besides the first and last of Parliament and there was entred some Speeches by him uttered but that of all the rest is most of remark the reporter then present thus tells it This of the Duke of Clarence and the King Tristis disceptatio inter duos tantae humanitatis Germanos nemo arguit contra ducem nisi Rex nemo respondit Regi nisi dux some other testimonies are brought in with which the Lords are satisfied and so Formârunt in eum sententiam damnations by the mouth of the Duke of Buckingham the Steward of England all which was much distasted by the House of Commons The Raigne of Henry the seventh affords us upon the Rolls no one example The journall Bookes are lost except so much as preserves the passages of eight dayes in the twelfth year of his Raigne in which the King was some dayes present at all debates and with his own hand the one and thirtieth day of the Parliament delivered in a bill of Trade then read but had the memorials remained it is no doubt but he would have been as frequent in his Great Councell of Parliament as he was in the Starre-Chamber where by the Register of that Court it appeareth as well in debate of private causes that toucheth neither life nor Member as those of publique care he every year of all his raign was often present Of Henry the eighth memory hath not been curious but if he were not often present peradventure that may be the cause which the learned Recorder Fleetwood in his preface to the Annalls of Edward the fifth Richard the third Henry the seventh and Henry the eighth hath observed in the Statutes made in that Kings dayes for which cause he hath severed their Index from the former And much lay in the will of Wolsey who ever was unwilling to let that King see with his own eyes Edward the sixth in respect of his young years may be vvell excused but that such was his purpose it appears by a memorial of his own hand vvho proportioning the affairs of Councell to several persons reserved those of greatest vveight to his own presence in these vvords These to attend the matters of State that I will sit with them once a week to hear the debating of things of most importance Unfitness by sex in his two succeeding sisters to be so frequent present as their former Ancestors led in the ill occasion of such opinion and practise Most excellent Majesty your most humble servant in discharge of obedience and zeal hath hastned up this abstract vvhich in all humility he offers up unto your gracious pardon Presumption to enter the Closet of your Counsell is far from his modesty and duty vvhat hath been your powerfull Command he hath made his Work vvhat is fit to be done vvith it is only your divine judgment He dares not say Presidents are vvarrants to direct The success is as vvorthy observation as the knowledge of them sometimes have made ill example by extension of Regal power through ill Counsels vvith ill success Some as bad or vvorse vvhen the people have had too much of that and the King too little the danger no less To cut out of either of these patterns to follovv vvere but to be in Love vvith the mischief for the example The clearer I present this to your Highness the nearer I approach the uprightness of your heart the blessed fortune of your happy Subjects Pardon most Sacred Majesty that I offer up unto your admired vvisdome my vveak but dutifull observations out of all the former gathering In Consultations of State and decisions of private plaints it is clear from all times the King not only present to advise and hear but to determine also in Cases Criminal and not of Bloud to bar the King a part vvere to exclude him the Star-chamber as far from reason as example The doubt is then alone in Crimes meer Capital I dare not commend too much the times that lost these patterns either for the Causes or Effects but vvish the one and other never more To proceed by publick Act of Commons Peers and King vvas most usuall Appeals are given by Lavv of Hen. 4. of this in novv debate the vvay I fear as yet obscure as great advice to State is needfull for the manner as for the Justice The example in the cause of the Duke of Suffolke 28 Hen. 6. vvhere the King gave judgement vvas protested against by the Lords That of the Duke of Clarence of Edw. 4. vvhere the Lords and the high Stevvard the Duke of Buckingham gave judgement vvas protested against by Commons in both of these the King vvas sometimes present but vvhich of those may suit these times I dare not guess That of Primo Rich. 2. of Gomeneys and Weston accused by the Commons plaint for Treason vvas tried by the Lords in absence of the King but sentenced by the Lord Scroop Stevvard for the King The Accused vvere of the rank of the Accusers Commons and not Lords Hovv this vvill make a President to judg in causes Capital a Peer of Parliament I cannot tell But if I should conceive a vvay ansvverable as well to Parliament as other Courts if the King and the Lords vvere Tryers and the Commons assenters to the