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
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
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
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
fear of some disorder likely to ensue of this information if it be not aforehand taken up by a fair legal tryal in that High Court Neither want there fearful examples in this kind in the Ambassadors Genoa upon a far less ground in the time of Parliament and is house demolished by such a seditious tumult The Parliament therefore as well to secure his Lordships person followers and friends from such outrages to preserve the honour of the State which needs must suffer blemish in such misfortunes they were sent thither to require a fair discovery of the ground that led his Lordship so to inform the King that they might so thereupon provide in Justice and Honor and that the reverence they bear unto the dignity of his Master may appear the more by the mannerly carriage of his Message The two that are never imployed but to the King alone were at this time sent and that if by negligence of this fair acceptance there should happen out any such disaster and danger the World and they must justly judge as his own fault If upon the delivery of this Message the Ambassador shall tell his charge and discover his intelligence then there will be a plaine ground for the Parliament to proceed in Examination and Judgment But if as I believe he will refuse it then is he Author Scandali both by the Common and Civil Laws of this Realm and the Parliament may adjudge it false and untrue and declare by a public Act the Prince and your Grace innocent as was that of the Duke of Gloucester 2 Rich. 2. and of York in Henry the sixth his time then may the Parliament joyntly become Petitioners to his Majesty first to confine his Ambasiador to his house restraining his departure until his Majesty be acquainted with his offence and aswell for security as for further practice to put a Guard upon the place and to make a Proclamation that none of the Kings Subjects shall repair to his house without express leave And to send withal a Letter with all speed of complaint against him to the King of Spaine together with a Declaration under the Seals of all the Nobility and Speaker of the Commons in their names as was 44 Hen. 3. to the Pope against his Legat and 28 Edw. 1. Requiring such Justice to be done in this case as by the Leagues of Amity and Law of Nations is usual which if the King of Spain refuse or delay then it it Transactio Criminis upon himself and an absolution of all Amity and friendly intelligence and amounts to no less then a War denounced Thus have I by your leave and command delivered my poor opinion and ever will be ready to do your Grace the best service when you please to command it THAT THE KINGS OF ENGLAND Have been pleased usually to consult with their Peers in the Great Councel and Commons in Parliament of Marriage Peace and War Written by Sir Robert Cotton Knight and Baronet Anno 1621. LONDON Printed in the Year 1672. That the Kings of England have been pleased usually to consult with their Peers in the Great COUNCIL c. TO search so high as the Norman Conquest it is necessary to lay down the form and Government of those times wherein the state of affairs then lead in another form of publick Councels for the people brought under by the Sword of William and his followers to subjected vassallage could not possess in such assemblies the right of their former liberties division and power having mastered them and none of their old Nobility being left either of credit or fortune what he retained not in providence as the Demesnes of the Crown or reserved not in piety for the maintenance of the Church he parted to those Strangers that sailed along with him in the Bark of his adventure leaving the Natives for the most part as appeareth by his survey in no better condition then Villenage He moulded their Customs to the manner of his own Country and forbore to grant the Laws of the Holy Edward so often called for To supply his occasions of men mony or provisions he Ordered that all those that enjoyed any fruit of his Conquest should hold their lands proportionably by so many Knights fees of the Crown and admitted them to infeoff their followers with such part as they pleased of their own portions which to ease their charge they did in his and his Sons time by two infeoffments the one de novo the other de veteri This course provided him the body of his War the money and provision was by Hydage assessed on the common people at the consent of their Lords who held in all their Signiories such right of regality that to their Vassals as Paris saith quot Domini tot Tyranni and proved to the King so great a curb and restraint of power that nothing fell into the care of Majesty after more then to retrench the force of this Aristocracy that was like in time to strangle the Monarchy Though others foresaw the mischief betimes yet none attempted the remedy until King John whose over hasty undertakings brought in those broyls of the Barons Wars There needed not before this care to advise with the Commons in any publick assemblies when every man in England by tenure held himself to his great Lords will whose presence was ever required in those Great Councels and in whose assent his dependent Tenants consent was ever included Before this Kings time then we seek in vain for any Councel called he first as may be gathered though darkly by the Record used their Counsels and assents in the sixth year of his Raign Here is the first summons in Records to the Peers or Barons Tractaturi de magnis arduis negotiis it was about a War of defence against the French And that the Commons were admitted at this time may be fitly gathered by this Ordinance viz. Provisum est assensu Archiepiscoporum Comitum Baronum omnium fidelium nostrorum Angliae quod novem militis per Angliam inveniend decimarum c. and this was directed to all the Sheriffs in England the ancient use in publishing Laws From this there is a breach until the 18 Hen. 3. where the next summons extant is in a Plea Roll of that year but the Ordinances are lost From hence the Records afford us no light until the 49 of the same King where then the forme of summons to Bishops Lords Knights and Burgesses are much in manner though not in matter to those of our times This Parliament was called to advise with the King pro pace assecuranda firmanda they are the words of the Writ and where advice is required consutation must needs be admitted To this King succeeded Edward his Son a wise a just and fortunate Prince his Raign and so long to the fourth of his Grandchild we have no light of publick
but his Officers and some few excepted to carry any Sword or long Bastard under pain of forfeiture and Imprisonment The same King in the 19th of his raign and upon the Marriage with the French Kings daughter commanded by Proclamation Ne quis Miles Armiger seu alius Ligeus aut Subditus suus cujuscunque status aliquem Francigenam seu quemcunque alium qui de potestate obedientia regis existerit Vpon what pretence soever ad aliqua facta Guerâ—â—rum seu actus armorum exigat sub forisfactura ominum quae Regi forisfacere poterit And as in the Kings power it hath ever rested no forbid Combates so it hath been to determine and take them up Thus did R. 2. in that so memorable quarrel between Mowbray and Hereford by exiling them both And when Sir John de Anestie and Tho. de Chatterton were ready to fight candem quaerelam Rex in manum suam recepit saith the Record And De mandato Regis direptum est praelium inter Johannem Bolmer Bartramum de Vesana in the time of Henry the fourth Sir John Fitz-Thomas being produced before the Earl of Glocester Deputy of Ireland and there Challenged by Sir William deVessy to have done him wrong in reporting to the King that Sir William aforesaid should have spoken against the King defamatory words of which Sir John there presented a Schedule Willielmus audito tenore Schedulae praedictae dementitus est praedictum Johannem dicendo mentitus est tanquam falsus proditor denegavit omnia sibi imposita tradidit vadium in manum Justiciarij qui illud ad misit Et Praedictus Johannes advocavit omnia dementitus est simil dictum Willielm Whereupon the Combat was granted and the time and place inrolled but the Process was adjourned into England before the King who with his Counsell examining the whole proceeding and that Quia Willielmus attachiatus fuit ad respondend Johanni praedicto super diffamatione principaliter non sit citatus in Regno isto placitare in Curia Regis placita de diffamationibus aut inter partes aliquas Duellum concedere in placitis de quibus cognitio ad curiam Regis non pertinet And for that the Judge vadia praedictorum Johannis Willielmi cepit priusquam Duellum inter eos consideratum adjudicatum fuit quod omnino contra legem est consuetudinem Regni Therefore per ipsum Regem Concilium concordatum est quod processus totaliter adnulletur And that the said John and Willlam eant inde sine die salva utrique eorum actione sua si alias de aliquo in proedicto processu contento loqui voluerint In a Combat granted in a Writ of right Philip de Pugill one of the Champions oppressus multitudine hominum se defendere non potuit Whereupon the People against him in perpetuam defamationem suam in eodem Duello Creantiam proclamabant which the King understanding Assensu Concilii statuit quod praedict Philippus propter Creantiam praedict liberam legem non omittat sed omnibus liberis actibus gauderet sicut ante Duellum gaudere consuevit What penalty they have incurred that without law or license have attempted the practise of Arms or their own Revenge may somewhat appear by these few Records following William Earl of Albemarle was Excommunicated Pro Torniamento tento contra praeceptum Regis To which