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
entaile of the Crown by King Henry 4. in the 8. year of his Reign for all the Commons The Banishment of the two Spencers in 15. E. 2. Praelati Comites Barones les autres Peeres de la terre Commons de Roialme give Consent and Sentence to the Revocation and Reversement of the former Sentence the Lords and Commons accord and so it is expressed in the Roll. In the first of Edward the third when Elizabeth the Widdow of Sir John de Burgo Complained in Parliament that Hugh Spencer the younger Robert Baldock and William Cliffe his Instruments had by duress forced her to make a writing to the King whereby she was dispoiled of all her inheritance Sentence was given for her in these words Pur ceo que avis est al Evesques Counts Barones autres Grandes a tout Cominalte de la terre que le dit escript est fait contre ley tout manere de raison si fuist le dit escript per agard delparliam dampue elloques al livre ala dit Eliz. In the 4th of Edward 3. it appears by a Letter to the Pope that to the Sentence given against the Earl of Kent the Commons were parties as well as the Lords and Peers for the King directed their proceedings in these words Comitibus Magnatibus Baronibus aliis de Communitate dicti Regni as Parliamentum illud congregates iuâ—unximus ut super his discernerent judicarent quod ratione justitiae conveniret habere prae oculis solum Deum qui cum concordi unaenimi sementia tanquam reum criminis laesoe majestatis morti abjudicarent ejus sententia c. When in the 50th of E. 3. the Lords had pronounced the Sentence against Richard Lyons otherwise than the Commons agreed they appealed to the King and had redress and the Sentence entred to their desires When in the first year of R. 2. William Weston and John Jennings were arraigned in Parliament for surrendring certain Forts of the Kings the Commons were parties to the Sentence against them given as appeareth by a Memorandum annexed to that Record In I H. 4. although the Commons refer by protestation the pronouncing the sentence of deposition against King Richard the Second unto the Lords yet are they equally interessed in it as appeareth by the Record for there are made Proctors or Commissioners for the whole Parliament one Bishop one Earl one Abbot one Barronet and Two Knights Gray and Erpingham for the Commons and to infer that because the Lords pronounced the sentence the point of Judgment should be only theirs were as absurd as to conclude that no authority was left in any other Commissioner of Oyer and Terminer than in the person of that man solely that speaketh the Sentence In the Second of Hen. the 5th the Petitions of the Commons importeth no less than a Right they had to act and assent to all things in Parliament and so it is Answered by the King And had not the Journal Roll of the Higher House been left to the sole entry of the Clerk of the upper house who either out of neglect to observe due form or out of purpose to obscure the Commons right and to flatter the power of those he immediately served there would have bin frequent examples of all times to clear this doubt and to preserve a just Interest to the Commonwealth And how conveniently it suits with Monarchy to maintain this form lest others of that well-framed body knit tinder one head should swell too great and monstrous it may be easily thought For Monarchy again may sooner groan under the weight of an Aristocracy as it once did then under a Democracy which it never yet either felt or feared R C B. FINIS Titus Livius 2. doc Livius Acta Triden Concil August de legibus Antiq. Roman Benedict in vita Hen. 2. Record in Scaccar Wâ—st Claus Edw. â— Lewes in the Paper Chart. 1523 William the Conqueror Malmsbury Ex lib. feod in Scacc. Hen. 1. Ex lib. pub in Scacc. Chron. de Dunstable Mat. Paris Benedictus Monachus in vita Hen. 2. Gervas Dorch Roger Wendâ—ver King John Claus 6 Iob. in 3. Dorso Petit. 