judgment to hear together the Charge and evidence The Lords as doth the Jury in other Courts to vvithdravv to find the Verdict and then the Stevvard for the King to pronounce the Sentence It passeth so by vvay of Act and Course that carrieth vvith it no exception and likely to avoid all curious questions of your Highness presence there If your humble servant hath in this expression of his desire to do you service presumed too far his Comfort is that vvhere zeal of duty hath made the fault benignity of goodness vvill grant the Pardon A DISCOURSE OF THE LAWFULLNES OF COMBATS To be performed in the presence of the KING or the Constable and Marshall of ENGLAND Written by Sir Robert Cotton Knight and Baronet 1609. LONDON Printed in the Year 1672. A DISCOURSE OF THE LAWFULLNES OF COMBATS To be performed in the presence of the KING c. COMBAT WHere difference could not be determined by legal proof or testimony there was allowed the party his purgation Which was either Canonicall or Legall The first by Oath and called Canonicall because it is Lawfull The other which was either Per aquam candentem ferrum ignitum or Duellum called vulgare because it was brought in by the barbarous people without the pretext of any Law untill the Gothish and Lombard Kings seeing their Subjects more addicted to Martiall Discipline than to Civill Government reduced those trialls to Form and Rule Which Constitutions are now incorporated in the Civill Law From the Northern Nations of which the Saxons and Normans or Northmanni are part it was brought into this Land And although it grew long ago both by the Decrees of
Abbots Earls and chief Nobility of the Kingdom present for so are the words of the Records the cause between Arsast Bishop of Norway and Baldwyne Abbot of Bury was also argued Et ventilata in publica jubet Rex teneri Judicium Causis auditis Amhorum The diligence of his Son the Learned Henry the first in executing of this part of his kingly function is commended to posterity by Walter Mape a Learned man trained up and in favour with Henry the second in these words Omnia Regali more moderamine faciebat neminem volebat agere justitia vel pace Constituerat autem ad tranquilitatem omnium ut diebus vacationis vel in domo magna subsidio copiam sui faceret usque ad horam sextam which was till twelve as we now accompt secum habens Comites Baronet Proceres Vavasores to hear and determine causes whereby he attained the surname of Leo Justitiae in all stories and so out-went in quiet guidance of the State his best progenitors The next of his name that succeeded is remembred every where for his debates and his disputes he had in person with Thomas the Archbishop and others of his part at the great Counsels both at London Clarendon and Northampton for redress of the many complaints of the Commons against the outrages and extortions of the Clergy one thousand five hundred and fifty seven Die Penticostis apud sanctum Edmundum the same King Diademate Insignitus with the Bishops Abbots Earls and Barons of the Kingdome sate daily himself and heard all the debates concerning the Liberties and Charters of Battle Abbey The interlocutory Speeches as well of the King as Lords and parties are at full related in a Register of that Church The sute between the Church of Lincolne and Saint Albanes in praesentia Regis Henry Archepiscop Episcop omnium Angliae Comitum Baronum Regni was at Westminster debated and ended And had alone of memory and truth been a protector of the publick Records of the State as awe of the Clergies sensure was a guard to theirs in tempestuous times we had not been now left to the only friendship of Monkes diligence for example in this kind At Lincolne the Archbishops some Bishops but all the Earles and Barons of the Realme una Cum Rege Johanne Congregati ad colloquium de concordia Regis Scotiae saith the Register of that Church This use under King Henry the third needeth no further proofe than the Writ of summons then framed expressing that Kings mind and practise It is Nobiscum Praelatis Magnatibus nostris quos vocari fecimus super praemissis tractare Consilium impendere which word Nobiscum implieth plainely the Kings presence what the succeeding practise was from the fifteenth year of the second Edward the proper Records of this inquiry the Journall Books being lost I am enforced to draw from out the Rolls of Acts wherein sometimes by chance they are remembred Edward the second was present in Parliament in the fifteenth year of his Raigne at the complaint against the Spencers and at the second Parliament that year for the repeale of that banishment In the fourth of Edward the third the King was present at the accusation of Roger Mortimer but not at the Tryall And the next year in the treaty of the French affaires In the sixth year Intererat Rex in Causa Johannis de Gray Willielmi de Zous The same year the second day in Parliament the King was present at the debate about his Voyage into Scotland In