Bishop or Knight to cry up and down their Subjects as their coin And as their Soul and Body to God so to the King affections of the Soul and service of the Body And he justified the Bishops late Sermon of the Kings power in Abstracto to be true Divinity But then as to the general so to exhort them how to help such a good King as now they have putting a difference between Power in Divinity and the setled state of this Kingdom For the second fathers of families had Patriam potestatem vitae et Necis for Kings had their original as heirs from them planted in Colonies through the world And all laws allow Parents to dispose of children at pleasure For the last The head judgeth of the Members to cure or cut off But yet these powers are ordained ad correctionem non ad destructionem and as God destroys not but preserves nature so a father to his Children a Head to his Members But then he distinguished the state of Kings in Original and of setled Monarchs For as God in the old Testament spake by Oracles and wrought by Miracles yet after the Church was setled in Christ and a cessation of both he governed by his revealed Will his Words So Kings beginning by Conquest or Election their Wills Lawes and being setled in a civill policie set down their mindes by Statutes and at the desire of the people the King grants them and so he becomes Lex Loquens binding himself by a double Oath Tacitly as King and expresly by his Oath at Coronation a Paction with his People as God with Noah If otherwise he governs them a King turns Tyrant Either govern by Law says the widow to Alexander Aâ—t ne Rex sis There needs no Rebellion against evil Kings for God never leaves them unpunished And concludes That to dispute what God may do is Blasphemy but Quid vult Deus is Divinity so of Kings Sedition in Subjects to dispute a Posse ad Esse He professes Reason for his Actions and Rule for his Laws He dislikes not the Common Law favourable to Kings and extendeth his Prerogative To despise it were to neglect his own Crown The Civil serves more for general learning and most necessary for commerce with Nations as Lex Gentium but though not fit for the general Government of this People yet not to be therefore extinct not to prefer Civil before Common Law but bounded to such Courts and Causes as have been in ancient use as the Courts Ecclesiastical Admiralty of Request reserving Common Law as fundamental Prerogative or Privilege King and Subject or themselves Meum Tunm No Kingdom in the World governed meerly by Civil Law their Municipal Laws always agree with their Customes God governed his People by Laws Ceremonial Moral Iudicial Iudicial onely for a certain people and a certain time Example If Hanging for Theft were turned to treble restitution as in Moses Law What will become of the middle Shires the Irishry and Highlanders If fundamentally be altered Who can discern Meum tuum It would be like the Gregorian Calendar which destroys the old and yet this new troubles all the Debts and Accounts of Traâ—â—ick and Merchandise Nay the King avows by it he knows not his own age for now his birth-day removes ten days nearer him than it was before that change And yet he desires three things to be cleared in the Common Law and by advice of Parliament 1. That it were in English for since it is our Plea against Papists for their language in Gods service an unknown Tongue Moses Law being written in the Fringes of the Priests garments so our Laws that excuse of ignorance may not be for conforming themselves thereunto 2. Our Common Law is unsettled in the text grounded upon Custom or Reports and Cases called Responsa Prudentum Indeed so are all other Laws save in Denmark and Norway where the Letter resolves the circumstances making variations that therefore so many Doctors Comments so many different Opinions the Iudges themselves disclame and recede from the judgment of their Predecessors the Parliament might set down Acts of Confirmation for all times to come and so not to depend on uncertain opinions of Iudges and Reports nay there are contrary Reports and Presidents The same corruption in the Acts of Parliaments which he called Cuffing Statutes and penned in divers senses and some penal which no man can avoid disagreeing from this our time yet no tyrannous or avaritious King would endure 3. For Prohibitions he hath been thought to be an Enemy to them he wishes that each Court might have limits of Iurisdiction certain and then if encroached upon Prohibitions to issue out of the Kings Bench or Chancery and so to keep every River within his proper banks The abuse and over-flowing of Prohibitions brings in most Moulture to their own Mill. The King had taken it in task in two or three several Meetings before and after a large Hearing he told them Ab initio non fuit sic And therefore ordered each Court to contain themselves within their own bounds That the Common Law be sparing of their Prohibitions also and to grant them 1. In a lawfull form but in open Court onely 2. Upon just and mature information of the Cause for as good have no Sentence as not Execution He instanced in a poor Ministers Case thereby enforced to forbear his flock becomes non-resident obtains a Sentence and expecting the fruit is defrauded by Prohibition like CHRIST'S Parable That night shall his soul be taken from him Tortured like Tantalus gaping for the Apple it is pulled away by Prohibition And concludes with the difference of true use and abounding in abuse to be considered The second general Ground Grievances are presented in Parliament as the Representative of the People the highest Court of Iustice but concerns the lower House properly The manner opportune in Parliament or inopportune as private men but then not to be greedily sought for nor taken up in the streets thereby to shew that ye would have a shew made of more abuses than in truth of cause not to multiply them as a noise amongst the People So that at the very beginning of this Session each one multiplied and mustered them as his Spleen pleased He therefore thanks them for that these finding many such Papers stuft up in a Sack rather like Pasquils than Complaints proceeding more from murmuring spirits they made a publick Bone-fire of them all a good effect of an ill cause So to take care to prevent the like lest the lower House become the place for Pasquils and may have such Papers cast in as may contain Treason or Scandal to the King and his Posterity the ancient order was to be openly and avowably presented to the Speaker first He confesses that they are just and faithfull to their Trust to be informed of Grievances and acknowledges that his publick Directions and Commissions may be
name and set the Lieutenant of the Tower is called and brings his Prisoner into the Court to the Bar the High Steward then declares to the People the cause why the King hath assembled those Lords and the Prisoner and perswades him to answer without fear freely and commands the Clerk of the Crown to reade the Indictment unto him and to ask him if he be guilty or not to which he usually answers Not guilty and to be tried by God and his Peers Then the Kings Attorney and Serjeants at Law give Evidence against him whereto when he hath given answer the Lieutenant of the Tower is commanded to return with the Prisoner from the Bar whilest the Lords do secretly confer in the Court together and then the Lords rise out of their places and consult among themselves and what they affirm shall be done upon their Honour without Oath And being so agreed or the greatest number they return and take their places again in Court and the High Steward demands of the youngest Lord first if he that is arreigned be guilty or not and so the next in order and the rest each one answering I or No. Then the Prisoner is sent for to the Bar to whom the High Steward recites the Verdict of the Peers and doth give Iudgment accordingly Stanford Pleas del Coronae lib. 3. Poult 188. The antiquity of this kinde of Trial by their opinion is grounded from Magna Charta but others take it to be more ancient though there inserted Henry 3. but was brought in by the Conquerour being answerable to the Norman and French Laws and agreeable with the Customes Feudal where almost all controversies arising between the Sovereign and his Vassals are tried per judicium parvum suorum And if a Peer upon his Arreignment of Treason do stand mute Iudgment shall be given upon his Indictment and yet shall not be pressed to death but saves the forfeiture of his Lands Statut. Westm. Edw. 4. Dier 205. But if upon Indictment of Felony he may be mute The reason of Magna Charta aforesaid is there expressed where he is indicted at the Kings Suit of Treason or Felony the words being Nec super eum ibimus we will not pass or sit in judgment upon him but by his Peers but if an Appeal of Murther or other Felony be sued by any common person against a Peer he shall be tried by common persons and not by Peers Stan. Pleas lib. 3. Brook Trial 142. But yet this Privilege hath some restraint For an Arch-bishop or Bishop though Lords of Parliament in such cases shall be tried by a Iury of Knights and other substantial persons upon their Oaths because Ecclesiasticks cannot pass in like cases upon Trial of other Peers for they are forbidden by the Common and Ecclesiastick Laws to be Iudges of Life and Death You see the great regard the Law hath to the word of a Peer heretofore upon his honour and yet how many ordinarily break their Oaths in common And thus premised we come to the case of Somerset and his Countess First therefore Sir Thomas Overbury for a time was known to have great interest and strait friendship with the Earl of Somerset both in his meaner fortunes and after in so much that he was in a kinde of oracle of direction unto him and if you will believe his own vaunt being indeed of an insolent and Thrasonical disposition he took upon him that the fortunes reputation and understanding of this Gentleman who is well known to have an able Teacher proceeded from his company and counsel and this friendship rested not onely in conversation and business at Court but likewise in communication of business of State for my Lord of Somerset exercising at that time by his Majesties special favour and trust the Office of Secretary did not forbear to acquaint Overbury with the Kings Packets and Dispatches from all parts of Spain France and the Low-countreys and this not by glympses or now and then rounding in the ear for a favour but in a settled manner Packets were sent sometimes opened by my Lord sometimes unbrokened unto Overbury who perused them copied them registred them made Table-talk of them as he thought good so the time was when Overbury knew more of the secrets of State than the Council-table did nay they were grown to such inwardness as they made a play of all the world besides themselves so as they had cyphers and Iurgons for the King and Queen and great men of the Realm things seldom used but either by Princes or their confederates or at the Court or at the least by such as practice and work against or at least upon Princes But as it is a Principle in Nature that the best things are in their corruption the worst and the sweetest Wine makes the sowrest Vineger so it fell out with them that this excess as I may say of friendship ended in mortal hatred on my Lord of Somerset's part It hath been said that Frost and Fraud ends foul and I may add a third and that is the frienâ—ship of ill men which is truly said to be conspiracy and not friendship for it happened that the Earl of Somerset fell into an unlawfull love towards that unfortunate Lady the Countess of Essex and to proceed to a Marriage with her this Marriage and purpose did Overbury mainly impugn under pretence to do the true part of a Friend for that he accounted her an unworthy woman but the truth is Overbury who to speak plainly had little that was solid for Religion or moral virtue but was wholly possest with ambition and vain-glory was loath to have any partners in the favour of my Lord of Somerset and especially not any of the House of Howards against whom he had professed hatred and opposition And that this is no sinister construction will appear when you shall hear that Overbury made his brags that he had won him the love of the Lady by his Letters and industry so far was he from cases of conscience in this point And certainly howsoever the tragical misery of that poor Gentleman Overbury might somewhat obliterate his faults yet because we are not upon point of civility but to discover the face of Truth for that it is material to the true understanding of the state of this cause Overbury was naught and corrupt in his commendation the Ballads must be mended for that point which paint him out other and partiality must be blamed which now a days favour him in malice to the memory of the ministers of these Times But to proceed when Overbury saw that he was like to be dispossessed of my Lords grace which he had possessed so long and by whose greatness he had promised himself to do wonders and being a man of an unbounded and impudent spirit he began not onely to disswade but to deter him from the love of that Lady and finding him fixed thought to finde a strong Remedy and supposing that