18. Hen. 3. Claus 49. Hen. 3. in 11. Dors Edw. 1. Ex Rot. Parl. in Archivis London Claus 9. Edw. 1 in 12. Rot. Parl. Anno 7 Edw. 1. Claus 7 Edw. 1. in 3. Dors Claus 34. Ed. 1. in dors Edw. 2. Claus 1 Edw. 2. in 19. in dors Claus 6 Ed. 2. in 3. in dors Claus 8. in 3. in dors Claus 13 E. 2. in 13. in dors Claus 16. E. 2. in 27. in dors Ddw 3. Claus 1 Ed. 3. in dors Rot. Parl. 5 Edw. 3. Parl. 6 Ed. 3. Rot. Parl. 6 Ed. 3. Saff 2. in 6. Rot. Parl. 7 Ed. 3. Rot. Parl. 7 E. 3. Sess 2. Parl. 7 E. 3. in 6. Rot. Parl. 13 E. 3. Rot. Parl. 13 E. 3. Sess 2. Parl. 14. E. 3. Rot. Parl. 18 E. 3. Ro. Parl. 21 E. 3. Parl. 25 E. 3. Parl. 27 E. 3. Parl. 27 E. 3. Parl. 29 E. 3. Paâ—l 36 E. 3. Parl. 40 E. 3. King John Parl. 43 E. 3. Parl. 45 E. 3. Parl. 46 E. 3. Par. 50 Ed. 3. Rich. 2. Par. 1 Rich. 2. in 5 6. Parl. 1 Rich. 2 in 7. Parl. 3 Rich. 2. in 4. 5. Par. 4 Rich. 2. n 2 3. Parl. 5 Rich. 2. in 3. Parl. 5. Sess 2. Parl. 6. Rich. 2. Parl. 6 Sess 2. Par. 7 Rich. 2. Parl. 7 Sess 2. Par. 8 Rich. 2. Claus 9 Rie 2. Par. 10 Rich. 2. Parl. 13 Ric. 2. Rot. Claus 13. Ric. 2. Far. 14 Ric. 2. Parl. 17 Ri. 2. Henry 4. Parl. 5. Hen. 4. Parl. 6. Hen. 4. Parl. 7. 8. Hen. 4. in 19 20. Claus 7 H. 4. ln 33. In 57. In 59. Hen. 5. Parl. 1 Hen. 5. In 2. In 4. Parl. 2 Hen. 5. Parl. 3 Hen. 5. Parl. 4 5. Hen. 5. Parl. 5 Hen. 5. Parl. 7 Hen. 5. Hen. 6. Rot. Parl. 2 Hen. 6. Rot. Pa 3 H. 6. Rot. Pa. 9 H. 6. Rot. Parl. 14 Hon. 6. Rot. Parl. 15 Hen. 6. Parl. 20 H. 6. Parl. 23 H. 6. Rot. Parl. 25 Hen. 6. in 3. N. 6. Parl. 27 H. 6. Parl. 29 H. 6. Parl. 33 H. 6. Edward 4. Parl. 7. E. 4. Parl. 12 E. 4. Henry 7. Rot. Parl. 1 Hen. 7. Henry 8. Parl. 3 H 8. Rot. Parl 32. Hen. 8. Ex iustrumen Orig. Tractat. matrimonial 1510. Ex literis orig legator Ex tract Hen. 8. Maximilian 1511. Ex tract orig Ex tract orig Ex liiteris Ric. Pace Legat. Reg. Anglia Ex literis Car. Sedunensis Ex literis Carol Reg. Hisp Ex literis Car. Imperat. original Extract Wind. 1522. Ex instru orig jurament Ex literis Richardi â—ace lohannis Russel Ex tract Madristensi 526. Ex Rot. Com. Russel Pace Ex iustru orig Carol. 5. Ex instru H. 8. Bryano Gardinen Ex
Councels in this kind but what we borrow in the Rolls of Summons wherein the form stood various according to the occasions until it grew constant in the form it is now about the entrance of Rich. 2. The Journal Rolls being spoiled by the injury of times or private ends This King in the fifth of his Raign called a Parliament and therein advised with his Lords and Commons for suppressing of Llewellen Prince of Wales and hearing that the French King intended to invade some pieces of his Inheritance in France he summoned a Parliament Ad tractand ordinand faciend cum Praelatis Proceribus aliis Incolis Regni quibuslibet hujusmodi periculis excogitatis malis sit objurand Inserting in the Writ that it was Lex justissima provida circumspectione stablita That Quod omnes tangit ab omnibus approbetur In 34. Super ordinatione stabilimento Regis Scotiae he made the like Convention His Son the second Edward pro solennitate Sponsalium Coronationis consulted with his people in his first year in his sixth year super diversis negotiis statum regni expeditionem Guerrae Scotiae specialiter tangentibus he assembled the State to advise the like he did in the eighth The French King having invaded Gascoin in the thirteenth year the Parliament was called super arduis negotiis statum Gasconiae tangentibus And in 16. To consult ad refraenand Scotorum obstinentiam militiam Before that Edward the 3. in his first year would resolve whether Peace or War with the Scotish King he summoned the Peers and Commons super praemissis tractare consilium impendere The Chancellor in Anno quinto declareth from the King the cause of that Assembly And that it was to consult and resolve whether the King should proceed with France for recovery of his Signiories by alliance of marriage or by war And whether to suppress the disobedience of the Irish he should pass thither in Person or no The year following he re-assembleth his Lords and Commons and requireth their advice whether he should undertake the Holy Expedition with the French King that year or no The Bishops and Proctors of the Clergy would not be present as forbidden by the Canons such Councels the Peers and Commons consult applauding the Religious and Princely forwardness of their Sovereign to this holy enterprize but humbly advise a forbearance this year for urgent occasions The same year though at another Sessions the King demanded the advice of his people Whether he should pass into France to an enterview as was desired for the exepediting the treaty of marriage The Prelates by themselves the Earls and Barons by themselves and the Knights of the Shires by themselves consulted apart