the fifteenth year the King in the Painted Chamber sitting with the Lords in consultation the Archbishop after pardon prayed that for better clearing himself he might be tryed in full Parliament by his Peers which was granted In the seventeenth in Camera Alba now the Court of requests Rex cum magnatibus conveniunt Communes super negotiis Regni In the tenth of Richard the second the King departed from the Parliament in some discontent when after some time Lords are sent to pray his presence and informe his Majesty that if he forbear his presence amongst them fourty dayes that then Ex antiquo Statuto they may returne absque doâ—igerio Regis to their severall homes Henry the fourth began his first Parliament the first of November and was the twenty seventh of the same moneth at a debate about the Duke of Brittany the thirtieth day the Cause of the Archbishop of Canterbury was before him proposed only The third of November he was at the debate whether the Commons had right of Judicature yea or no. On the tenth he was with the Lords in their consultation about the expedition against the Scots the creation of the Duke of Lancaster and prohibition of a new sect for entring his Kingdom Some Ordinances were at this time consulted of before him about the staple and the sentence against Haxey after dispute revoked This King began his second Parliament the twentieth of January and on the ninth of February was present to make agreement betwixt the Bishop of Norwich and Thomas of Erpingham On the twentieth day of the same moneth he was present at Counsell for repressing the Welch Rebells for revocation of stipends and concerning the Priors Aliens On the 26. they advise before the King of the Cistertians order On the second of March of the Statute of Provisions the Keeper of the privy Seal of relieving the two Universities And on the ninth of March they mediate before the King a reconciliation betwixt the Earl of Rutland and the Lord Fitzwater He also began a Parliament in the fifth year upon the fifteenth of January and on the twentieth they advise before the King of guarding the Seas and the Welsh rebellion On the eighth of February the Earl of Northumberland is charged before the King and in his presence and by his permission divers of whom he knew no harme were removed from the Court. The next day at the Petition of the Commons he took upon him to reconcile the Earles of Northumberland and Westmerland And on the two and twentieth of February of the Earles of Northumberland and Dunbarre In a Parliament of 27 of Hen. the 6. a Challenge of seate in Parliament betwixt the Earles of Arundell and Devonshire was examined and appointed by the KING with the advice of the Lords In that great capitall cause of the Duke of Suffolke the 28 of Hen. 6. I finde not the King once present at the debates but the Duke appealing from his tryall by Peerage to the King is brought from out of the house of Lords to a private Chamber where the King after the Chancellor in gross had declared his offence and his refusall the King himself but not in place of judgement adjudged his banishment By the Rolls of Edward the fourth it appeareth that he was many dayes
in exposition of Statutes and Deeds to avoid inconveniences and to make it stand with the rest and with Reason and it may be Collected that by the Law of the Land in Magna charta by the course of the Law in 2 5. Edward 3. by due process of the Law in 28. Ed. 3. other due process to be made by the Law 36. Edward 3. process of the Law 37. Edward 3. and by due process and Writ Original 42. Edward 3. are meant one and the same thing the latter of these Statutes referring alwayes to the former and that all of them import any due and regular proceeding of Law upon a cause other then a trial by Jury And this appeareth Cook 10. 74. in the case of the Marshaâ—â—â—c and Cook 1.99 Sir James Bagg's case where it is understood of giving jurisdiction by Charter or Prescription which is the ground or a proceeding by course of Law and in Sâ—ldâ—rs Notes ou 〈◊〉 fol. 29. where it is expounded for Wager of Law which is likewise a TRYAL at Law by the Oath of the party differing from that of Jury and it doth truly comprehend these and all other regular proceedings in Law upon cause which gives authority to the Constable to arrest upon cause and if this should not be the true exposition of these words per legem terrae the King's Council were desired to declare their meaning which they never offered to do And yet certainly these words were not put into the Statute without some intention of consequence And thereupon M. Serjeant Ashley offered an interpretation of them thus namely that there were divers Laws of this Realm As the Common Law the Law of the Chancery the Ecclesiastical Law the Law of Admiralty or Marine Law the Law of Merchants the Martial Law and the Law of State And that these words per legam terrae do extend to all those Laws To this it was answered That we read of