agreeth at this day for the Duell the Councel of Trent and that held at Biturio in Anno 1584. John Warren Earl of Surrey was fined at a thousand marks pro quadam transgressione in insultu facto in Alanum de la Zouch Talbois was committed to the Tower for attempting to have slain the Lord Cromwell And because Robertus Garvois insultum fecit percussit Edwardum filium Williel mi inquisitio facta est de omnibus tenementis catallis praedicti Roberti Edw. Dallingrige accused by Sir John St. Leger before the Kings Justices Prâ— venatione aliis transgressionibus answered that these accusations were false and threw down his Glove and challenged disrationare materias praedictas versuâ— praedictum Johannem per Duellum Sed quis contra legem terrae vadiavit inde Duellum he was committed to Prison quousque satisfaceret Domino Regi pro contemptu Sir Nicholas de Segrave a Baron Challenged Sir John de Cromwell and contrary to the Kings prohibition because he could not fight with him in England dared him to come and defend himself in France therein as the Record saith subjecting as much as in him lay the Realm of England to the Realm of France being stayed in his passage at Dover was committed to the Castle brought after to the Kings Bench and there arraigned before the Lords confesled his fault submitted himself to the King de alto basso Wherefore judgement is given in these words Et super hoc Dominus Rex volens habere avisamentum Comitum Baronum Magnatum aliorum de consilio suo injunxit eisdem in homagio fidelitate ligeantia quibus ei tenentur quod ipsi considerent quails poena pro tali facto fuerit infligenda Qui omnes habito super hoc consilio dicunt quod hujusmodi factum moeretur poenam amisionis vitae Whereupon he was committed to the Tower Ro. Archerd that attended him into France was committed to prison arraigned fined at 200 marks In the end aftermuch intercession the L. Segrave was pardoned by the King but could not obtain his liberty until he had put in security for his good behaviour But this course holdeth proportion with an ancient law made by Lotharius the Emperor in these words De hiis qui discordiis contentionibus studere solent in pace vivere noluerint inde convicti fuerint similiter volumus ut per fidejussores ad nostrum Palatium veniant ibi cum nostris fidelibus considerâ—bimus quid de talibus hominibus faciendum sit A BREIF ABSTRACT Of the Question of PRECEDENCIE BETWEEN ENGLAND AND SPAINE Occasioned by Sir Henry Nevill The Queen of Englands Ambassador and the Ambassador of Spain at Calais Commissioners appointed by the French King who had moved a Treaty of Peace in the 42. year of the same QUEEN Collected by Robert Cotton Esquire at the commandment of her Majesty Anno Domini 1651. LONDON Printed in the Year 1672. A BRIEF ABSTRACT ACT Of the Question of Precedency between England and Spain c. Precedency of the King in respect of place Antiquity as a Kingdom or a Christian Kingdom or Eminency of the Throne Royal or person Nobility of bloud or Antiquity of Government Precedencie of England in respect of the Antiquity of the Kingdome TO seek before the decay of the Roman Empire the antiquity of any Kingdome is meer vanity when as the Kingdomes of Christendome now in being had their rising from the fall thereof at which
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
produce no Example of any Provincial Councel by call of the King For. Bodin lib. 1. cap. 6. towards the end writeth that the Kings of Spain Non sine magna mercede impetraverunt Sixti Pontificis Romani rescripto ne perigrinis sacerdotia tribuerentur Appeals from the King to Rome allowed So the Kings of Spain have meerly no power Ecclesiastical having dispoyled himself of all by inthralling their Kingdom to the Church of Rome Precedency of England in respect of Eminency of Royall Dignity THe Kings of England are anointed as the Kings of France who only have their preheminence before other Kingdoms declared by miracle in the cure of the Regius morbus which they can effect only and that of antiquity For Edward the Confessor healed many 2. They are superiour Lords of the Kingdome of Scotland and Man and Vicarii Imperii as Edward the third and Oswald intituled Rex Christianissimus ve Peda lib. 2. 3. They are named Filii adoptivi Ecclesiae as the Emperour Filius Primogenitus and the King of France Filius natu minor vide Platina 4. They are accompted among Reges super illustres in this order Imperator Rex Franciae Rex Angliae Franciae vide Corsettus 5. England in the General Councels at Constance and Pisa was made a Nation when as all Christianity was divided into four Nations Itallicam Gallicam Germanicam Anglicam Ex lib. sacrarum Ceremoniarum Ecclesiae Romanae 6. Whereupon seat accordingly was allowed at the three General Councels viz. Constance Pisa Sienna to the English Ambassadors next to the Emperour on the left hand and to the King of France on the right hand which were their Ancient seats before the Spaniards at Basill 1431. begun to contend for Precedency Where it was in the first Session ordered that all Legats should hold such their places as they had enjoyed heretofore according to their worth and antiquity Yet in the Councel of Trent the precedency of France with Spain was made questionable Augustus de Cavalles as the strongest reason to bar the French Interest inferred the Queen of England from her Ancestors both in respect of Inheritance Conquest and Gift de jure Queen of France By which reason when he doth shake or overthrow as he thinketh the Precedency of France he doth consequently strengthen the Precedency of England And in Treaty between Henry the seventh and Philip of Castile 1506 the Commissioners of England did subsign betore the other And in the Treaty of Marriage with Queen Mary Anno 1553 those of England are first rehearsed And at Burbrough Anno 1588. they gave it to her Majesties Ambassadors And yet in respect of the Eminency of this Royal throne to the See of Canterbury was granted by Vrbane at the Councel of Claremount Anno 1096. for ever the seat in General Councel at the Popes right foot who at that time uttered these words Includamus hunc in orbe nostro tanquam alterius orbis Pontificem Maximum Subsequence of Spain 1. The Kings of Castile are never anointed neither hath the Spanish Throne that vertue to endow the King therein invested with the power to heal the Kings evil For into France do yearly come multitudes of Spaniards to be healed thereof 2. No Kingdom held in fee of him 3. Spain then not remembred one of the Sons of the Church 4. The King of Spain placed last after the King of England inter super illustres by the said Corsettus 5. The Kingdome was then comprised under Itallica natio and no Nation of it self as in old it was called Iberia minor as a member of Italy Iberia major England being Britannia major At which time the Spaniard contented himself with the place next to the King of France Precedency of England before Spain in respect of the Nobility of Blood HEr Majesty in Lineal discent is deduced from Christian Princes for 800 years by Ethelbert a Christian 596. and the Matches of her progenitors most Royal with France Germany Spain Subsequence of Spain For their Antiquity of discent as Kings of Spain is chiefly from the Earls of Castilia about 500 years since For they cannot warrant their discent from Atalaricus the Goth and as Dukes of Austria from the Earls of Hapsburgh only about 390 years since Their matches anciently for the most part with their subjects and of late in their own blood Precedency of England in respect of antiquity of Government HEr Majesty having raigned now most happily 42 years This we would not have alledged but that the Spanish Ambassador at Basil objected in this respect the minority of Henry the sixth Her sex herein nothing prejudicial when as both divine and humane Laws do allow it and accordingly Spain England and Hungary insomuch that Mary Queen of the last was always stiled Rex Mario Hungariae Vide Tilius Subsequence of Spain The King of Spain yet in the Infancy of his Kingdome For the Precedency may be alledged viz. The Antiquity of the Kingdom when as Castile Arragon Navar and Portuguall had their first Kings about 1025. The ancient receiving of the Christian Faith by Joseph of Aramathea Simon Zelotes Aristobulus yea by St. Peter and St. Paul as Theodoretus and Sophrinius do testifie The Kingdome is held of God alone acknowledging no superiour and in no vassalage to the Emperour or Pope as Naples Sicilia Arragont Sardinia and Corsica c. Sir Thomas Moore denyeth that King John either did or could make England subject to the Pope and that the Tribute was not paid pag. 296. but the Preter-pence were paid to the Pope by K. John by way of Alms. The absolute power of the King of England which in other Kingdomes is much restrained England is accompted the fourth part of Christendome For in the Councel of Constance all Christianity was divided in nationem viz. Italicam Germanicam Gallicanam Anglicanam and accordingly gave voices England in the opinions of the Popes is preferred because in it is conteined in the Ecclesiastical division two large Provinces which had their several Legatinati when as France had scantly one The Emperour is accompted major filius Papae the King of France filius minor the King of England filius adoptivus The Archbishops of Canterbury are accompted by the people tanquam alterius orbis Papae and anointed to have place in General Councels at the Popes right foot The title of Defensor fidei as honourably and as justly bestowed upon the Kings of England as Christianissimus upon the French or Catholicus upon the Spaniard Edward the third King of England was created by the Emperour Vicarius Perpetuus Imperii cum jure vitae necisque in omnes Imperii snbditos and the Kings of England Papae Vicarii by Pope Nicholas the second vide COPGRAVE Innocentius the fourth the Pope said vere hortus deliciarum est Anglia vere pateus inexhaustus ubi