Cradle we shall find him as it were begotten to an inheritance of true Nobleness and Courtlike grace in more real splendour than others that seemed to appear compatible with him they being onely made so by hand His life indeed was intricate sometime struggling with the by-paths-of Sovereign-favour and afterwards of State-affairs Which at last and at worst infected him with the disease of the times more malignant in his Counsellors and other his Confidents then in his own conscience or inclination and so drew him on by various disguises of subtilty with the composition of his good nature till the remain of his life was involved into Ingagements unstable the effects whereof smothered him in the uncouth deluge of destruction I have no adverse aim or end on either side of these two Lords to embase the freedom of my Opinion or Judgement being tryed into some purity of truth by my own knowledge of the former and of this other by more exact account than by most men or by any other pen may be expected But I am not delighted to urge out this story of the Lord Haies as not willing to speak evilly of any person of his Honour unlike Our Adversaries that spare none For we should know that virtue and vice are inherent in Man And as it becomes us to tell truth when we speak of their virtues so with modesty and compassion to discover their vices Either of them being examples for the future that to imitate this to shun And I cannot but with compunction remind that the monstrous excess of the Belly and the Back by his first President became then the mode of those Times for great Persons the most part to follow and for ordinary people to put in practice even to this day and may be feared for ever hereafter The Sword being sheathed up in the Scabberd Peace and Plenty brought the Law into esteem the onely over-ruling power to set men even by the ears and make them the more quiet ever after But then Cases increased so common that Conscience was troubled to reconcile them and made a Quarrel of Justice it self between Sir Edward Cook Chief Justice of Law and the Lord Elsmore Keeper of the Conscience who had the better of the Cause to the others ruine The Case was thus Sundry Citizens got Judgment in the Court of Common-Pleas by a juggling Trick that staved off an opposite Witness the Plaintiff nevertheless exhibits his Bill in Chancery against the Defendants who sit out Process of Contempt and refusing to answer are committed to the Fleet. And for their Relief exhibit their Bill in Star-chamber against the Lord Chancellour Elsemore grounded upon the Statute of 4 Henry 4 ca. 23. That the Iudgment given in the Kings Court â—hall not be examined in Chancery Parliament or elsewhere untill it be undone by Attaint or Errour c. and so thereby he had incurred Praemunire and the Chief Justice Cook interposed and encouraged the Complainants The Chancellour acquaints the King who sends to Bacon Attourney General Sir Henry Montague and Sir Randal Crue Serjeants at Law and Sir Henry Yelverton Solicitor these men report back That there hath been a strong current of practice and proceeding in Chancery after Iudgment at Common Law and many times after Execution continued since Henry the Seventh's time to this day in Cases where there is no other Remedy at Common Law unto which the Iudges are peremptorily sworn And with this Sentence on Elsmore's side the aged Statesman leaves the Seat of deciding and sits down himself to his devotions leaving the Seal to be born by Bacon But the manner of the dispose is mis-told by the Pamphlet who makes it the Chancellour's heart-break to be rid of the charge when in ttuth the Term come and Elsmore sick the King sent for the Seal by Secretary Winwood with a gracious Message That himself would be his Deputy and not dispose it whilest Elsmore lived to bear the Title of Chancellour nor did any one receive it out of the King's sight till he was dead nor long after And because we may be assured of the Kings gratious favour to that grave Chancelour see what he saies to him in two Letters following writ every word with the Kings own hand My Lord These shall first congratulate and thank God with you for your recoverie and growing to health again for which I protest to God I praied everie Morn and Eve since you was at the worst as oft as I praied for mie self And next you shall be herebie informed how senseable I am of that disgrace offered to that Court of mine wherein you sit especially at a time so unseasonable It cannot but be a comfort to you to know how every Man censured the pertiallity and barbarity of that action and for my part you maie assure your self it shall onelie be in your default of not informing me if I do not upon this occasion free my self from fascherie of any such inconvenients hereafter I mean of such jarring betwixt my Courts of Iustice for I will whollie upon your information and advice what course to take in the handling of this business assuring my self that your conscience and care for my honour and service will set me in a course for making such an example in this case as may settle good Government in like Cases hereafter and so I bid you heartilie farewell Febr. 25. 1615. New-market James Rex Thus the King writes then and continued unto this grave Statesman such gracious Favours and esteem to the last of his daies for a twelvemonth after this letter and not long before his death he writes again To the Right Trusty and Right Well-beloved Our Chancelour of England My Lord The Letter I wrote the last year from this same Town unto you proved so good a Cordial for your health as I am thereby incouraged to do the like at this time and as I both hope and praie for with the like success I cannot but be eztremelie sorrie for your want of health but I confess I am more sorry for the evil conceit you have of your own strength which makes me the more to presume upon the good Operation of this Physick of mine since I am sure it can work more upon your mind than anie other worldlie thing The Greatness of your place and the abilitie which God hath given you to discharge it to the honour of God and the great benefit of the Common-wealth is a cause sufficient to stir you up to be careful of your own health and even to fight against disease as far as you can but when you shall remember how evil I maie want you and what miss your Master shall have of you I hope that reason will be predominant to make you not strive but conquer your disease not for your own sake but for his of whom you maie promise your self as much love and heartie affection as might be expected from so thankful and kind a Master to
so honest and worthily deserving a Servant and so praiing God to bless this mie cure I bid you heartilie farewell Febr. 9. 1616. New-market James Rex Hereupon there was some appearance of his amendment which the Prince congratulates under his own hand My Lord Chancelour As I was verie sorrie having understood of your dangerous sickness so I do much rejoice of the good appearance of your recovery which Thomas Murrey hath declared unto me and of the affection and caee you have of my person and of mie Estate for which you and yours shall ever find me most willing to give testimonie to the World how much I respect those who are truly affected towards me I hope bie Gods grace to give you particular bie mie self and that God shall give you health and strength of bodie and mind that the King Queen and I with this whole Kingdom may long enjoie the fruit of your long wise and religious experience which wishing from my heart I end New-market Febr. 18. 1616. Yours Charles Pr. These being the last Letters and thus assured of the acknowledgement of his Masters favour toward his merit he takes leave of this Life the fifteenth of March following 14. of Iac. 1616. The Common-pleas or Comunia Placita is the Kings Court or Bancus Communis Anno 2. Edw. 3. cap. II. so called Quia Communia Placita inter subditos or controversies between common persons it was now held in Westminster Hall But in antient times moveable as appears by Magna Charta cap. II. And that upon grant of that Charter the Court of common-pleas was erected and settled and one place certain viz. at Westminster wheresoever the King lay and that after that time all the Writs ran Quod sit coram Iusticiariis meis apud Westmonast Whereas before the party was commanded by them to appear Coram me vel Iustitiaris meis simply without addition of place see Glanvile and Bracton the one writing in Henrie the seconds time before this Court was erected the other in Henrie the thirds time who erected this Court. All Civil causes real and personal are or were in former times in this Court according to the strickt Law of this Realm And by Fortescue cap. 50. it seemeth to have been the only Court for real causes The chief Judge thereof is called Lord Chief Iustice of the Common-pleas accompanied with three or four Assistants or Associates who are created by Letters pattents from the King and are installed as it were upon the Bench by the Lord Chancelour and Lord Chief Iustice of that Court. See Fortescue ca. 51. who sets down all the Circumstances of their admission The rest of the Officers are these the Custos Brevium three Proto-Notaries or principal Notaries called also Pregnotaries Chirographer Filazers in number fourteen Exigenters four Clerk of the Warrants Clerk of the Iuries or Iurata Writs Clerk of the Treasury Clerk of the Kings Silver Clerk of the Essoines Clerk of the Out-laws The Common Law is so antient we know not the commencement Lex Angliae peculiar onely to this Land Of long time following the Conquest ever more quarrelled for enjoyment of antient Liberties until Henrie the third allowed English men English Laws add in his ninth year granted the great Charter which himself infringed and thereupon followed fourty years Barons Warrs as Histories stile them until in his fifty two year that Charter was again reviewed and compiled and solemnly sworn unto by succeeding Sovereigns The ground of which binds the King per Legem terrae and what is this Lexterrae Leges Anglicanae fuerunt approbatae consensu utentium Sacramento Regum confirmatae Lex facit Regem attribuat igitur Rex legi quod Lex attribuit ei viz. dominationem potestatem ubi non Lex ibi non Rex So then Lex fecit Regem Not so neither Kings in England before Lawes but indeed Communis Consuetudo Regni fuit Lex terrae This being the Law without commencement as the Genius to all and Parliaments Statutes Prerogatives of Princes Customes of Counties Cities Burroughs Mannors are but the species of it For general Customs made the Law authorities Parliaments Limits Prerogatives and Customes consonant or disonant to Reason so much for Communis Lex But in practice say some the Chancery is above Law and yet duely examined that also is allowed per Legen terrae as a species of that The reason thus The Common Law grounded upon general Maxims they might be too severe or too relax and therefore necessarily requiring Equity Secundum aequum bonum sanam consâ—ientiam And this Chancelour notwithstanding limitted by Law and erected by Law although it seems above Law For No Judge hath Jurisdiction without some grant or commission out of that Court under the Great Seal which is intrusted to the Chancelor No Judge can hold plea without an Original Writ framed in Chancerie and by his appointment returnable before the Judges and yet all these considered the King the Law the Chancery agree together The Chancerie then must needs be erected subsequent by the common Law to relieve and supply the Law in some cases where the simple subject was cosened by craft ignorance also may offend without malice Moses Law in divers cases Political and Ceremonial he could not decide uncleanness by touching the dead but referred it to God The name of this Officer is Dominus Cancelarius Angliae a a Cancelour do but then quere what he might cancel Some say it is Cancelare Iniquom legem commâ—nnem Iudicare secundum conscientiam but this is an errour will the Law give power to deface her self that made it The Chancelour cannot stay the course of Law but onely injunct the person not to follow the Law not to cancel the Law for notwithstanding this injunction if the party will sit out contempt and proceed at common Law the Judges cannot deny him Indeed rhis Officer hath his name of canceling the Kings Letters pattents so much of honour to the Law as the other way had been dishonourable The nature of Letters pattents bind the King and his Successors and all Subjects though unfit or unjust the Judges of Law are co judge it void but cannot deface it nor the Seal but the Chancelour as a Judge of Law may but not by his absolute authority by his ordinary power and course of common Law is to judge of it and to hold plea of it and to call the party interessed by process of Law and so to repeal it by Judgement and then cancel it which no person can do but And this was done Transversa linea circumducere vel conscindere aliquod Edictum decretum contra Principem aut jus Reipublicae impetrari which cancelling is made with Lines drawn across like Latices and it is said that Judgement seats were of old compassed with Latices or Barrs cross waies to defend the Judges and Officers from the prease of people and yet not to hinder
their view Chancells were so divided from the body of the Church and thereupon so called And the Lord Chancelour and Lord Keeper have one power by Stat. anno 5. Eliz. So then you see how and for what he hath his name And though his Authority be highest yet it is given to him by the Law and proceedeth in course of Law not according to conscience but Law That all Justice runs from the Supreme power so by the Chancelour to all Jurisdiction A man complains of wrong or sues for right in Chancery from which Bill of complaint issues a precept commanding the Defendent to appear at a Day So then a man may not be sued before he have a Writ or Breve from the Chancelour a singular regard to the meanest The very Writs of Chancerie are prescribed by Law and a form registred in Chancery and if not accordingly issued out the Judges will reject them called in Law Abating of the Writ His Authority to judge is of two sorts by common Law or Positive Law Potentia Ordinata Processe pleading judgement Potentia Absoluta by Processe according to the Law of Nature viz. to send for the party to answer upon Oath to examine if he will not answer yet the Chancelour cannot condemn him in the cause for obstinacy Potentia Ordinata mispleading on either part may mar the matter and the judgement must be according to Law however the Equity of the case fall out But if the pleading be by Absolute Power though the party misplead if the matter be good the Iudgement must be by equity and not as the pleading be either formal good or bad or as the law will in the case The Question followes whether that conscience whereby the Chancelour be simpliciter and to be simplex conscientia or Regulata Viz. To be ordered by course of Court former Presidents and if no Presidents whether Reason in codem respectu may take cognisance of the cause viz. A rich Father to suffer an honest son to beg or a rich son contrario the Chancelour cannot Hereupon we may conclude that his Authority judicial both Ordinata and Absoluta Potestas are limitted by the Law of the Land For in the Ordinary he is tyed to the strict rule of Law and by the Absolute he is ruled though not by the course of law yet he is to deal per regulatam conscientiam but in any case not to contradict what Law hath allowed But to conclude his Absoluta Potestas by what means he should find out truth Truly it is without limitation only to be referred to his own Gifts and the grace of God that gives Wisdom Sir Francis Bacon succeeded Elsemere Lord Chancelour though a wonder to some so mean a Man to so much preferment he was then Atturney General and as others by that placc and in the usual way of preferment time beyond memory come to high Office of Indicature either there or to other Benches and so did he But his Mis-deeds afterwards turned him out of all and he dyed poor and private See Anno 1621. And as his Genesis of preferment came to the chair of State so the Exodus of the Treasurer Suffolk in his Office brought him to the Star-Chamber and the Glory of the new Chancelour Chair-man there to sit in censure upon him and so to set out himself in his Matchless Eloquence which he did then by Sentence as the Mouth of the Court as all others had done Their abilities affording them several waies and manners in that Court more particular as their Qualities concern them to distinguish So here also the Chief Iustice Cook newly revived from the sad condition of former disgrace for his too narrow inquisition upon the faults and fall of Somerset He now finding the Fate of Court-policy final in this Lord and his malice at Liberty to speak what he list Parrallels this Lords Crimes with other such corrupt Treasurers raking Presidents of all former Predecessors Even from Randolphus de Britton who was sentenced to lose all lands and goods but was restored to him and fined 3000. 