no Law of State and that none of those Laws can be meant there save the Common which is the principal and general Law and is always understood by way of Excellency when mention is made of the Law of the Land generally and that though each of the other Laws which are admitted into this Kingdom by Custome or Act of Parliament may justly be called a Law of the land yet none of them can have that preheminency to be stiled the Law of the Land and no Stature Law-book or other Authority printed or unprinted could be shewed to prove that the Law of the Land being generally mentioned was eâ—er intended of any other Law than the Common Law and yet even by these other Laws a man may not be committed without a cause expressed but it standeth with the Rule of other legal expositions that per legem terrae must be meant the Common Law by which the general and universal Law by which men hold their Inheritances and therfore if a man speak of Escuage generally it is understood as Littleton observeth plt 99. of the incertain Escuage which is a Knightâ—s serviec tenure for the defence of the Realm by the body of the Tenant in time of VVar and not of the certain Escuage which giveth only a contribution in money and no personal service And if a Statute speak of the King's Courts of Record it is meant only of the four at Westminster by way of Excellency Cook 6. 20. Gregories case So the Canonists by the Excommunication if simply spoken do intend the greater Excommunication and the Emperor in his Institutions saith that the Civil Law being spoken generally is meant of the Civil Law of Rome though the Law of every City is a Civil Law as when a man names a Poet the Grecians understand Homer the Latinists Virgil. Secondly admit that per legem terrae extend to all the Laws of the Land yet a man must not be committed by any of them but by the due proceedings that are exercised by those Laws and upon cause declared Again it was urged that the King is not bound to express a cause of imprisonment because there may be in it matter of State not fit to be revealed for a time least the Confederates thereupon make means to escape the hands of Justice and therefore the Statutes cannot be intended to restrain all Commitments unless a cause be expressed for that it would be very inconvenient and dangerous to the State to publish the cause at the very first Hereunto it was replyed by the Commons That all danger and inconvenience may be avoided by declaring a general Cause as for Treason for suspition of Treason Misprision of Treason or Felony without specifying the particular which can give no greater light to a confederate then will be conjectured by the very apprehension or upon the imprisonment if nothing at all were expressed It was further alleadged that there was a kind of contradiction in the Position of the Commons when they say that the party committed without a cause shewed ought to be delivered or bailed bailing being a kind of imprisonment delivery a total freedome To this it was answered that it hath alwayes been the discretion of the Judges to give so much respect to a commitment by the Command of the King or the privie Councel which are ever intended to be done on just and weighty causes that they will not presently set him free but baile him to answer what shall be objected against him on his Majesties behalf But if any other inferiour Officer commit a man without cause shewed they do instantly deliver him as having no cause to expect their pleasure so the delivery is applyed to an imprisonment by the command of some mean Minister of justice bailing when it is done by the command of the King or his Councel It was urged by Master Attorney That bailing is a grace and favour of a Court of Justice and that they may refuse to do it This was agreed to be true in divers cases as where the cause appeareth to be for felony or other crime expressed for that there is another way to discharge them in convenient time by their tryal And yet in those cases the constant practise hath been antiently and modernly to bayle men but where no cause of the imprisonment is returned but the command of the King there is no way to deliver such persons by tryal or otherwise but that of Habeas Corpus and if they should be then remanded they may be perpetually imprisoned without any remedy at all and consequently a man that had committed no Offence might be in worse case then a great Offendor for the latter should have an ordinary tryal to discharge him the other should never be delivered It was further said that though the Statute of West I. cap 15. as a Statute by way of provision did extend only to the Sheriff yet the Recital in that Statute touching the 4. Causes wherein a man was not replevisable at Common Law namely those that were