for so is the Record and in the end resolved That to prevent some dangers likely to arise from the North it would please the King to forbear his journey and to draw towards those parts where the perils were feared his presence being the best prevention which advice he followed In the following Parliament at York the King sheweth how by their former advice he had drawn himself towards the North parts and now again had assembled them to advise further for his proceedings to which the Lords and Commons having consulted apart pray further time to resolve until a full assembly of the State to which the King granting adjourneth that Sessions At the next meeting they are charged upon their Allegiance and Faith to give the King their best advice the Peers and Commons consulting apart deliver their opinions and so the Parliament ended In the 13. year the Grands and Commons are called to consult and advise how the Domestick quiet may be preserred the Marches of Scotland defended and the Sea secured from forrein Enemies the Peers and Cammons having apart consulted the Commons after their desire not to be charged to counsel in things Des quenx ils mont pas cognizance answer That the Guardians of the Shires assisted by the Knights may effect the first if pardons of Felony be not granted The care of the Marches they humbly leave to the King and his Counsel and for the safeguard of the Seas they wish that the Cinque Ports Marine towns discharged for the most part from the main burthens of the In-land parts may have that left to their charge and care and that such as have lands neer the Coasts be commanded to reside on those possessions The Parliament is the same year reassembled Avisamento Praelatorum procerum necnon communitatis to advise de expeditione guerrae in partibus transmarinis at this Ordinances are made for provision of Ships arraying of men for the Marches and defence of the Isle of Jersey naming such in the Record as they conceive fit for the imployment The next year De la Pool accompteth in Parliament the expences of the wars a new aid is granted and by several Committees in which divers are named that were no Peers of Parliament the safeguard of the seas and defence of the borders are consulted of In the 15 year De assensu Praelatorum Procerum aliorum de consilio the Kings passage into France is resolved of Anno 17. Badlesmere instead of the Councel declareth to the Peers and Commons That whereas by their assents the King had undertaken the wars in France and that by mediation of the Pope a truce was offered which then their Soveraign forbore to entertain without their well allowance the Lords consult apart and so the Commons returning by Sir William Trussel an answer their advice and desire is to compose the Quarrel approve the Truce and the Popes mediation The Popes undertaking proving fruitless and delays to the French advantage who in the mean space allied with Scotland and others practized to root out the English Nation in France This King again assembled the year following in which the Peers and Commons after many days meditation resolve to end it either by Battel or Peace and no more to trust upon the mediation or message of his Holiness In the 21 year the chief Justice Thorpe declaring to the Peers and Commons that the French Wars began by their advice first the True after by their assents accepted and now ended the Kings pleasure was to have their Counsels in the prosecution the Commons being commanded Que ils se deveroyent trait ensemble se quils ensenteroient monstrer au Roy aux gravitur de son consilio Who after four days consulting humbly desire the King to be advised by his Lords and others more experienced then themselves in such affairs To advise the King the best for his French imployments a Parliament was summoned Anno 25. Herein the King for a more quick dispatch willeth the Commons to elect 24. or 30. of their house to consult with the Lords these to relate to their fellows and the conclusion general by