1. for misusing K. H. 3. Treasure Such another was Treasurer of Ireland Petrus de Rivallis and of great command also high Chamberlain of England to Edw. 1. his Offences were Bribes of all men poor and rich Religiosis quam de Laicis fined and ransomed So did the Abbot and Moncks at Westminster took out of that Kings Treasury there ad inestimabile Damnum Regis Regni For which these privileged pretenders could not be exempt from Tryal and the Temporalities of the Abby seized for satisfaction till which time of payment they suffered Imprisonment Nay Walter de Langton Bishop of Coventry and Lichfield scapes not Edw. 2. This Treasurer took bribes then though small but a hundred pound of the Earl of Monteallo ut amicus in agendis negotiis versus dominum Regem lets him escape Prison to do his buâ—inesse and given of free Will and ex curialitate sua yet in those dayes it amounted to Extortion But he had Additionalls having indicted Iohn de Eugam of Tresgass for the Mannor of Fisby to which the King had title and imprisoned him and when another Mannor was conveyed to the Bishop for Courtesies done diversas curialitates Eugam was set at liberty but it seems the Bishops plea would not serve his turn That the King would rather punish by Imprisonment than fine And those good times accounted it Bribery Again the Bayliff of Oxford was committed for arrears of one hundred pound in his accompt and the Mannor of Calcat conveyed to the Bishop for satisfaction yet because he was of pure Devotion discharged by the Bishop these cases all three were condemned of Extortion and Bribery and the Bishop soundly paid for it by his purse and imprisonment In Edw. 3. He imprisoned William Lord Latimer with punishment and fine being in Commission to pay off the Kings debts he compounded for eighty per centum and 30. for 40. by which saies the Record he turned it upon the King to be a Bankrupt Compounder So did the Baron Nevil bought the Kings debts of the Army and though he pleaded that they forgave him the Remainder freely yet was he fined Such like as these were brought Examples to raise the Offence of this Lord Treasurer of himself as of high birth so most Noble and without doubt disdaining to commit base crimes but whether the guilt of Sir Iohn Dingly one of the Tellers in Exchequer an intimate Servant to the Secrecies of Suffolks Countess or some necessity to make bold to borrow such sums as his Fabrick Awdle-End had need of Or the vain and monstrous expence heretofore of that family All that could be besides the necessity of Court-Fate cast in his dish was the imbezeling the monies lately paid by the States of the Netherlands for redemption of the cautionary Towns Flushing and Bril and he fined thirty thousand pounds and Dingly two thousand pounds the
Man deserving to pay for all it being of his designing But the Treasurer was from thenceforth for some time trusted to Commissioners At Midsummer after the King comes to Star-Chamber then intending to settle his homea-ffairs for his resolved journey into Scotland which began the next Spring and therefore now the more to exalt the Seat of Iustice of which this Court was most eminent he discharges his duty to God and his people in a most excellent Discourse the character of his inward inclination to Iustice and Piety His MAIESTIES SPEECH at his first comming to the Star-Chamber He begins with Scripture Give thy Iudgements to the King O God and thy righteousness to the Kings Son the literal sense upon the Prophet David and his Son Solomon godly and wise the mystical sense upon God and Christ his eternal Son just and righteous from which imitation all Governments especially Monarchies have been established Kings are properly Iudges and sit in the Throne of God and thence all Iudgement is derived from the King to his Magistrates not to them Privative but Cumulative So the Council of Jethro to Moses the Iudges were deputed for easier questions the more profound left to Moses So all Christian Kings govern whereby appears the neer Conjunction God and the King upwards the King and his Iudges downward the King to settle the Law of God and his Iudges to interprete the Law of the King Thus a Jove principium he comes to his Errand I. Why he came not to speak here in fourteen years as his Predicessors have done often especially Henry 7. from whom the King is descended doubly to this Crown and so desires to follow him in his best actions 2. Why he comes now For the first Though he had been an old King when he came hither and well practised to Government from twelve years of age yet here he resolved with Pythagoras to keep silence for seven years That Apprenticeship ended the Impediment was the choice of some worthy Cause betwixt King and some Subject or Subject and Subject The one might seem partial as for himself the other oblique in favour of a party But twice seven years his whole Reign here brings him openly to speak now publickly concerning the reformation of Iudicature in Westminster-Hall which heretofore he had in part delivered in private occasions Dividing his Charge 1. To himself 2. To the Judges 3. To the Auditory First He protests that as Confirmation follows Baptism so now he renews his Oath of Coronation in Justice and Law the common Law of the Land He never pressed to alter but as in the union of his person so he eudeavoured it real to conform Scotland to England not this to that anent the prophecy of his Grandfather Henry 7. That the lesser Kingdom by marriage would follow the greater not the greater the less and therefore married his eldest Daughter Margaret to James the fourth the Kings great Grandfather And so blames that nice opinion that the Union of Great Brittain would alter our Laws which he ever declined as a Maxim in matters of State and Policy Innovation and alteration makes it worse that he was sworn to these Laws and to alter them had been perjury in him Iustice may be moderated by him with mercy but in matters of Iustice he will be blind to partiality to hasten Iustice never to delay He distinguishes the Law The Inheritance of King and Subject to be determined by the Common Law set down by our Forefathers and expounded by learned men in their Comments and called Responsa Prudentum or by Statute-Law and this is Law of Inheritance The other Law Gods Law governs all Common and Municipalls as Dependents and he complains of the neglect of Divine Laws and disrespect to the Ministers of the Church which is the most pure and neerest the primitive and Apostolical Church in doctrine and discipline of any in Christendome Next to this is the Civil Law the Law of Nations It satisfies strangers and his own subjects in matters of Pyracy Mariage Wills which Law he divides Civil and Canon and complains of the contempt upon it and concludes his own charge to maintain so to purge it from two corruptions Incertainty and Novelty to cleer it to the people by advice of Iudges and to purge it of Niceties introduced by Iudges themselves And so as the Pastor takes the Sacrament himself and then distributes so he to them least it be said Turpe est Doctori cum culpa redarguit ipsum The charge to the Iudges consists of three parts To do Iustice Generally Indifferently Fearfully Generally uprightly as to answer God and the King aud punishment from either Indifferently to all parties King and Subject Subject and Subject without delay partiallity clean and uncorrupt Fearfully Not your own conceits for you are no Law makers but Interpreters Jus dicere not Jus dare For you have no voice in Parliament but to advise And though some Laws are obscure and may be better known to you by Books and Presidents yet their interpretations must be subject to common sense and reason Ratio est anima Legis cleer Law or solid Reason But where the formality hath no place as in Denmark the State is governed by written Law no Advocate or Proctor only the parties plead and the Law is read and so sentence He complains of our curious wits Various conceipts different actions and several examples which breed questions in Law But if plain it speaks it self if otherwise as inventions abound they are to enterprete and draw a good Minor of natural Reason out of a Major of direct Law and so will follow a true Conclusion though common Law be a Mystery and your interpretation be not understood yet by the reason of Logick and common sense it will be false And as they are Iudges and divided into Benches so they must confer debate not single opinions per emendata suffragia and thus in generall to their Office And as to their Limits First Not to incroach upon Prerogatives of the Crown deal not in difficult questions ere you consult with the King and Council otherwise is to wound the King through the sides of a Private person and herein commends some of the Iudges that of late rebuked and blunted the sharp edge and vain popular honour of some Pleaders at the Bar for meddling therein The mystery of the Kings power is not lawful to be disputed which seems to wade into the weakness of Sovereigns diminishes the mystical reverence of them that sit in the Throne of God Secondly One Iudicature not to invade upon others unsit and unlawful and herein he inlarges himself That besides common-Common-Law there are Courts of Requests Admiralty President and Council of Wales of the North. High Commission and every Bishops Court These shall keep their limits and bounds so the common Law shall not encroach upon them nor they on that In Westminster-Hall four Courts Two Civil Common-Pleas and Exchequer Two
Criminal Kings Bench and Star-Chamber The Common-pleas is a Branch of the Kings Bench being first in one Court and after the Common-pleas being extracted it was so called as Pleas of private men The other the Exchequer for the Kings Revenue the principal institution thereof and their chief study and as other things come orderly thither so to administer justice Keep you within compass give me my right of private Prerogative I shall acquiesce as for the Prerogative of the Crown it is not for a Lawyers tongue nor lawful to be disputed It is Atheism to dispute what God can do his revealed Will ought to content us so is it contempt in a subject to dispute what a King can or cannot do the Law is his revealed Will. The Kings Bench is the principal Court for Criminal causes and in some respects it deals with Civil causes The Chancery a Court of Equity and deals likewise in Civil The Dispenser of the Kings Conscience following the intention of Law and Iustice not altering Law nor e converso It exceeds all Courts mixing Mercy with Iustice. Other Courts are onely for Law and where the strictness of Law might undo a subject there the Chancery tempers it with Equity and preserves men from destruction The Chancery is undependent of any other Court only under the King Teste me ipso from which no appeal yet am I bound so to maintain others as this not to suffer wrong My Chancelour that now is I found him Keeper of the Seal the same in substance with the other stile He is witness my warrant was to him to go on according to Presidents in time of best Kings and most learned Chancellours The duty of Iudges is to punish such as deprave the Kings Courts and therfore it was an inept Speech in Westminster-Hall to say that a Praemunire lay against the Court of Chancery yet it should not be boundless the King is to correct it and none else and therefore the King was abused in that attempt and now commands that none presume to sue a praemunire against it As all inundations are conceived Prodigious by Astrologers so overflowings of the banks of Iurisdiction is inconvenient and Prodigious to the State Let there be a concordance and musical accord amongst you keep to your Presidents authentick not controverted but approved by common usage of best Kings and most learned Iudges The Star-Chamber Court hath been shaken of late and last year had received a blow if not prevented by a few voices He descants on the name Star a glorious creature next in place to the Angels the Court glorious in substance compounded of four sorts of persons The first two Privy Counsellors and Judges wisdâ—m of State learning in Law The other two sorts Peers and Bishops to give Greatness and Honour to the Court the other of Learning in Divinity and the interest of the good Government of the Church So divine and humane Laws Experience and practice in Government are conjoined in the proceedings of this Court No Kingdom without a Court of Equity either by it self as in England or mixed in their Office that are Iudges of the Law as in Scotland and here in England where the Law determines not cleerly there the Chancery does having equity which belongs to no other Court punishing Attempts other Courts only facts and where the Law punishes facts lightly as in Riots or Combates the Star Chamber punishes in a higher degree as in Combinations Practises Conspiracies so being instituted for good give it the more honour Keep your Courts in harmony Iudges are Brethren the Courts Sisters the Muses to differ breeds contempt to either and disputes against each other turns pleas from Court to Court in circular Motion Ixions wheel the reason of Multitudes of Prohibitions causes are scourged from Court to Court like Tantalus fruit neer the Suiters Lip never to his Taste a delay of Iustice makes causes endless He tells them how he hath laboured to gather Articles an Index expurgatorius of Novelties crept into the Law look to Plowdens Cases and the old Responsa Prudentum if you find it not there then ab initio non fuit sic away withit To the Auditory he hath but little to say As he hath confirmed his Resolution to maintain his Oath the Law and Iustice of the Land So he expects their duty in observance of the Law and divides their submission into three parts First In general to give due reverence to the Law This general he devides also into three Not to sue but upon just cause Be content with Iudgement to acquiesce as he will do equal with theâ—â—eanest Subject Do not complain and importune the King against Iudgement It is better to maintain an unjust Dâ—cree than to question every judgement after Sentence as you come gaping for Iustice be satisfyed with the Iudgement but in Bribes complain boldly if not true from you expect Lex Talionis to accuse an upright Iudge deserves double punishment Secondly In your Pleas prâ—sume not against the Kings Prerogative or honour if you do the Iudges will punish you if they do not I will them and you Plead not new Puritanical strains to make all things popular keep the antient limits of pleas Thirdly change not your Courts as if to mistrust the justness of your cause but submit where you begin So he sums up all The charge to his Self Iudges and Auditory his excuse why he came not till now why now And because of his custome to deliver a charge to the Iudges of circuits He tells them now also As they are Iudges with him in that Court so Iudges under him and his Substitutes in circuits Itinerant to his people a laudable custome to go to the people in their Counties as they come up to them at Westminster-Hall That you go to punish as to prevent offences charge the Iustices of peace their duties take an accompt of them and report their Services to the King for the King hath two offices 1. To direct 2. To take an accompt from them to his Chancellour in writing and so to him Of these two parts the Nisi prius is profit for them and the other necessary for him therefore as Christ said Hoc agite yet illud non omittite and commends the office of Iustice of peace of high honour and repute They are of two sorts good and bad the good he will reward and prefer being as capable of his favour as any about him whomsoever the farther off in distance of place the more desert and his providence must reach to the end of his limits the good are industrious the bad idle contemplative Iustices are of no use And for the number as many hands make light work so too many make slight work As to the charge he will but repeat what he hath said heretofore Lectio lecta placet decies repetita placebit anent Recusants and Papists my greef when they increase there are three sorts of Recusants The first