hath been truly observed that the Nations of Europe which are most remote from Rome are more superstitiously inclined to the dregs of that place then the nearer neighbours of Italy whether that humour proceeds from the Complexion of the Northern Bodies which is naturally more retentive of old Customes than hotter Regions or that the vices of the City seated on seven Hills are by crafty Ministers of that See concealed from the vulgar sort I list not now to discuss but most certain it is that the people of this Isle exceed the Romans in zeal of their profession In so much that in Rome it self I have heard the English Fugitives taxed by the name of Pichia pelli Inglesi Knock-brests id est Hypocrits now as our Countrey-men take surer hold-fast of Papall traditions then others so are they naturally better fortified with a Courage to endure Death for the maintenance of that cause for this Clymate is of that temperature out of which Vegetius holdeth it fittest to chuse a valiant souldier where the Heart finding it self provided with plenty of bloud to sustain suddain defects Is not so soon apprehensive of death or dangers as where the store-house of bloud being small every hazzard maketh pale cheeks and trembling hands Angli say Ancient writers bello intrepidi nec mortis sensu deterrentur And thereunto Botero the Italian beareth witness in his Relations Many strangers therefore coming out of Forraign parts among the rarities of England desire to see whether Report hath not been too lavish in affirming that our condemned Persons yield their Bodies to Death with cheerfullnesse and were it not that by daily experience we can call our selves to witness of this truth I could produce the Reverend Judge Fortescue who in commendation of our English Laws made suitable as he well observeth to the imbred Conditions of the imhabitants of this soil avoweth that the English people in tryal for Criminal causes are not compelled by tortures to confess as in other Nations it is used for as much as the quality of the English is known to be less fearful of death than of torments for which cause if the torments of the Civil Law were offered to an innocent person in England he would rather yield himself guilty and suffer death then endure the horror of lingring pains Insulani plerunque Fures saith one and so true it is that this Countrey 〈◊〉 stained with that imputation notwithstanding that many are put to death to the end that others by their fall might learn in time to beware If then it do appear that terrour prevails not to keep men from offences which are condemned by Law and Conscience what assurance can there be to scare those who are constantly satisfied in their minds that their sufferings are either expresly or by implicitation for matter of Religion and health of their Souls in such case to threaten death to English-men Quibus nihil interest humine sublimi ne putrescant is a matter of small consequence Purpuratis Gallis Italis aut Hispanis ista minitare to a setled resolution it boots not to shew the dreadful visor of death Menaces to prolong a wearisome life prevail much more in such cases Rightly did Clement the eighth consider that by burning two English-men in Rome for supposed Heresie he rather impaired his Cause than better'd it insomuch that many present at the resolute death of Mr. Marsh who was brought to dust in Campo di Sancta Fiore spared not to proclaim himself a Martyr carried away of his ashes for a Relique and wished their souls in the same place with his which news brought to the Popes ear caused him as it was bruited about Rome solemnly to protest that none of the English Nation should publiquely from that time be consumed with fire on the other side if we read the Volumes written in praise of their Priests Constancy the Martyrology or Callender of Martyrs and path way of Salvation as it were chalked out unto the Papists by sacrifizing their lives for the Pope we shall find that by taking away of one we have confirmed and united many whereof I could give particular instance if I thought any scruple were made in that point As for forraign parts which hold with the Papall Supremacy it is clear that they will be severe and partial judges in this cause for albeit that here in England It is well known to all true and loyal Subjects that for matter of Roman doctrine no mans life is directly called into question but that their disobedience in reason of State is the motive of their persecution Nevertheless where a great Canker of Christendome is rooted in a contrary opinion and things in this world are for the most part esteemed by outward appearance this Land cannot escape malicious scandalls neither shall there be want of Colleges to supply their Faction with Seminaries Therefore again and again I say that if the state of the question were so set that it were possible by a general execution of the Priests and their adherents to end the controversie I could in some sort with better will subscribe thereunto But seeing I find little hope in that course I hold it safer to be ambitious of the victory which is purchased with less loss of bloud and to proceed as Tully teacheth