the nature of Man howsoever in hot bloud it be thirsty of revenge in a cold temper it hath a kind of Nausea as I may call it or a distaste of taking away the lives even of the Nocent insomuch that in all Sises and Sessions an offender can hardly be condemned whom the foolish pitty of man will not after a sort excuse with laying some imputation on the Judge part on the Jury and much on the Accuser and such is their blind affection that the prisoner who perhaps was never recommended for handsomeness will be esteemed of them for one of the properest men in the company from hence it comes that the name of Serjeant or Pursevant is odious and the executioner although he be the hand of justice is esteemed no better than an enemy of mankind and one that lost honesty and humanity in his cradle Reverend Master Fox was wont to say that spies and accusers were necessary members in a Common-wealth and deserved to be cherished but for his own part he would not be any of that number or wish his friends to affect such imployments and albeit that the Law permits and commands every man to apprehend a felon do we not see commonly very many content to stand by and look on while others performe that office likewise it is evident that if such as are tender of their reputations be very scrupulous personally to arrest men for civill actions of debt they will be more unwilling instruments of drawing their bodies to the Rack or the Gallowes especially when there is any colour of Religion to be pretended in their defence the diversity of mens faces is great but the difference of their minds in this case is more variable wherein the meanest have thought as free as the highest besides this there are too many of the blind commonalty altogether Popish though indeed they make honourable amends for their treason verily I know not what misguiding of the mind it is that maketh men forecast the possibility of alteration in matters of Relgion and for that respect they are exceeding backward in discovery and laying hands on Seminaries yea and are timorous in enacting sharp Lawes against them as those that silently say amongst themselves Sors hodierna mihi cras erit illa tibi Sâ—me also survive Who remember that in Queen Maries time the Protestants alledged a Text that the tares should not be plucked up before harvest nay shall I speak a buggs word there is no small number that stand doubtfull whether it be a gratefull work to cross Popery or that it may be done safely without a foul aspersion of Puritanism or a shrewd turn of their labours at some time or other by which unhappy ambiguity it comes to pass that these Animalia Amphibia the Priests I mean that prey on the Souls and bodies of either sex unatached revell where they list though they be more seen than a man dancing in a Net how much fitter were it for us couragiously to invite them to our party by preaching or confuting them by writing and unto the State wherein we stand wisely to apply the saying of the Assirian King to his Souldiers You are fools quoth he if there be any hope in your hearts to redress sorrow by flight or rather indeavour to make them fly that are the causers of your grief assuring your selves that more perish in flight then in the Battail even as many seeking to meet the Papists half way discomfort our own party IX It followeth now according to the Method prescribed that an overture be made to get the Jesuits and their shadowes the Priests into possession it hath been heretofore recited that the unwelcome name of a bloud-sucker a busie-body or a Puritane hath been shrewd Scar-crowes unto many honest minds by abrogating therefore of those or such like imputations many will be stirred up to undertake the apprehending of the adversaries unto the truth especially when for their pains and time imployed they shall deserve and have the title of good Patriots dutifull Subjects and zealous Christians how ready is every common person to carry a malefactor to the stocks rather then unto the Gaole or execution and doubtless they will be no less forward to attach a Priest when they are assured that the worst of his punishment shall be a simple restraint within the walls of an old Castle A certain kind of people there is with whom money playes a more forcible Orators part then any perswasion of the dutifull service which they owe to the Commonwealth these men will not be negligent to give intelligence and also to procure it faithfully Provided that reward may help to line their thread-bare purses and exempt them from need to sell liberty unto Seminaries and where assurance of gaine is propounded for discovery what master or house-keeper will trust his servant with keeping of his Priest or sleepe quietly while he is engaged to the danger of a Mercenary I remember that in Italy it was often told me That the bountifull hand of Sir Francis Walsingham made his Intelligencers so active that a Seminary could scarcely stir out of the gates of Rome without his privity which success by mediation of gold may as readily be obtained from Syvill â—â—â—â—dolid Doway 〈◊〉 Paris and any other places and by forewarning given of their approach they may be waited for at the Ports and from thence soon conveyed to a safe lodging But whence shall the stream flowe that must feed this bounty it is a doubt easily satisfied if some thousands of Poundes out of the Recusants penalties be reserved in stock and committed by his Majesty unto the disposition of zealous distributers who will not be afraid to conclude Perdat fiscus ut capiat Christus neither need we seeke any further succour to repair decayed Castles and therein to defray the charge of the Priests with a sure guard to keep them than the aforesaid forfeitures that by the Justice of the Law may be collected which course if every it come happily to be entertained and that Recusancy cease to be an ignominious prey to the subject the proceedings for Religion shall be less blamed and perhaps altogether unjustly accused by any graceless Gretzerus or Cacodaemon Johannes tincting their pens in Gall and Vineger for besides occasion of Calumniation given by sutes of that nature it is evident that many Recusants that would be indicted for the King and the effecting the Project aforesaid shall escape without punishment and be borne out against the power of a private person begging to no other purpose than hath heretofore been used and albeit the penalty be rated at 20 l. a moneth yet was it never the Law-makers intent that such as were not able to pay so great a summe should go scot-free but that according to the proportion of their ability they should do the penance of their Purses whereas now if the voice of the people which is said to
l. a yeare out of all other annual pensions ratably leaving the remain if any to the Pattentees Hen 6. annis 28. 29. 33. resumeth in England all Lands offices liberties and grants from annis primo and the like anno 21. in Ireland So did Edward 4 annis 4. 7. 12. And Henry 7. anno 2. resumed all grants made by Edward 4. or Richard 3. Particular by Lones Or Benevolences Voluntary Or Compulsive First upon Lones voluntary as upon assurance of Bond of the Nobility So was William de la Poole bound for Edward 3. anno 13. in great summes and the. Duke of Glocester anno 20. Henry 6. and the Cardinal pawned Ws silver Vessels for Henry 6. debt Vpon pawn of Jewels Thus did Henry 3. anno 26. to the Archbishop of York and when his own were at gage he took Aurum et Jocalia faeretri sancti Edwardi Confessor and pawned them Edward 1. imployed one Andevar ad jocalia sua impignoranda Edward 2. pawned his Jewels to the Lord Beaumont Edward 3. pawned Magnam Coronam Angliae to Sir John Wessingham for 8. years Richard 2. pawned vasa aurea et diversa jocalia to Sir Robert Knolls Henry 4. Invadiavit tabellam et tresellas suas argenteas de Hispania Henry 5. pawned his great Crown to the rich Bishop of Winchester Henry 6. to the same man then Cardinal pawned many parcels of his Jewels in the 10 12. and 29. of his reign and the like to many others And the late Queen to ease her people did the like with her Jewels in the Tower besides the often morgage of her land Lones voluntary upon Assignments of Customes and Subsidies So did Cardinal Beauford lend 10000. l. to Henry 6. anno 22. upon security of the Customes of London and Southampton the King indenting to turn the course of most trade thither And Henry 6. anno 15. and Edward 4. anno 12. did secure their debts by assignment over of the next Subsidie or aide that shall be granted from the Church or Laity to them being a devise in truth to draw on a supply the sooner from the State Lones voluntary upon the Great Seal or the Privy Seal The Great Seal under which they should have without paying Fee a Patent sealed for repayment of their dues by a day certain The Privy Seal which is of late the most in use and it is worthy of observation to see the willingness of former times in respect of these In the 13. of Henry 4. there is a Roll intituled les nomes de ceux que ont da prester an Roy les somnes escrits The Arch-bishop of Canterbury lent 1000. Marks the Bishop of Lincoln as much the Bishop of Norwich 600. l. the Bishop of London 500. Markes the Bishop of Bath 400 Marks the Lord Privy Seal 200. l. the Clerks of the Chancery 1000. Markes Particular Grants of the Subject by Lone compulsive So were the Merchants of Florence Venice and Luke compelled by an order in Councel 3 Henry 3. because they had by grace et sufferance du Roy graunts priviledges et reportants grand lucre pour le exercise de leur Merchandre en le Angle terre And the persons that refused to lend were committed to the Fleet neither were the English more free in anno 30. Henry 6. divers being enjoyned to attend the Councel-table or else to