the ninth of March they mediate before the King a reconciliation betwixt the Earl of Rutland and the Lord Fitzwater He also began a Parliament in the fifth year upon the fifteenth of January and on the twentieth they advise before the King of guarding the Seas and the Welsh rebellion On the eighth of February the Earl of Northumberland is charged before the King and in his presence and by his permission divers of whom he knew no harme were removed from the Court. The next day at the Petition of the Commons he took upon him to reconcile the Earles of Northumberland and Westmerland And on the two and twentieth of February of the Earles of Northumberland and Dunbarre In a Parliament of 27 of Hen. the 6. a Challenge of seate in Parliament betwixt the Earles of Arundell and Devonshire was examined and appointed by the KING with the advice of the Lords In that great capitall cause of the Duke of Suffolke the 28 of Hen. 6. I finde not the King once present at the debates but the Duke appealing from his tryall by Peerage to the King is brought from out of the house of Lords to a private Chamber where the King after the Chancellor in gross had declared his offence and his refusall the King himself but not in place of judgement adjudged his banishment By the Rolls of Edward the fourth it appeareth that he was many dayes
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
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