course but it fell out more fatal to him which lasted to the end and thereby wrought its best use In the midst of sufferings the bread of sorrow tastes better than the Banquet of fools for afflictions brings such mens souls to be Saints at the Mark which otherwise would be overgrown with too much Greatnesse His memorable abilities remain but in few and his compassionate infirmities common to all To expiate which he did as became him to do to the House of Peers prostrate himself and sins which ingenuously he acknowledged promising amendment of his life and made it good to the Worlds eye Those excellent works contrived in his retirement do evidently manifest his wit and worth with much regret to many good men that such an one should be fallen off from the face of State In Bacons place comes Doctor Williams Dean of Westminster by the Title of Keeper of the Great Seal of England the same power and Jurisdiction as the Chancelour see Statute quinto Elizab which was not so besore At first but as Vice-Chancelour Matthew Paris saith Custodiam â—igilli Regii accepit Cancelarii Vices Acturus Officium c. He was also then made Bishop of Lincoln together to make him more capable of the Office brought in sayes one to serve turns which no Lay-Man was bad enough to undertake Former ages held it more consonant to reason to trust the Conscience of the Clergy with the case of the Lay-man they best knowing a Case of Conscience and antiently the Civil Laws were adjudged by the Ministers of the Church and the Chancery and other Courts of Equity then in the charge of a Divine Minister And therefore a mistake in the Record that sets it down as a Wonder for an Arch-bishop of Saint Andrews to be made Chancelour of Scotland by King Charles a thing he saies not known in that Kingdom for three hundred years before for a Clergy man to bear that office But we find Iames Seaton and David Seaton both Arch-bishops of Saint Andrews and Chancelours of Scotland within one hundred years space And many other Arch-bishops and Bishops within three hundred years not only Chancelours but Judges of the Law Master of the Robes and other Offices of Judicature By which means their onely Bishopricks too poor they advanced to degrees of wealth enabling them to erect most of those sumptuous Fabricks of piety and Honour in that Nation and so in England by our Clergy by this man also in some measure So ran the Channel till Bacons father had it from a Bishop and now a Bishop has it again and had King Iames lived to have effected his Desires the Clergy had fixed firm footing in Courts of Judicature out of the rode of the common-Common-Law and this was the true cause of Williams initiation thither his quality thus fitted for the Kings intention He was in truth Chaplain to Buckinghams Mother and let into Court parallel in some degree with Cardinal Richlieus entrance by Queen Mother of France a Man may take view of these conformities not few if you consider proportions what is allowed to the Jesuit must rebate of the Reformed and what this man could not do in competition as the other his aim shewed his will but not the effect But at his entrance into this Trust comes two Bills signed from the King to be made Patents by the Seal the one for a Pension of two thousand pound per annum and the other for the Office of Earl Marshal of England both of them to be conferred upon the Earl of Arundel The first though with some regret in those unseasonable times to receive such large pensions which yet he sealed but took upon him to trench upon the Lord Treasurer Middlesex who willingly gave way to it for which they both had enmity ever after The later he refused upon these Queries 1. Whether in the Delivery of the Staff to the Earl his Majesty did not declare it to him for ease of the other Commissioners that executed it before with him and so to imply no inlargement of power which this Patent doth 2. Whether his Majesty means that this Patent leaping over the powers of the three last Earls Essex Shrewsbury and Somerset should refer only to Arundels own Ancesters Howards and Mowbrays Dukes of Norfolk who claimed that place by Inheritance the usual way and reference of Patents being unto the last and immediate Predecessor and not to the remote whose powers heretofore in these troublesome times were vage uncertain and impossible to be limitted 3. Whether that this Lord should bestow those Offices settled in the Crown as Sir Edward Zouches in Court Sir George Reynolds in the Kings Bench and divers others all which this Great Patent sweeps away being Places of Worth and Dignity 4. Whether my Lord Stewards place shall be for all his power of Judicature is in the Verge either altogether extinguished or at least subordinate to the Office A point considerable because of the Duke of Lenox who was Steward his greatness of Person and neerness of blood to the King And here he claws him 5. Lastly whether that the Offices of the Earl Marshall of England and the Marshall of the Kings house in former times distinct shall be now united to this great Lord A power limitted by no Law or Record but to be searched out from Heralds Chronicles Antiquaries and such absolute Monuments and thereupon this sixty years for Essex his power was cleerly limitted only as Marshall unfit to be revived by the Policy of this State And by these queries the Patent was pared which increased malice to the end of their Days Certainly there is a difference between the Earl Marshal of England and the Marshal of the Kings House See Lambert Archiron or of the High Courts of Justice in England The Marshall of England and the Constable are united in a Court which handleth only Duells out of the Realm and matters within as Combats Blazon Armory but may not meddle with any difference tryable by the Laws of the Land The Marshal of the Kings Houshold is united in a Court with the Steward which holds Plea of Trespass Contracts and Covenants made within the Verge and that by the Laws Articl super Cart. cap. 3 4 5. The honour of Lord Marshal is so antient as Thomas Lord Mowbray by Richard 2. was created Duke of Norfolk and the first Earl Marshal of England anno 1397. And so successively unto Iohn Lord Mowbray who dyed the 15. of Edward 4. anno 1475. and had issue one only Daughter married unto Richard Duke of York second son of Edward the fourth and was by his Father created Duke of Norfolk and Earl Marshall of England murthered in the Tower anno 1483 without issue Then comes Iohn Howard Son of the Daughter and coheir of Thomas Mowbray Duke of Norfolk and was by Richard the third created Duke of Norfolk but not Earl Marshall Nor was his Son Thomas
whose former fewds had made but suspitious and so he wearied with doing evil returns into France to settle their Solemn League He gone Henry the eight sends home the Queen and Angus and having this while composed his French Quarrels with a Defensitive Amity against all Tourney rendred to the French and Overtures of a Match between the Dolphin and Henries Sister and not a word for the poor Scots that had lost their King in the French Dispute only interceding for a Cessation of Arms with the English and so accepted for Henries conveniency of Princely Interview with Louis The while supporting Angus and his Faction their own Civil Dissentions sufficient to busie themselves and to keep matters in much disorder the policy of England and France both to weaken the Scots power for eithers prey which being suspected by Albany now in France and the violent Fewds beginning fresh at home after five years absence he gets loose of the English Ships that lay wait in his way and Lands in Scotland The Governour come he sets things strait again which by his absence were made awry forces Angus into France many suffer besides others more factious fly into England and pretend the Dukes sudden return was to ingage that Nation against Henry who in rage sends to the Governour to be gone to his French Friends or to expect blowes and was answered as peremptorily That in case of War he knew better to defend than the other to fight King Henry in fury sets fines on some Scots here and after banishes all and presently pursues with invasions upon their Nation by Sea and Land And over to England comes the Emperour instigating the King to fall out with France the like Empirick Balm the French apply to cure the wounds of the Scots Commonwealth which prevailed so far that both Armies meet but the Scots would not fight the English fire all before them and the Governour not affected with the Scots falshood returns back to France for ever Angus gets home again countenanced by Henry assumes the person of the King now thirteen years old concludes a lasting Peace with England and proposes a Marriage between the young King and the Princess Mary which Henry in heart desired untill he heard of the French King Prisoner at Pavia by the Emperour so the match was put off upon pretence for the Emperours consent her neerest Kinsman The Queen displeased with her Husbands Supremacy over her Self and Son and both agreed to dislike each others Bed for it was fatal to her as to her Brother Henry to love change in And forthwith followed Divisions of Religion in Scotland also with Disputes and Arguments for Toleration excellently urged in â—avour of the Reformed but the Catholique Clergy prevailed and the Inquisition erected to force the other with Fire and Fagot The first that suffered in suspition of those attempts were the Hameltons of Kin to the Crown which wrought factions to such height as that King Henry takes heart begins by Incursions where the English were soundly beaten And then in Revenge Howard stiled the Old Earl of Norfolk is sent with formidable Forces 40000. to 30000. if the sums are not mistaken either party so numerous as to eat up all and starve themselves But upon some distrust of success the Earl retreats The Scots pursue this advantage And the next Spring mutiny among themselves and at Salloway Moss the English gave them a mighty defeat which so astonished King Iames that with wondrous regret he forced death over hastily to seize him at the instant when his Queen was delivered of a Daughter the only issue remaining to succeed him in his Throne And with he begins our History The Life and Death of his Daughter Mary Queen of Scotland taking up the Remain of Henry the eighth who lived not long after leaving his three children succeeding Sovereigns yet thought him not worthy memory by any Monument Edward the sixth whose short raign and youth supported by a wise Council held up what was left him by Succession Untill the Soveraignty fell to his Sister with alteration of all and hazard of all she being imbarqued in body and business to a Strangers Supremacy but not lasting long time Was left to a Virgin to recover desperate dangers Ecclesiashick and Civil with various Designs Impressions and Operations upon her Neighbour States imbroyled with her jealousies to infamy of destruction in the blood of Q. Mary of Scotland her neerest kinswoman and pretended Competitor in the Crown untill at last in Gods due time the Sovereignty fell to a Foreiner King Iames with re-union of the antient Title of Britain Elizabeth indeed succeeded in the Inheritance begotten by H. 8. upon Ann Bullen after his divorce from Katharine his Brothers widow by whom he had Q. Mary and that mariage dispensed with by the Pope Hence did arise a question Whether the Divorce was legal or Elizabeth legitimate when Adam was created Eve was taken out of him and made Woman a fit Instrument for prolification and Society And both married in Paradice God the Father being the Priest and the Angels Witnesses for which cause A man shall leave Father and Mother and cleave to his Wife They begat Sons and Daughters which were Brothers and Sisters and married one the other without contradiction untill the Flood nay after the Flood untill Moses writ And these Marriages were not against the Moral Law written in their hearts which being much obliterated in the faculties of the Soul by reason of Adams transgression when Moses writ the Law of Nature or Law of Reason it was therefore twice written in Tables of Stone that by reading those Precepts which were much defaced within man might repair in some measure those Laws almost blotted out by sin And so by reading get them into his Understanding Will and Memory Mans Knowledge comming most naturally by Sense Moses did not onely write this Morall Law in Stone but gave many positive Laws for the Pedagogie of the Iews untill Christ as the Ceremonial and Iudicial The Iudicial Lawes amongst other things did forbid Marriages in cases of blood and affinity and these continued until Christs time and no longer unless there were a Moral Equity in them which Morality is onely inter Ascendentes descendentes where there is a kind of Paternity and Fiâ—â—ation for Filius non portabit iniquitatem Patris and for that sin Iacob cursed Reuben for ascending his Fathers bed This ground being truly laid it was conceived there is no Law of God in force but that which is between Ascendents and Descendents It is true every Church hath made Laws to bind people in their Churches but it was insisted upon only in this That the Moral Law doth not forbid and the Ceremonial and Iudicial Laws are now abrogated In Sir Giles Allingtons case not long since who married his Sisters Daughter there was a sin against the Moral Law and so they were divorced But it was said in that case that