pay the demanded Lone In the time of Henry 8. anno 14. of his Reign he exacteth by way of Lone ten pounds in the hundred of all goods jewels utensils and land and according to the extreamest rate revealed by Oath of the possessors Notwithstanding there is a Law 2. Richard 2. that none shall be denyed in demand of any Lone his reasonable excuse Particular Grants of the subjects by contribution or Benevolent gifts These were of old usual and free and therefore called Liberalitas populi by Richard 1. and Curialitas by Ed 1. Ed. 3. Henry 4. and Henry 5. confessed to proceed ex spontane voluntate nec de jure vendicare potest Yet did Henry 6. anno 20. in an instruction to Commissioners imployed in procuring a Benevolence say that for so much as by the Law he might compel all his Subjects and at their own charge to attend his yet he was contented to spare such as would but contribute asmuch after his degree and reputation as two days in his personal service would stand him in thereby implying a necessity in them to give to escape a further expence This Law upon which Henry 6 grounded himselfa was by a Statute in Queen Maries time repealed And that since repealed this last year hath made are reviving of the former whereby the King is readmitted into his old advantages and the subject in the former mischief And Henry 8. anno 17. Although he entituleth the benevolence he sought with no other stile then an amicable grant yet he threatened the refusers with convention before his Councel imprisonment and confiscation of Goods THe Kings raise money and improve and revenues of the Crown By power absolute in the Soveraign in disposing 1. Lands 2. Merchandize 3. Regalities 1. Lands as by selling which hath been often the old if they were not of the Antient demeasne-land which our forefathers held impious to alienate from the Crown and those were such Lands as go under the title of Terra Regis in the Book of Domesday and were the Lands of Edward confessor of other Lands I never observed question neither do ever find that Acts of Resumptions ever reached to Lands that were sold for valuable consideration By passing in Fee-farm except places of the Kings Residence Parks spacious Wastes or Forrests all the Lands of the the Crown which remain either in the annexation custody lands or Queens jointure and exceed not yearly 32000. l. These although largely estated out in several natures some for lives some for years will one with the other be advanced to a treble rent which amounting to 96000. l. leaving an annual improvement of 64000. And if the offer be not made restrictive for the new Tenant there is no doubt but his Majesty shall find ready and hearty undertakers amongst the Gentry and Nobility too who have any place of Residence neer any his Majesties Mannors and the Kings security the better since their abilities will settle the Pre-farm rent upon more Land then the purchase If any shall object against this a loss by Fines and Profits of Courts a prejudice in not serving necessity as of late by sales or diminution of Regalities in seisure of so many Royalities It may be answered to the first that the casual profits of Courts never defrayed to the present Officers their fees and expences and this appeareth from a collection made the 44. year of the late Queen where the total issue of such certain charge exceeded the receipt of such chances above 8000. l. To the
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
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
but it must value in pecunia quantum in massa And Silver is a Commodity as other Wares and therefore holdeth his estimation as they do according to the goodness And the Lord Treasurer Burleigh in Anno 1561. when the currant of State-Councel affected an abasement of Coine after a grave deliberation advised the Queen from it and never would give way to any such resolution in his time But that benefit which truly the King might more make of Bullion then now he doth is to erect again Cambium Regis his own exchange An office as antient as before Henry 3. and so continued unto the middle of Henry 8. the profit of it being now ingrossed among a few Gold-Smiths and would yield above 10000. l. a year if it were heedfully regarded and then should the King himself keep his Mint in continual work and not stand at the devotion of others to supply Bullion and should never want the materials if two things were observed The one to permit all men bringing in Bullion to trade outward the value thereof in domestick Commodities at an abated Custome The other to abate the mighty indraught of forreign manufactures and unnecessary Wares that the outward trade might over-balance the inward which otherwise will as it hath done draw on this desperate consumption of the Common-Wealth Which anno 27. Edward 3. was otherwise for then the Exitus exceeded the Introitus by far and in the last times of the late Queen as in anno 1573. For at this time the unmeasurable use of luxurious Commodities was brought in as Wines Spices Silk and fine Linnens c. for of the latter sort of above ten groats the Ell there is above 360000. l. yearly spent which is half the value of our cloths transported maketh the State to buy more then they do sell whereas a good Father of a family ought to be vendacem and not emacem Besides the condition of our People is now such that the greater part neither get nor save which in a private house is an apparent argument of ruining and must be no less in a Common-Wealth And it is observed generally that hence the want of Bullioin now is such that there is not money in Specie sufficient to pay the lenders their principal so that usury is paid for money upon supposition and not really If then his Majesty shall be pleased by advise of his Councel to advantage himself any otherwise by coinage it will be safer to do it upon a simple mettal then by any implyant or beater suite which well governed States both modern and antient used For Rome in her increase and greatest pitch of glory had their money aere argento auro puto puro and so have all the Monarchies absolute at this day in Christendome And I believe it may be wrought to his Majesty of good value and to the State of much ease if it may be put in practise with discreet caution and constant resolution for the danger onely may be in the venting of the quantity which may clogge the State with useless money or extension of the example which may work in by degrees an embasement of Bullion The proportion that I would hold beneficial and safe should be in the Mass at first 120000. l. by which his Majesty should gain 10000. clearly the increase annual 12000. l. in which his Majesty should gain 1000. And the limitation that none be enforced to take any but in summes under 20 s. and then but the twentieth part proportionably Against this some may object that it will either not advantage the King so much as it projected either from the difficulty in venting or facility in Counterfeiting or else prejudice the estate with a worthless money The benefit to the King will easily fall out if he restrain Retailers of victual and small Wares from using their own tokens for in and about London there are above 3000. that one with another cost yearly 5. l. apiece of leaden Tokens whereof the tenth remaineth not to them at the years end and when they renew their store which amounteth to above 15000. l. And all the rest of this Realm cannot be inferiour to the City in proportion And the form and figure may with an Engine so subtilly be milled that the charge will prevent all practise of false play For the prejudice since London which is not the 24. part of the People of the Kingdome had in it found above 800000. by a late inquiry by order of the late Queen and so falleth out to be 2 d. a person in the intire state it may nothing either of loss by the first uttering being so easie nor burthen any with too great a Mass at a time since continual use will disperse so small a quantity into so many hands But on the other side will be to the meaner sort except the Retailers that made as much advantage formerly of their own Tokens as the King shall now of necessary use and benefit For the buyers hereafter shall not by tyed to one Seller and his bad Commodities as they are still when his tokens hereafter made currant by authority shall leave him the choise of any other Chapman and to the Poor in this time of small charity it will be of uch relief since men are like to give a farthing Almes that will not part with a greater sum Besides it cannot but prevent much waste of Silver that is by the minting pence and half pence occasioned there will be no cause hereafter to cut any Bullion into proportion so apt for losse what that hath been may be conjectured if we mark but of the great quantities from the peny downward since Henry 8. time stamped how few remain whereas of all the Coines from three pence upward which are manual plenty pass still in dayly payment Regalities mixt As for restitution of the temporalities of Abbots and Bishops For which Henry 7. received great sums Corrodies in Cathedral Churches And having in every Cathedral and Collegiate Church as incident to his Crown a Corradary made money of it at the highest rate he could Vacancy of Bishopricks The benefit at the vacancy of any Bishop some Kings have used to their best advantage making a circular remove of as many as in reputation and profit was inferiour to the place void Concurrent Jurisdiction as the Pope had in former times Besides there are two of no mean commodity The one is grounded upon a concurrent Jurisdiction with every Ordinary in the Diocess which the King by having the power Papall in that point invested in him by Act of Parliament may exercise by his Commission or otherwise remit to the Ordinary for some valuable respect Thus did Cardinal Woolsey with Warham the Arch-bishop and all other the Bishops of the Kingdome after he had got his Legative power And this if it were put in practise would draw to the King 20000. l. in his Coffers Tenths of the Church-Lands now in the Laity The other is