instructions warrant to restore that right again to the Imperial Throne Charls will follow him from Barcellona with an Army but before he must call a Parliament at Toledo whether by election or affection I dare not divine that Assembly maketh Protestation against their Masters Marriage with England and assign him Isabella of Portugal for a wife the Instruments are sent signed by the Imperial Notary to Henry the 8th And Charls bemoneth the streight he is forced into by them but before all this he had wrought from Rome a Dispensation for his former out-hand Marriage sending not long after Gonzado Ferdinando his Chaplain to invite the Earl of Desmon to rebell in Ireland And to invite James the First by promise of a Marriage to Christian of Denmarks Daughter his Neece to enter the English Borders to busie the English King for asking a strict accompt of that indignity Henry the 8th with Providence and good success over-wrought these dangers and by the League of Italy he forced him to moderate Conditions at the Treaty of Cambray 1529. He being made Caput foederis against the Emperour I may end your Honours trouble with this one Example and with humble prayers That the Catholique may have so much of Princely sincerity as not to intend the like or my good gracious Master a jealous vigilancy to prevent it if it should c. THAT THE SOVERAIGNS PERSON is Required in the Great COUNCELLS OR ASSEMBLIES OF THE STATE As well at the Consultations as at the Couclusions Written by Sir Robert Cotton Knight and Baronet LONDON Printed in the Year 1672. THAT THE SOVERAIGNS PERSON is Required in the Great COUNSELS OR ASSEMBLIES OF THE STATE c. SInce of these Assemblies few Diaries or exact Journal Books are remaining and those but of late and negligently entred the Acts and Ordinances only reported to Posterity are the Rolls this question though clear in general reason and conveniency must be wrought for the particular out of such incident proofs as the Monument of Story and records by pieces leave us And to deduct it the dearer down some essential circumstances of name time place occasion and persons must be in a general shortly touched before the force of particular proofs be laid down This noble body of the State now called the houses in Parliament is known in several ages by several names Consilia the Counsels in the old times after Magnum Commune and Generale Consilium Curia Magna capitalis and Curia Regis sometimes Generale Placitum and sometimes Synodi and Synodalia decreta although aswell the causes of the Common-wealth as Church were there decided The name of Parliament except in the Abbots Chapters not ever heard of until the raign of King John and then but rarely At the Kings Court were these Conventions usually and the Presence Privy Chamber or other room convenient for the King in former times as now then used for what is the presenst House of Lords but so as at this time and was before the fyring of the Pallace at Westminster about the seventeenth of Henry the eighth who then and there recided Improbable it is to believe the King was excluded his own Privie Chamber and unmannerly for guests to barre him the company who gave to them their entertainment It was at first as now Edicto Principis at the Kings pleasure Towards the end of the Saxons and in the first time of the Norman Kings it stood in Custome-Grace to Easter Whitsontide and Christmas fixed The Bishops Earls and Lords Ex more then Assembled so are the frequent words in all the Annalls the King of course then revested with his imperial Crown by the Bishops and Peers assembling in recognition of their pre-obliged faith and present service until the unsafe time of King John by over-potent and popular Lords gave discontinuance to this constant grace of Kings and then it returned to the uncertain pleasure of the Soveraigns summons The causes then as now of such Assemblies were provisions for the support of the State in Men and Money well ordering of the Church and Common wealth and determining of such causes which ordinary Courts nesciebant judicare as Glanvill the grand judge under Henry the second saith where the presence of the King was still required it being otherwise absurd to make the King assentor to the Judgments of Parliament and afford him no part in the consultation The necessity thereof is well and fully deduced unto us in a reverent monument not far from that grave mans time in these words Rex tenetur omni modo personaliter interesse Parliamento nisi per Corporalem agritudinem detineatur Then to acquaint the Parliament of such occasion of either house Causa est quod solebat Clamor Murmur esse pro absentia Regis quia res damnosa periculosa