his Orator vvho vvhen he cannot vvholly overthrow his Adversary yet ought he to do it in some part and with all endeavour to confirm his own party in the best manner that may be IV. He that forbeareth to sow his ground in expectance of a good Winde or favorable Moon commonly hath a poor crop and purse so shall it fare with this State if private whisparings of discontented persons that never learn't to speak well be too nicely regarded yet ought they not to be sleightly set at nought lest our credit grow light even in the ballance of our dearest friends The Papisticall Libellers inform against us as if we were desirous to grow fat with sucking of their bloud the very walls of their Seminary Colledge at Rome are bedawbed vvith their lying Phansies and in every corner the Corner-creepers leave some badge of their malicious spleen against us crying out of Cruelty and Persecution but if the penalty of death be changed into a simple indurance of prison what moat in our eyes can they finde to pull out or vvith vvhat Rhetorick can they defend their obstinate malapartness which with repaying us ill for good deserve to have coals of indignation poured upon their heads Visne muliebre Consilium said Livia to Augustus Let severity sleep a while and try what alteration the pardoning of Cinna may procure The Emperour hearkned to her Counsell and thereby found his Enemies mouthes stopped and the fury of their malice abated Some there are perchance that will term this Clemency innovation and vouch the President of that City which permitteth none to propound new Laws that had
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
of our sterling monies and passeth in London at that rate and not otherwise though holding more fine Silver by 12. grains and a half in every Royall of Eight which is the charge of coynage and a small overplus for the Gold-Smiths gain And whereas they say that the said Royall of Eight runs in account of Trade at 5 s. of his Majestie 's now English money the Merchants do all affirm the contrary and that it passeth only at 4 s. 4. ob of the sterling monies and no higher ordinarily And it must be strange my honourable Lords to believe that our Neighbours the Netherlanders would give for a pound tale of our sterling Silver by what name soever it passeth a greater quantity of their monies in the like intrinsick value by Exchange Or that our Merchants would knowing give a greater for a less to them except by way of usance But the deceipt is herein only that they continually varying their coyn and crying it up at pleasure may deceive us for a time in too high a Reputation of pure Silver in it upon trust then there is untill a trial and this by no Alteration of our coyn unless we should daily as they make his Majestie 's Standard uncertain can be prevented which being the measure of Lands Rents and Commerce amongst our selves at home would render all uncertain and so of necessity destroy the use of money and turn all to permutation of such things as were not subject to will or change And as they have mistaken the ground of their Proposition so have they upon a specious shew of some momentary and small benefit to his Majesty reared up a vast and constant loss unto his Highness by this design if once effected For as his Majesty hath the 1argest portion of any both in the entrances and issues so should he by so enfeebling of his coyn become the greatest loser There needs no other instance then those degrees of diminution from the 18. of Edwards 3. to this day at which time the Revenue of the Crown was paid after five Groats the ounce which is now five shillings which hath lost his Majesty two thirds of all his Revenue and no less hath all the Nobility Gentry and other his Majestie 's landed Subjects in proportion suffered But since to our great comfort we heard your Honours the last day to lay a worthy blame upon the Mint-Masters for that intended diminution of the Gold-coyn done by them without full warrant by which we rest discharged of that fear We will according to our duties and your Honours command deliver humbly our opinion concerning the reduction of the Silver money now currant to be proportionably equivalent to the Gold The English sterling Standard which was no little honour to Edward the first that setled it from an inconstant motion and laid it a ground that all the States of Europe after complyed to bring in their account which was of Silver an 11 to one of Gold the Kings of England for the most part since have constantly continued the same proportion and Spain since Ferdinand who took from hence his Pattern have held and hold unchangeably the same unto this day but since with us a late improvement of Gold hath broke that Rule and cast a difference in our Silver of six shillings in the pound weight we cannot but in all humility present our fear that the framing at this time of an equality except it were by reducing the Gold to the Silver is not so safe and