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
with-hold Prisoners replevisable after they have offered sufficient Surety he shall pay a grievous amerciament to the King and if he take any Reward for the deliverance of such he shall pay double to the Prisoner and also shall be in the great mercy of the King The answer is it must be acknowledged that a man taken by the command of the King is not replevisable for so are the express words of this Statute but this maketh nothing against the Declaration of the Commons for they say not that the Sheriff may Replevin such a man by Surety Scilicet Manucaptores but that he is bayleable by the Kings Court of Justice for the better apprehending whereof it is to be known that there is a difference betwixt Replevisable which is alwayes by the Sheriff upon Pledges or Sureties given and Baileable by a Court of Record where the Prisoner is delivered to his Baile and they are his Jailors and may imprison him and shall suffer for him body for body as appeareth 33. 36. Edward 3. in the title of Mainprise plit 12 13. where the difference betwixt Baile and Mainprise is expresly taken And if the words of the Statute it self be observed it will appear plainly that it extends to the Sheriffs and other inferiour Officers and doth not bind the hand of the Judges The Preamble which is the Key that openeth the entrance into the meaning of the Makers of the Law is Forasmuch as Sheriffs and others which have taken and kept in Prison persons detected of Felony Out of these words I observe that it nominateth Sheriffs and then if the Justices should be included they must be comprehended under the general word Others which doth not use to extend to those of an higher rank but to inferiours For the best by all course is first to be named and therefore if a man bring a writ of Customes and Services and name Rents and other things the general words shall not include homage which is a personal service and of an higher nature but it shall extend to ordinary annual services 31. Edward 1. droit 67. So the Statute of 13. Elizabeth cap. 10. which beginning with Colledges Deans and Chapters Parsons and Vicars and concludes with these words and others and others having spiritual promotions shall not comprehend Bishops that are of an higher degree as appeareth in the Arch-bishop of Canterbury his Case reported by Sir Edward Cook lib. 2. fol. 466. And thus much is explained in this very Statute to the end when it doth enumerate those were meant by the word other namely Under-sheriffs Constables Bayliffes Again the words are Sheriffs and others which have taken and kept in Prison Now every man knoweth that Judges do neither arrest nor keep men in Prison that is the office of Sheriffs and other inferiour Ministers Therefore this Statute meant such only and not Judges The words are further that they let out by replevin such as were not replevisable This is the proper language for a Sheriff Nay more express afterwards in the body of the Statute That such as are there mentioned shall be in no wise replevisable by the common VVrit which is de homine replegiando and is directed to the Sheriff nor withour Writ which is by the Sheriff Ex Officio But that which receives no answer is this That the command of the Justices who derive their authority from the Crown is there equalled as to this purpose with the command of the King aud therefore by all reasonable construction it must needs relate to Officers that are subordinate to both as Sheriffs Undersheriffs Bayliffes Constables and the like and it were an harsh exposition to say that the Justices might not discharge their own command and yet that reason would conclude as much And that this was meant of the Sheriffs and other Ministers of Justice appeareth by the Recital of 27. Edward 3. cap. 3. and likewise by Fleta a Manuscript so called because the Author lay in the Fleet when he made the Book For he Lib. 2. cap. 52. in his Chapter of Turns and the Views of the hundred Courts in the Countrey and setteth down the Articles of the charges that are there to be enquired of amongst which one of them is De replegialibus injuste detentis irreplegialibus dimissis which cannot be meant of not bailing by the Justices For what have the inferiour Courts of the Countrey to do with the Acts of the Justices And to make it more plain he setteth down in his Chapter that concerns Sheriffs onely the very Statute of West 1. cap. 15. which he translates verbatim out of the French into Latine save that he renders Taken by the command of the Justices thus Per judicium Justitiariorum and his Preface to the Statute plainly sheweth that he understood it of Replevin by Sheriffs for he saith Qui non debent per plegios dimitti qui non declaret hoc Statutum and per plegios is before the Sheriff But for direct authority it is the opinion of Newton Chief Justice 22. Henry 6. 46. where his words are these It cannot be intended but the Sheriff did suffer him to go at large by mainprise for where one is taken by the VVrit of the King at the commandment of the King he is replevisable but in such Cases his Friends may come to the Justices for him if he be arrested and purchase a Supersedeas This Judge concludes that the Sheriff cannot deliver him that is taken by the command of the King for that he is irreplevisable which are the very words of the Statute but saith he his Friends may come to the Justices and purchase a Supersedeas So he declares the very question that the Sheriff had no power but that the Justices had power to deliver him who is committed by the Kings command and both the antient and modern practise manifests as much For he that is taken for the death of a man or for the Forrest is not replevisable by the Sheriff Yet they are ordiuarily bayled by the Justices and were by the Kings VVrits directed to the Sheriffs in the times of Edward 1. Edward 2. as it appears in the close Rolls which could not be done if they were not baileable and it is every dayes experience that the Justices of the Kings Bench do baile for murder and for Offences done in the Forrest which they could not do if the word Irreplevisable in Westminster l. were meant of the Justices as well as the Sheriffs For the Authorities that have been offered to prove the contrary they are in number three The first is 21. Edward 1. rot 2. in Scrin which also is in the book of Pleas in the Parliament at the Tower fol. 44. It is not an Act of Parliament but a Resolution in Parliament upon an Action there brought which was usual in those times And the Case is that Stephen Rabab the Sheriff of the County of Leicester and Warwick was questioned for that he
committed for the death of a man by the command of the King or the Justices or for the Forrest did declare that the Justices could not baile such an one and that Replevisable and baileable were Synonyma and all one And that Stanford a Judge of great authority doth expound it acordingly and that neither the Statute not He say replevisable by the Sheriff but generally without restraint and that if the Chief Justiee committed a man he is not to be enlarged by another Court as appeareth in the Register 1. To this it was answered First that the Recital and Body of the Statute relate only to the Sheriff as appeareth by the very words 2. That Replevisable is not restrained to the Sheriff for that the word imports no more that a man committed by the Juftice is baileable by the Court of the Kingâ—s Bench. 3. That Stamford meaneth all of the Sheriff or at the least he hath not sufficiently expressed that he intended the Justices 4. It was denyed that Replevisable and Baileable are the same For they differ in respect of the place where they are used Bail being in the King's Courts of Record Replevisable before the Sheriff And they are of several Natures Replevisable being a letting at large upon Sureties Bailing when one Traditur in ballium and the baile are his Jaylors and may imprison him and shall suffer body for body which is not true of replevying by Sureties And Bail differeth from Mainprize in this that Mainprize is an undertaking in a sum certain Bailing to answer the condemnation in civil Causes and in criminal body for body And the Reasons and Authorities used in the first conference were then renewed and no exception taken to any save that in 22. Henry 6. it doth not appear that the Command of the King was by his mouth which must be intended or by his Councel which is all one as is observed by Stamford for the words are that a man is not replevisable by the Sheriff who is committed by the Writ or Commandment of the King 21. Edward 1. Rot. 2. dorso was cited by the Kings Counsel But it was answered that it concerned the Sheriff of Leicestershire only and not the power of the Judges 33. Henry 6. the King's Attorney confessed was nothing to the purpose and yet that Book had been usually cited by those that maintain the contrary to the declaration of the Commons and therefore such sudden opinion as hath been given thereupon is not to be regarded the Foundation failing And where it was said that the French of 36. Edward Rot. Parl. n. 9. which canreceive no answer did not warrant but what was enforced thence but that these words Sans disturbance metter ou arrese faire l'encontre per special mandement on en autre manere must be understood that the Statutes should be put in execution without disturbance or stay and not that they should be put in execution without putting disturbance or making arrest to the contrary by special command or in other manner The Commons did utterly deny the interpretation given by the Kings Councel and to justifie their own