that he was at the worst but singularis Testis To which the Lord chief Iustice gave it for Law that it was not necessary for either After much pleading Ralegh urging Law and Scripture for not admitting a single witness to condemn yet the Court was satisfied by the Iudges to the contrary Then said Ralegh Prove it by one witness face to face and I will confess my self guilty But the Iudges were of opinion not to admit that neither yet Ralegh insisted thereon with many stories and Presidents which took up much time But being asked Will you be concluded if Cobham should justifie his Accusation under his hand To this it may be observed that Ralegh made no Answer at all knowing his guilt but consented that the Iury should consult The Kings Council being to speak last they produced Cobham's Letter under his hand writ but the day before In effect thus That Sir Walter had writ a letter to him wrapt in an Aple and cast in at his window in the Tower ten daies since to intreat him for Gods sake to write to him under his own hand that he had wronged him in his accusations advising him to be constant in denials rather than to appeal to the King And now writes Cobham It is no time to dissemble and therefore protested before God and his Angels that all and every part of his accusation of Sir Walter Ralegh was substantially true and added that Ralegh had delt with him since the Kings coming to procure him a pension from Spain for Intelligence Then Ralegh rayl'd at him confessed that letter and produced Cobhams Answer desiring it might be read which the Attorny Cook opposed to whom Caecil replyed Sir you are more peremptory than honest come you hither to direct us and so read it which in effect was a Confession That he had wronged Ralegh and that he was Innocent This bore date ten dayes before And here Ralegh confessed that Cobham had offered to him a Pension from Spain and that he had concealed it as loth to ruine Cobham Then the Iury went out and returned in half an hour their verdict Guilty So was sentence as in case of Treason and he returned to the Tower where he lay reprieved 12. years And three years after that was executed in October 1618. Two dayes before Ralegh tryal were sentenced these Brook who only excused his intentions meerly to try faithfull Subjects and said he had a Commission so to do but produced none Markham confessed the Inditement pleaded discontent and desired mercy Watson confessed he had drawn in all the rest holding the King to be no Sovereign til he were crown'd instancing in Saul and Ieroboam Clark said the like Parham and Brooksby were acquitted by the Jury Watson Clark and Brook executed Markham Cobham and Grey brought severally upon the Scaffold to die and at the instant on the Block had their particular executions remitted by a letter to the Sheriff under the Kingsown hand without the knowledge of any person but Master Gibb of the Bed-Chamber that brought it The warrant was directed to Titchburn high Sheriff of Hampshire for staying execution of the late Lord Cobham Lord Grey and Sir Gr. Markham at Winchester 1603. Although it be true that all vell-governed and flourishing Kingdomes and Common-wealthis aire establishid by Iustice and that these two Noblemen by birth that aire now upon the point of Execution aire for thair treasonable practices condamned by the law and adjudget voorthy of Execution thairof to the Exâ—mple and terror of otheris The one of thaim having filthily practiced the overthrow of the qâ—hole Kingdom and the other for the surprize of our owin Person yet in regaird that this is the first year of our raign in this Kingdom and that never King was so far obleished to his people as ve have been to this by our entry here vith so hairty and general an applause of all sorts Amonc quhom all the Kinne friends and allies of the saidis condamnd parsonis vaire as fordurat and duetifull as any other our good Subjects as also that at that very time of thair arraignment none did more freely and readily give thair assent to thair conviction and to deliver thaim into the handis of Iustice then so many of thair neerest Kinsmen and allies as being Peeris vaire upon thair Iury as likevaise in regard that Iustice hath in some sort gotten course already by the Execution of the two Priests and George Brook that vaire the principal plotteris and intisaris of all the rest to the imbracing of the sadis treasonabill Machinations ve thairfore being resolved to mix Clemenie with Iustice aire contented and by theise presentis command you our present shief of Hampshiere to superseid the Execution of the sadis two Noblemen and take them back to thair prison again qwhile our further pleasure be knowin And since ve vil not have our Lawis to have respect to personis in sparing the great and strikking the meaner sort It is our pleasure that the like course be also taken vith Markham being sory from our hairt that such is not only the hainous Nature of the sadis codamned personis crime but even the corruption is so great of thair natural disposition as the care ve have for the safety and quiet of our state and good subjectis vil not permit us to use that clemencie towardis thaim quhich in our owin natural inclination ve might vary easely be perswadit unto Iames Rex However the King was meâ—cifull yet an evil fate followed them Grey died in the Tower the last of his line Cobham Markham and others were afterwards releast imprisonment but died miserable poor And Ralegh fifteen years after lost his life by the Axe for this Treason See 1618. I have been the more prolixe against our Adversaries that thereby the world may judg with the Jury of his Guilt or innocencie How could Wade the Lieutenant of the Tower who was alwaies esteemed honest tamper with Cobham to write his Name to a Blank to which Wade framed an accusation against Ralegh when it appears Cobham never signed at all to any which therefore Ralegh insisted upon for his advantage in the tryal But in truth besides the confessions His fatal evidence was Cobhams own voluntary last letter overnight writ every whit with his own hand The King commanded as the Court was assured at his tryal that no Examinant should be wrackt which made Captain Kemish the Emissary between them to protest afterwards in my hearing that in truth he was threatned with the wrack which was shewed to him and that had he tasted thereof it should have inforced him to tel an odd tale meaning of guilt Sir Walter was admitted a chair pen Inck paper and truly he rather tired the Court and Jury with Impertinences though he spoke well Not much to remind what we have said concerning the humours of the Presbyterians so throughly canvased
Sovereigns choice Service And yet this Man â—ot long after proved the Contriver and the most malicious Prosecutor of such conspiracies as may be said to be the forerunners of that Kings miserable and final destruction I cannot learn whether he be living in this sin and so as yet spared for Gods mercy or unrepentant dead to his Judgments sure and suddain But to our business in Scotland In the next Assembly at Glascow the Bishops took upon them to inlarge their own authority in the Administration of all Church affairs And yet not willing to make any change though by the Kings command without brotherly approbation of the Ministers They assemble together and consent unto Articles of Government and power of the Bishops In which Assembly the Popish Lords supplicate for absolution and to subscribe to the confession of faith Huntley did so and returned to his own County Arroll went about it too but suddainly fell into such confused terror as offering violence upon his own person he was spared by his intercession of tears and prayers not to be forced against the reluctancy of his Conscience who in truth of all that sect shewed evermore much of tender minde to endeavour satisfaction to himself and so received more civility from the Church ever after Angus was most averse and had leave to banish himself into France where he died at Paris some years after There had been a good progress in Scotland for quieting the Clergie and renewing the repute of the prelacie And therefore the Arch-Bishop of Glascow with the Bishops of Brigen and Galloway having audience of the King in relation to the affairs of the Church of Scotland Told them with what care and charge he had repossessed the Bishopricks out of the hands of the Laity and other sacreligious pretenders and settled them upon reverend Men as he hoped worthy of their places But since he could not consecrate them Bishops nor they assume that honor to themselves and that in Scotland there was not a sufficient Number to enter charge by Consecration he had therefore called them into England that being here consecrated themselves they might give ordination at home and so the Presbyters mouths stopped For they had maliciously and falsely reported that the King took upon him to create Bishops and bestow spiritual Offices which he never did always acknowledging that Authority to belong to Christ alone and whom he had authorized with his own power One thing admitted dispute The Arch-Bishops of Canterbury and York always pretended Jurisdiction over Scotland and so now this consecration might be taken as a voluntary subjection to this Church But therefore London Ely and Bath performed it to them and they ordained others at home And carried back Directions for a High Commission Court also for ordering of causes Ecclesiastical which were approved by their Clergie and put into obedience From these good Men The King fished out the behaviours of his Council there and therefore to settle them in terms of honor and state at their Table they were to convene twice a week and None to stay in the Room but Counsellors nor any solicitations there But being come instantly to take their places sitting not standing unless they pleaded for themselves and then to rise and stand at the end of the Table for they were wont to quarrel and to cuff cross the board No Counsellor to be absent four days without leave of the rest Each single Counsellor to be Justice of Peace in all the Kingdom to preserve respect to their places they should not trample the streets on foot but in Coach or Horse-back with footcloths This brought some esteem to that Board who before were bearded by every Kirk-Iohn or Lay-Elder And after this posture of Governing Patrick Stewart Earl of the Isles Orkney and Yetland was sent for to humble himself to imprisonment A Custom also which was setled in the Council to command any Malignant to be in Ward by such a day or else to be horned Rebell This great man at home is there humbled before the Bishop of Orkney and is by him examined so soon is the Kings ordinance obeyed His Crimes grew up from his poverty made so by his own riot and prodigality which now he seeks to repair by shifts of Tyranny over the people under his Command and being by the Bishop reported so to the Council he was committed to Prison untill the pleasure of the King deals further in Mercy or Justice But to exercise that Nation by degrees of punishment he was afterwards released and returned home to better behaviour wherein he became for the future so faultie that two years after he was executed We have hinted heretofore the Kings business at home which in truth was his wisdom to wade through To suppress the trayterous designes of the Papists and to settle the fiery dispositions of the Schismaticks for the first their own violent progression in their late Pouder-plot drew upon them publick lawes of chastisement But these Other alas their Motion now not so violent yet perpetual the more warily to be dealt with And because no disputes Arguments nor Policies could reduce them therefore the spiritual high-commission-High-Commission-Court took some course moderately to regulate their Insolencies Busie this Parliament had been in disputes of the Common and Civil Laws The first strained to such a necessitary power as in short event would mightily qualifie the other to nothing Besides this Session sate long and supplyed not the Kings wants wasting time as ever sithence in seeking Grievances To palliate the Lower-House some Messages had informed his necessary expences and to both Houses the new Treasurer late Earl of Salisbury opened the emptiness of his Office And at last the King speaks for himself at a Meeting at White-Hall He spake well and now prolix which yet I must present thus long Perfect Speâ—ches open the times and truth to posterity against our Carping Adversary I need not quote his pages take his whole History passionately and partially distempered throughout The King forgets not their late loving duties and therefore recompenseth them with a rare present a Chrystall Mirror the heart of their King which though it be in Manu Domini so will he set it in oculis populi The principal things says he agitated in this Parliament were three First Your support to me Secondly My relief to you But the third How I would govern as to former constitutions or by absolute power He begins with the last That Monarchy is the supremest thing upon Earth illustrated by three similitudes First out of Gods word You are Gods Secondly out of Philosophie Parens patriae Thirdly out of Policie the Head of this Microcosm Man For the first The attributes of God Creation Destruction Reparation to judge and not be judged and to have power of Soul and Body so of Kings and can make of Subjects as at Chesse a pawn to take a