profitable as is proposed by those of the Mint For whereas they pretend this Our richness of our Silver will carry out what now remaineth We conceive under favour it will have no such effect but clean contrary For all the currant Silver now abroad hath been so culled by some Gold-Smiths the same either turned into Bullion and so transported that that which now remaineth will hardly produce 65. s. in the pound weight one with another and so not likely for so little profit as now it goeth to be transported But if the pound sterling should be as they desire cut into 70. s. 6 d. it must of necessity follow that the new money will convert the old money now currant into Bullion and so afford a Trade afresh for some ill Patriot Gold-Smiths and others who formerly have more endamaged the State by culling then any others by clipping the one but trading in pounds the other in thousands and therefore worthy of a greater punishment And we cannnot but have just cause my Lords to fear that these bad members have been no idle instruments for their private benefit to the publick detriment of this new project so much tending to enfeebling the sterling Standard We further under your Lord ships favours conceive that the raising of the Silver to the Gold will upon some suddain occasion beyond Sea transport our Gold and leave the State in scarcity of that as now of Silver And to that Objection of the Proposers That there is no Silver brought of late into the mint The causes we conceive to be besides the unusual quantities of late brought into the mint in Gold one the overballasing of late of Trade the other the charge of coynage For the first it cannot be but the late infection of this City was a let of exportation of our best commodity Cloth made by that suspected in every place To this may be added the vast sums of money which the necessary occasion of war called from his Majesty to the parts beyond the Seas when we had least of Commodities to make even the ballance there And lastly dearth and scarcity of corn which in time of plenty we ever found the best exchange to bring in silver And therefore since by Gods great Favour the Plague is ended and general Trade thereby restored and more of Plenty this year then hath been formerly these many years of corn we doubt not but if the Ports of Spain were now as free as they were of late there would not prove hereafter any cause to complain of the want of Bullion in the State The second cause that the mint remains unfurnished will be the charge of coynage raised in price so far above all other places constraining each man to carry his Bullion where he may receive by coynage the less of loss And therefore if it may please his Majesty to reduce the prices here to the Rates of other of our Neighbour Countreys there will be no doubt but the Mint will beat as heretofore Questions to be proposed to the Merchants Mint-Masters and Gold-Smiths Concerning the Alteration of the Silver Monies 1. VVHether the Englist monies now currant are not as dear as the Forreign of the Dollar and Reall of 8. in the intrinsick value in the usual exchanges now made by the merchants beyond-Seas 2. Whether this advancing will not cause all the Silver-Bullion that might be transported in mass or Forreign coyn to be minted with the King's stamp beyond-sea
the mask of Religion So it pleased Parsons to cavil of whom it might be truly spoken Malus malum pejorem esse vult sui similem To bestow benefits on the bâ—d maketh them worse and vilifieth the reward of the vertuous Valour is often overcome by weakness but being too much prized it turneth to unbridled furies The best Laws are made out of those good Customes whereunto the people is naturally inclined Vse to see men dye with resolution taketh away the fear of death for which purpose the Romans used the fights of their Gladiators The Hereticks called Publicans when they were whipped they took their punishment gladly their Captain Gerrard going before them and singing Blessed are you when men do hate you Andromacheâ— Si vis vitam minitare Seneca â—rag Worldly desâ—res may be quenched with godly meditations our beavenly hopes cannot be abated by earthly punishments It is a point of wisdome to maintain the truth with as little disputation as may be least a good cause be marred with ill handling Truth seldome prevaileth with the partiality of the people which being ignorant is carried away with the outward semblance of things It is hard to make a rule so general against which difference of Circumstance may not except He that is culumniated by many is in danger first to be suspected by his friends and shortly to be condemned if the slandes continue That Counsel takes best effect that is fitted to the nature of times and persons Those Changes of States are safely made which reserving most of the Ancient form betters it and reduces the defects into order The Church is most zealous when Persecution is fresh in memory when those times are