did appeal to all men that understood French and upon the seven Statutes did conclude that their Declaration remained an undoubted truth not controuled by any thing said to the contrary The true Copies of the Records not printed which were used on either side in that part of the deba e. Inter. Record Domini Regis Caroli in Thesaurar recep 〈◊〉 sui sub Custodia Domini Thesaurar Camer ibidem remanen videlicet Plac. coram ipso Domino Rege Concilio suo ad Parliamentum suâ—m post Pasc apud London in Maâ—erio Archâ—â—piscopi Ebor. Anno Regni Domini Regis Edwardi 21. in t al. sic continetur ut sequitur Rot. Secundo in Dorso STephanus Rabar Vic. Leic. Warr. coram ipso Domino Rege ejus Concilio arrenatus ad rationem positus de hoc quod cum Johan Boutetâ—urte Edw. Del Hache W. Havelin nuper in bal. ipsus Vic. per Dominum Regem fuissent assignat ad Goales Domini Regis deliberand idem Vic. quendam Wiâ—hel de Petling per quendam Appellatorem ante adventum eorum justic ibidem appellatorem Captum vivente ipso Appellatore usque diem de liberationis coram eis sact dimisit per plevinam contra formam Statuti c. Et etiam quendam Radum de Cokehal qui de morte horninis judicatus fuit per eundem Vic. Captus idem Vic. per plevinam dimisit contra formam Statuti etiam eundem Radum fine ferris coram eisdem Justic ad deliberationem praed produxit contra consuetudinem Regni Et sci quendam Wilh fllium Walteri la persone qui per praeceptum Com. War Captus fuit per plevinam contra praeceptum Domini Regis cum idem Dominus Rex per literas suas sub privat sigillo suo eidem Vic. praecepit quod nulli per praecept praed Com. War capt aliquam gratiam faceret c. Et super hoc praefat Johannes Botetourte qui praesens est qui fuit primus Justic praedictorum praemissa recordatur Et praedicuts Vic. dicit quoad praedictum Wilh de Petling quod ipse nunquam a tempore Captionis ipsius Wilh per praed Appellat dimissus fuit per plevinam aliquam ante adventum praedictorum Justic Imo dicit quod per dimidium Annum ante adventum eorundem Justic captus fuit semper detent in prisona absque plevina aliqua quousque coram eis damnat fuit Et quoad praedictum Radum bene cognoscit quod ipse dimisit eum per plevinam hoc bene facere potuit ratione authoritat Officii sui eo quod capt fuit pro quadam simplic transgr non pro aliqua felon pro qua replegiari non potuir Et quoad tertium videlicet Wilh silium persone bene cognoscit quod ipse Captus fuit per praecept praed Com. War quod dimisit eum per plevinam Sed dicit quod hoc fecit ad rogatum quorundam de hospitia cur Domini Regis c. qui eum inde specialiter rogaverunt per literas suas Et super hoc idem Vic. quaesit per Dominum Regem quis eum rogavit literas suas ei direxit ubi literae illae sunt dicit quod Walt. de Langton eum per literas suas inde rogavit Sed dicit quod literae illae sunt in partibus suis Leic. Et super hoc idem Vic. profert quoddam brev Domini Regis de privat Sigillo eidem Vic. direct quod testatur quod Dominus Rex ipsi Vic. praecepit quod omnes illos trangressores contra pacem de quibus Com. War ei scire faceret caperet salvo custodiret absque aliqua gratia ei faciend Et quia praed Iustic expresse recordatur quod ipse socii sui per bonum
auctoritate Parliamenti A SPEECH Delivered in the Lower House of PARLIAMENT Assembled at OXFORD In the first year of the Reign of KING CHARLES I. By Sir ROBERT COTTON Knight and Barronet LONDON Printed in the Year 1672. A SPEECH Delivered in the Lower House of PARLIAMENT Assembled at OXFORD In the first year of the Reign of King CHARLES Mr. SPEAKER ALthough the constant VVisdome of this House of Commons did well and worthily appear in censuring that ill advised Member the last day for trenching so far into their antient Liberties and might encourage each worthy Servant of the publique here to offer freely up his Council and opinion Yet since these VValls cannot conceal from the Ears of captious guilty and revengful men withouâ— the Councel and debates within I will endeavour as my clear mind is free from any personal distaste of any one so to express the honest thoughts of my Heart and discharge the best care of my trust as no person shall justly taxe my innocent and publick mind except his Conscience shall make him guilty of such Crimes as worthily have in Parliament impeached others in elder times I will therefore with asmuch brevity as I can set down how these disorders have by degrees sprung up in our own memories how the Wisdom of the best and wisest Ager did of old redress the like And lastly what modest and dutiful course I would wish to be followed by our selves in this so happy Spring of our hopeful Master For Mr. Speaker we are not to judge but to present The redress is above ad Querimoniam Vulgi Now Mr. Speaker so long as those attended about our late Soveraign Master now with God as had served the late Queen of happy memory debts of the Crown were not so great Commissions and Gâ—ants not so often complained of in Parliaments Trade flourished Pensions not so many though more then in the late Queens time for they exceeded not 18000. l. now near 120000. l. All things of moment were carryed by publick debate at the Council-Table No honour set to sale nor places of Judicature Lawes against Priests and Recusants were executed Resort of Papists to Ambassadors houses barred and punished His Majesty by daily direction to all his Ministers and by his own Pen declaring his dislike of that Profession No wastful expences in fruitless Ambassages nor any transcendent power in any one Minister For matters of State the Council-Table held up the fit and antient dignity So long as my Lord of Somerset stood in state of grace and had by his Majesty's favour the trust of the Signet Seale he oft would glory justly there passed neither to himself or his Friends any long Grants of his Highness Lands or Pensions For that which himself had he paid 20000. l. towards the Marriage-Portion of the King's Daughter His care was to pass no Monopoly or illegal Grant and that some Members of this House can witness by his charge unto them No giving way to the sale of Honours as a breach upon the Nobility for such were his own words refusing Sir John Roper's Office then tendred to procure him to be made a Baron The match with Spain then offered and with condition to require no further toleration in Religion then Ambassadours here are allowed discovering the double dealing and the dangers he disswaded his Majesty from and left him so far in distrust of the Faith of that King and his great Instrument Gondomar then here residing that his Majesty did term him long time after a Jugling Jack Thus stood th' effect of his power with his Majesty when the Clouds of his misfortune fell upon him VVhat the future advices led in we may well remember The marriage with Spain was again renewed Gondomar declared an honest man Poperie heartened by admission of those unsure before conditions of Conveniencie The forces of his Majestie in the Palatinate withdrawn upon Spanish faith improved here and beleived by which his Highness Children have lost their Patrimony and more money been spent in fruitless Ambassages then would have maintained an Army fit to have recovered that Countrey Our old and fast Allies disheartened by that tedious and dangerous Treaty And the King our now Master exposed to so great a peril as no wise and faithful Councel would ever have advised Errors in Government more in misfortune by weak Councels then in Princes The loss of the County of Poyntiffe in France was laid to Bishop Wickham's charge in the first of Richard the 2. for perswading the King to forbear sending aid when it was required a Capital crime in Parliament The loss of the Dutchie of Maine was laid to Dela Poole Duke of Suffolk 28. Henry 6. in single and unwisely treating of a Marriage in France A Spanish Treaty lost the Palatinate VVhose Councel hath pronounced so great power to the Spanish Agent as never before to effect freedome to so many Priests as have been of late and to become a Sollicitor almost in every Tribunal or the ill-affected Subjects of the State is worth the enquiry VVhat Grants of Impositions before crossed have lately been complained of in Parliaments As that of Ale-houses Gold-Thred Pretermitted Customes and many more the least of which would have 50. Edward 3. adjudged in Parliament an heinous crime aswel as those of Lyons and Latymer The Duke of Suffolk in Henry 6. time in procuring such another Grant in derogation of the Common Law was adjudged in Parliament The gift of Honours kept as the most sacred Treasure of the State now set to saile Parliaments have been Suitors to the King to bestow those Graces as in the time of Edward 3. Henry 4. and Henry 6. More now led in by that way onely then all the merits of the best deservers huve got these last 500. years So tender was the care of elder times that it is an Article 28. Henry 6. in Parliament against the Duke of Suffolk that he had procured for himself and some few others such Titles of Honour and those so irregular that he was the first that ever was Earl Marquess and Duke of the self same place Edward the first restrained the number in pollicie that would have challenged a Writ by Tenure and how this proportion may suit with profit of the State we cannot tell Great deserts have now no other recompence then costly Rewards from the King For we now are at a vile Price of that which was once inestimable If worthy Persons have been advanced freely to places of greatest trust I shall be glad Spencer was condemned in the 15. of Edward 3. for displacing good Servants about the King and putting in his Friends and followers not leaving either in the Church or Common-Wealth a place to any before a Fine was paid unto him for his dependance The like in part was laid by Parliament on De la Poole It cannot but be a sad hearing unto us all what my Lord Treasurer the last day told us of his Majesties