abused in the Execution and he not informed but by them He advises them not to meddle with the main points of Governments his craft Tractent fabrilia fabri He being an old King six and thirty years in Scotland and seven years in England and therefore there needs not too many Phormio's to teach Hannibal he will not be taught his Office nor are they to meddle with his ancient Rights received from his Predecessors More majorum All Novelties are dangerous Lastly not to call that Grievance which is establisht by a settled Law and to which to press the King is misduty in the Subject knowing before hand he will refuse them If not convenient amend it by Parliament but term it not a Grievance To be grieved at the Law is to be grieved with the King the Patron of the Law and he allows them to distinguish between a fault of the Person and the Things For Example The High Commission is complained of Try the abuse and spare not but do not destroy the Court of Commission that were to abridg the Kings power And plainly he resolves seeing that Court is of so high a nature to restrain it onely to the two Arch-Bishops heretofore common to more Nor shall any man be to him more Puritan to complain as well out as in Parliament of defects therein onely grieve ye not at the Commission it self He desires them that their Grievances savour not of particular mens thoughts but rather rising out of the peoples mindes not of the humour of the Propounder that mans passion will easily discover him Petitions also though they be general are so to be distinguished The third general Cause concerns himself which he always leaves hindmost and had left it to his Treasurer being distrustfull naturally less eloquent in his own concernment That this Officer had already accounted to them of the Kings Havings and his Expendings which he hopes they acknowledg as a favour to be particularly acquainted with his State His Predecessor seldom afforded the like Duty he clames of them one of the branches being to supply their Sovereign but the quantity and time proceeds from their loves and therefore disputes not a Kings power but what with their good wills and wishes them as he to avoid extremes for if they fail in the one Supply or in the manner of Levy both he and the Countrey shall have cause to blame them And as the secular Nobility are hereditary Lords of Parliament and the Bishops live neuter Barons of the same and give but their own but the lower House being the Representative of the Commons give for themselves and others and so may be the more liberal yet if too much they abuse the King and hurt the People which he will never accept their true love being the greatest security to any wise or just Prince So they need not the fear of that Item by one of their Members In giving too much to endanger your Throats-cutting when ye came home He loves freedom of Gift with discretion He never laboured for their Voices to that end detesting to hunt for Emendicata suffragia But then as not to give him a Purse with a Knife So not to excuse and cloak their particular humours by alleging the Poverty of the People To such persons though he will not be less just yet not in reason to gratifie them when it may come in their way to want him He heard that it was propounded whether the Kings wants ought to be relieved or not Certainly though it may seem his particular yet being Parens Patriae and tells them his wants nay Patria ipsa by him speaks to them for if the King wants the State wants and therefore the strengthning of the King is the standing of the State and wo be to him that divides the weal of the one from the other And as a rich King is but miserable over a poor People so a potent People cannot subsist if their Kings means maintains not his State being the sinews of War and Peace and it grieves him to crave of others that was born to be begged of And if he desires more of them than ever any King did so hath he juster reason than any King had And in particular the accession of more Crowns in him so the more honour to Subjects and the more charge His fruitfull Issue which God gives him for their use of great expence and yet Queen Elizabeth notwithstanding her Orbity had more given her than ever any of her Predecessors The Creation of his Son draws near for whom he says no more the sight of himself speaks to you That he hath spent much but yet not to be spared the late Queens Funeral the solemnity of his and his Wives entry in this Kingdom the Triumph through the City and his Coronation Visus of Princes in person and the Ambassadors of most Potentates of Christendom could he in honor of the Kingdom do less than bid them welcome But if they will imbound his Supplies to the case onely of War so upon the point notwithstanding his intern Peace he is to send supply of Forces to Cleves both in respect of State and cause of Religion his Pensions the late Queens old Commanders of Berwick besides his pretty Seminary of Souldiers in the Forts of this Kingdom and also the cautionary Towns of Flushing and Brill beyond Seas his uncertain charges in Ireland the last years Rebellion brake forth there of extraordinary charge and a constant Army which he dares not diminish till this Plantation take effect the great Mote no doubt in the Rebells eys His expence in Liberality objected hath been given amongst them and so what comes from them returns amongst them 'T is true had I not been liberal to my old Servants Scotish-men you might suspect me ingrate to you my new subjects and yet assures them his bounty hath been twice more to English So then to his shame be it of your house that said Your Silver and Gold abounded at Edenburgh but I wish him no worse than to be bound to live only upon the interest thereof and but few of you that I look in the face but have been Suitors for Honour and Profit That vastness is past Christmass and open-tide is ended with him He had made Knights by hundreds and Barons by scores he does not so now will do so no more They need not now to reminde him the sight of his children as a Natural Man bids him be wary of expence As for himself he challenges any one far meaner to be less inclinable to prodigal humours of unnecessary things What he hath said may move each member to spare him so much as they would spend on a supper cast away at Dice in a Night or bestow on a horse for fancy that may break a Leg or Arm next morning Conclusion freeness in giving graceth the gift Bis dat qui citò dat his debts increase till
of my life Such stuff as this makes up the matter as they would make us believe but in truth he threatened Somerset with some discovery which was construed to be secrets of Love or State or both Not without monstrous defaming her honour by Message and writing filthy base woman they were best look to stand fast which begat fury in her and subtilty in Somerset least Overburies Malice should break forth to both their sufferings and so trouble their whole fortunes To prevent mischief to the One and continual defame to the other combining with the rest It was resolved by her to destroy him which she first intended by assassination and dealt with one Sir David Wood an ill-looked red-bearded Scot whom Overbury had prevented of a suit valued 2000l But his cowardice not conscience fearing to ingage she and they plotted the impoisoining of him in prison as the story intends to discover in particular This Spring seizes Northampton for death He was brother unto the late Duke of Norfolk who suffered for his Attempts of Marriage with the Queen of Scots as before remembred then a Prisoner here in England which might be some motive for the King to consider the advance of this Man and that Family which he did by preferring the Dukes second Son to be Earl of Suffolk 1603. and by restoring the Dukes Graâ—dchild Thomas Earl of Arundel 1604. as aforesaid and by particular preferments of this Henry who was more wedded to his book than to the Bed for he dyed a Bachelour He was accompted wise and learned a cunning States-man and for all these abilities out of the Kings great affection to Letters especially being concentured in a Noble person at his first accession hether he the rather advanced him in succeeding Creations as Baron of Marnhill Earl of Northampton then Privy Councellour Lord Warden of the Cinque Ports Lord Privy Seal and Knight of the Garter and elected Chancelour of the University of Cambridge He had plentiful for his single Life and to spare for his friends In his expence not over frugal maintaining his Port the most remarkable like the antient Nobility in his family and dependents of any Lord then or since his time He assisted his Nephew the Earl of Suffolk by his designning and large contribution to that excellent Fabrick Awdleend He built that Noble Structure at Charing-Cross Northamp House presented it a New years gift to his Cosin German the â— Walden Suffolks eldest Son And yet left his other Cosin the E. of Arundel the rest of his estate so to appear to the World his equal distribution to such even kindred He was pious and gave good testimony thereof in his life built that handsome Covent at Greenwich and indued it with Revenue for ever for maintenance of decayed Gentlemen Bachelours a competent number and for Widdows also considerable He died in April Anno 1614. full of years and honour and suspected more Catholick than some will think reasonable though in the form of a Church Papist as some lately do publish and to be a Setter in the monstrous Murther of Sir Thomas Overbury though the Lieutenant of the Tower Yelvis in his Examinations and Confessions cleered him which suspition is since grounded upon the interpretation of his Familiar Epistles to the Earl of Somerset and indeed but bruited since his death And where no proofs precede we may be sparing to not him so Noble a Person with that or any other Infamy About these times the humours of young Gallants not brooking the peaceable conditions of our Kingdomes and neighbour Nations took upon themselves to quarrel with each other and to fight it out in Duels upon slight occasions and very frequent which induced his Majesty to publish a severe Edict against private Combates and Combatants their Seconds Accomplices and Adherents for prevention of those heavy events whereto worthy familics become obnoxious by the odious and enormous impieties inevitably subsequent thereupon Intending by that time that the most proper Remedies have qualified the distemper of il-disposed minds and that audacious spirits have smarted for incompetent desires the false colours and pretences of erring Custome have both been counterpleaded and corrected by reforming severity By that time I say that Passion hath been put into the right course of submitting to discretion and caution hath wrought it self at leasure into as constant a form and habit of conforming to obedience as self-will took in former times to plant false principles the greater part will easily discern That there is greater reason to reprove those that offer Challenges of madness than to tax those of Cowardice that abstain out of duty And therefore those that should conceive themselves to be behind in the least respect of point of honour should repair to the Marshalls Court who were instructed and prepared as well for the cleansing of all green wounds as the healing of old Ulcers that shall appear to them Hereupon occassion was soon given and taken in a Duel of Priest and Wright for writing and carrying the challenge and an information against them in Star Chamber by a charge of Sir Francis Bacon Atturney General and though the persons were but mean yet they served for example to the great the Dog to be beaten before the Lion the one a Barber Surgeon the other a Butcher This eloquent Oratour divided his charge into four branches 1. The nature and greatness of the Mischief 2. The Causes and Remedies 3. The Iustice of the Law of England which saies he some think defective herein 4. The capacity of this Court where the Remedy is best to be found 1. For the first when Revenge is extorted out of the Magistrates hands into private men presuming to give Laws to themselves It may grow from quarrels to banding so to trooping then to tumult and commotion from private persons to families and alliances and so to national quarrel and subject the State to inflamations and convulsions and herein Offences of presumption are the greatest and this to be done by the aurorae filii sons of the morning young men full of hope and towardness 2. The Causes no doubt a false imagination of honour and credit bewitching Duels Species falsa against Religion Law and virtue That men now adaies had lost the true Notion of fortitude and valor the one Fortitude distinguishing the grounds of quarrels whether they be just and worthy a mans life being to be sacrificed to honourable services good causes and Noble Adventures Expence of blood is as the expence of money not to be profuse in either upon vain occasion For the Remedies Four things may be effectual for repressing the depraved custome of Combates First The State to abolish it for then every particular person thinks himself thereby acquitted his reputation when he sees it an insult against Sovereign power Like unto the Edict of Charls the ninth of France against Duels That the King himself took upon him the honour of all
that were grieved or interessed for not having performed the combate when he shall see the rule of State dis-interest him of a vain and unnecessary hazard Secondly This evil must not be cockered The compounding of quarrels is grown so punctual by private Noblemen and Gentlemen who is before hand and wholly behind hand It countenances Duels as if therein somewhat of right The most prudent and best Remedy may be learned out of the Kings Proclamation The false conceated humour must be punished in the same kind In eo quis rectissime plectitur in quo peâ—cat such men to be banished the Kings presence and excluded the Court for certain years to be cast into that darkness not to behold his Sovereigns face Lastly We see the Root of this offence is stubborn for it despiseth death the utmost of punishments and therefore these men to be executed by Law without all remission The severity of France had been more where by a kind of Marshal Law established by the King the party surviving was instantly hanged their wounds though bleeding least a natural death should prevent the example of Justice Or if not so to do but with greater lenity yet of no less efficacy which is to punish by fines in Star Chamber the middle acts and proceedings which tend to the Duel 3. Now for the Law of England It is excepted against in two points Not to difference between an infidious and foul murther and killing upon fair terms as they term it The other Not providing sufficient punishment for contumely of words as thely and the like These novelties are thus answered The Law of God makes no difference but between Homicide voluntary and involuntary which we term Misadventure and for which there were Cities of Refuge Our Law hath a more subtil distinction The Will inflamed and the Will advised Man-slaughter in heat and Murther upon Malice or cold blood The Romans had restrained this privilege of passion but onely where the Husband took the Adulterer in the manner Yet Cain inticed his Brother into the Field and slew him treacherously but Lamech vaunted of his Murther To kill a young man and if it were but in his hurt So as the difference is between Insidious and Presumptâ—oâ—s Murther these of Cain and Lamech Greece and Rome had not this practice of Duells It is said fas est ab hoste doceri There was a Duel between two eminent persons of the Turks and one slain the Council of Bashaes reprehended the Other How durst you undertake to fight one with the other are there not Christians enow to kill Did you not know that whether of you were slain the loss would be the great Seigniours T is true we find Combates before an Army amongst the Romans which they called Pugna per provocationem between Generals themselves or by their license to others So David asked leave when he fought with Goliah And Ioab when the Armies met gave leave Let the young Men play before us And of this kind was that famous example in the Warres of Naples between the Spaniards and Italians where Italians prevailed The second combate is a Iudicial Tryal of Right introduced by the Gothes and the Northern Nations and more antient in Spain But yet a wise Writer saies Taliter pugnantes videntur tentare Deum quia hoc volunt ut Deus ostendat faciat Miraculum ut justam causam habens Victor efficiatur quod saepe