est toto Communitati Parliamenti Regni cum Rex à Parliamento absens fuerit Nec se absentare debet nec potest nisi duntaxat in Causa supradicta By this appeareth the desire of the State to have the Kings presence in these great Counsels by express necessity I will now endeavour to lead the practise of it from the dark and eldest times to these no less neglected of ours From the year 720. to neer 900. during all the Heptarchy in all the Councels remaining composed Ex Episcopis Abbatibus Ducibus satrapis omni dignitate optimatibus Ecclesiasticis scilicet secularibus personis pro utilitate Ecclesiae stabilitate Regni pertractand Seven of them are Rege praecedente and but one by deputy and incongruous it were and almost non-sence to bar his presence that is president of such an Assembly The Saxon Monarchy under Alfred Ethelred and Edgar in their Synods or Placita generalia went in the same practise and since Thus Ethelwald appealed against Earl Leofrick From the County and generale Placitum before King Ethelred and Edgira the Queen against Earl Goda to Eldred the King at London Congregatis Principibus sapientibus Angliae In the year 1502. under Edward the Confessor Statutum est placitum magnum extra Londinum quod Normanni ex Francorum consuetud Parliamentum appellant where the King and all his Barons appealed Goodwin for his Brother Alureds death the Earl denyed it and the King replyed thus My Lords you that are my liege men Earls and Barons of the Land here Assembled together have heard my Appeal and his Answer unto you be it left to do right betwixt us At the great Councel at Westminster 1072. in Easter week the cause of the two Archbishops Lanfrank and Thomas ventilata fuit in praesentia Regis Willielm And after at Winsor finem accepit in proesentia Regis At the same feast in the year 1081. the usual time of such Assemblies the King the Archbishops Bishops
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
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
to make the Body a Stranger to Pain both in taking from it the Occasion of Diseases and making the outward Inconveniences of VVant as Hunger and Cold if not delightful at least suffareble Fr. Walsingham A Brief DISCOURSE Concerning the Power of the PEERES AND COMMONS OF PARLIAMENT In point of JUDICATURE Written by Sir Robert Cotton at the request of a Peer of this REALM LONDON Printed in the Year 1672. A Brief DISCOURSE Concerning the POWER Of the PEERS c. SIR To give you as short an accompt of your desire as I can I must crave leave to lay you as a ground the frame or first model of this State When after the Period of the Saxon time Harold had lifted himself into the Royal Seat the great Men to whom but lately he was no more than equal either in fortune or power disdaining this Act of Arrogancy called in William then Duke of Normandy a Prince more active than any in these Western Parts and renowned for many Victories he had fortunately atchieved against the French King then the most potent Monarch of Europe This Duke led along with him to this work of Glory many of the younger Sons of the best Families of Normandy Picardy and Flanders who as Undertakers accompanied the Undertaking of this fortunate Man The Usurper slain and the Crown by War gained To secure Certain to his Posterity what he had so suddenly gotten he shared out his purchase retaining in each County a portion to support the Dignity Soveraign which was stiled Domenia Regni now the antient Demeans And assigning to others his Adventurers such portions as suited to their quality and expence retaining to himself dependency of their personal service except such Lands as in free Alms were the portion of the Church these were stiled Barones Regis the Kings immediate Free-holders for the word Baro imported then no more As the King to these so these to their followers sub-divided part of their shares into Knights Fees and their Tenants were called Barones Comites or the like for we find as the Kings write in their Writs Baronibus suis Francois Anglois the Soveraigns Gifts for the most part extending to whole Counties or Hundreds an Earl being Lord of the one and a Baron of the inferiour Donations to Lords of Townships or Mannors AS thus the Land so was all course of Judicature divided even from the meanest to the highest portion each several had his