as a blemish upon Princes that do the contrary Thus we see it was with Henry the sixth who after he had begun with abating the measure he after fell to abating the matter and granted commissions to Missenden and others to practise Alchemy to serve his Mint The extremity of the State in general felt this aggrievance besides the dishonour it laid upon the person of the King was not the least advantage his disloyal Kinsman took to ingrace himself into the Peoples favour to his Soveraign's ruine VVhen Henry the 8. had gained asmuch of Power and Glory abroad of Love and Obedience at home as ever any he suffered Shipwrack of all upon this Rock VVhen his Daughter Queen Elizabeth came to the Crown she was happy in Council to amend that Error of her Father For in a Memorial of the Lord Treasurer Burliegh's hand I find that he and Sir Thomas Smith a grave and learned man advising the Queen that it was the honour of her Crown and the true wealth of her Self and People to reduce the Standard to the antient purity and pâ—rity of her great Grand-Father King Edward 4. And that it was not the short ends of VVit nor starting holes of devises that can sustain the expence of a Monarchy but sound and solid courses for so are the words She followed their advise and began to reduce the Monies to their elder goodness stiling that work in her first Proclamation Anno 3. A Famous Act. The next year following having perfected it as it after stood she tells her People by another Edict that she had conquered now that Monster that had so long devoured them meaning the Variation of the Standard And so long as that sad Adviser lived she never though often by Projectors importuned could be drawn to any shift or change in the Rate of her monies To avoid the trick of Permutation Coyn was devised as a Rate and Measure of Merchandize and Manufactures which if mutable no man can tell either what he hath or what he oweth no contract can be certain and so all commerce both publique and private destroyed and men again enforced to Permutation with things not subject to wit or fraud The regulating of Coine hath been left to the care of Princes who are presumed to be ever the Fathers of the Common-VVealth Upon their honours they are Debtors and VVarranties of Justice to the Subject in â—hat behalf They cannot saith Bodin alter the price of the moneyes to the prejudice of the Subjects without incurring the reproach of Faux Mâ—nnoyeurs And therefore the Stories term Philip le Bell for using it Falsificateur de Moneta Omnino Monetae integritas debet queriubi vultus noster imprimitur saith Theodoret the Gothe to his Mint-Master Quidnam erit tutum si in nostra peccetur Effigie Princes must not suffer their Faces to warrant falshood Although I am not of opinion with Mirror des Justices the antient book of our Common Law that Le Roy ne poit sa Mony Empeirer ne amender sans l'assent de touts ses Counts which was the greatest Councel of the Kingdome yet can I not pass over the Goodness and Grace of money of our Kings As Edward the 1. and the 3. Henry the 4. and the 5. with others who out of that Rule of this Justice Quod ad omnes spectat ab omnibus debet approbari have often advised with the people in Parliament both for the Allay Weight Number of peeces cut of Coynage and exchange and must with infinite comfort acknowledge the care and Justice now of my Good Master and your Lordships Wisdoms that would not upon information of some few Officers of the Mint before a free and careful debate put in execution this Project that I much under your Honours Favour suspect would have taken away the Tenth part of every man's due debt or Rent already reserved throughout the Realm not sparing the King which would have been little lesse then a Species of that which the Roman Stories call Tabulae novae from whence very often seditions have sprung As that of Marcus Gratidianus in Livie who pretending in his Consulship that the Currant money was wasted by use called it in and altered the Standard which grew so heavy and grievous to the People as the Author saith because no man thereby knew certainly his Wealth that it caused a Tumult In this last part which is the Disprofit this enseebling the coyn will bring both to his Majestie and the Common-Wealth I must distinguish the Monies of Gold aud Silver as they are Bullion or Commodities and as they are measure The one the Extrinsick quality which is at the King's pleasure as all other measures to name The other the Intrinsick quantity of pure metall which is in the Merchant to value As there the measure shall be either lessened or inlarged so is the quantity of the Commodity that is to be exchanged If then the King shall cut his shilling or pound nominal less then it was before a lesse proportion of such Commodities as shall be exchanged for it must be received It must then of force follow that all things of necessity as Victuall Apparell and the rest as well as those of Pleasure must be inhaunced If then all men shall receive in their shillings and pounds a lesse proportion of Silver and Cold then they did before this projected Alteration and pay for what they buy a rate inhaunced it must cast upon all a double loss What the King will suffer by it in the Rents of his lands is demonstrated enough by the alterations since the 18. of Edward the 3. when all the Revenue of the Crown came into the receipt Pondere Numero after five groats in the ounce which since that time by the severall changes of the Standard is come to five shillings whereby the King hath lost two third parts of his just Revenue In his Customs the best of rate being regulated by pounds and shillings his Majesty must lose alike And so in all and whatsoever monies that after this he shall receive The profit by this change in coynage cannot be much nor manent In the other the loss lasting and so large that it reacheth to little less then yearly to a sixth part of his whole Revenue for hereby in every pound tale of Gold there is nine ounces one penny weight and 19 grains loss which is 25 l. in account and in the 100 1. tale of Silver 59 ounces which is 14 l. 17 s. more And as his Majestie shall undergoe all these losses hereafter in all his receipts so shall he no less in many of his disbursements The wages of his Souldiers must be rateably advanced as the money is decreased This Edward the third as appeareth by the account of the Wardrobe and Exchequor as all the Kings after were enforced to do as oft as they lessened the Standard of their monies The
prices of what shall be bought for his Maâ—esties service must in like proportion be inhaunced on him And as his Majesty hath the greatest of Receipts and Issues so must he of necessity taste the most of loss by this device It will discourage a great proportion of the Trade in England and so impair his Majesty's Customs For that part being not the least that payeth upon trust and credit will be overthrown for all men being doubtful of diminution hereby of their personal Estates will call their moneys already out and no man will part with that which is by him upon such apparent loss as this must bring What danger may befall the State by such a suddain stand of Trade I cannot guess The monies of Gold and Silver formerly coyned and abroad being richer then these intended will be made for the me part hereby Bullion and so transported which I conceive to be none of the least inducements that hath drawn so many Gold-Smiths to side this Project that they may be thereby Factors for the strangers who by the lowness of minting being but 2 s. Silver the pound weight and 4s for Gold whereas with us the one is 4. and the other 5 s. may make that profit beyond-sea they cannot here and so his Majesty's mint unset on work And as his Majesty shall lose apparently in the alteration of monies a 14. in all the Silver and a 25. part in all the Gold he after shall receive so shall the Nobility Gentry and all other in all their former setled Rents Annuities Pensions and loanes of money The like will fall upon the Labourers and workmen in their Sâ—â—tute-wages and as their receipts are lessened hereby so are their Issiues increased either by improving all prices or disfurnishing the Market which must necessarily follow For if in 5. Edwardi 6. 3. Mariae and 4. Elizabethae it appeareth by the Proclamations that a rumor only of an alteration caused these Effects punishing the Author of such reports with imprisonment and pillory it cannot be doubted but the projecting a change must be of far more consequence and danger to the State and would be wished that the Actors and Authors of such disturbances in the Common-Wealth at all times hereafter might undergo a punishment proportionable It cannot beheld I presume an advice of best judgment that layeth the loss upon our selves and the gain upon our enemies for who is like to be in this the greater Thriver Is it not usual that the Stranger that transporteth over monies for Bullion our own Gold-Smiths that are their Brokers and the Forreign Hedgeminters of the Netherlands which terms them well have a resh and full Trade by this abatement And we cannot do the Spanish King our greatest enemie so great a favour as by this who being the Lord of this Commodity by his Wâ—st Indies we shall so advance them to our impoverishing for it is not in the power of any State to raise the price of their own but the value that their Neighbour Princes acceptance sets upon them Experience hath taught us that the enfeebling of coyn is but a shift for a while as drink to one in a dropsy to make him swell the more But the State was never throughly cured as we saw by Henry the eighths time and the late Queens untill the coyn was made up again I cannot but then conclude my honourable Lords that if the proportion of Gold and Silver to each other be wrought to that parity by