â—ontra accidit Nay the French folly in this kind had it in Toleration never authorized by Law but of late punished with severe rigour As for the supposed defect in our Law for Lies and fillips words of denyal and flea bites to murther a man Solon's Answer satisfies That he had not ordained Punishments for it not imaging the world so phantastical to take it so highly The Civillians say that an action of injury does not ly for it Indeed Francis the first of France gave the ly to the Emperour and in a Solemn Assembly said That he was no honest man that would bear the ly The Laws of England had onely these degrees of injury Slander Battery Maime and Death But as for a fillip Consalvo said A Gentlemans honour should be De tela crassiore of a strong warp Now for the power of this Court to censure Presidents have been in the Minor Whartons case P lt where Acklam Defendant servant to Elleckars was fined for carrying his Masters challenge but by Word of Mouth And it was concluded to prosecute in these cases against such As shall appoint the field though the sight be not acted Send challenge in writing or message Shall deliver either of them To accept or return them To be a second To depart beyond Seas to combat To revive a quarrel by sâ—andalous bruits or Pasquils Counsellers of Quarrellers And that a Man may in those cases be as well fur de se as felo de se if he steal out of the Realm to fight he doth Machinari contro Coronaâ— But let us remember Scotland We have forewarned the Earl of Orkneys mis-behaviour in Scotland which of late so increased as he was again sent for and committed Having rioted most of his Estate the remainder was mortgaged to Sir Iohn Arnots of whom the King purchases his Interest by which means he might the better give relief to the distressed Tenants from oppression The Earl now in Dunbarton Castle with a Noble a Day pension for his Maintenance had information how his Estate with his Castles Kirkwall Birsay and other his Houses and Lands in the Isles were rendered to the Kings Sheriffs He endeavouring first to escape but not effecting sends his base Son to get forces and to expulse the Possessors He does so with some loose people assaults Birsay and takes it wherein he puts a Garrison of thirty men and hastens to Kirkwall seizes that also This Insurrection comes to the Kings knowledge and hastens Commission to the Earl of Caithness Lieutenant of those bounds who with his Canon recovers the Castles in 6 weeks and those within made Prisoners Robert Steward the Earls base son and four more principal Actors were arraigned at Edenburgh convâ—ct and hanged The Earl as Accessary came to Tryal being indicted for causing his base son to surprize Kirkwall and Birsay inciting the people to Rebellion and detaining the Castles treasonably against the Kings forces He was allowed Prolocutours Lawyers of the best esteem who deny the Libel as they call it but the confession of his base Son and Others with his missive Letters written to one Iohn Sharp for detaining those Castles and a charter of certain Lands assigned by him to one Patrick Haloro for assisting the Rebels the Assize of Iury being his Peers Earls and Lords found him guilty of Treason and he presently executed at Edenburgh The end of Patrick Earl of Orkney Son to Robert Stewart one of the base Sons of King Iames the fifth for he had others
May it please your Majesty BY this Gentleman your Majesties Lieutenant I understand of some halt you made and the cause of it at such time as he offered to your Majesty my Letters but soon after your Majesty could resolve your self and behold me nothing so diffident of you but in humble language petitioning your favour for I am in hope that my condition is not capable of so much more misery as I need make my passage to you by such way of intercession This which follows after I offer your Majesty though not as to your self for upon less motive you can finde favour for me Now I need onely move not plead before your Majesty as my case doth stand for what I seek to have done follows upon what you have already done as a consequence and succeeding growth of your own act But to the effect that your Majesty may see that there is enough to answer those if any such there be as do go about to pervert the exercise of your Power and to turn it from its own clear excellency for to minister unto their passions I have presumed to this end to awake your Majesties own conceit upon this subject which can gather to it self better and more able defences in my behalf upon this view for though the Acts of your Mercy which are not communicable nor the causes of them with others as derived from those secâ—â— motives which are onely sensible and privy to your own heart and admit of no search or discovery to any general satisfaction and that under this protection I might guard my particular sufficiently yet my case needs not hide it self but attend the dispute with any that would put upon it a monstrous and heavy shape though that I must acknowledg that both Life and Estate are forfeited to you by Law yet so forfeited that the same Law gives you the same power to preserve as it doth to punish whereby your Majesties higher Prerogative doth not wrestle with it nor do you infringe those grounds by which you have ever governed so as the resistance is not great that your Majesty hath for to give Life and which is less in the gift of Estate for that the Law casts wholly upon your self and yields it as fit matter for exercise of your goodness Once it was your Majesties gift to me so it may be better not taken than a second time given for it is common to all men for to avoid to take that which hath been once their own And I may say farther that Law hath not been so severe upon the ruine of innocent posterity nor yet cancelled nor cut off the merits of Ancestors before the politick hand of State had contrived it into these several forms as fitted to their ends and government To this I may add that that whereupon I was judged even the crime it self might have been none if your Majesties hand had not once touched upon it by which all access unto your favour was quite taken from me Yet as it did at length appear I fell rather for want of well defending than by the violence or force of any proofs for I so far for sook my self and my cause as that it may be a question whether I was more condemned for that or for the matter it self which was the subject of that days controversie Then thus far nothing hath appeared wherein your Majesty hath extended for me your power beyond the reasonable bound neither doth any thing stand so in the way of your future proceedings but rather make easie your Majesties favour for my relief What may then be the cause that malice can pitch upon wherefore your Majesty should not proceed to accomplish your own work Aspersions are taken away by your Majesties letting me loose to the utmost power of Law with the lives of so many offenders which yieldeth the world subjects of sorrow rather than appetite to more bloud but truth and innocency protect themselves in poor men much more in Kings Neither ever was there such aspersion God knows in any possibility towards your Majesty but among those who would create those pretences to mislead your Majesty and thereby make me miserable If not this whereof the virtue and use was in the former time and now determined there is not any but your pleasure It is true I am forfeited to your Majesty but not against you by any treasonable or unfaithfull act besides there is to be yielded a distinction of men as in faults in which I am of both under the nearest degrees of exception Yet your Majesty hath pardoned Life and Estate to Traitors and to strangers sometimes the one sometimes the other nay to some concerned in this business wherein I suffer you have pardoned more unto them than I desire who as it is reputed if they had come to the test had proved Copper and should have drunk of the bitter cup as well as others But I do not by this envy your favours to any persons nor seek I to draw them into the yoak with my self but applaud your Majesties goodness being in that respect in a nearer possibility to come at me Besides this to Elvish your Majesty hath given Estate which is a greater gift than Life because it extends to posterity who was the worst deserver in this business an unoffended instrument might have prevented all after-mischief who for his own ends suffered it and by the like arts afterwards betraid it To this I may add Tresham in the Powder Treason upon whose Successors I do not cast any of his infamy yet he preserved himself to posterity so as what he or others sucâ— as he have defrauded by the arts of Law and whom their own unfaithfulness made safe I have much ado to hold by ingenuity and confidence How may it be because I distrusted not your Majesty or because it returned in your power from whom I had it is it in danger to be broken or dismembred Let me hope that there is nothing which by favour may be excused or by industry might have been avoided that will fail me where your Majesty is to determine It is not I that thus put your Majesty in minde oportunely it is he that was your creature it is Somerset with all your honours and envious greatness that is now in question Kings themselves are protected from the breach of Law by being favourites and Gods Anointed which gives your Majesty like privilege over yours as I took from Doctor Dun in his Sermon that the goodness of God is not so much acknowledged by us in being our Creator as in being our Redeemer nor in that he hath chosen us as that nothing can take us out of his hand which in your Majesties remembrance let me challenge and hope for for the first accesses of favour they may be ascribed unto ones own pleasing themselves but that appears to be for our sakes and for our good when the same forsakes not our civil desires
This Redemption I crave not as to my own person but with your benesits once given nor do I assume them very deep for I have voluntarily departed from the hopes of my Pension Place Office I onely cleave to that which is so little as that it will suffer no paring or diminution And as in my former Letters so by this I humbly crave of your Majesty not to let the practices of Court work upon your Son the Prince not fearing the sufferance of my loss in that particular so much for I cannot lose it but willingly all with it as for to take off the stage that which in the attempt may prove inconvenient And consider I pray your Majesty that my hope in desiring to pass these bad times was to be restored to my fortunes others are made unhappy by me if otherwise and then I lose my end I speak of impairing of changing or supplying as of any other way all such alterations and ruine are alike without I be worthy of your gift and that I can be worthy of all that Law can permit you to give or cast upon your Majesty by a more nearer Title as it doth by this I shall account them equal evils that leave nothing or a patched and proportioned one changed or translated from one thing to another But if your Majesty have any respects to move you to suspend your good towards me let that which is mine rest in your own hands till that you finde all opposite humours conformed to your purpose I have done wrong to my self thus to entertain such a doubt of your Majesty but the unrelenting of adversaries which when you will have them will sooner alter and that all this while I have received nothing of present notice for direction or to comfort me from your Majesty hath made me to expostulate with my self thus hardly for God is my Iudg Sir I can never be worthy to be if I have these marks put upon me of a Traitor as that tumbling and disordering of that estate would declare the divorce from your presence laies too much upon me and this would upon both I will say no further neither in that which your Majesty doubted my aptness to fall into for my cause nor my confidence is not in that distress as for to use that mean of intercession nor of any thing besides but to remember your Majesty that I am the workmanship of your hands and bear your stamp deeply imprinted in all the characters of favour that I was the first Plant ingrafted by your Majesties hand in this place therefore not to be unrootod by the same hand lest it should taint all the same kinde with the touch of that fatalness and that I was even the Son of a Father whose Services are registred in the first Honours and impressions I took of your Majesties favour and laid there as a Foundation-stone of that building These and your Majesties goodness for to receive them is that I rely upon praying for your Majesties prosperity I am in all humbleness Your Majesties loyal Servant and Creature R. Somerset I should not trouble you with the Marriage of the Lady Arabella Stuart and Sir William St Maure or Seymer both of kin to the Crown she by the Earl of Lenox in Scotland as I have before said 1577. and he Grandchilde to the third Son and the Heir of the Earl of Hartford created by Henry 8. whose Sister he married 1537. and by Edward 6. made Duke of Somerset and his Protector who stiled himself Edward by the grace of God Duke of Somerset Earl of Hartford Viscount Beauchamp Lord Seymer Uncle to the Kings Highness of England Governour of the Kings Person Protector of all his Realms Dominions and Subjects Lieutenant General of his Majesties Armies both by Sea and Land Lord high Treasurer and Earl Marshal of England Governour of the Isles of Gernsey and Jersey and Knight of the most honourable Order of the Garter and bears Gules two Wings conjoyned in Fess Or. Yet all these Honours rather helped him forwards to hop headless for Felony His third Son Edward was restored to the Earldom I Eliz. and this William his Heir And thus near the Crown in all Sovereignties are needfull to be narrowly lookt into for Marriage Queen Elizabeth did so at a farther distance of danger and her Father made it Treason in his time I say I should forbear more mention but that our Detractor begins at her Death in the Tower where she was imprisoned though her Husband escaped and says That it set mens tongues and fears a work that she went the same way having almost in his last words before told the story of Overbury impoysoned in the Tower by which he now enforces belief That her Death was so done for the Kings interest when in truth she died a year before in September 1615. There happened occasion at Common Pleas to dispute the Kings power in Commendams The Church being void and in his gift whether he might give a Commendam to a Bishop either before or after his Consecration during life or for years It was argued by Serjeant Chibborn against the King That the translation of Bishops was against the Common Law his Text was the Canons of the Council of Sardis That the King had no power to grant Commendams but necessitate That there would be no necessity because no need of augmentation of Livings No man being bound to be more hospitable than his means afforded And much more argument tending to overthrow the Kings Prerogative in cases of Commendams This case was to be farther argued in the Kings absence by all the Judges which he thought to protract untill they consulted with him and so commanded his Attourney General to signifie by Letters his pleasure to all the Judges The Judges notwithstanding at the day argue the Case and return answer by Letter to the King That they held those Letters to be contrary to Law and such as they could not obey by Oath and therefore had proceeded at the day appointed setting down the Case to be upon construction of two Acts of Parliament 25 Edward 3. and of 25 Henry 8. and now between Subjects for private interest and Inheritance That their Oath is That in case any Letter come to them contrary to Law they are not to obey them but to proceed to Iustice. And so they did the last Term 27. April 1616. The Judges subsign Cook Hobert Tansield Warburton Snâ—g Altham Bromley Crook Winch Dodderidg Nicols and Houghton The King returns them answer by Letter Reporting himself to their own knowledg his princely care for justice to be duly administred to his Subjects with all expedition and how far he was from crossing or delaying the interests of private persons But on the other side where the case concerned the high Powers and Prerogatives of his Crown he would not indure to have them wounded through the sides of a private person admonishing them of an