Court of Law preserving still the manner of our Ancestors the Saxons who jura per pagos reddebant and these are still termed Court Barons or the Freeholders Court twelve usually in number who with the Thame or chief Lord were Judges The Hundred was next where the Hundredus or Aldermanus Lord of the Hundred with the chief Lords of each Township within their limits judged Gods People observed this form in the publique Centuriones Decani judicabant plebem onni tempore The County or generale placitum was the next This was so to supply the defect or remedy the Corruption of the Inferiour Vbi Curiae Dominarum probantur defecisse pertinent ad Vicecomitem Provinciarum The Judges here were Comitos Vicecomites Barones Comitatus qui liberas in eo terras hâ—bent The last and supream and proper to our question was Gener ale Placitum apud London Vniversalis Synodus in Charters of the Conqueror Capitalis Curia by Glanvile Magnum Commune consilium coram Rege Magnatibus suis In the Rolls of Hen. the third it is not stative but summoned by Proclamation Edicitur generale placitum apud London saith the Book of Abingdon whither episcopi Duces Principes Satrapae Rectores Causidici ex omni parte confluxerunt ad istan Curiam saith Glanville Causes were referred propter aliquam dubitationem quae emergit in Conitatu cum Comitatus nescit dijudicare Thus did Ethelweld Bishop of Winton transfer his Suit against Leoftine from the County â—d generale placitum in the time of King Ethildred Queen Edgin against Goda from the County appealed to King Etheldred at London Congregatis principibus sapientibus Aogliae A Suit between the Bishops of Winton and Durham in the time of Saint Edward Coram Episcopis Principibus Regni in praesfentia Regis ventilata finita In the 10. year of the Conqueror Episcopi Comites Barones Regia potestate e diversis Provinciis ad universalem Synodum pro causis audiendis tractandis convocati saith the Book of Westminster and this continued all along in the succeeding Kings Reigns until towards the end of Henry the third As this great Court or Councel consisting of the King and Barons ruled the great affairs of State and controlled all inferiour Courts so were there certain Officers whose transcendent power seemed to be set to bound in the execution of Princes Wills as the Steward Constable and Marshal fixed upon Families in Fee for many Ages They as Tribunes of the People or Ephori amongst the Athenians grown by an unmannerly Carriage fearful to Monarchy fell at the Feet and mercy of the King when the daring Earl of Leicester was slain at Eversham This Chance and the dear experience Henry the third himself had made at the Parliament at Oxford in the 40. year of his Reign and the memory of the many streights his Father was driven unto especially at Runny-mead near Stanes brought this King wisely to begin what his Successors fortunately finished in lessening the strength and power of his great Lords And this was wrought by searching into the Regality they had usurped over their peculiar Soveraigns whereby they were as the Book at St. Albans tearmeth them Quot Domini tot Tyranni and by weakening that hand of power which they carried in the Parliaments by commanding the service of many Knights Citizens and Burgesses to that great Councel Now began the frequent sending of Writs to the Commons their assents not only used in Money Charge and making Laws for before all Ordinances passed by the King and Peers but their consent in Judgements of all natures whether Civil or Criminal In proof whereof I will produce some few succeeding Presidents out of Record When Adomar that proud Prelate of Winchester the Kings half Brother had grieved the State with his daring power he was exised by joynt sentence of the King the Lords and Commons and this appeareth expresly by the Letter sent by Pope Alexander the fourth expostulating a revocation of him from Banishment because he was a Church-man and so not subject to Lay Censures In this the Answer is Si Dominus Rex Regni majores hoc vellent meaning his revocation Communitas tamen ipsius ingressum in Angliam jam nullatenus sustineret The Peers subsign this Answer with their names and Petrus de Montford vice totius Communitatis as Speaker or Proctor of the Commons For by this stile Sir J. Tiptoft Prolocutor affirmeth under his Arms the Deed of