the advice of Artists that neither may be too rich for the other that the mintage may be reduced to some proportion of Neighbour parts and that the Issue of our Native Commodities may be brought to overburthen the entrance of the Forreign we need not seek any way of shift but shall again see our Trade to flourish the Mint as the pulse of the Common-Wealth again to beat and our Materials by Industry to be a mine of Gold and Silver to us and the Honour Justice and Profit of his Majestie which we all wish and work for supported The Answer of the Committees appointed by your Lordships to the Proportion delivesed by some Officers of the Mint for inhauncing his Majestie 's monies of Gold and Silver 2. September 1626. The first part The Preamble VVE conceive that the Officers of the Mint are bound by Oath to discharge their several duties in their several places respectively But we cannot conceive how they should stand tyed by oath to account to his Majesty and your Honors of the Intrinsick value of all Forreign coyns and how they agree with the Standard of the State before they come to the Mint for it is impossible and needless In the one for that all Forreign States do for the most part differ from us and our money infinitely amongst themselves In the other it being the proper care of the Merchants who are presumed not to purchase that at a dearer rate then they may be allowed for the same in fine Gold and Silver in the coyn of England within the charge of coynage And therefore needless To induce the necessity of the Proposition they produce two instances or examples The one from the Rex Doller and the other from the Royal of Eight wherein they have untruely informed your Honours of the price and value in our monies and our Trade of both of them For whereas they say that the Rex Doller weigheth 18. penny weight and 12. grains and to be of the finest at the pound weight 10. ounces 10 pence weight doth produce in exchange 5. s. 2. d. farthing of sterling monies We do affirm that the same Dollar is 18. d. weight 18. grains and in fineness 10. ounces 12. d weight equal to 4. s. 5 d.ob of sterling monies and is at this time in London at no higher price which is short thereof by 13. grains and a half fine Silver upon every Dollar being 2. d. sterling or thereabout being the charge of coynage with a small recompence to the Goldâ— Smith or Exchanger to the profit of England 3. s. 6. d. per Centum Whereas they do in their circumstance averr unto your Honours that this Dollar runs in account of Trade amongst the Merchants as 5. s. 2. d. ob English money It is most false For the Merchants and best experienced men protest the contrary and that it pasâ—eth in exchange according to the Intâ—insick value onely 4 s. 5. d. ob of the sterling money or neer thereabouts and not otherwise The second instance is in the Royall of Eight affirming that it weigheth 17. penny weight 12. grains and being but of the fineness of 11. ounces at the pound weight doth pass in Exchange at 5 s. of our sterling moneys whereby we lose 6 s 7 d. in every pound weight But having examined it by the best Artists we find it to be 11. ounces 2. d. weight fine and in weight 17. penny weight 12. grains which doth equal 4. s. 4. d. ob
and so transported and his Mint thereby set less on work then now 3. Whether the advancing the Silver-coyn in England will not cause a transportation of most of that that is now currant to be minted in the Netherlands and from them brought back again whereby his Majestie 's Mint will fail by the exported benefit 4. Whether the advancing the Silver coyn if it produce the former effects will not cause the Markets to be unfurnished of present coyn to drive the exchange when most of the old will be used in Bullion 5. Whether the higher we raise the Coyn at home we make not thereby our Commodities beyond-sea the cheaper 6. Whether the greatest profit by this enhauncing will not grow to the ill members of the State that have formerly culled the weightiest peeces and sold them to the stranger-Merchants to be transported Certain General Rules collected concerning Money and Bullion out of the late Consultation at Court GOld and Silver have a twofold estimation in the Extrinsick as they are monies they are the Princes measures given to his people and this is a Prerogative of Kings In the Intrinsick they are Commodities valuing each other according to the Plenty or scarcity and so all other Commodities by them And that is the sole power of Trade The measures in a Kingdom ought to be constant It is the Justice and Honour of the King for if they be altered all men at that instant are deceived in their precedent contracts either for Lands or money and the King most of all for no man knoweth then either what he hath or what he oweth This made the Lord Treasurer Burleigh in 73. when some Projectors had set on foot a matter of this nature to tell them that they were worthy to suffer death for attempting to put so great a dishonour on the Queen and detriment and discontent upon the People For to alter this publick measure is to leave all the Markets of the Kingdome unfurnished and what will be the mischief the Proclamations of 5. Edwardi 6. 3. Mariae and 4. Elizabethae will manifest when but a Rumor of the like produced that effect so far that besides the faith of the Princes to the contrary delivered in their Edicts they were inforced to cause the Magistrates in every Shire respectively to constrain the people to furnish the Markets to prevent a mutiny To make this measure then at this time short is to raise all prizes or to turn the money or measure now currant into disise or Bullion for who will depart with any when it is richer by seven in the hundred in the Mass then the new monies and yet of no more value in the Market Hence of necessity it must follow that there will not in a long time be sufficient minted of the new to drive the exchange of the Kingdome and so all Trade at one instant at a stand and in the mean time the Markers unfurnished Which how it may concern the quiet of the State is worthy care And thus far as money is a measure Now as it is a Commodity it is respected and valued by the intrinsick quality And first the one metall to the other All commodities are prized by Plenty or scarsity by dearness or cheapness the one by the other If then we desire our Silver to buy Gold as it late hath done we must let it be the cheaper and less in proportion valued and so contrary for one equivalent proportion in both will bring in neither We see the proof thereof by the unusual quantity of Gold brought lately to the Mint by reason of the price for we rate it above all other Countries and Gold may be bought too dear To furnish then this way the mint with both is altogether impossible And at this time it was apparently proved both by the best Artists and Merchants most acquainted with the Exchange in both the examples of the Mint-masters in the Rex Dollar and Reall of Eight That Silver here is of equal value and Gold above with the forreign parts in the intrinsick and that the fallacy presented to the Lords by the Mint-Masters is only in the nomination or extrinsick quality But if we desire both it is not raising of the value that doth it but the ballasing of Trade for buy we in more then we sell of other Commodities be the money never so high prized we must part with it to make the disproportion even If we sell more then we buy the contrary will follow And this is plain in Spain's necessities For should that King advance to a double rate his Reall of 8. yet needing by reason of the barrenness of his Countrey more of Forreign Wares then he can countervail by Exchange with his own he must part with his money and gaineth no more by enhauncing his Coyn but that he payeth a higher price for the Commodities he buyeth if his work of raising be his own But if we shall make improvement of Gold and Silver being the staple Commodity of his State we then advancing the price of his abase to him our own Commodities To shape this Kingdom to the fashion of the Netherlanders were to frame a Royal Monarch by a Society of Merchants Their Countrey is a continual Fair and so the price of Money must rise and fall to fit their occasions We see this by raising the Exchange at Franckford and other places at the usual times of their Marts The frequent and daily change in the low Countries of their monies is no such injustice to any there as it would be here For being all either Mechanicks or Merchants they can rate accordingly their labours or their wares whether it be coyn or other Merchandise to the present condition of their own money in Exchange And our English Merchants to whose profession it properly belongs do so according to the just intrinsick value of their Forreign coyn in all barter of Commodities or exchange except at Usance Which we that are ruled and tyed by the extrinsick measure of monies in all our constant Reckonings add Annual bargains at home cannot do And for us then to raise our coyn at this time to equal their proportions were but to render our selves to a perpetual incertainty for they will raise upon us daily then again which if we of course should follow else receive no profit by this present change we then destroy the Policy Justice Honour and Tranquility of our State at home for ever THE DANGER WHEREIN THIS KINGDOME NOW STANDETH AND THE REMEDY Written by Sir ROB. COTTON Knight and Baronet LONDON Printed in the year 1651. THE DANGER Wherein this Kingdome now standeth and the REMEDIE AS soon as the house of Austria had incorporated it self into the house of Spain and by their new Discoveries gotten to themselves the Wealth of the Indies they began to affect and have ever since pursued a fifth Monarchy The Emperour Charles would first have laid the foundation thereof in Italy
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