forgotten we grâ—w to loath that which we enjoy freely In this case the â—uestion is not so much of the truth of it as who shall be Judge and what Censure will be given In the first 11 years of Q. Eliz. it was rasier to subdue Popery than now for then they feared to irritate the State not knowing how farre severity might extend now knowing the worst they are resolved Agere â—ati â—ortia Vulguâ— est morosum animal quod facilius duci quam cogi potest Many Pâ—rtizans encourage the faintâ—hearted and when an one my cannot prevail against number his thoughts are not how to offend but how to make a safe retreat More Priests may be shut up in a year than they can make in many Deâ—sâ—re of inâ—â—ovation is â—â—sh and conâ—entions and therefore can hardly agree of a head Tâ—â—ce is alwayes to be wished Provided that under the canker thereof there be not a mischief entertained worse than War if self An oath is of force so long as it is thought lawfull when that opinion is crazed it doth more hurt then good One man in another beholdeth the Image of himself and there by groweth compassionate and senâ—â—ible of that which may fall to himself What men do unwillingly is never done effectually When many tumultuous persons assault there will be a fray Vertue neither praised nor rewarded waxeth cold An ill name given to a good thing discourageth men from medling with it Wise men do forecast how to do most with least noise Particular officers must be appointed what is to all is commonly performed by none The service done for the Kings proper use hath his Warrant and Countenance but when a private man hath the gain neither rewardâ—â—r bearing out can be expected and by consequence Recusants are free Medicines that work in the spirits of men are of greater force and cure more surely then outward Plaisters Speech is the interpreter of the minde therefore who so useth in Divine matters to speak reservedly and in a double sense he will be sâ—spected to have a double heart and unfit to teach them that trust him not A good Pustâ—â— is the Physician of the Soul and ought to apply his doctrine according to the tenderness or hardness of the Conscience for want of which discretion some mens zeal hath done hurt False miracles and lying news are the food of superstition which by credulity delude ignorant people God which is the great Law-maker by his Laws prevents sins to the end punishments may be inflicted on it justly as to avoid Idolatry he forbiddeth making of Images He that cannot live chast let him marry c. A man is said to know so much as he remembreth and no more and we remember best what we learn in our youth therefore if we will be wise when we are old we must be taught when we are young Out of Oeconomicall Government the diversity of States grow such as a â—rinces house is the State of the Commons for the most part by which reason a Prince may be the Survey of his House have an aim how the Common-wealth is affected By the Lawes there were Tything men who gave accompt for ten houholds Some such Officers might be good in this case for I hold the breaking of the breaking of the Sabbath to be the ruine of our Religion It were fit also that they learnt how to distinguish the common grounds of Propery whereby the Priests deceive poor people He that knows not the true cause of an evil cannot help it but by Change which is a dangerous guide of a State Where good men are afraid to call a vice by the Proper name it is a sign that the vice is common and that great persons whom it is not safe to anger are infected therewith â—e Schism Anglicano vis Mâ—n Eccles Some think that if these mens zeal hâ—d by order been put to imploy it self otherwayes and a task set them to doe some good and memorable thing in the Church they might have been reformed or made harmlesse by diversion Head-strong Papists are not easily subdued yet must they not be suffered to grow to a Faction Discretio pro lege discernere quid sic res must lay the burthen in the right place Wâ—thout Reformation in this point Popery will still encrease but as all vertuous enterprizes are difficult so is this most intricate A wise householder will cast up his reckonings to see what losse or profit he hath made in a year Cuevara Epist Aureâ— The Law which took immediate notice of an offence gave a quick redresse and corrected the poor as well as the rich Sharp Laws that stand upon a long processe after a manner seem to dispeâ—ce with the vice The allegiance to God ought to precede the temporall obedience for if the first may be obtained the second will follow of it self This course will discover more than the Oath of Allegiance and prevent many from falling off by reason of the quick discovery So long as houses and lodgings in London are let to Papists the Priests will be received and from thence shall the Country be infected If we can prevent the increase of Papists those that now live must either be reformed or in time yield to nature and then shall a