ordinary custome lately entertained boldly to dispute the high points of his prerogative in a popular and unlawful way of Argument not heretofore usual Making them senceable how weak and impertinent the pretence of their Oath was in a case of this nature as if the Founders of their Oath His Predcessors were so intent in their zeal to be uncharitable to make a weapon to wound their Successors being an ordinary course to put off Hearings and Determinings amongst private persons Termly And commands them peremptorily not to proceed further in that Plea till his return to London there to receive his further pleasure by himself Your Oath being only for avoiding importunites to the Prince of Suiters in their own particular The King come to London convenes them all to the Council Table and himself takes in sunder the parts of the Iudges Letter and their Errours in proceeding both in matter and manner In matter by way of omission as commission When the Counseller shall presume to argue his Supremacy at the Bar and they not reprove his Insolency Himself observing since his comming to this Grown the popular Sort of Lawyers most affrontingly in all Parliaments have troden upon his Preâ—ogative though neither Law nor Lawyer can be respected if the King be not reverenced And therefore it became the Iudges to bridle their impudencies in their several Benches especially the Courts of common-Common-Law who had incroached upon all other Courts High Commission Councils in Wales and at York and Courts of Requests For the Commission in Matter whereas their Letter excepted against his Majesties command to be against the Law and their Oath He tells them deferring upon just and necessary cause is not denying or delaying of Instice but rather wisdom and maturity Nothing more proper than to cousult with the King where it concerns the Crown As for the Manner The Kings absence before the Argument and yet his resolved return speedily and the case though lately argued could not receive Iudgement till Easter Term after as the Iudges confessed And for them to say that the case was private interest of party and party One of the Parties is a Bishop that pleads for the Commendam onely by vertue of his Majesties Prerogative And that they could not prove any Solicitation of either Parties for expedition And for the form of the Letter it was undecent besides to proceed and to return a bare Certificate without giving reasons therefore Upon this all the Iudges fell down on their knees acknowledging their Errour and craving Pardon But for the Matter the Chief Iustice Cook entered into a Defence That the stay by his Majesty was a delay of Iustice and therefore against Law and their Oath that as they meant to handle the Pleading it should not concern the King's Prerogative To which the King told him That for them to discern the concernment of his Prerogative without consult with him was preposterous And for those of Law and Oath he had said sufficient before Therefore he required the Lord Chancellour's opinion herein whether against Law and their Oath The Chancellour excused himself as to that of Law referring it to the opinion of the King's Council whereupon the Atturney General Bacon said That to put off the Day was no Delay of Justice nor endangered their Oath for the King's Reasons were onely that it concerned his Prerogative and required therefore a stay for a small time and advised the Judges whether this refusal of their did not rather endanger their Oath which was To counsel the King when they are called but to counsel after the matter is past was a simple refusal to give him Counsel at all And all the rest of the Council concluded with him The Chief Justice Cook excepted That the King's Council should plead against the Iudges being their duties to plead before them not against them Whereunto the Attourney replied That the King's Council were by Oath and Office not onely to plead proceed and declare against the greatest Subject but also against any body of Subjects or persons nay were they Iudges or Courts or House of Commons in Parliament and concluded That the Iudges challenge was a wrong to their Places and appealed to the King who was firm for them The Chief Justice replied He would not dispute it with his Majesty The King replied Nor with my Council So then whether you do well or ill it may not be disputed The Chancellour gave his opinion with the King and his Council Hereupon the positive Question was put by all the Lords Whether in a Case depending which the King might conceive himself concerned in power or profit and requiring to consult with them they ought not to stay proceedings All the Judges submitted thereto onely the Chief Justice excepted saying When that Case should be then he would do his duty But the Chief Justice of the Common Pleas said For his part He would always trust the justice of the King's command But the Day drawing nigh the next Saturday for arguing the Commendams the King desired the Judges to express Whether they would then argue upon the Kings general power of granting Commendams yea or no. They all concluded Not to draw into doubt his power but to insist upon the point of Lapse which they conceived to be of a form different from former Commendams and concluded to correct the insolencies of bold arguing the Prerogative Judge Doderidge concluded for the King That the Church was void and in his gift and might give a Commendam to a Bishop either before or after Consecration during Life or years The Judges being gone the privy Council resolved that the Kings desire was not against the Judges Oath nor against the Common Law to require and all of them subscribed to the same This Dispute was publiquely scanned and censured in favour of the Judges and on the contrary for the King but the truth I have really extracted out of the Records of the Council Table That you may thereby see the true scope of those times The State of Spain having little to do in Martial affairs K. Philip the third now in peace thought to spend some time in Treatiâ—s wherin he seldom failed of advantage The late French King Henry the fourth had 3. daughters the one maried to the Duke of Savoy which the Spaniard misliking to have those Neighbours lately so great Enemies now to be linkt in love without his Interest conceived it good policy to indeer the young King Lewis of France in a cross Match to his Daughter Infanta Anna and to marry his son Philip to the Princess Elizabeth the second daughter of Henry the fourth And thus those cross Nuptials might seem to cement the affections of the three States lately so imbroyled in War which no doubt either of them had good cause to accept though it was said S. P. Q. R. Spain Pope Queen-Regent had the chief hand to undo the young King For the Father Henry the fourth had made
would always say Lyes are not long liv'd And indeed more he could not have Examples vary some Ambassadours in like cases have been secured and punished others freed by privilege for in the times of the Scots Affairs with Us and France frequent Presidents have been used by Throgmorton Randolph Tanworth and Bishop Ross according to the power of the Princes where they have been committed as hath been before mentioned The Earl of Bristol this while in Spain received command to take leave of that King and to return and had intelligence from hence in what hazard he should appear after such Complaints in Parliament against him And indeed he delayed it so long that it was suspected he would stay there being so advised by the King of Spain who gave him assurance of all Civility and kindness in his Court for security rather than adventure his head at home But these branglings here feigned there to be high Distraction gave him courage to return where no sooner appeared but was clapt up in the Tower saâ—es one and the next day set at Liberty nor durst any bring him to farther Tryal He was committed by the Lords in Parliament and might have lain there longer a Prisoner but the Duke made means for his release least it should move jealousies that it was his design thereby to delay his Tryal and this to my knowledge for I acted in his release He being earnestly pursued by the Duke and had the Parliament lasted it might have proved his destruction who afterwards humbled himself and gained favour to retire into the Countrey to Shirbone that fatal seat for suceeding Offendors But the Spanish Ambassadours practice failing some Lords set on work a Petition to the King against Papists as intending it necessary to go on with the complyance of the Publick Affair now happâ—ly proceeding or to hazard all and nothing would serve to satisfy these Men but several Conferences of both Houses untill they had with consent framed their Propositions and presented them to the King in two Petitions alike We your Majesties most Humble and Loyal Subjects the Lords and Commons do in all humility offer unto your Majesty These two Petitions THat for the more safety of your Realms and better keeping your subjects in obedience and other important reasons of State your Majesty would be pleased by some such course as you shall think fit to give present Order that all the Laws be put in due execution against Iesuits Seminary Priests and others having taken Orders of the See of Rome and generally against all Popish Recusants and as for disarming that it may be done according to the Laws Acts and Directions of State in that Case And least the Iesuits and Priests here may pretend to be surprissed that a day certain may prefix their departure and neither they nor other to return or come hither upon peril of severest Penalties of the Lawes now in force And that no Subjects receive entertain or conceal them upon penalties c. Seeing we are thus happily delivered from those Treaties and the use which your ill affected subjects made thereof and yet we fore see the like hereafter We therefore are humble Suiters to your Majesty To secure the hearts of your good Subjects by your Royal word That upon no occasion of Marriage or Treaty or such other Request from foreign Prince or State what soever you will slacken the execution of the said Laws against Iesuits Priests and Popish Recusants And humbly pray a gratious Answer The King doubting this double Petition intended as a check to the main business resolved yet to satisfie them That he commends both Houses for their Petition but wonders at their suspition to spur him on to his conscience and duty That his Religion Profession and behaviour his own Books declare nor will swarve from them for he that dissembles with God will be distrasted by Men. That his heart bleeds at the increase of Popery as thorns in his eyes and pricks in his sides He hath alwaies desired to hinder the growth as a Martyr As in the sense of Isaac persecuted by Ismael by mocking words as no King ever suffered more of ill tongues Yet he hath been far from per seeuting believing that rule Sanguis Martyrum est semen Ecclesiae As for the Petition he grants in substance what they ask and adds of his own Their Treaties being annulled their desire is granted and will declare by Proclamation to banish Iesuits and Priests by a day but a Proclamation here extends onely to this Kingdome He will do more command his Iudges in circuit to put the Laws in Execution against Recusants as before the Treaties the Laws being in force and never dispensed with by him but as he told them heretofore as a good Horseman to use sometimes the Reigns not alwaies the spur He promisâ—th by Declaration to disarm them which indeed is done by the Laws Nay will disorder the Papists frequenting to Ambassadours Masses for though he cannot break their privilege yet the Lord Maior and Officers may seize them as they come out And resolves to order the Education of Recusants children as he hath advised therein with his Bishops and Council The second part of the Petition is the best advice in the World being against the Rule of Wisdome that Subjects should transgresse a Law by Intercession of a Foreign Prince and forst in such conditions in such a Treaty which he will avoid in any whatever This his answer so satisfactory as pleased the Parliament Saâ—es Calumny He promised much and performed little See what he did by the sequel Order was forthwith to inroll the chiefest Recusants you see he spares none nor were the Parliament so nice as to leave the best of them out The Earl of Rutland Sir Thomas Compton the Dukes two Fathers in Law the Countess his Mother Earl Castlehaven the Lords Herbert Rivers Peter Morly Windsor Eure Wootton Teinham Scroop and of Knights Courtney Brewdnel Somerset Ireland Stonners Brown Howard Powel Lacon Lewkner Awbery Gage Shelly Carvel Wiseman Gerrard Filpot Russel Bedingfield Wrey Conwey Iones Conyers Lamplow Savage Mosly Beston Riddal Wyral Townsend Norris Knevet Tasborough Selby Tichburn Hall Perkins Penruddock Sands and divers Esquires and Gentlemen either by themselves or their Wives These men were all at Mercy and who ever else the Parliament would pick out with lime and baited Hooks to catch them for the King not minded to interrupt them having done his part withdrew to New Market cold air for his Northern conditions the most healthy The Prince increasing in years and in affection of the People it was most convenient also to speed him a marriage The Treaties with Spain being thus far annulled Some Overtures were hinted from France of their willingness for a Match with Madam the Princess Henriâ—tta Maria the French Kings youngest Sister the two others being preferred to Spain and Savoy And because it was necessary to feel